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THOMAS, Circuit Judge.
This case involves a dispute over a Bureau of Reclamation project to build a concrete-lined canal to replace an unlined portion of the All-American Canal. The district court denied declaratory and in-junctive relief. A motions panel of our Court granted a temporary injunction halting work on the project pending appeal. After the initial oral argument and based on intervening legislation, the United States filed a motion to vacate the injunction and to remand the action to the district court with instructions that several of the claims be dismissed as moot. We held a second oral argument to consider the motion.
After consideration of the extensive briefing and arguments of the parties, we conclude that the environmental and other statutory claims are moot and that the district court lacked subject matter jurisdiction over the remaining claims. We vacate the injunction of the project pending appeal and remand the case to the district court with instructions to dismiss it.
I
Colorado Poet Laureate Thomas H. Fer-ril described the West by saying: “Here is the land where life is written in water.” The legacy of the West is one of continual, and often bitter, controversies about water rights, both above and below the surface. In the West, “whiskey is for drinking; water is for fighting over,” Mark Twain is said to have observed. Our water dispute brings us to the Mexican-California border and the plans of the United States Bureau of Reclamation to prevent the All-American Canal from seeping water — seepage upon which thousands of Mexicans rely.
The All-American Canal is one of the world’s largest irrigation canals, carrying water from the Colorado River to the Imperial Valley in California. The Imperial Valley lies between the Mexican boundary and the Saltón Sea, bounded on the east by sandhills and on the west by the foothills of the San Diego Mountains. The canal is the valley’s only source of water.
The All-American canal replaced the Alamo canal, which diverted water a short distance north of the Mexican border, but transported water mostly through Mexico before it re-crossed the border into the Imperial Valley. In the 1920’s, considerable sentiment arose to have a canal that was entirely contained within the boundaries of the United States — perhaps in furtherance of the notion of character Noah Cross (slightly paraphrased), that “either you bring the water to California, or you bring California to the water.” In any event, the concept of an “all-American” canal was born.
The All-American Canal System was authorized under the Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, codified at 43 U.S.C. § 617. Construction of the canal by the United States Bureau of Reclamation commenced in 1934 following the construction of the Hoover Dam, with the project reaching completion in 1942. The design was aimed to have the water transported entirely within the United States. The new canal, as designed, flowed only in the United States. However, water often refuses to be confined by our artificial restraints. Thus, although the canal’s surface water remained in the United States, its seepage did not — recharging the Mexicali Aquifer and providing a reservoir of groundwater to the Mexicali Valley on the other side of the border. The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. The complaint alleges that the roughly 1.3 million people who live in the Mexicali Valley depend on the groundwater from the aquifer, which irrigates thousands of acres of farmland.
Prior to 1901, the aquifer was recharged by the Colorado and Alamo rivers. Because it was unlined, the construction of the Alamo Canal did not impact the recharge of the aquifer. Congress considered the idea of lining the All-American Canal, but ultimately decided on an earthen and porous design that did allow seven percent of the volume to seep into northern Mexico.
Seepage from the All-American Canal first caused widespread flooding in the Mexicali Valley until mechanisms were put in place to harness the water. The residents and businesses of the Mexicali Valley have since expended considerable resources to create an infrastructure of pumping facilities and conveyance equipment that deliver the water for drinking and irrigation. As a result, the complaint alleges that a large metropolitan community has developed in reliance on the water.
In 1944, the United States and Mexico entered into a treaty designed to govern the allocation of Colorado River water between the two nations. See Treaty Between the United States of America & Mexico Respecting Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande [“1944 Treaty”], 59 Stat. 1219, T.S. No. 994, Section III, Art. 10 (Nov. 8,1945).
The Treaty came in the context of a developing set of domestic authorities designed to regulate the use of Colorado River water known collectively as the “Law of the River.” After the first World War, as Congress began considering further ways to capture and regulate Colorado River water, the states constituting the Upper Basin of the river (Colorado, Utah, New Mexico and Wyoming) grew concerned that states in the Lower Basin (Arizona, Nevada and California) would begin to claim appropriation rights to the water. See Maricopa-Stanfield v. United States, 158 F.3d 428, 430 (9th Cir.1998). The Colorado River Compact of 1922 apportioned 7.5 million acre feet of water annually to the Lower Basin states to forestall any disputes. See Act of August 19, 1921, art. 2, 43 Stat. 171, reprinted in Ariz.Rev.Stat. § 45-1311. The Boulder Canyon Project Act of 1928 (“Canyon Project Act”) then apportioned that 7.5 million acre feet among the Lower Basin states. See Maricopa-Stanfield, 158 F.3d at 430. To deliver the allocations called for in the Act, the Canyon Project Act authorized the construction of the All-American Canal. See 43 U.S.C. § 617. The apportionment between the Lower Basin states has also been the subject of a series of Supreme Court decisions and decrees, culminating in Arizona v. California, 547 U.S. 150,126 S.Ct. 1543, 164 L.Ed.2d 271 (2006) (“Consolidated Decree”).
The Treaty requires the United States to deliver 1.5 million acre feet of Colorado River water to Mexico annually at designated diversion points on the international land boundary as specified in the Treaty. The Treaty also commits the United States to delivering an additional 200,000 acre feet in any year in which there is a surplus of Colorado River water in excess of the amount required to satisfy other obligations. The Treaty then states that “Mexico shall acquire no right beyond that provided by this subparagraph by the use of the waters of the Colorado River system, for any purpose whatsoever, in excess of the 1,500,000 acre feet ... annually.” 1944 Treaty at Art. 10. The Treaty commits the United States to constructing the works necessary to deliver these waters to the diversion points. The Treaty considered the All-American Canal to be one of the mechanisms for delivery. The Treaty committed to the International Boundary and Water Commission (“Boundary Commission”) the authority to resolve disputes arising under the Treaty. Id. at Art 2, 24(d).
In 1973, the Boundary Commission issued “minute 242” addressing the problem of the salinity of the Colorado River. See Agreement Confirming Minute No. 242 of the International Boundary and Water Commission, U.S. and Mex., 24 U.S.T.1968 (Aug. 30, 1973). The minute acknowledged that there was no existing agreement governing groundwater issues in the border area between the two nations. The agreement also stated that “[w]ith the objective of avoiding future problems, the United States and Mexico shall consult with each other prior to undertaking any new development of either the surface or the groundwater resources, or undertaking substantial modifications of present developments, in its own territory in the border area that might adversely affect the other eountry.” Id.
In 1988, Congress passed the San Luis Rey Indian Water Rights Settlement Act (“Settlement Act”) which authorized the Secretary of the Interior (“Secretary”) to select one of three options for recovering the seepage lost through the All-American Canal. Pub.L. No. 100-675, 102 Stat. 4000, § 203. The choices included constructing a parallel lined canal, lining the existing canal, or constructing seepage recovery facilities such as a well-field between the All-American Canal and the border. The Secretary also considered a no action option. The Settlement Act explained that “significant quantities of water currently delivered into the All American Canal and its Coachella Branch are lost by seepage from the canals and that such losses could be reduced or eliminated by lining these canals.” Id. at § 201. The conserved water was to be used to meet the growing needs of California consumers, as well as to settle water rights claims brought by several Native American groups. Id. at § § 106, 204. The Imperial Irrigation District (“HD”), with whom the Secretary contracts to manage the All-American Canal, and the Metropolitan Water District of Southern California (“MWD”) would deliver the additional water to consumers. Id. at § 202.
The Secretary then undertook several environmental studies to consider the impact of the All-American Canal lining project (“Lining Project”) and issued a final environmental impact statement (“FEIS”) and record of decision (“ROD”) in 1994. The FEIS was noticed in the Federal Register at that time. 59 Fed.Reg. 18,573 (Apr. 19, 1994). After consideration of all the alternatives, the ROD selected the parallel lined canal option and the Bureau of Reclamation approved the ROD on July 29,1994.
Thereafter, the United States engaged in a diplomatic interchange with Mexico and the Mexican section of the Boundary Commission. There is some dispute as to the nature and extent of that exchange. The United States claims that it engaged in an extensive consultation progress; Mexico, as amicus, complains of cursory and insufficient consultation.
The Lining Project lay dormant, however, because the Settlement Act required that the project be paid for by entities benefitting from the conserved seepage and not by the United States. Settlement Act at § 203. While the plan was dormant, the Bureau of Reclamation conducted a reexamination of the FEIS in 1999, but determined that no new significant information changed the initial analysis and thus a supplemental environmental impact statement (“SEIS”) was not required.
By 2002, the State of California was using over five million acre feet of Colorado River water per year, 600,000 acre feet above its 4.4 million acre feet allotment under the terms of the Canyon Project Act and Consolidated Decree. Awareness of the size of this usage led to an intensive effort by the region’s water users to assist California in reducing its historical overuse of Colorado River water. This effort led to a series of agreements in 2003 between the United States, the MWD, Coachella Valley Water District, IID, San Diego County Water Authority (“SDCWA”), the La Jolla, Pala, Pauma, Rincon & San Pasqual Bands of Mission Indians, the San Luis Rey River Indian Authority, and the City of Escondido & Vista Irrigation District (the “Allocation Agreement”). The Allocation Agreement provided how the conserved seepage water would be allocated. One aspect of the agreement was that the State of California would pay for the Lining Project.
With the project back on track, the Bureau of Reclamation asked the United States Fish and Wildlife Service (“FWS”) to confirm as a biological opinion a conference opinion the FWS had issued on February 8, 1996, regarding the Lining Project’s impact on the Peirson’s Milk Vetch, a threatened plant species. FWS so confirmed the opinion on September 9, 2004.
On July 19, 2005, this action was filed in the District of Nevada seeking to enjoin the Lining Project. The Plaintiffs consisted of Consejo de Desarrollo Económico de Mexicali, A.C. (“Consejo”), a Mexican community group, and two American non-profit environmental groups (“Environmental Plaintiffs”) (Citizens United for Resources and the Environment [“CURE”] and Desert Citizens Against Pollution [“Desert Citizen”]). The City of Calexico, California, (“Calexico”) later intervened as a plaintiff as to one count of the complaint. The parties stipulated to, and the district court approved, the intervention of multiple entities on the side of the defense, including the Imperial Irrigation District, the San Diego County Water Authority, the Central Arizona Water Conservation District, the State of Nevada, the Southern Nevada Water Authority, and the Colorado River Commission of Nevada. The court also has been aided at various points in the proceedings by other interested parties and amici.
After the district court dismissed a number of counts in the original complaint, the Plaintiffs filed an amended eight-count complaint on February 23, 2006, seeking declaratory and injunctive relief. The first four counts were brought by Consejo, on behalf of a class of beneficial users of the Mexicali Aquifer and the All-American Canal on the Mexican side of the border. Count One alleged an “unconstitutional deprivation of property without due process of law in violation of the class’ substantive and procedural rights.” Count Two alleged a constitutional tort pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), based on the “usurpation of water rights owned by the well owners and water users in the Mexicali Valley” by the Secretary and the Commissioner of the Bureau of Reclamation. Count Three alleged that the “application of water rights priorities in the present context is subject to the doctrines of equitable apportionment or equitable use,” and that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley.” Count Four alleged that the “Secretary and Commissioner are estopped from operating the All-American Canal” in any manner that would block the seepage that has recharged the Mexicali Aquifer for the preceding 63 years.
All of the Plaintiffs joined in Count Five, which alleged a violation of the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”). In this count, the Plaintiffs argued that the Secretary and Commissioner failed to prepare a SEIS despite the existence of significant new circumstances bearing on the proposed project. The Plaintiffs argue that five new circumstances warrant preparation of a SEIS: (1) the discovery of the Andrade Mesa Wetlands in Mexico and its importance as a habitat for the endangered Yuma Clapper Rail after preparation of the FEIS; (2) the anticipated transborder socio-eco-nomic impacts from the water loss, which has been altered and exacerbated since the FEIS by demographic changes and the passage of NAFTA; (3) new reports suggesting possible unexplored impacts on the Saltón Sea; (4) alterations in the project plan with regard to human safety mechanisms designed to prevent drowning; and (5) changes in the air quality condition of the effected region. The district court later granted Plaintiff in Intervention status to Calexico as to this count.
The final three counts were brought by the Environmental Plaintiffs. Count Six alleged violations of the Endangered Species Act. Specifically, the amended complaint alleged that Bureau of Reclamation failed to reinitiate consultations with the FWS as required despite new information about wetlands habitat and the species therein — namely, the Yuma Clapper Rail and the Peirson’s Milk Vetch — which came to light after the FEIS and biological opinions in existence had been issued. Count Seven alleged an unlawful taking of a listed migratory bird in violation of the Migratory Bird Treaty Act. Count Eight alleged violations of environmental requirements that were made a part of the Settlement Act. The amended complaint also alleged that no amount of damages would be sufficient and thus equitable relief was necessary.
Subsequent to the filing of the complaint in this case, on November 18, 2005, the Bureau of Reclamation issued a biological analysis for the Lining Project regarding the Potential Species Impact in the Republic of Mexico and transmitted it to the FWS. The FWS informed the Bureau of Reclamation by memorandum dated January 11, 2006, that, in its opinion, consultation with FWS was not required by the ESA when the impacts being considered take place in foreign territory. One day later, on January 12, 2006, the Bureau of Reclamation issued a Supplemental Information Report (“SIR”) which determined that no substantial changes, significant new information, or circumstances existed that would require the Bureau of Reclamation to issue a SEIS.
The Plaintiffs moved for summary judgment as to Count Five (NEPA violations) and CURE moved for summary judgment as to Count Six (Endangered Species Act violations). The Defendants opposed those motions and cross-moved for summary judgment on those claims. The Defendants also moved to dismiss counts 1-4 and 6-8 of the amended complaint for lack of standing, and contended in addition that claims five, seven and eight were time barred.
On June 23, 2006, the district court granted the motion to dismiss Consejo with respect to Counts 1-4 and 6-8, but denied the motion to dismiss CURE with respect to Counts 6-8. The order also held that Counts Seven and Eight were time-barred and that Count Five was time-barred with respect to any challenge to the 1994 FEIS, but not with respect to any challenge to the Bureau of Reclamation’s failure to produce a SEIS.
On July 3, 2006, the district court denied The Plaintiffs’ motion for summary judgment as to Count five and CURE’S motion for summary judgment as to Count Six and granted The Defendants’ cross-motions on both those counts. Judgment was entered on July 3, 2006. The Plaintiffs filed timely appeals from the judgment.
The Plaintiffs then filed a motion in the district court for an injunction pending appeal, which was denied. The Plaintiffs filed a motion for an injunction pending appeal with this Court, which was granted by a motions panel of the Court.
After we heard oral argument on the merits of the appeal in December 2006, Congress enacted and the President signed into law the Tax Relief and Health Care Act of 2006, Pub. Law No. 109-432, 120 Stat. 2922 (“2006 Act”). Contained within the 274-page omnibus tax bill were sections directly affecting the Lining Project. In pertinent part, the 2006 Act provided that:
(a) ... Notwithstanding any other provision of law, upon the date of enactment of this Act, the Secretary shall, without delay, carry out the All American Canal Lining Project identified — (1) as the preferred alternative in the record of decision for that project, dated July 29, 1994; and (2) in the allocation agreement allocating water from the All American Canal Lining Project, entered into as of October 10, 2003.
(b) ... (1) ... Subject to Paragraph (2), if a State conducts a review or study of the implications of the All American Canal Lining Project as carried out under subsection (a), upon request from the Governor of the State, the Commissioner of Reclamation shall cooperate with the State, to the extent practicable, in carrying out the review or study.
(2) Restriction of Delay. — A review or study conducted by a State under paragraph (1) shall not delay the carrying out by the Secretary of the All American Canal Lining Project.
Id. at § 395. Section 397 of the 2006 Act provides that:
The Treaty between the United States of America and Mexico relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, and supplementary protocol signed November 14, 1944, signed at Washington February 3, 1944 (59 Stat. 1219) is the exclusive authority for identifying, considering, analyzing, or addressing impacts occurring outside the boundary of the United States of works constructed, acquired, or used within the territorial limits of the United States.
Id. at § 397.
Following the effective date of the 2006 Act, the United States filed a motion to remand this case to the district court with instructions that Counts Five through Eight of the amended complaint be dismissed as moot and for an order vacating the injunction pending appeal imposed by the motions panel. The Plaintiffs vigorously opposed the motion, and we heard argument on the motion.
II
If legislation passing constitutional muster is enacted while a case is pending on appeal that makes it impossible for the court to grant any effectual relief, the appeal must be dismissed as moot. Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir.2006). Here, the government contends that enactment of the 2006 Act renders the statutory environmental claims contained in Counts 5-8 of the amended complaint moot. In those counts, the Environmental Plaintiffs allege that the Lining Project cannot proceed until the government complies with NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act.
A
In examining the impact of the 2006 Act on this case, we employ our usual methodology in statutory construction. As always, our starting point is the plain language of the statute. Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir.1999). “[W]e examine not only the specific provision at issue, but also the structure of the statute as a whole, including its object and policy.” Id. If the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid to interpretation unless “the legislative history clearly indicates that Congress meant something other than what it said.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc). If the statutory language is ambiguous, we consult legislative history. United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999).
The government underscores the provisions of the 2006 Act that direct the Bureau of Reclamation to proceed with the Lining Project “without delay” and “notwithstanding any other provision of law.” 2006 Act, § 395(a). The government contends that the import of this language is to exempt the Lining Project from compliance with any other federal law.
Assuming it uses constitutional means, Congress may exempt specific projects from the requirements of environmental laws. See Sierra Club v. USFS, 93 F.3d 610, 613-14 (9th Cir.1996); Mt. Graham Coalition v. Thomas, 89 F.3d 554, 556-58 (9th Cir.1996); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1457-61 (9th Cir.1992); Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1432 (9th Cir.1989) (noting that Congress may “moot a pending controversy by enacting new legislation”). Our first task in examining the statute is to determine whether Congress intended that result.
The fact that the 2006 Act used the phrase “notwithstanding any other provision of law” is not dispositive. United States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir.2007) (en banc). Indeed, “[w]e have repeatedly held that the phrase ‘notwithstanding any other provision of law' is not always construed literally.” Or. Natural Res. Council v. Thomas, 92 F.3d 792, 796 (9th Cir.1996). Rather, when the phrase is used, we have determined its reach by “taking into account the whole of the statutory context in which it appears.” Novak, 476 F.3d at 1046. In viewing the statutory context, we attempt “to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section,” Estate of Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir.1993), mindful that “[t]he cardinal principle of statutory construction is to save and not to destroy,” id.
Placing the “notwithstanding” language of the 2006 Act in context, we are guided by the further statutory language that the Lining Project proceed “without delay” “upon the enactment of this Act.” 2006 Act § 395(a). If Congress had intended for the Lining Project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all. The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding “without delay” “upon the enactment of this Act.” The Environmental Plaintiffs allege in their complaint that the Lining Project violates various federal environmental statutes and cannot proceed until the government complies with those strictures. Thus, application of the cited statutes cannot be reconciled with the language of the 2006 Act. Under those circumstances, when Congress has directed immediate implementation “notwithstanding any other provision of law,” we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation. Mt. Graham Red Squirrel, 954 F.2d at 1456. That is not to say the agency may act lawlessly in completing the project. See Or. Natural Res. Council, 92 F.3d at 797 (rejecting the idea that the phrase “notwithstanding any other provision of law” “require[d] the agency to disregard all otherwise applicable laws,” other than the environmental statutes at issue). Rather, we have applied a common sense construction of the phrase to refer to those laws that would delay the commencement of a project in derogation of express Congressional directive to proceed immediately or, in this case, “without delay.”
Applying these principles to the case at hand, we must conclude as a matter of statutory construction that the 2006 Act renders the challenges to commencement of the Lining Project based on NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act (contained in Counts Five through Eight of the amended complaint) moot. Each of those claims, if relief were to be granted, would delay commencement of the Lining Project. Congress has instructed otherwise, “notwithstanding any other provision of law.” Therefore, we must construe the 2006 Act as exempting the Lining Project from the identified statutory claims. If valid, the 2006 Act thus exempts the Bureau of Reclamation from the challenges contained in Counts 5-8 of the amended complaint.
B
Having determined the 2006 Act’s statutory reach, we turn to the Plaintiffs’ other objections to the application of the 2006 Act to the instant case. The Plaintiffs contend that the 2006 Act (1) violates the Tenth Amendment, (2) invades the judiciary’s Article III powers, (3) violates the Equal Protection Clause, and (4) deprives them of protected constitutional interests without due process of law. None of these arguments is persuasive.
1
The Plaintiffs argue that the 2006 Act violates the Tenth Amendment because it requires the Bureau of Reclamation to commandeer California’s resources to carry out the project given that the Settlement Act directs that “[n]o federal funds are authorized to be appropriated to the Secretary for construction of [the canal].” Pub.L. No. 100-675, § 203(e)(1), 102 Stat. 4000 (Nov. 17,1988).
As with all claims, we must satisfy ourselves that we have jurisdiction. We must determine independently that the Article III requirement of a live case or controversy has been met, even if the issue has not been raised by the parties. See American Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006). If a “live” controversy does not exist, the case is moot. Id. (citing City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)).
Here, the Plaintiffs argue that if the 2006 Act goes into effect, it will require the commandeering of California’s financial resources. However, California has already agreed to appropriate its financial resources to the Lining Project. See The Allocation Agreement. Therefore, the controversy the Plaintiffs seek to litigate by this challenge — whether the United States may appropriate California’s resources — no longer exists. Accordingly, we hold that this claim is moot and we therefore lack jurisdiction to reach its merits.
2
The Plaintiffs also contend that the 2006 Act violates the principle of separation of powers by dictating a specific result in a pending judicial case. Congress may change the substantive law governing a pending case so long as it does not “direct any particular findings of fact or application of law, old or new, to fact.” Robertson, 503 U.S. at 438, 112 S.Ct. 1407. However, “[t]he constitutional principle of separation of powers is violated where (1) Congress has impermissibly directed certain findings in pending litigation, without changing any underlying law, or (2) a challenged statute is independently unconstitutional on other grounds.” Ecology Ctr. v. Castaneda, 426 F.3d 1144, 1148 (9th Cir.2005) (internal quotation marks and citations omitted).
This type of controversy and claim is not new. We have considered similar challenges in the context of planned government action, and concluded that similar legislation did not violate the principle of separation of powers. Ecology Ctr., 426 F.3d at 1148-49; Mt. Graham Red Squirrel, 954 F.2d at 1457-58; Stop H-3 Ass’n, 870 F.2d at 1431. As in the legislation underpinning our prior decisions, the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers.
3
The Plaintiffs next claim that the 2006 Act violates the Equal Protection Clause by selectively denying Latinos their fundamental life and property interests in a healthy environment because the effected Imperial Valley region has a large Latino population. They argue that strict scrutiny applies to the legislation since it discriminates against Latinos as a suspect class and that the Act cannot survive strict scrutiny review.
We need not reach the merits of this claim because, on the record before us, Desert Citizen does not have standing to bring it. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth v. Laidlaw Envt’l Serv. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
Here, Desert Citizen fails the first of these three elements. It has not demonstrated that any of its members would have standing to bring this claim in their own right. Desert Citizen’s argument, that it is being discriminated against on the basis of a suspect class' — namely, Latinos — requires that its members are also members of that class. Nothing in the record indicates that they are. We further note that nothing in the record indicates that representing the interests of Latinos is germane to Desert Citizen’s organizational purpose. Accordingly, Desert Citizens does not have organizational standing to bring this claim.
4
Desert Citizen also challenges the 2006 Act as violating its procedural due process rights by depriving its members of life and property interests in a healthy environment without due process of law. This challenge is based on the asserted failure of Congress to comply with its own procedural rules in adopting §§ 395 and 397 of the 2006 Act. We need not decide here whether the right to a healthy environment is of constitutional magnitude. Cf. Stop H-3, 870 F.2d at 1430 & n. 21. Even assuming, arguendo, that it is, the procedural decision of Congress, discharging its function as a lawmaking body, not to hold a hearing on general legislation is a question not subject to judicial review. “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). “A controversy is nonjusticiable — i.e., involves a political question-where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663(1962)). However, “the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed.” Here, Article I of the Constitution provides that “[ejach House may determine the Rules of its Proceedings.” U.S. Const., art. I, § 5. In short, the Constitution textually commits the question of legislative procedural rules to Congress. Thus, whether Congress decides to hold a hearing on legislation applicable to the general public is a non-justiciable political question beyond our power to review.
5
Given that the 2006 Act passes constitutional muster on the claims raised by the Plaintiffs, we must give it full effect as we have construed it. Therefore, we conclude that, in light of the 2006 Act, we cannot fashion effective relief and the challenges raised in Counts 5-8 based on alleged past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act are moot.
Ill
The remaining claims asserted by Con-sejo in Counts 1-4 based on various property rights and common law theories are not affected by the 2006 Act. However, for various reasons, the district court lacked subject matter jurisdiction over those claims.
A
The district court lacked subject matter jurisdiction over Consejo’s first claim, that its members were deprived of property without due process of law. Assuming, without deciding, that Consejo’s members had a cognizable property interest, its remedy for an alleged takings claim is under the Tucker Act, 28 U.S.C. § 1491. A takings claim is premature until the plaintiffs have exhausted their rights under the Tucker Act. Preseault v. ICC, 494 U.S. 1, 17, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). This restriction is jurisdictional. “The simple fact is that we have no jurisdiction to address the merits of takings claims where Congress has provided a means for paying compensation for any taking that might have occurred.” Bay View, Inc. on behalf of AK Native Village Corps. v. Ahtna, Inc. 105 F.3d 1281, 1285 (9th Cir.1997).
Consejo appears to be claiming that the Lining Project may be enjoined because it infringes on its members’ property rights. However, as we noted in Bay View, “the government is not prohibited from taking private property; indeed the eminent domain clause contemplates that the government will take private property as needed for public purposes, so long as it pays compensation.” Id. at 1284. In short, jurisdiction over Consejo’s takings claim lies in the Court of Federal Claims, not the District of Nevada.
B
The district court also lacked subject matter jurisdiction over Consejo’s Bivens claims. In Count Two of the amended complaint, Consejo seeks to enjoin various individual government officials, based on Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Bivens created a remedy for violations of constitutional rights committed by federal officials acting in their individual capacities. In a paradigmatic Bivens action, a plaintiff seeks to impose personal liability upon a federal official based on alleged constitutional infringements he or she committed against the plaintiff. See, e.g., Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir.2003). “[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 (9th Cir.2000). Therefore, the Supreme Court has refused to extend Bivens remedies from individuals to agencies. FDIC v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).
Here, Consejo has sued various Federal officials in their official capacities. It seeks to enjoin official action. Consejo does not claim damages based on the past unconstitutional acts of Federal officials in their individual capacities. Therefore, the district court lacked subject matter jurisdiction over the claim because the United States has not consented to its officials being sued in their official capacities.
C
Consejo’s third and fourth claims (apportionment and estoppel) seek equitable remedies based on common law property rights. However, because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims.
The United States, as a sovereign, is immune from suit unless it has waived its immunity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). A court lacks subject matter jurisdiction over a claim against the United States if it has not consented to be sued on that claim. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A waiver of sovereign immunity by the United States must be expressed unequivocally. United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). As a general matter, purported statutory waivers of sovereign immunity are not to be liberally construed. Id. at 34, 112 S.Ct. 1011.
The only waiver of the sovereign immunity of the United States cited by Consejo is the Administrative Procedure Act. Section 702 of the APA states that
[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.... The United States may be named as a defendant in any such action ... Provided, That any mandatory or injunc-tive decree shall specify the Federal officer or officers ... personally responsible for compliance.
5 U.S.C. § 702 (emphasis added).
However, as we have noted, “[d]espite the breadth of this language, the statute does not confer jurisdiction independent of some other specific statute.” Office of Governor, Territory of Guam v. Dep’t of Health and Human Servs., Admin. on Dev. Disability, 997 F.2d 1290, 1292 (9th Cir.1993). In Califano v. Sanders, 430 U.S. 99, 107 n. 6, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court noted that the § 702 language must be read in conjunction with § 703, which suggested that the APA remedies under § 702 “look[ed] to outside sources of jurisdictional authority.”
By itself, § 702 does not impose any substantive duties on agencies or government officials. It is a procedural statute that requires another relevant statute to form the legal basis for the complaint that the government has acted unlawfully. See Wright, Miller & Cooper, 14A Federal Practice and Procedure § 3659 (3d ed.2006).
Here, Consejo’s counts three and four rely not on relevant statutes that the Bureau of Reclamation is alleged to have violated, but rather on Consejo’s members’ common law water rights. In count three, Consejo alleges that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley,” but it does not state from where that duty derives. In count four, Consejo only alleges that “[t]he Secretary and Commissioner are es-topped from operating the All-American Canal Project differently” than before. Absent any relevant statute on which to judge the legality of the agency’s actions, § 702 is inapplicable and cannot be invoked as a waiver of sovereign immunity.
Therefore, Consejo’s equitable claims of apportionment and estoppel are barred by sovereign immunity. Because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims.
IV
In sum, the 2006 Act renders the claims based on past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act moot. The district court lacked jurisdiction over Consejo’s takings claim, which must be asserted before the Court of Federal Claims. Consejo’s remaining claims are barred by sovereign immunity.
We remand this case to the district court with instructions to dismiss Counts 5-8 as moot and to dismiss Counts 1-4 for lack of subject matter jurisdiction. We vacate the injunction pending appeal previously entered by the motions panel. Given our decision, we need not and do not reach any other questions raised by the parties or relied upon by the district court. All pending motions are denied as moot.
VACATED and REMANDED with instructions.
. Chinatown (Paramount 1974).
. The Plaintiffs make two additional claims that we do not address. First, the Plaintiffs contend that if the currently-planned project proceeds it will violate the 2006 Act itself, because the Act calls for implementation of the preferred alternative as determined by the 1994 ROD, but the plan has changed since then — namely, the 1994 plan called for human safety ridges on the canal to prevent drowning while the 2006 plan calls for ladders. Because the complaint never alleged violations of the 2006 Act — indeed, it could not have — that claim is not properly before us.
Likewise, Desert Citizen claims that the 2006 Act still requires compliance with the air quality commitments made in the 1994 FEIS and ROD. We agree and the government does not dispute this point. Desert Citizen has not alleged that Reclamation is not in compliance with those commitments. To the extent Desert Citizen’s claim is that the project is or will be in violation of the 2006 Act if it does not so comply, that claim is similarly not before us.
. Although the Bureau of Reclamation, being a Federal agency, is not subject to the strictures of the Equal Protection Clause, "In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme Court indicated that the Fifth Amendment’s Due Process Clause, subjects the federal government to constitutional limitations that are the equivalent of those imposed on the states by the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause commands that no state shall deny any person the equal protection of the laws. U.S. CONST. amend. XIV, § 1.” Stop H-3 Assn, 870 F.2d at 1429 n. 18. We therefore read Desert Citizen’s challenge as a Fifth Amendment claim.
. This contention is based on the claim that minority communities are often exposed to greater environmental hazards than non-minority communities. See Kessler v. Grand Cent. Dist. Management Ass’n, Inc., 158 F.3d 92, 130 (2d Cir.1998) (citing Michele L. Knorr, Environmental Injustice, 6 U. Balt. J. Envtl. L. 71, 77-84 (1997) (summarizing evidence of discrimination against minority and low-income communities with respect to pollution and hazardous waste disposal); Edward P. Boyle, Note, It’s Not Easy Bein’ Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 Vand. L.Rev. 937, 968 (1993) ("A substantial amount of evidence shows that environmental discrimination is a national phenomenon.”); Rachel D. Godsil, Note, Remedying Environmental Racism, 90 Mich. L.Rev. 394, 397 (1991) ("A host of studies have concluded that minorities are exposed to a higher level of pollution of all forms than are whites.”); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, Nat'l. L.L, Sept. 21, 1992, at S2 (concluding from results of study that "federal government, in its cleanup of hazardous sites and its pursuit of polluters, favors white communities over minority communities under environmental laws meant to provide equal protection for all citizens”)).
. We consider this claim brought exclusively by Plaintiff Desert Citizens as Plaintiff Conse-jo has failed to sufficiently argue this claim in its brief.
. Because it is an interlocutory order pending appeal, see Fed. R.App. P. 8(a), our order vacating the injunction pending appeal shall become effective immediately upon the filing of this opinion, regardless of when the mandate issues.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1111111111111111, Costs: 0.03174603174603174
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J. BLAINE ANDERSON, Circuit Judge:
The plaintiffs, numerous environmental organizations and one private citizen, appeal from the district court’s judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed highway expansion by State and Federal defendants.
This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate Highway 90 (1-90) in the state of Washington between the cities of Seattle and Bellevue. The proposed facility consists of an eight-lane, limited access highway consisting of two three-lane roadways for the use of private motor vehicles and a two-lane center roadway devoted to the use of transit car pools and limited general traffic from Mercer Island. The project is 6.9 miles in length located between 1-5 in Seattle and 1-405 near Bellevue, and generally follows the alignment of the existing highway facility in the corridor. The new facility will incorporate a new tunnel immediately adjacent to the existing tunnel through Mt. Baker Ridge, require the construction of a new floating bridge adjacent to the existing floating bridge across Lake Washington, and will contain two extensive “lidded” sections in Seattle and Mercer Island. Access to and from the facility is provided by several interchanges throughout its length: to Interstate 5, the western terminus of the project, by a major interchange with the center lane ramp terminating at the existing South Dearborn Street, and at another major interchange at the project’s eastern terminus, an already completed portion of 1-90, tying the facility into Interstate 405, the major north-south highway facility east of Lake Washington.
I. BACKGROUND
The facts pertinent to this appeal are here recited briefly, but for a complete understanding of this case’s litigation, see Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), Lathan I, the district court opinion on remand, Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972), and the second appeal to this court, Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974), Lathan II.
This court, in Lathan I, reversed the trial court’s denial of a preliminary injunction, holding, inter alia (1) that the State and Federal defendants were to prepare an environmental impact statement (EIS) for the project pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq. (1970), and (2) that the displaced persons relocation plan prepared by defendants was insufficient to provide assurances of adequate housing to comply with the Uniform Relocation Act, 84 Statute 1894 (URA). An injunction was entered by the district court pursuant to this court’s instruction, specifying that the defendants were enjoined from acquiring the right-of-way pending compliance with “applicable federal law.” Lathan I, 455 F.2d at 1122.
Subsequently, a partial EIS was prepared (for the segment between 1-5 in Seattle and Mercer Island — “Seattle Segment”) and a new relocation plan. Following the ruling of the district court, this court in La-than II affirmed, finding the Environmental Impact Statément (EIS) and § 4(f) statements inadequate. The Lathan II court, however, reversed a portion of the district court’s' decision and ordered that a new public hearing be held for the entire length of the 1-90 project between 1-5 and 1-405, pursuant to 23 U.S.C. § 128. In addition, this court ordered that an EIS consistent with the requirements of NEPA was to be the basis of the public hearing, and continued the injunction pending com- • pliance. No issue was raised regarding the district court’s determination that the defendants had complied with the requirements of the URA based on the new relocation plan.
After Lathan II, WDOT prepared a new draft EIS covering the entire uncompleted portion of the 1-90 project to serve as the basis for new public hearings under § 128(a). Three public hearings were held during January and February 1976. Following these hearings, it was clear that conflict existed regarding the size of the then ten-lane plan between the .State and local affected jurisdictions. In an effort to resolve those conflicts, negotiations were initiated between the State of Washington DoT and the cities of Seattle, Mercer Island, and Bellevue, King County, and METRO concerning further project development. As a result of these negotiations, an interjurisdictional consensus was reached in December 1976. This Memorandum of Agreement (MOA) provided for an eight-lane plan, continued incorporation of all environmental protection measures which had previously been incorporated into the larger project, and an independent study to be undertaken of various “transit access” provisions at both termini of the 1-90 project (Seattle on the West and Bellevue on the East), with the parties subsequently seeking Federal funds to finance the access project.
A Final EIS for the eight-lane project was prepared by WDOT and submitted to the Secretary of Transportation on April 12, 1977, including a separate report addressing the § 4(f) Involvements of the project. Judge Thompson, Jr., following agreement by the parties, wrote to the Secretary of Transportation requesting a decision. September 7, 1978, the Secretary issued his § 4(f) findings in the “§ 4(f) Determination,” that there were no feasible and prudent alternatives to the use of the § 4(f) lands and that the project included all planning to minimize harm to such § 4(f) lands.
Secretary Adams approved the project encompassing the entire uncompleted portion of the 1-90 project between 1-5 and the 1-405 based upon the FEIS and “§ 4(f) Analysis” in his “Decision Document” dated September 20, 1978. The Final Environmental Impact/§ 4(f) Statement was approved and adopted by the Federal Highway Administration (FHWA) on September 22, 1978.
Defendants moved on October 3, 1978 to dissolve the injunction entered after Lathan I and requested the district court to enter an order establishing a schedule to control the course of future litigation in the consolidated cases. The parties stipulated, notwithstanding other issues in the case, that WDOT should proceed with necessary safety improvements within the 1-90 corridor, including removing the “bulge” in the Lacey V. Murrow floating bridge.
During the course of discovery proceedings, many parties plaintiff in the consolidated actions were dismissed. The pretrial order framed issues under NEPA, Federal Aid Highway Act 23 U.S.C. §§ 128(a), 134(a), and 138, the Clean Air Act, 42 U.S.C. § 1983, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq.
Trial was to the court in June 1979. The parties submitted Proposed Findings of Fact and Conclusions of Law as the court requested. On August 27, 1979, the court entered its Judgment dissolving the injunction and ruling for the defendants, based upon its Findings of Fact and Conclusions of Law dated August 22, 1979.
II. DISCUSSION
A. District Court Duty to Take a “Hard Look”
We summarily dispose of appellants’ assertion that the district court erred in “mechanically” adopting findings of fact and conclusions of law. There is virtually nothing in this record to support the bald assertion. The evidence is, however, that the court studied the findings and conclusions submitted by both parties and that some were completely rewritten or substantially modified. The principles we apply are well established and we see no need to reiterate them once again. See, Hagans v. Andrus, 651 F.2d 622 (9th Cir.), cert. denied, Hagans v. Watt, - U.S. -, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); Mayview v. Rodstein, 620 F.2d 1347 (9th Cir. 1980); Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979); and Photo Electronics Corp. v. England, 581 F.2d 772 (9th Cir. 1978).
Appellants’ argument that the district court did not conduct an objective review is based upon a letter by the court to the federal Secretary of Transportation. Appellants contend the court had a “personal commitment to seeing the project through to completion, . . . [the judge had] made [a] personal written plea to Secretary Adams, urging him to expedite required approvals.... ” Brief of Appellants at 13.
From our analysis, there is nothing in the record to indicate the trial court acted with bias toward the defendants and their program. (RT 734). The judge remarked that he had written to the Secretary, requesting him “to approve this thing or not approve it, or at least make a decision on it ...” (RT 734). The bold assertions of one-sidedness by appellants are not supported by the record.
The appellants also contend- the district court failed to independently review the appellees’ administrative actions by ignoring central issues and excluding relevant evidence. These assertions relate to the adequacy of the EIS and the section 4(f) statement, and will be considered within the discussions of these issues, respectively.
B. 4(f) Determination
Appellants raise several questions pertaining to the Secretary of Transportation’s compliance with the Department of Transportation Act of 1966, § 4(f), 49 U.S.C. § 1653(f) (1970). The national policy, announced in § 4(f) and in identical language of § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970), is to take “special effort ... to preserve the natural beauty of the countryside and public parks and recreation lands. . . . ” Section 4(f) provides:
“It is hereby declared to be the national jiolicy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.”
49 U.S.C. § 1653(f).
The issues raised by appellants parallel the questions involved in judicial review as announced by the Supreme Court in the leading case, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In discussing § 4(f), the Court rejected both the substan-' tial evidence test and the de novo review of whether the decision was “unwarranted by the facts.” Though the Secretary’s decision is entitled to a presumption of regularity, the reviewing court still engages in a substantial inquiry because the presumption does not “shield his action from a thorough, probing, in-depth review.” 401 U.S. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at 153.
The opinion enunciates three questions for the reviewing court to consider. First, the court must examine whether the Secretary acted within the scope of his authority. Analyzing this facet of the review, the court must determine if, on the facts, the Secretary’s decision can reasonably be said to be within the small range of choices Congress specified, and whether the Secretary could have reasonably believed in that, particular case there were no feasible and prudent alternatives, or that the alternatives involved unique problems. 401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V) requires the determination actually made not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” to avoid being set aside by the reviewing court. Second, in examining the decision, the reviewing court must evaluate whether “the decision was based on a consideration of the relevant facts and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-4, 28 L.Ed.2d at 153. The third and final inquiry is whether the Secretary’s action followed the necessary procedural requirements.
Appellants have not voiced any objection to the Secretary’s compliance with procedural requirements. Instead, the issues presented are: (1) whether the Secretary relied on improper considerations in his § 4(f) determination, (2) the correctness of the conclusion that there were no feasible and prudent alternatives, and (3) whether there was a failure to incorporate all possible planning measures to minimize harm.
1. Application
Section 4(f) is triggered only when the Secretary of Transportation is asked to approve a transportation program or project seeking to employ federal funds, which requires the “use” of land from a public park, recreation area, wildlife or waterfowl refuge, or from an historic site. The labeling of property as “used” or “not used” is the prerequisite to further examination and to compliance with the provisions of § 4(f).
This phase of § 4(f) was not discussed by the Court in Overton Park. It was not disputed that the highway, slated to dissect Overton Park by separating the zoo from the rest of the park, would be a “use” within the meaning of the statute; it was acknowledged. Here, the assertion is the Secretary incorrectly concluded that, of the 50 potential sites, 29 were “not used,” and, as a result, failed to examine § 4(f)’s two requirements with respect to those sites. Appellants argue some of these 29 sites are closer to the project than the site classified as used in Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976).
Though correct in discussing Stop H-3 for the interpretation of “use,” appellants do not correctly characterize the opinion as emphasizing the proximity between the project and the threatened site as the crucial factor. This court discussed the geographic closeness of Pohaku Ka Luahine (the protected site, a petroglyph rock) to H-3 (the proposed highway), not merely in terms of distance, but rather its utility or importance as a site would be impaired by the highway’s location, and hence was “used.” Similarly, in Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972), the court found a campground to be used, within the meaning of § 4(f), when encircled by the proposed highway project. There would be an adverse impact on the campground from the highway since its isolation would be interrupted.
The term “use” is to be construed broadly, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project. Department of Transportation Order No. 5610.1A, para. 9(c)(1), 36 Fed.Reg. 23681 (1971). Even off-site activities are governed by § 4(f) if they could create sufficiently serious impacts that would substantially impair the value of the site in terms of its prior significance and enjoyment. D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972).
The importance of this analysis is obvious since absent a determination of “use,” the section’s provisions do not apply. An analogy can be drawn between this classification and the initial determination that a project is one which “significantly affects the quality of the human environment” involving preparation of an environmental impact statement (EIS) as per the National Environmental Policy Act of 1969 (NEPA), § 102(2)(c), 42 U.S.C. § 4322(2)(c) (1970). The threshold test requiring preparation of NEPA’s impact statement is met when a plaintiff alleges “facts which, if true, show that the proposed project would materially degrade any aspect of environmental quality.” Environmental Defense Fund v. Armstrong, 487 F.2d 814, 817, n.5 (9th Cir. 1973), cert. denied, 416 U.S. 974, 94 S.Ct. 2002, 40 L.Ed.2d 564 (1974), overruled on other grounds, Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552, n.3 (9th Cir. 1977).
2. Secretary’s Determination
This court, in reviewing the Secretary’s decision, “must satisfy itself that the Secretary evaluated the highway project with the mandate of § 4(f) clearly in mind.” Stop H-3, 533 F.2d at 445; Overton Park, 401 U.S. at 416, 91 S.Ct. at 828, 28 L.Ed.2d at 154. The combined Final Environmental Impact/Section 4(f) Statement recites the standard applied here for determining use:
“A site is considered ‘used’ whenever land from or buildings on the site are taken by the proposed project, or whenever the pro])osed project has significant adverse air, water, noise, land, accessibility, aesthetic, or other environmental impacts on or around the site, as per the Stop H-3 Association v. Coleman [opinion].”
FEIS, vol. IV at 4.
Using this standard, the Secretary concluded that of the 50 potential § 4(f) sites, only 18 were used. The FEIS/§ 4(f) document was used as a basis for the Secretary’s decision; we examine it to determine if consideration was given according to § 4(f) mandates. Appellants’ argument that the Secretary incorrectly determined that only 21 of the 50 sites were “used,” is not supported by references to the record of particular sites that should have been classified as adversely affected, i.e., “used.” We independently found the differences in the number of sites discussed in these documents, but believe the failure to specifically discuss the four sites in the “§ 4(f) Determination” and in the Secretary’s “Decision Document” is not significant nor dispositive. All 50 sites, “used” and, “unused,” were thoroughly investigated during this long and tedious process. All sites are treated extensively in the “§ 4(f) Analysis.”
We read all three documents together as no one of them alone, fully satisfies the commands of § 4(f). As noted above, the “§ 4(f) Analysis” provides the standard the Secretary applied in determining “use,” the “§ 4(f) Determination” cites alternatives considered, the conclusion that there is no feasible and prudent alternative to the use of 18 sites, and recites efforts to minimize harm. The “Decision Document” records the decision of the Secretary that no alternatives are feasible and prudent to “the use of the parks and historic sites required for the project, and that all possible planning to minimize harm to the affected areas has taken place,” and his “decision to approve construction of 1-90 as proposed by the Washington State Department of Transportation.” Id., “Decision Document,” at 5 and 1, respectively.
We first examine the “use” classification applying the Overton Park analysis and then the Secretary’s § 4(f) conclusion by the same standard. Looking to the scope of the Secretary’s authority, any conclusion utilizing an appropriate standard relative to the 50 sites would satisfy the first segment as being within the “small range of choices the Secretary could make.” The second part of the question concerning the Secretary’s authority encompasses whether he could have reasonably believed that only 18 of the 50 were used. Attention is given in the “§ 4(f) Analysis” to all 50 sites, detailing possible environmental effects from this project. This section appears reasonably complete, discussing such factors as noise, air quality, aesthetics, access and more.
The Secretary, in his “Decision Document,” states in part, “In making my decision, I have before me the EIS, including the submission pursuant to section 4(f), and other elements of the administrative record.” “Decision Document,” p. 3. He lists several other reports he has reviewed in making his decision. The Secretary concludes the paragraph, “I have considered both the adverse and beneficial impacts of alternatives and the measures which will be taken to minimize the adverse impacts.”
The district court found the Secretary could have reasonably believed that less than the 50 sites were used. We agree. These findings are not clearly erroneous. The Secretary determined “use” based on the studies before him, which considered relevant facts concerning environmental impacts.
Moving to the Secretary’s “§ 4(f) Determination,” relative to the alternatives to using the 18 sites, we review it under the same standard, Overton Park. The Supreme Court clarified the meaning attached to “feasible and prudent alternatives.” Recognizing that “feasible” allows for little administrative discretion, the Court considered it to mean, as a matter of “sound engineering it would not be feasible to build the highway along any other route.” Overton Park, 401 U.S. at 411, 91 S.Ct. 821, 28 L.Ed.2d 150, citing 114 Cong.Rec. 19915 (1968) (statement by Rep. Holified.) Whether alternative, feasible routes would be “prudent” was not intended to focus on cost and community disruption unless the results reached “extraordinary magnitudes” or was not prudent because there were “truly unusual factors present in a particular case.” Overton Park, 401 U.S. at 413, 91 S.Ct. at 822, 28 L.Ed.2d at 151.
The Secretary concluded that there was no feasible and prudent alternative to the use of the 18 sites. Appellants argue he based his decision on irrelevant factors and an inadequate and outdated “§ 4(f) Analysis.” Appellees assert the Secretary’s conclusion is properly based on findings of fact not clearly erroneous, including (1) other alternatives would still require “use” of § 4(f) lands, (2) other corridors would cause severe community disruption, (3) design alternatives involve their own § 4(f) involvement and would not serve the function of the project, and (4) even the no-build alternative would perpetuate congestion.
Though most alternatives appear to deal with the composite project, the “§ 4(f) Determination” states, “the alternatives ■ discussed here are generally common to all or to a number of the § 4(f) lands associated with the proposed project.” “§ 4(f) Determination” at 1. The Secretary’s decision is entitled to a presumption of regularity. Absent argument by appellants pointing to the record and demonstrating with specificity the alleged errors of judgment or irrelevant factors that formed the basis for his decision, we are not inclined to make their case for them. Even if the decision of the Secretary be different from the one this court would make if it were our responsibility to choose, we will not substitute our judgment for that of the Secretary. We have not been directed to any portion in the record demonstrating an erroneous decision and, as a result, find no grounds to disturb the Secretary’s conclusion that there are no feasible and prudent alternatives to the use of such § 4(f) lands.
Once the Secretary determines that § 4(f) lands will be adversely impacted and finds there are no feasible and prudent alternatives to such use, he must address the final portion of § 4(f) which requires a finding that “such program includes all possible planning to minimize harm to such park . . . resulting from such use.” 49 U.S.C. § 1653(f)(2). Appellants assert § 4(f) requires all measures “technically possible ... be implemented” if there is no feasible and prudent alternative to the use of protected lands. This statement goes beyond where this court is willing to venture and is not required by the Act nor existing precedent.
Other circuits, in addressing this question, have said that implied within the statement “all measures,” is the condition that such efforts to minimize harm be feasible and prudent, or reasonable. Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976); Citizens to Preserve Overton Park v. Volpe, 335 F.Supp. 873, 883 (W.D.Tenn.1972) (§ 4(f) requires “all reasonably possible planning”). See generally, D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972); and Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 700-701 (2d Cir. 1972). Such a reading fully considers the practicalities involved and yet maintains the strict command of the section’s language. Monroe County characterizes the section as creating an “affirmative duty” to minimize the damage to parkland as:
“[a] condition precedent to approving] such a taking for highway purposes where federal lands are involved; and the Secretary must withhold his approval unless and until he is satisfied ... full implementation of such planning ... is an obligated condition of the project.”
Id., 472 F.2d at 701.
This second phase of § 4(f) is discussed by the District of Columbia Circuit which concludes it involves far more than merely calculating the number of acres to be asphalted. D.C. Federation, 459 F.2d 1231. The Court emphasized, “the location of the affected acres in relation to the remainder of the parkland may be a more important determination than the number of acres affected.” Id., 459 F.2d at 1239.
It is also important to note the bifurcated analysis of the two considerations of § 4(f). The Fifth Circuit has discussed the completely unconnected nature of the two § 4(f) considerations:
“[t]he significant difference between . . . subsections (1) and (2) assays is that considerations which might make an alter-' hate imprudent (such as displacement of persons or businesses or a Title 6 problem) are simply not relevant to determining whether a different path would minimize harm to the [value of the protected lands].”
Louisiana Environmental Society, 537 F.2d at 86. Inquiry under subsection (2) of § 4(f) requires a balancing of the harm to the site by the proposed project, with the harm to the same site by another alternative or a plan to implement mechanisms to diminish that particular harm.
There may be, as appellants assert, some “technical” deficiencies or some actions may not be “technically” correct (the four sites discussed in the “§ 4(f) Analysis” yet not discussed in the Secretary’s final decision). However, even under the exacting § 4(f) requirements, the judicial branch may not “fly speck,” if it appears, in its review, that all factors and standards were considered. Whether or not the reports and studies use the “magic” terminology, there has been a reasonable and thorough review of a voluminous record accumulated over a span greater than ten years, which includes extensive public contribution.
Substitution of the 180-acre greenbelt is important here as a measure to minimize harm, though it is not per se dispositive of compliance with the second prong of § 4(f). Even with some of the deficiencies pointed out by the appellants, considering the entire plan and the record as a whole, we are of the opinion that § 4(f) standards have been satisfied.
When considering all other alternatives, i.e., the conceptual ones, no-build, nonstructural, corridors north or south, design alternatives, rail transit and safety improvements, as the Secretary did, the conclusion is there has been reasonable compliance, even with the minor deficiencies pressed by appellants. There is a foundation in the record for the reasonable belief that no feasible and prudent alternatives exist and that all possible planning to minimize harm has been undertaken. The district court so found and we agree.
As to several areas of the project, the Secretary’s approval was conditional. ■ We are satisfied the project will proceed subject to those conditions. The Secretary and the agencies, both Federal and State, have complied with the prior directives of this court in Lathan I and II, and the mandates of § 4(f).
C. NEPA Issues
The third argument appellants raise before this court involves the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, et seq. (hereinafter NEPA). NEPA requires the preparation of an environmental impact statement (EIS) under § 102(2)(c), when a federal agency recommends “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(c). One purpose of the EIS is to “provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences.” Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974). In addition, preparation “provide[s] the public with information on the environmental impact of a proposed project, as well as encouragefsj public participation in the development of that information.” Id.
1. Standard of Review
The appropriate standard for review of the adequacy of an EIS is well established in this circuit as that set forth in § 706(2)(D) of the Administrative Procedure Act: whether the EIS was prepared “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D) (1976). See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d at 1282; Lathan II, 506 F.2d at 692-3. The determination of adequacy is essentially pragmatic. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam). Whether an EIS will be found in compliance with NEPA involves an evaluation of whether the discussion of environmental impacts “reasonably set[s] forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned decision.” Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1217 (9th Cir. 1979). See Columbia Basin Land Protection Assn. v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981); Coalition for Canyon Preservation, 632 F.2d at 782; Trout Unlimited, 509 F.2d at 1283. Preparing an EIS requires the exercise of judgment; however, a court in its review may not substitute its judgment, but instead is limited to ensuring that the agency has considered the environmental consequences of its action. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, et al., 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Lathan II, 506 F.2d at 693.
We note initially, compliance with one environmental statute does not assure compliance with another. In Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982), we discussed the commands found in the National Historic Preservation Act, 16 U.S.C. §§ 470, et seq., and those in NEPA. In the case of historic buildings, each statute “mandates separate and distinct procedures, both of which must be complied with . . . . ” Id. at 859. Similarly, a finding of compliance or noncompliance with § 4(f) of the Department of Transportation Act does not mandate the identical conclusion as to NEPA provisions.
2. Public Hearing
Appellants raise five subissues concerning NEPA compliance. We summarily reject their first argument that the public hearing was inadequate since not conducted with an “approved, final EIS.” This court, in Lathan II, did not direct such a document to be the basis of a new hearing. Circulation of even a deficient draft EIS may be sufficient so long as it does not frustrate the goal of obtaining informed agency and public comment. National Wildlife Federation v. Adams, 629 F.2d 587 (9th Cir. 1980); Lathan II, 506 F.2d at 693. See also, Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-1023 (9th Cir. 1980). Regulations require the draft EIS to be circulated to enable informed comments at the public hearing. 23 CFR § 177.12.
3. Segmentation
Appellants argue in their next subissue that the proposed project did not involve an “adequate highway segment.” The leading case in this circuit is Daly v. Volpe, 514 F.2d 1106 (9th Cir. 1975), which set forth criteria that, when found, demonstrated the portion was suitable for consideration in an EIS for that highway segment. The four considerations are: (1) the section must be as long as practicable to permit consideration of environmental matters on a broad scope, (2) the section must have independent utility, (3) the length of the highway selected must assure an adequate opportunity for the consideration of alternatives, and (4) the segment should fulfill important state and local needs. Id. at 1109-1111; Lange v. Brinegar, 625 F.2d 812 (9th Cir. 1980).
In determining whether there was sufficient evidence to establish compliance with NEPA for the segment, we are bound by the findings of the trial court unless they are clearly erroneous. Id. at 815; Sessions, Inc. v. Morton, 491 F.2d 854, 858 (9th Cir. 1974). Appellants question only the first two criteria. We have examined the record, including the Findings of Fact and Conclusions of Law made by Judge Thompson. An adequate discussion of the Daly criteria is found, including that the termini of the project are both major cross-roads (1-5 and 1 — 405) and population centers (Seattle and the City of Bellevue). The court found the project would be able to serve its purposes without the construction of additional facilities, and that there were no pending proposals for major federal action regarding related projects. The Connecticut Street Viaduct had not reached the stage of a “project” and hence did not require the preparation of an EIS. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Supreme Court stated the mere contemplation of future action was not sufficient to require preparation of an EIS. In this case, the EIS covered an adequate highway segment.
4. Alternatives
Appellants assert the state defendants failed to develop alternatives and thereby violated NEPA. Section 4332(2)(C)(iii) requires alternatives to the proposed action be included in the EIS. However, this court has held the alternatives discussion to be subject to “reasonableness.” Life of Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). The three alternatives complained of by the appellants are discussed by the trial court. The withdrawal and substitution alternatives are considered in the FEIS in six variations. In addition, two studies discussing this option are incorporated in the technical appendix. It is further evident that the local jurisdictions (Seattle, Bellevue, Mercer Island and King County) unanimously voted not to withdraw and substitute the funds elsewhere. Neither the Mayor’s second alternative nor the interim High Occupancy Vehicle study aid appellants’ argument. The Mayor’s 2-2-2 alternative was merely a variant of another fully discussed alternative which Brooks v. Coleman, 518 F.2d 17, 19 (9th Cir. 1975), concludes does not have to be addressed. The interim HOV study was not an alternative to the project, but rather improvements to occur before construction begins. We find the range of alternatives considered was sufficient to permit a reasoned choice, and complies with NEPA as the trial court found. Appellants have not shown the district court was clearly erroneous in its determination that the discussion of alternatives in the EIS was reasonable. See Vermont Yankee Nuclear Power Corporation v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Daly, 514 F.2d at 1111.
5. Planning Data Base
Appellants’ fourth subissue is that the transportation plan developed pursuant to 23 U.S.C. § 134 was not based on correct and accurate data. It is recognized that administrative consideration of evidence creates gaps between the time the record is closed and the decision is made. Vermont Yankee, 435 U.S. at 555, 98 S.Ct. at 1217, 55 L.Ed.2d at 486. There is an end “to the period during which an agency must reopen the record to consider new facts.” Nance v. Environmental Protection Agency, 645 F.2d 701, 708 (9th Cir.), cert. denied, sub nom. Crow Tribe of Indians v. E.P.A., - U.S. -, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). The standard applied regards administrative action as being “judged by the information then available to it.” Vermont Yankee, 435 U.S. at 553, 98 S.Ct. at 1216, 55 L.Ed.2d at 485.
In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), we stated that even if a study contained information relating to environmental effects which would be of assistance to those commenting on an EIS, the mere fact that it is not included “is not enough to sustain a finding that the Secretary violated NEPA by acting prior to the issuance of the study.” Id. at 1281. In evaluating whether the EIS should have been delayed to await the new study, the factors to consider are: (1) the consequences of delay, (2) the present state of information relative to environmental factors, and (3) the relevance and degree of probative value of the information. Id.
The trial court found the demographic data unavailable, considered the above-mentioned factors, and concluded the preliminary information would not have significantly altered the conclusions already in the FEIS. We agree. We do not view this case as one requiring the reopening of the decision-making process to review later available data.
6. Impacts
Appellants’ final subissue involving NEPA concerns the adequacy of the discussion of impacts in the EIS. Under this heading, appellants object in five areas because they believe the impacts were “inadequately discussed.” What is required of an EIS is “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Trout Unlimited, 509 F.2d at 1283. When the question is the adequacy of the consideration, we examine to determine whether consideration of those factors was “arbitrary or capricious.” Nance, 645 F.2d at 712.
We have examined the EIS and conclude, as did the trial court, that the impacts of the project on city traffic, air quality, noise, aesthetics, and the social and economic effects were adequately considered. The issue of relocation housing was the subject of a stipulation between the parties and will not be addressed here. The EIS analyzes the effects of increased noise, including a chart demonstrating an increase in 10 decibels is perceived to be twice as loud as the sound if reduced 10 decibels.
Appellants argue the EIS is inadequate because it “ignored” three other impacts: energy consumption, effects of locating a ventilation facility in a residential neighborhood, and impacts on drivers using the project. The FEIS discusses the anticipated increases in both fuel, gasoline and diesel, and electricity from the construction and operation of the subject project. Appellants have failed to direct us to impacts, both significant and probable, to result from the project that render the EIS inadequate. The FEIS before us identifies and discusses the significant environmental impacts in sufficient detail and we agree with the conclusion of the district court, NEPA has been satisfied.
D. § 1983
Appellants’ final argument is that the district court erred in dismissing their claim for relief under 42 U.S.C. § 1983. The district court is correct in remarking that defendant State officials must be sued in their individual capacity in an action for monetary damages. Edeiman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). We have not found, in reviewing the record and pleadings, a request for relief in the form of damages. Nonetheless, the trial court’s dismissal can be upheld. Following our independent review, we find there is neither a basis in the arguments of the appellants nor in the record to support a § 1983 claim.
III. CONCLUSION
We have reviewed the action of the district court which, following a “hard look” at the record, dissolved the injunction. We find that action proper and further affirm the findings that the stringent § 4(f) standards and the procedures of NEPA have been satisfied by the appellees. In addition, appellants’ claim for relief under § 1983 was appropriately dismissed.
AFFIRMED.
. The organizations include: CARHT (Citizens Against R. H. Thompsen Freeway), Central Seattle Community Council Federation, Montlake Community Club, Ravenna Bryant Community Association, Mt. Baker Community Club, Les-chi Improvement Council, Friends of the Earth, Inc., Washington Environmental Council, Madrona Community Council, Seattle Urban League, and the Metropolitan Democratic Club.
See footnote 7 and accompanying text.
. The one remaining individual plaintiff is Diane Halverson. See footnote 7.
. The original Federal defendants included Neil Goldschmidt, the United States Secretary of Transportation, and Russell R. Train, the Environmental Protection Agency Administrator. The district court entered a summary judgment dismissing the defendant EPA and all issues raised under the Clean Air Act, 42 U.S.C. §§ 740Í, et seq. prior to trial.
The original state defendants included William A. Bulley, the Secretary of the Washington Department of Transportation, and the Washington Transportation Commission (the authority within WDOT responsible ultimately for determining transportation policies of the State and approving State funding for all highway projects).
. Section 4(f) refers to that section in the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970). See subsequent discussion in part B of this opinion.
. The Washington Department of Transportation (WDOT) supplied the Lathan II court, along with its briefs on appeal, a new draft EIS for the “Seattle Segment.” The court in La-than II declined to consider the adequacy of this document and remanded the matter to the district court.
. METRO is the Municipality of Metropolitan Seattle, the public agency which operates the transit system in King County.
. During the pendency of the appeal in Lathan II, a new action (Adler v. Brinegar) was filed seeking an injunction against the 1-90 project, alleging the same violations of NEPA, § 4(f) and § 128(a), as in the Lathan case. On defendants’ motion, the cases were consolidated for trial in the district court.
. The plaintiffs were dismissed for failure to appear at depositions which the court had previously ordered them to attend. As a result, none of the original plaintiffs in the Lathan case remain (only the organizations included as plaintiffs/intervenors remain of the Lathan case) and only one individual plaintiff remains in the Adler case.
. See footnote 3.
. For a thorough discussion of § 4(f), including legislative history, see Gray, Section 4(0 of the Department of Transportation Act, 32 Md. L.Rev. 326 (1973).
. Hereinafter, “§ 4(f) Analysis,” Volume IV: Environmental Analysis for 4(f) Determination.
. It is not evident from the “§ 4(f) Determination” (see infra, note 13) nor the Decision Paper on 1-90, Seattle, Washington, by the Secretary of Transportation, September 20, 1978, what standard the Secretary applied, though we presume he applied a correct standard until the contrary is proven. The Secretary cites to the FEIS/§ 4(f) Analysis in his “§ 4(f) Determination” which further supports the conclusion he applied the standard there enunciated.
It must be noted, the Decision Paper on 1-90 (hereinafter “Decision Document”) includes discussion of both § 4(0 and NEPA. As a result of this overlap, we look more closely at the “§ 4(0 Analysis" and the “§ 4(0 Determination” for resolution of the § 4(0 issues.
. Department of Transportation, Federal Highway Administration Section 4(f) Determination, King County, Washington, Interstate Route 90 Freeway [September 7, 1978] (hereinafter “§ 4(f) Determination,” approved the project and found no feasible and prudent alternative to the use of certain land. This thirteen-page document further excludes from the conclusion of use, five sites that the Environmental Analysis for 4(f) Determination, vol. IV of the Final Envir. Impact/Section 4(f) Statement had included as used. FEIS, vol. IV at 161-163 (hereinafter, “§ 4(f) Analysis”).
The Secretary concluded that the proposed 1-90 project would use: Sturgus Park, Judkins Playground, Luther Burbank Park, Lake Washington, Lacey V. Murrow Memorial Bridge and Plaza, Laurence J. Colman Elementary School and Playground, Colman Playground and Playground Building, Our Lady of Mount Virgin Church, LaTumer House, Mount Baker Ridge Tunnels, Residence at 1371 31st Avenue South, Apartment House at 2415 S. Irving Street, Residence at 2231 60th Avenue Southeast, Jeffrey Martine House, and the Residences at 8107 and 8115 Southeast 28th Street.
The Secretary excluded Jose’ Rizal Park, Lincoln Landing Park, Sweyolocken Park, Residence at 1323 Hiaw.atha Place South and the Residence at 1409 Lakeside Avenue South.
Both the district court and the appellants discuss the figure involving use as “21”— though the number found in vol. IV of the Final Envir. Impact/Section 4(f) Statement is 23 (the last site includes 2 residences).
. Appellees assert appellants’ concern over irrelevant factors is confused because their support for the position comes from the “Decision Document” rather than the “§ 4(f) Determination."
. This opinion should not be read broadly as commending the method of discussing alternatives employed here, but rather as a statement relating to the function of the appellate process and the responsibilities of the participants thereto. Absent support, bold assertions that factors considered were not truly unusual and therefore did not justify a conclusion of non-prudence, warrant little attention.
. Additionally, the definition of a final EIS under 23 CFR § 771.3 states it is the same as the draft EIS, but includes “appropriate revisions to reflect comments received from circulation of the draft EIS and the public hearing process.”
. 23 U.S.C. § 134 provides that proposed projects should be “based on a continuing comprehensive transportation planning process carried on cooperatively” by the State and local communities in the area, and that proposed projects take due consideration of their social, economic and environmental effects.
Though this section is not part of NEPA, appellants bring the two together by asserting the inadequate transportation plan data was used in the EIS, though more current and accurate data was available.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05339805825242718, Costs: 0.05825242718446602
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TONE, Circuit Judge.
This is a review of effluent limitations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., 86 Stat. 816 et seq. (hereinafter “the Act”). Petitioner is the American Meat Institute (“AMI”), whose members operate slaughterhouses and meat-packing plants throughout the country. The regulations under review limit the quantities of various pollutants which these plants can discharge into waterways. Our jurisdiction is invoked under § 509(b) of the Act.
The Statute
The objective of the Act “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Section 101(a). The Act sets as national goals the elimination by 1985 of all “discharge[s] of pollutants into the navigable waters,” and the achievement by 1983, “wherever attainable” of a water quality adequate to maintain aquatic life and allow recreational use. Id.
As intermediate steps to the 1985 goal, § 301(b) of the Act requires the achievement
(1) by July 1, 1977 of “effluent limitations for point sources which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act”; and
(2) by July 1, 1983 of “effluent limitations for categories and classes of point sources . . . which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act
For convenience, we shall refer to the technology which must be used by 1977 as the 1977 technology, and to that which must be used by 1983 as the 1983 technology.
The 1977 and 1983 technologies are to be defined by the Administrator under § 304. Subsection (b) of that section provides that “[f]or the purpose of adopting or revising effluent limitations under this Act,” the Administrator is to publish “regulations, providing guidelines for effluent limitations.” These guidelines are to be promulgated within one year after enactment of the Act, “after consultation with appropriate Federal and State agencies and other interested persons,” and they are to be revised at least annually, if appropriate. The guidelines are to identify, in terms of specific pollutants, “the degree of effluent reduction attainable through the application of” the 1977 and 1983 technologies. Thus, subdivision (1) of § 304(b), referring to the 1977 criterion, requires identification of “the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources.” Subdivision (2), referring to the 1983 criterion, requires identification of “the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources . . . .”
In connection with both the 1977 and 1983 criteria, the guidelines are to specify “factors to be taken into account” in determining the applicable technology. These factors are to include, for the 1977 technology, “consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application,” and, for the 1983 technology, “the cost of achieving such effluent reduction.” For both the 1977 and 1983 technologies the factors are to include “the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques [and], process changes,” as well as “non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate . . . § 304(b)(1)(B) and (2)(B). Finally, the guidelines are to “identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants.” § 304(b)(3).
To complement §§ 301 and 304, which govern existing sources, § 306 requires the Administrator to promulgate “regulations establishing Federal standards of performance for new sources” within certain categories of sources. These regulations are to cover only plants on which construction began after publication of proposed new-source regulations for that category.
Section 402 adds to the regulatory scheme a permit system for discharges which replaces the permit system formerly administered by the Army Corps of Engineers under the Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407. Permits may be granted by the Administrator provided the discharger complies with all the requirements of the Act, including those of §§ 301, 302, and 306. The Administrator may delegate his permit-granting authority to the states, if they provide sufficient assurances that they will enforce these requirements.
Background of the Regulations
The regulations before us cover the “Red Meat Processing Segment of the Meat Products Point Source Category.” The common characteristic of the plants in this segment of the meat industry is that they all slaughter animals (but not poultry) and produce fresh meat, which may be sold as whole, half, or quarter carcasses, or as smaller meat cuts. Plants that produce only fresh meat are called slaughterhouses; those that also produce cured, smoked, canned, or other prepared meat products are called packinghouses. Both types of plants usually perform some by-product processing, such as rendering (separation of fats and water from tissue), blood processing, and hide processing.
EPA employed North Star Research Institute to study the industrial processes used by slaughterhouses and packinghouses, the wastes generated, and the treatment technologies in use or available to these plants, and to recommend, inter alia, effluent limitations under § 301(b). North Star proceeded to study relevant literature and information on the meat industry it had previously gathered for EPA. In conjunction with AMI, it prepared questionnaires which were distributed to slaughterhouses and packinghouses. From the responses to the questionnaires and information acquired from various other sources, North Star classified the plants into four subcategories and attempted to identify those in each subcategory having the most effluent control. To verify the questionnaire responses, selected plants from these groups were inspected and monitored to a very limited extent. In June 1973, North Star submitted to EPA a report in which the information North Star had gathered was collected and summarized, and analyses and recommendations were presented.
After reviewing the North Star report, distributing copies to industry representatives, and receiving their comments, EPA revised the report and published the revision as a Draft Development Document in October 1973. The standards recommended in this document were then incorporated into proposed regulations, which the agency published the same month. Proposed EPA Reg. 40 C.F.R., part 432, 38 Fed.Reg. 29858 (Oct. 29, 1973).
After publication of the proposed regulations, EPA received further comments. On February 28, 1974, it promulgated the final regulations which are the subject of this review proceeding. 40 C.F.R., part 432, 39 Fed.Reg. 7894. In addition, a revised version of the October 1973 Draft Development Document was published under date of February 1974 as the Final Development Document (hereinafter sometimes cited as FDD).
The Regulations
The regulations classify slaughterhouses and packinghouses into the following four subcategories:
(1) simple slaughterhouses, which slaughter animals and perform a limited number, usually no more than two, by-product processing operations (subpart A, §§ 432.10 — 432.16);
(2) complex slaughterhouses, which slaughter animals and perform several, usually three or more, by-product processing operations (§§ 432.20 — 432.36); and
(3) low-processing packinghouses, which not only slaughter animals but process meat from animals killed at that plant into cured, smoked, canned, and other prepared meat products, normally processing less than the total kill (§§ 432.30-432.36); and
(4) high-processing packinghouses, which not only slaughter animals but process meat from both animals killed at the plant and animals killed elsewhere (§§ 432.40 — 432.46).
For existing sources in each subcategory, the regulations set forth “[e]ffluent limitations guidelines” for 1977, which are apparently intended to constitute both guidelines under § 304(b) and effluent limitations under § 301(b), 40 C.F.R. §§ 432.12, 432.22, 432.32, 432.42. The same is true of the 1983 standards. 40 C.F.R. §§ 432.13, 432.23, 432.33, 432.-43.
The regulations limit the discharge of “BOD5,” “TSS,” and ammonia, in addition to other pollutants not involved in this proceeding. Two of these terms require explanation:
BOD5. The initials “BOD” stand for “biochemical oxygen demand” and describe pollutants which, when they decompose, deplete oxygen necessary to support aquatic life. BOD5 is BOD measured over a five-day period.
TSS. The initials “TSS” stand for “total suspended solids,” which are particles of organic and inorganic matter suspended in the water or floating on its surface.
The regulations permit the discharge of certain amounts of BOD5 and TSS per 1,000 pounds (or per 1,000 kilograms) of live weight killed (“LWK”). The 1983 ammonia standard is set in terms of milligrams of ammonia per liter of effluent (mg/1), which shows the concentration of ammonia in the effluent. The regulations challenged in this case are the existing source limitations for 1977 and 1983 relating to BOD5 and TSS, and those for 1983 relating to ammonia.
These limitations are set out in the following table:
A. Simple B0D5
slaughter- TSS houses Ammonia
B. Complex B0D5
slaughter- TSS houses Ammonia
C. Low B0D5
processing TSS packinghouses Ammonia
D. High B0D5
processing TSS packinghouses Ammonia
1977 1983
Maximum Maximum Dally Daily
Average Average
for 30 for 30
Consecutive Consecutive Days Days
.12 .03
.20 ’ .05
— 4.00
.21 .04
.25 .07
— 4.00
.17 .04
.24 .06
— 4.00
.24 .08
.31 .10
— 4.00
The maximum discharge for any individual day is twice the maximum daily average for any 30 consecutive days.
I.
Jurisdiction and EPA’s Authority To Promulgate Effluent Limitations Under § 301
At the threshold, we are met with a challenge to our jurisdiction. AMI’s petition for direct review of the existing source regulations is grounded on § 509(b)(1), which provides in pertinent part as follows:
“Review of the Administrator’s action . (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306 . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business . . . .”
We thus have jurisdiction to review the existing-source regulations before us if they are “effluent limitation[s] . under section 301.”
The regulations unquestionably fall within the statutory definition of effluent limitations. Section 502(11) defines “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations” of discharges from point sources. Furthermore, the preambles to both the proposed and final regulations state that the regulations are promulgated pursuant to § 301 and § 304(b). 39 Fed.Reg. 7894 (1974) (final regulations); 38 Fed.Reg. 29858 (1973) (proposed regulations). Thus, on the surface, there would appear to be no question that the regulations are “effluent limitations” and “promulgated under § 301.”
Nevertheless, and although the parties agree that the Administrator had authority to establish these regulations under § 301, his authority has been challenged by amici curiae, who argue that he had authority to issue such regulations as § 304(b) guidelines but not as § 301 effluent limitations. If this is so, our jurisdiction would at best be questionable, since § 509(b)(1), the source of our jurisdiction, does not provide that § 304(b) guidelines are directly reviewable. We therefore must consider whether the Administrator has authority to promulgate existing-source regulations under § 301. While ordinarily we would not allow amici to inject new issues into a case, our continuing duty to satisfy ourselves of our jurisdiction requires us to consider their argument.
Amici assert that individual effluent limitations must be established for each existing point source through the permit-issuing process of § 402, using regulations promulgated under § 304(b) as guidelines. Thus, effluent limitations would be set on a case-by-case basis, rather than being prescribed by regulations covering entire subcategories. Under this view, the Administrator lacked the authority to establish across-the-board effluent limitations by regulation, so the regulations were not properly issued as § 301 limitations and are therefore not reviewable here. In essence, this was the position adopted by the Eighth Circuit in CPC International Inc. v. Train, 515 F.2d 1032, 1037 (8th Cir. 1975). In that case, the court held that it lacked jurisdiction to review similar regulations promulgated for a different point source category. The Third Circuit, in American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), has reached an opposite result, as have several district courts. E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1253 (W.D.Va.1974), appeal pending, No. 74--2237 (4th Cir.); American Paper Inst. v. Train, 381 F.Supp. 553, 554 (D.D.C.1973), appeal pending, No. 74-1544 (D.C.Cir.); American Petroleum Inst. v. Train, No. 74-F-8 at 6 (D.Col., April 8, 1975).
In EPA’s view, the Act calls for the setting of across-the-board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b). The permit-issuing process, according to EPA, is a mechanism for verifying compliance by each plant and individualizing the effluent limitations to the extent required by the peculiarities of individual point sources.
In choosing between these conflicting views, we are guided by the teaching of the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), which arose under the Clean Air Amendments of 1970, 42 U.S.C. § 1857a et seq. The courts of appeals had given varying interpretations of that Act, all of which differed from the one adopted by the agency. Noting that “[t]he disparity among the courts of appeals rather strongly indicates that the question does not admit of an easy answer,” the Court said that while the agency’s construction was not “the only one it permissibly could have adopted, ... it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts,” 421 U.S. at 75, 95 S.Ct. at 1480, and, further, “sufficiently reasonable to preclude the Court of Appeals [in that case] from substituting its judgment for that of the Agency.” Id. at 87, 95 S.Ct. at 1485. Our inquiry then is not whether the agency’s interpretation of § 301 is the only permissible one, but rather whether it is sufficiently reasonable to preclude us from substituting our judgment for that of the agency.. See also, McLaren v. Fleischer, 256 U.S. 477, 480-481, 41 S.Ct. 577, 65 L.Ed. 1052 (1921).
The heart of the controversy is the interpretation of §§ 301, 304, and 509(b). As we have already noted, in providing for direct review in the courts of appeals of “the Administrator’s action . in approving or promulgating any effluent limitation . . . under section 301,” § 509(b)(1) appears to contemplate that the Administrator will adopt effluent limitations under § 301. While § 301 itself does not expressly direct the Administrator to promulgate effluent limitations, subsection (a) of § 301 provides that “[e]xcept as in compliance with this section . . the discharge of any pollutant by any person shall be unlawful”; subsection (b) requires the achievement of certain “effluent limitations for point sources” by 1977 and other “effluent limitations for categories and classes of point sources” by 1983 — language difficult to reconcile with the view that individual effluent limitations are to be set when each permit is issued; and subsection (e) adds that “[e]ffluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources . .” Finally, the first sentence in § 304(b) provides that “[f]or the purpose of adopting or revising effluent limitations under this Act the Administrator shall . . . publish . . . guidelines for effluent limitations . . . .”
In addition to these provisions, the language of several other sections of the Act relating to effluent limitations supports EPA. Section 302(a) allows, under certain circumstances, stricter effluent limitations than the “effluent limitations required under section 301(b)(2).” See also § 302(c). Section 303(d)(1)(A) requires each state to “identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1) . . . are not stringent enough to implement any water quality standard applicable to such waters.” And § 309(a)(3), (c), and (d) prohibit violations of “section 301, 302 ., or . . of any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act . . . .” See also § 316(b) and (c). The reference to limitations in these sections, while not specifying how or by whom they are to be established, is nonetheless “further support for the position that Congress intended the section 301(b) limitations to have an independent existence” apart from the permit process. American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1039.
Under § 401(a)(1), applicants for any federal license must obtain state certification that they comply with § 301 or that “there is not an applicable effluent limitation . . . under sections 301(b) and 302 . . .” We find this language especially significant because it cannot be construed as referring to §§ 301(a), (c) or (f), the explanation the Eighth Circuit gave for other references to “effluent limitations under § 301.” CPC International Inc. v. Train, supra, 515 F.2d at 1042-1043. In addition, § 505(f), which defines “effluent standard or limitation under this Act” for purposes of § 505 (the citizen suit provision), includes in the definition, “(2) an effluent limitation or other limitation under section 301 or 302 of this Act,” and “(6) a permit or condition thereof . .” We agree with the courts in American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1038, and E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1251 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), that under the interpretation of the Act urged by amici here subsections (2) and (6) of § 505(f) would be redundant, and disagree with the Eight Circuit (CPC International Inc. v. Train, supra, 515 F.2d at 1043) that the reference to § 301 in § 505(f)(2) is to § 301(f). In summary, the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure.
The legislative history also contains support for the EPA position. Senator Bentsen, a member of the Public Works Committee that reported out the original version of the Act, stated during the Senate debate:
“In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July 1, 1977], which comply with specifically defined levels of effluent control and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to sections 301 and 304, these . . . goals shall be at least the ‘best practicable control technology currently available’ for [industrial] point sources . . . .” Quoted in Congressional Research Service, A Legislative History of Water Pollution Control Act Amendments of 1972, at 1283 (1973) (emphasis added) (hereinafter “Leg.Hist.”).
The Senate Report stated specifically that, “pursuant to subsection 301(b)(1) (A) and section 304(b)” the Administrator is to interpret “best practicable” as a “basis for specifying clear and precise effluent limitations.” Leg.Hist. 1468. Also, during Senate consideration of the conference committee report, Senator Muskie, the principal author of the Act, explained:
“[T]he conference agreement provides that each poluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on ‘best practicable’ technology no later than July 1, 1977. This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform, and that they will be final upon the issuance of a permit under section 402 of the bill.” Leg.Hist. at 162 (emphasis added).
In a written explanation prepared by Senator Muskie and submitted by him to the Senate during the debate on the conference report, he indicated that “practicability” and “availability” are not to be determined on a plant-by-plant basis. Rather, he explained, the conferees intended that
“the factors described in section 304(b) [cost, age of equipment, type of manufacturing process, engineering aspects of pollution control techniques] be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class.” Leg.Hist. 172.
Cf. Leg.Hist. 169-170, 254-255. It is unnecessary to multiply these examples. Those we have given are- sufficient to show the reasonableness of the EPA position.
Much of the remaining legislative history, including some cited by the Eighth Circuit, CPC International Inc. v. Train, supra, 515 F.2d at 1039-1040, is ambiguous. The ambiguity derives from § 502(11), which defines “effluent limitation” to mean any restriction on discharges established by the Administrator or a state, “including schedules of compliance.” Consequently, statements in the legislative history about the role of the states in setting “effluent limitations” can be read to refer either to target limitations or to schedules of compliance.
The EPA position represents a reasonable accommodation of the policies embodied in the Act. On the one hand, nátionwide effluent limits will insure the uniformity Senator Muskie and others stressed. See Leg.Hist. 132, 162, 170, 309, 466-467, 517, 577, 711, 1219, 1405. On the other hand, the states will retain a major role in regulating water pollution, in accord with § 101(b) of the Act. In administering the permit system, the states will have to specify schedules of compliance and determine in some cases whether a variance is justified or whether stricter discharge controls are needed to achieve water quality standards. Thus, the EPA position gives weight to both the policy of uniformity and that of federalism.
EPA’s interpretation also avoids anomalies that would result from acceptance of the Eight Circuit’s interpretation of the Act in the CPC case. Under the CPC interpretation, individual EPA permits (§ 402) based on the nationally-uniform guidelines would be directly reviewed in the court of appeals, § 509(b)(1)(F); yet the nationwide guidelines themselves would be reviewed in the first instance by the district court. CPC International Inc. v. Train, supra, 515 F.2d at 1038. Similarly, variances from the 1983 effluent limitations (§ 301(c)) would be directly reviewable in the court of appeals, 515 F.2d at 1043; but the effluent limitations themselves, which apply to “categories and classes” of point sources, would be reviewed initially by the district court. These results conflict with the congressional purpose of using direct review in the courts of appeals to insure expeditious and consistent application of effluent guidelines. See E. I. DuPont de Nemours & Co. v. Train, supra, 383 F.Supp. at 1253-1254. Cf. Leg.Hist. 1503.
We conclude that the position chosen by the EPA “was ‘correct,’ to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the ‘correct’ one.” Train v. Natural Resources Defense Council, Inc., supra, 421 U.S. at 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731. We therefore sustain EPA’s interpretation of the statute, and find that it had the authority to issue effluent limitations under § 301 and that we have the authority to review the regulations under § 509(b)(1).
II.
The Standard of Review
We begin our discussion of the merits by noting the relevant standard of review. Under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), agency action in an informal rulemaking proceeding is to be sustained unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See also Camp v. Pitts, 411 U.S. 138, 141-142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). This standard requires us to determine whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). We are not to set the effluent limitations ourselves or substitute our judgment for the agency’s. Id.; Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 402 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Rather, we are to determine whether the limitations set by the agency are “the result of reasoned decision-making.” Essex Chemical Corp. v. Ruckelshaus, 158 U.S.App.D.C. 360, 486 F.2d 427, 434 (1973), cert. denied sub nom., Appalachian Power Company v. EPA, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). If the basis stated by the agency for its decision is insufficient, we may not supply another that the agency itself has not chosen to rely on. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 494 (1943), 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); FPC v. Texaco Inc., 417 U.S. 380, 395-396, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974). We must, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974).
III.
The 1977 BOD5 and TSS Limitations
AMI’s first challenge is directed at the 1977 effluent limitations, which require application of “the best practicable control technology currently available.” For guidance in interpreting that term, EPA looks to Senator Muskie’s written explanation to the Senate, referred to at note 18, supra, in which he stated as follows:
“In defining ‘best practicable’ for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size, the unit processes involved, and the cost of applying such controls.
“The Administrator should establish the range of ‘best practicable’ levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category. In those industrial categories where present practices are uniformly inadequate, the Administrator should interpret ‘best practicable’ to require higher levels of control than any currently in place if he determines that the technology to achieve those higher levels can be practicably applied.
“ ‘Best practicable’ can be interpreted as the equivalent of secondary treatment for industry, but this interpretation should not be construed to limit the authority of the Administrator.” Leg.Hist. 169-170.
This, we think, is a reasonable view of the Administrator’s responsibility. The “best practicable technology” will normally be defined based on the average performance of the best existing plants. If, however, the Administrator concludes that present practices in an industrial category are uniformly inadequate, he may require levels of control based on technology not presently in use in the category (or, it would seem, technology in use only by a single plant), if he determines, by applying the criteria listed in § 304(b)(1)(B), that this technology can be practicably applied throughout the category. One of these criteria is the cost of applying the proposed technology in relation to the resulting effluent reduction. With these principles in mind, we turn to AMI’s challenges to the 1977 standards.
A.
Technology Relied on by EPA for Achievement of 1977 BOD5 and TSS Standards
It appears from the EPA comments introducing the final regulation, 39 Fed. Reg. 7896 (February 28, 1974), that the 1977 effluent limitations are based primarily on the technology of biological treatment through a three-lagoon system. This is considered “secondary” treatment, that is, treatment which takes place after the waste water has passed through “primary,” in-plant treatment systems. In a three-lagoon system, waste water from the plant flows first into the anaerobic lagoon, where organic matter in the effluent is partially consumed by anaerobic bacteria (bacteria that do not require free oxygen). To increase oxygen levels in the waste water, it is then mechanically aerated in the aerated lagoon. The water then flows to the aerobic lagoon, where most of the remaining organic matter is consumed by aerobic bacteria (bacteria that do need oxygen). After being held there for a relatively long period, the waste water is discharged.
EPA estimates, based on a sampling survey, that 63% of the slaughterhouses and packinghouses discharging into waterways already have lagoon systems. FDD 125. Apparently, many of these systems do not include mechanical aeration. The cost-benefit analysis made by EPA is based on the cost of adding mechanical aeration to those lagoon systems. 39 Fed.Reg. 7896. Other treatment systems mentioned in the comments were not subjected to the cost-benefit analysis required by § 304(b). Because only the three-lagoon system has been cost-justified, it is the only technology that can be considered “practicable” as that term is defined in § 304(b).
B.
The Effect of Climate and Temperature on the Efficiency of Aerobic and Anaerobic Lagoon Systems
AMI’s first argument, aimed at the 1977 effluent limitations for all four subcategories of plants, is that, while the proposed lagoon system qualifies as practicable, it cannot achieve the limitations on a year-round basis because of seasonal and climatic effects. Winter conditions, according to AMI, impair the efficiency of both anaerobic and aerobic lagoons, while algae growth in the summer increases BOD5 and TSS.
(1) The Effect of Winter Temperatures on the Anaerobic Lagoon
The optimum temperature for an anaerobic lagoon is approximately 90 °F. Cold temperatures cause it to function less efficiently by slowing bacterial activity. The issue is the magnitude of this effect. AMI relies on an authority which says that removals are reduced to 70%. It conceded in its submittal to the agency, however, that the effect of winter temperatures on the anaerobic lagoon is small.
EPA argues that winter temperatures are counteracted by the heat of incoming waste water (80-100 °F.) and by the insulating grease cover that forms over the pool. An article concerning the Wilson plant at Cherokee, Iowa, reports that the grease cover on the anaerobic pool, after taking some time to build up, insulated the effluent and maintained satisfactory temperatures. The anaerobic pond at that plant operated at a 92% level of efficiency in February 1970 EPA’s conclusion is also supported by data on other plants supplied by the State of Iowa, which show, for example, that at one plant the anaerobic temperature on two dates in January 1972 was 77-78°F.
AMI has not satisfactorily refuted this evidence. Nor has it otherwise demonstrated that whatever decrease in anaerobic removals does take place in winter will affect the efficiency of the system as a whole sufficiently to prevent attainment of the standards. AMI’s own graph, submitted for the purpose of showing seasonal effects at American Beef’s plant at Oakland, Iowa, indicates that over a two-year period the plant met the BOD5 limitation in all but one of the coldest winter months (December through February). EPA also points to data from other plants which show that the 1977 limitations were met for extended periods that included winter months. These data are especially significant because they do not show the direct correlation AMI suggests between removal efficiency and cold weather. Finally, even assuming that cold weather reduces the efficiency of the anaerobic lagoon, overall system efficiency would be impaired only slightly, because a lagoon system as a whole responds much less to changed conditions than any of its parts.
We conclude that there is firm record support for EPA’s conclusion on the effect of cold weather on the efficiency of the anaerobic lagoon.
(2) The Effect of Winter Temperatures on the Aerobic Lagoon
Like anaerobic lagoons, aerobic lagoons operate less efficiently in winter. Cold temperatures inhibit aerobic microorganisms, and ice and snow covers reduce the oxygen content of water. EPA argues that these difficulties can be ameliorated by increasing detention time, thereby giving the microorganisms more time to work, by using additional aerobic ponds, or by using submerged aerators. We agree with AMI that EPA’s argument as to these countermeasures is inadequately supported by the record.
The record does suggest, however, that winter conditions do not make compliance with the 1977 standards impossible, since some plants have succeeded in complying with the BOD5 standards in winter. One such plant was the Wilson plant at Cherokee, Iowa, which maintained a 45% level of aerobic removal of BOD5 in February. The American Beef plant at Oakland, Iowa, also met the BOD5 limitations during the winter months, as did several other plants. AMI’s argument that some of these plants should be disregarded because they did not discharge in some winter months is unsound. As counsel for EPA pointed out during oral argument, a plant which does not discharge during a given period may be continuing its operations while storing its effluent. Our examination of the record confirms that the plants in question continued operations during periods when they did not discharge. The time of release is unimportant, so long as the effluent is successfully treated before release.
Neither party has submitted information on TSS removal in winter. The data on BOD5 removal indicates, however, the incorrectness of AMI’s basic postulate that aerobic activity is sharply reduced during cold weather. Moreover, AMI’s own submittal indicates that TSS concentrations in winter are comparable to those in summer, and we conclude below that the TSS limitations are attainable in summer.
Thus, although the record support for EPA’s position with respect to the effect of cold weather on aerobic ponds is less conclusive than the evidence concerning anaerobic ponds, we think it is still sufficient, bearing in mind the restricted scope of review under the “arbitrary and capricious” standard.
(3) The Effect of Summer Weather on Aerobic Lagoons
Warm weather promotes the growth of algae. On the basis of comments in the record by industry representatives, state pollution authorities, and others about the effect of algae on aerobic lagoons, AMI argues that algae growth increases TSS and BOD5 counts. Two of these comments refer in general terms to problems at individual plants without giving detailed supporting data; another comment is heavily qualified and inconclusive; and the others are purely conclusory.
EPA states that the Illini Beef plant at Genesco, Illinois, and the Swift plant at Glenwood, Iowa, were able to meet the standards during summer months, as was the Routh plant at Sandusky, Ohio. AMI does not respond directly to these assertions, and, from our examination of the record we conclude that data from these plants fail to show the correlation between summer weather and TSS predicted by AMI.
With respect to BOD5, EPA cites data from five plants that complied with the 1977 effluent limitations during the summer. AMI does not contest the figures regarding summer performance for two of these plants (Wilson, Cherokee, and Swift, Glenwood) but argues that Illini Beef and another plant should be disregarded because EPA itself, as shown in the Final Development Document, excluded them from consideration. The fifth plant was not mentioned or relied on by EPA in the Final Development Document. AMI also points out that a sixth plant, American Beef, failed to meet the standards during the summer. Nevertheless, the ability of even two plants using the proposed technology to meet the BOD5 and TSS standards in summer demonstrates that the standards are attainable in warm weather and is sufficient to overcome AMI’s weakly supported position.
In summary, we find sufficient basis in the record for the Administrator’s conclusion that temperature changes do not render the 1977 effluent limitations unattainable by the 1977 technology he designated.
C.
Record Support for 1977 BOD5 and TSS Limitations
We next consider AMI’s argument that the 1977 effluent limitations are arbitrary and capricious because they are not supported by the record. Limitations for three of the four subcategories were based on the performance of exemplary plants in each subcategory. AMI accepts this method but contests the reliability and significance of the figures used. Limitations for the fourth subcategory, high-processing packinghouses, were based on statistical techniques. AMI concedes that this approach is “not necessarily wrong,” but urges that EPA erred in implementing it.
(1) Simple Slaughterhouses BOD5.
EPA set B0D5 limitations for simple slaughterhouses as the average of the performance of four plants. Data for one of these, Cornwell at Pureellville, Virginia, must be disregarded because the plant did not use the 1977 technology-
Data for the second plant, Collins Packing at Greenfield, Ohio, was derived from questionnaire responses. While the questionnaire responses for most other plants contain data collected at regular intervals over long periods, those submitted by Collins consisted of the results of only two tests. AMI argues that the results of one of these tests were so low as to raise a question about its reliability, and that the other test showed the plant’s effluent level to be over the standard. EPA’s figures show that if the second test alone were used, the plant would be only .0034 lb. BOD5/1000 lbs. LWK over the limitation, and AMI does not dispute this figure in its reply brief. The determination of whether the first test should be rejected because the result is unexpectedly low is peculiarly within EPA’s expertise, and we shall not substitute our judgment for that of the agency. Hence, we accept Collins as support for the standard.
The third plant was Iowa Beef at La-Mars, Iowa. AMI argues that data from this plant should have been disregarded because
“[t]he [aerobic] lagoon was only treating the portion of the waste that did not leak out and could accordingly provide the remaining waste a better degree of treatment. This plant cannot be considered representative of plants that must treat full strength full volume wastes.”
This argument rests on two unarticulated assumptions: first, that wastes leak out faster than water, so that the concentration of waste is decreased by leakage; and second, that aerobic lagoons treat large volumes of waste water less effectively than small volumes. We find no support for these assumptions in the record, and conclude that EPA was justified in utilizing the data from LaMars. This data showed that the plant was .01 lb. BOD5/1000 lbs. LWK over the standard, but since EPA used an averaging process to set the standard for this subcategory, at least one of the numbers averaged must be greater than the average.
Data for the fourth plant, Swift & Company at Glenwood, Iowa, came both from the North Star tests and the State of Iowa. Although AMI originally argued that the North Star tests did not show compliance with the 1977 limitation, it did not refute in its reply brief EPA’s showing to the contrary. The parties also disagree about whether the state data show the plant to be in compliance during some of the months it discharged. Neither side reveals its calculations, but our own show that the plant was in compliance for 20 consecutive months, as EPA contends. AMI also argues that Swift’s performance should be discounted because the lagoon system was “relatively new,” but the record contains no basis for the implication that efficiency decreases with age. We conclude that the 1977 BOD5 limitation for simple slaughterhouses, even considering the performance of only the three plants which qualify is adequately supported by the record.
TSS.
The TSS limitations for simple slaughterhouses are based in part on treatment systems at three of the four plants on which the BOD5 limitations for this subcategory were based. The Final Development Document states that the three plants operated at 97% efficiency and that assuming an average raw waste load, this would be sufficient to meet the TSS limitations. FDD 142 — 143. We agree with AMI that the record does not support the 97% figure for these three plants.
EPA does not, however, rely solely on this figure. The Final Development Document places primary emphasis on the actual discharge levels at the three plants. While Swift, Glenwood violated the 1977 limitations during the North Star tests, Iowa State data show that plant to be in compliance for four of the five months in 1972 for which complete data are available. EPA says that Collins was' also well below the 1977 limitations, but the supporting data for this statement is not in the record. (Two other plants were able to attain the 1977 limitations, but EPA did not' rely on these plants as support for the standards because their operations are “very unusual.”)
Meager as the foregoing evidence may seem, AMI itself, in its final submission during the rule-making process, recommended the TSS limitation EPA ultimately adopted. It did so “[o]n the basis of results obtained from several exemplary well operated lagoon systems in various parts of the United States.” We think EPA could reasonably conclude that this limitation was attainable.
(2) Complex Slaughterhouses BOD5.
EPA based its effluent limitations for complex slaughterhouses on five plants. We are unable to determine from the record whether one of these, Tama Beef at Tama, Iowa, complied with the limitations. The record shows that none of the remaining plants used full 1977 technology. Assuming, as appears to be correct, that mechanical aeration will produce the 40% efficiency claimed by EPA, two of the plants, Missouri Beef at Rockport, Missouri, and Iowa Beef at West Point, Iowa, could apparently meet the standards easily by adding the aeration step called for by the 1977 technology. The other two plants also support the attainability of the limitation. AMI admits that one of these, American Beef, met the standards for 15 months out of a two-year period, and that the other, Armour at Sterling, Illinois, did so for over three-quarters of a two-year period. We conclude that there was sufficient basis for the B0D5 standard for complex slaughterhouses.
TSS.
EPA contends that one complex slaughterhouse studied, American Beef, achieved the 1977 TSS limitation of .25 kg/1000 kg LWK. See FDD 143. According to AMI, however, North Star tests showed violations at this plant on two of the three test days. One violation was admittedly slight (.01 lb./1000 lbs. LWK over the limit). As to the second alleged violation, AMI points to a test result of .86, greatly in excess of the limit. EPA counters that the latter test result was actually .086, and attributes AMI’s figure to a misreading of the record due to illegibility. EPA maintains that this figure is consistent with other data in the record and results in an average discharge for the three test days of .19, well under the .25 limit.
In its reply, AMI shifted its attack, arguing that EPA improperly relied on the North Star data rather than data obtained from the questionnaires. EPA responded at oral argument that the questionnaire data was “suspect” because “concentrations of suspended solids were in the range of a 100 milligrams per liter.” This explanation was unsupported by reference to the record or expert authority, and we have found no support for it in the record.
EPA’s rejection of questionnaire data on this occasion is inconsistent with its preference for data of that kind in other instances in which that data and test data were at odds. In these other instances EPA chose to rely on data from questionnaires and state tests rather than on conflicting North Star tests, on the theory that data collected frequently over extended periods were more reliable than the isolated tests conducted by North Star. We find this approach reasonable and within EPA’s discretion to adopt, but once adopted it should have been applied consistently, unless EPA could provide a reasoned and record-supported explanation for not doing so. EPA has failed to explain satisfactorily why it took a contrary approach on this single occasion.
EPA also attempts to support the TSS limitation with data from five simple slaughterhouses, which it contends met the complex slaughterhouse limitations and had comparable raw waste loads (i. e., volumes of effluent after in-plant treatment). Of these five plants, Corn-well must be disregarded because it did not use the 1977 technology. The raw waste load for two other plants, Collins and Iowa Beef, was less than half the average waste load for complex slaughterhouses, and that for both Illini Beef and Swift, Glenwood was 19% below the average. We thus have trouble finding that any of these four plants furnishes a basis for comparison.
In sum, when we read EPA’s asserted rationale for the 1977 TSS limitation for complex slaughterhouses against the record, we must conclude that EPA has not supplied a reasoned basis for that limitation. We therefore remand the limitation to EPA for further consideration.
(3) Low-Processing Packinghouses BOD5.
EPA refers to five plants in support of the BOD5 standard for low-processing packinghouses. Two of the plants do not use lagoon systems. One of these must be disregarded completely, and the other is relevant only to demonstrate best practicable technology for plants currently using anaerobic contact. On the other hand, the Wilson, Cherokee plant fully complies with the 1977 limitations, as does the Routh Packing plant at San-dusky, Ohio, though its operations are in some respects atypical. The Iowa Beef plant could also be brought within the standards by the addition of mechanical aeration, in view of the fact that the plant qualifies for an adjusted limitation because it uses imported hides. We conclude that EPA’s effluent limitation is sufficiently supported.
We are unpersuaded by AMI’s argument that in setting the standards for low-processing packinghouses below those for complex slaughterhouses, EPA contravened “the definitions and the inherent nature of these categories.” Because packinghouses perform the functions of slaughterhouses, together with additional processes that add to the raw waste load, AMI says the limitation for packinghouses should be higher rather than lower.
Since meat packing operations in low-processing packinghouses contribute relatively little to the waste load, they may be ignored for present purposes. The dispute therefore focuses on the amount and nature of by-product processing done by plants in the two subcategories. EPA contends that the by-product processing done by low-processing packinghouses is “less extensive” than that done by complex slaughterhouses. AMI argues that the contrary is true, and we find the record to be inconclusive. Nor does the record contain information on whether plants in one subcategory tend to use processes that produce a higher waste load than those used by plants in the other subcategory.
What does appear clearly from the questionnaire data in the record is that, whatever the reason, the average raw waste load is much lower for low-processing packinghouses than for complex slaughterhouses. AMI attacks this data as inaccurate, in part because it conflicts with North Star test data (which was available for only two plants in these subcategories). As we said earlier, EPA could properly rely on the questionnaire data even when North Star samplings were inconsistent with that data. We see no reason to believe that industry members would submit inaccurate data, especially when doing so might cause stricter limitations.
TSS.
Because treatment systems for other plants in this subcategory performed “rather poorly,” EPA relies solely on the Routh plant as support for its TSS limitation for low-processing packinghouses. We interpret this as a finding that, with the exception of this plant, technology in this subcategory was uniformly inadequate — a finding which EPA was entitled to make. See p. 453, supra. EPA maintains that its “determination to establish the effluent limitation at a level that is double the level being achieved by a major plant is reasonable.” Relying on questionnaire data, EPA says the Routh plant’s TSS emissions were less than half the 1977 limitation.
AMI makes two arguments concerning Routh: first, that Routh did not use the 1977 technology; and second, that it was an atypical plant. The first argument was not raised by AMI until its reply brief, where it stated in a footnote that Routh “does not actually employ ‘best practicable control technology’ since it has a series of dissolved air floatation units rather than an anaerobic lagoon.” We would not find this persuasive, even if the argument were timely. (See note 44, infra.) The record demonstrates that Routh’s dissolved air floatation units, combined with other primary treatment, reduced TSS levels from 2.87 to .79, a reduction of 72%. This is a lesser reduction than is ordinarily achieved by an anaerobic lagoon, which, according to the Final Development Document, can remove up to 95% of TSS. Our own inspection of the record confirms that anaerobic lagoons are able to achieve removal rates well over 75%. For instance, North Star tests at Ulini Beef showed a 96.4% removal rate for TSS. Even the American Beef plant, one of the poorer performers with regard to TSS removal, obtained 78% anaerobic removal. Thus, Routh replaced the anaerobic component of the 1977 technology with an apparently less efficient component, but was still able to meet the standards.
AMI also attacks the Routh plant as atypical. The Final Development Document states that
“[t]he degree of secondary processing conducted at any packinghouse is somewhat variable, although a large number of by-product recovery operations are typically practiced.” FDD at 26.
Most low-processing packinghouses apparently do blood or hide processing and inedible rendering, but Routh does none of these. Also, Routh’s raw waste load was below average for a low-processing packinghouse, though waste load varied greatly among such plants. See FDD 43. Despite these atypical features, EPA could reasonably find that a limitation twice that attained by Routh could be attained by other low-processing packinghouses, especially since Routh used a technology less efficient than that recommended for 1977.
(4) High-Processing Packinghouses BOD5.
High-processing packinghouses vary greatly in the quantity of off-site kill processed. For this reason, the method used by the Administrator to set effluent limitations for this subcategory was different from that used for other subeategories. He applied “the exemplary treatment technology proven in use by plants in the other three subcategories to the average raw waste values” for high-processing packinghouses. FDD 144. Using a statistical equation relating raw waste BOD5 to LWK and processed product production, he determined the raw waste BOD5 for plants having a .55 ratio of processed products to on-site kill. He then assumed a removal efficiency of 98.5% based on the performance of various secondary treatment systems, and calculated BOD5 limits for these plants based on the 98.5% figure. Other high-processing packinghouses were given an additional allowance over this base figure.
AMI contends that the 98.5% figure is incorrect because the standards for the other categories require only 98.0% removal. EPA answers that “98.5 percent was found to be a reasonable intermediate point between average and exemplary performance of several biological systems, including anaerobic-aerated-aerobic lagoons . . . .” While this statement is vague, there is support for the 98.5% figure in the record. A' table in the Final Development Document of removal values for various biological systems shows average values of 95.4% for two-lagoon systems and 98.3% for three-lagoon systems, with the best plants reaching 98.9% and 99.5% respectively. FDD 94A. EPA was entitled to base its effluent limitations on the average of the best plants, rather than on the average of all plants, in the subcategories from which the exemplary technology was borrowed. Accordingly, selecting the 98.5% figure, which is lower than the average of the best plants, was not arbitrary or capricious.
TSS.
AMI made no complaint of the 1977 TSS limitation for high-processing packinghouses in its opening brief, aside from of its general attack concerning the effect of temperatures on lagoon systems, which we disposed of above. EPA’s answering brief noted this omission and made no argument with reference to the TSS limitation. In its reply brief, however, AMI challenged the TSS limitation as “purportedly based on suspended solids removals achieved in the three other categories,” and stated that “if those limitations must be reconsidered, as we contend, the high-processing packinghouse limitations should be reconsidered also.” The challenge not only comes too late, but is also too general to permit serious evaluation. Accordingly, we sustain the 1977 TSS limitation for high-processing packinghouses.
IV.
The 1983 Standards
The distinction between the “best practicable” standard governing the 1977 technology and the “best available . . . economically achievable” standard governing the 1983 technology, according to Senator Muskie, “is intended to reflect the need to press toward increasingly higher levels of control in six-year stages.” Leg.Hist. 170. While some factors, are relevant to setting both standards (see § 304(b)(1)(B), (2)(B)), the 1983 effluent limitations are to be based on “a broader range of technological alternatives,” including techniques “which exist in operation or which can be applied as a result of public and private research efforts.” Leg.Hist. 170. No formal cost-benefit analysis is required in determining the “best available” technology, though the Administrator is to take cost into consideration. In addition, “rather than establishing the range of levels in reference to the average of the best performers in an industrial category [which is the norm for the 1977 technology, see p. 453, supra], the range should, at a minimum, . be established with reference to the best performer in any industrial category.” Id. In light of the stringent effluent limitations contemplated by the Act for 1983 and the declared national policy of eliminating the discharge of all pollutants by 1985 (§ 101(a)), we believe that the EPA must be upheld if it can show the existence of some technology which, if implemented, may reasonably be expected to achieve the 1983 standards.
AMI’s position is that EPA’s standards for BOD5, TSS, and ammonia concentration are unattainable by the 1983 technology designated by EPA, and therefore cannot stand. We turn now to these arguments.
A.
Technology Relied Upon by EPA for Achievement of the 1983 BOD5 and TSS Standards
The 1983 standards contemplate the implementation of a number of additions and improvements to “secondary” systems, which typically will be the three-lagoon systems on which the 1977 standards are based. Three of these “tertiary” or advanced treatment techniques are the subject of AMI’s criticism: land disposal, sand filtering, and microstraining.
Land disposal is an alternative to discharge into waterways or public treatment systems. It involves disposing of waste water by distributing it through irrigation systems over relatively flat land, surrounded by dikes, upon which a cover crop of grass or hay may be grown. Barring underground seepage, land disposal totally eliminates the discharge of pollutants into public waters and is therefore highly preferable to other treatment systems. As AMI points out, however, in some locales land shortages or soil conditions may prevent use of land disposal, and in others freezing and lack of ground cover may prevent use of that technique in winter. AMI also contends that the EPA underestimated the amount of land necessary for effective disposal.
A sand filter is a specially-prepared bed of sand or similar filter medium through which waste water passes and from which BOD5 and TSS are removed, either by raking the upper layers, through an under-drainage system, or by backwashing. AMI maintains that this technique is ineffective in removing algae, and that, aside from this problem, it is incapable of removing a sufficient proportion of the BOD5 and TSS allowed by the 1977 standards to meet the 1983 standards.
Microstrainers are partially submerged rotating drums which remove BOD5 and TSS through use of a fine mesh fabric. AMI contends that they too are incapable of extracting algae, that they are a recent innovation on which performance data is sparse, and that no record estimate of their efficiency is based on a reliable source.
The points raised by AMI are not without substance. EPA, in fact, has recognized that land disposal will not be universally available and has suggested its use only as a practical and efficient alternative. Also, while the EPA now appears ready to defend the efficiency of microstrainers, the Final Development Document notes the paucity of information on their reliability in full-scale operation. FDD 100. The defect in AMI’s argument, however, is that it fails to consider additions to the 1977 technology other than the three just examined.
In particular, in-plant or “primary” techniques may be used to reduce the level of effluent in the water stream at an early stage, thereby reducing the efficiency at which tertiary systems such as sand filters must operate in order to attain the standards. One of these primary techniques is dissolved air floatation, which involves releasing a mixture of compressed air and liquid into the waste water stream to force small particles to the surface. When used with an alkalinity control and chemical flocculation, which causes the particles to aggregate, dissolved air floatation is capable of removing 90% of BOD5 and 98% of TSS, according to unconverted EPA statistics. Various other in-plant controls and modifications, such as improved handling of viscera, paunch, and blood wastes, all demonstrated as technically feasible, are also described in the Final Development Document.
As to the problem of algae, AMI has submitted no data to show that algae growth in aerobic lagoons will result in excessive TSS in plants utilizing the in-plant controls and modifications and the extensive primary treatment EPA requires. On the other hand, EPA has suggested one method of reducing the algae content of the effluent discharged from the lagoons, namely, by locating the intakes for discharge pipes about a foot below the lagoon’s surface, since algae tend to float on the surface. Also, it-notes that the authority relied upon by AMI in its analysis of the effectiveness of sand filters actually indicates that they are capable of removing 33 to 45% of algae content. We conclude that EPA’s conclusions and the resulting 1983 limitations are based on a reasoned analysis of the record, with one exception. Since the 1983 TSS limitations are based in part on the 1977 limitation, the 1983 limitation for complex slaughterhouses should be reconsidered in light of our holding with respect to the 1977 TSS limitation for this subcategory.
B.
1983 Ammonia Standards
A final pollutant which EPA seeks to control by 1983 is ammonia. According to the Final Development Document, the concentration of ammonia in plant waste water ranges from 7 to 50 mg/1 before treatment, rising to a level of 100 mg/1 or more after treatment in an anaerobic lagoon.
In the preamble to the effluent limitations, EPA states as follows:
“The ammonia limitation was derived from engineering judgment as to the reliable capability of the air stripping method of ammonia control. It would appear that the limitation is a reasonable current estimate of the capability of ammonia stripping techniques for controlling this parameter.”
In its brief in this court, however, EPA abandons sub silentio its reliance upon ammonia stripping and relies upon nitrification as the technology by which the effluent limitations can be met, adding that “use of ammonia towers [stripping] is not necessary to meet the standard. Nevertheless, ammonia towers are effective under proper conditions and may be utilized by the industry to meet the standard.”
We first examine ammonia stripping, the technology on which EPA originally said it based the limitations. Ammonia stripping removes ammonia from liquid waste by exposing it to an ammonia-free gas such as air. After adjusting the alkalinity of the waste water, it is pumped to the top of a stripping tower and allowed to flow downward, while a counter-current of air introduced at the bottom of the tower flows upward. The method is capable of removing up to 98% of ammonia content. Reaching this efficiency, however, requires a level of air flow that is extremely costly to maintain. Moreover, removal efficiencies begin to drop once the temperature falls below 68° F., according to at least one record reference. Housing the tower and heating the air prior to introducing it into the tower are mentioned in the Final Development Document as means of dealing with the temperature problem but are characterized elsewhere in the record as impractical and extremely expensive. AMI notes finally that stripping towers are subject to scaling — the buildup of a calcium carbonate scale on the tower baffles, eventually reducing the tower’s efficiency— which is very difficult or impossible to remove in hard water areas. Thus, while some of the problems connected with ammonia stripping were recognized in the Final Development Document, neither it nor EPA’s brief suggests techniques which are likely to solve those problems. And, though counsel for EPA stated at oral argument that the agency has not abandoned this technique, we think that the difficulties are of a sufficient magnitude to preclude EPA from relying on this technique alone to meet the standards, at least on this record.
Since EPA based the ammonia limitations on technology not shown to be feasible, remand is necessary. We cannot sustain the regulation on a basis which counsel now asserts but which the agency did not rely upon in formulating the regulation. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). It is nevertheless appropriate to go on to express, for EPA’s consideration on remand, our views on the shortcomings of the present record with respect to nitrification, the method EPA relied upon in its brief before this court. Nitrification is the process of decomposing ammonia molecules by oxidizing their nitrogen into nitrites and nitrates, which are then usually converted to nitrogen and nitrogen oxide by a denitrification process. As noted above, the concentration of ammonia in waste water after it passes the anaerobic lagoon stage is 100 mg/1 or more. Hence, in order for nitrification to meet the 1983 limitation of 4.0 mg/1, the process must be capable of reducing the amount of ammonia content by at least 96%. The three studies in the record on which EPA relies to support the capability of the nitrification technique to reach 1983 standards show reduction of final ammonia concentrations below 4.0 mg/1, but the ammonia level of the influent (or liquid flowing into the processing unit) in each case was significantly less than 100 mg/1, yielding removal efficiencies of 10 to 90%. Counsel for EPA stated at oral argument that the problem with ammonia removal was not in percentage reduction but rather in achieving the base level, implying that a treatment process capable of achieving, for example, a 2 mg/1 effluent could do so regardless of the ammonia concentration of the influent. Perhaps this is so, and if it is, perhaps the point would be obvious to an expert. Since we, however, lack the expertise necessary to make such a judgment and the record is barren on the point, we are unable to uphold EPA, particularly in light of record evidence that the best available ammonia-removing technology applied to influents with 100 to 150 mg/1 ammonia yields a final effluent of 10 to 15 mg/1, substantially in excess of the 1983 standards. We therefore remand the 1983 ammonia standards for reconsideration and development of data adequately supporting whatever standards are ultimately adopted.
V.
Effluent Limitations in Issue Compared With Subsequently Issued Meat Processing Standards
Approximately six months after promulgating the regulations under review here for slaughterhouses and packinghouses, EPA issued proposed standards for meat-packing plants, i. e., plants that process meat but do not do their own slaughtering. 39 Fed.Reg. 31486 (August 28, 1974). Because few meat processors have their own waste treatment systems, EPA- used data from its study of slaughterhouses and packinghouses in establishing the meat processing standards. AMI complains that “EPA set meat processing standards, especially 1983 meat processing standards, at levels which are significantly more lenient than those appealed by AMI in this proceeding,” and that “it is arbitrary and capricious for EPA to reach two different conclusions as to achievable limitations based upon the same data.”
We do not have before us the record on which the regulations for the meat processing industry were based, and an intelligent comparison of the two industries and the regulations for each is impossible in the absence of full records for both industries. Moreover, as the court said in Portland Cement Association v. Ruckelshaus, supra, 486 F.2d at 389,
“Inter-industry comparisons of this kind are not generally required, or even productive; and they were not contemplated by Congress in this Act [the Clean Air Act], ... It would be unmanageable if, in reviewing the cement standards, the court should have to consider whether or not there was a mistake in the incinerator standard, with all the differences in parties, practice, industry procedures, and record for decision.”
We have decided in parts III and IV of this opinion that the challenged 1977 and 1983 standards for BOD5 and TSS for the Meat Products Point Source Category (with the exception of TSS for complex slaughterhouses) have adequate record support. The fact that less stringent limitations have been set for another category does not require further justification for the present ones.
VI.
Conclusion
To summarize, we have decided that we have jurisdiction to review directly the existing source regulations challenged here. We have also found that temperature and climatic effects do not render the 1977 limitations unattainable, and that, with the exception of the TSS limitation for complex slaughterhouses, the 1977 limitations are based on a reasoned analysis supported by the record. Finally, we have found that the 1983 limitations for BOD5 and TSS are adequately supported (with the same exception), but that the limitation for ammonia is not.
The only remaining problem is that of fashioning a remedy. The statutory deadline for promulgating existing source standards has passed, and the deadline for compliance with the 1977 standards is fast approaching. In order to expedite the case, we remand it to the EPA with the instructions set forth below, and retain jurisdiction pending the remand. CPC International Inc., supra, 515 F.2d at 1050 (citing cases).
EPA may conclude, on reconsideration, that evidence in the existing record on which it did not previously rely is adequate to support the limitations. If so, it may issue a clarifying explanation and reissue the limitations without further hearings, notice, or opportunity for comment. See South Terminal Corp. v. EPA, 504 F.2d 646, 665 (1st Cir. 1974), and cases cited therein. On the other hand, it may decide to seek new data or to reconsider the limitations themselves. If so, it must follow the procedural requirements of the Act. In either event, if the petitioner is dissatisfied with the agency’s final action with respect to any effluent limitation, it shall have 21 days to file any objection to the effluent limitation in this court. The objection will then be heard by this panel of the court on an accelerated briefing schedule.
We remand for expeditious consideration by the EPA, pursuant to these instructions, of the 1983 ammonia limitations and the 1977 and 1983 TSS limitations for complex slaughterhouses. With these exceptions, we uphold the challenged effluent limitations.
Affirmed in part, remanded in part.
. Sections of the Act are referred to in this opinion by their designations in the Statutes at Large. The parallel United States Code citations for the sections to which most frequent reference is made are as follows:
Section 301 — 33 U.S.C. § 1311,
Section 304 — 33 U.S.C. § 1314,
Section 306 — 33 U.S.C. § 1316,
Section 402 — 33 U.S.C. § 1342,
Section 509 — 33 U.S.C. § 1369.
. The requirements of subsection (b) take the form of exceptions to § 301(a), which forbids the discharge of pollutants except in compliance with specified provisions of the Act. The provisions specified are § 301 itself (Effluent Limitations), § 306 (National Standards of Performance), § 307 (Toxic and Pretreatment Effluent Standards), § 318 (Aquaculture Projects), § 402 (National Pollutant Discharge Elimination System), and § 404 (Permits for Dredged and Fill Material).
For another description of the provisions of the Act relating to the adoption of effluent regulations, see National Resources Defense Council, Inc. v. Train, 510 F.2d 692, 695-697 (D.C.Cir. 1975); see also Stream Pollution Control Board v. United States Steel Corp., 512 F.2d 1036, 1041-1042 (7th Cir. 1975).
. A “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, [etc.], from which pollutants are or may be discharged.” § 502(14).
. Publicly-owned treatment works are regulated differently under § 301. Existing plants must adopt “secondary treatment” as defined by the Administrator under § 304(d)(1). By 1983, public treatment works must comply with § 201(g)(2)(A), which calls for use of the “best practicable waste treatment technique.” Special provisions govern industrial dischargers that use public treatment systems rather than discharging directly into waterways. If the public treatment system has adopted secondary treatment, the industrial discharger need only meet the pretreatment requirements of § 307. Some 55% of the packinghouses and slaughterhouses discharge into public treatment systems; the regulations under review here apply primarily to the remaining 45% but potentially could apply to plants discharging into municipal systems that do not utilize secondary treatment.
. Although § 304(b) called for publication of final guideline regulations within one year after the effective date of the Act, which would have been October 18, 1973, EPA failed to do so, presumably because of the staggering proportions of its task. In an action to require EPA to comply with the statutory deadline, the United States District Court for the District of Columbia ordered the agency to issue regulations for the Meat Products Point Source Category by February 16, 1974. National Resources Defense Council, Inc. v. Train, 6 ERC 1033 (D.D.C.1973). The court of appeals reversed the district court’s holding that the October 18 deadline applied to categories of point sources, which unlike the meat product category, were not listed in § 306(b)(1)(A), 510 F.2d 692, 704 et seq. (D.C.Cir. 1975), but affirmed as to those categories that were so listed.
. Public-owned treatment works are excepted from § 304(b).
. The Administrator has additional duties that are not involved in this case. For example, § 307 requires him to adopt pretreatment standards for certain toxic substances.
. While the Act refers to the Administrator as the official to whom responsibilities are delegated, he of course carries out his duties through the agency, which is the first named respondent here and on whose behalf the respondent’s brief has been filed. We will hereafter refer to EPA and the Administrator interchangeably.
. According to the Final Development Document, “[t]he major criterion for the establishment of the categories” was the oxygen demand of the plant waste water; “[o]ther criteria were the primary products produced and the secondary (by-product) processes employed.” FDD 1. The sub-categories are-defined in the regulations, however, only in terms of function and extent of by-product processing.
. The regulations also cover new sources. For each subcategory there is a section prescribing new source standards of performance pursuant to § 306, 40 C.F.R. §§ 432.15, 432.25, 432.35, 432.45, and a section prescribing pretreatment standards pursuant to § 307, 40 C.F.R. §§ 432.16, 432.26, 432.36, 432.46. Neither the new source nor the pretreatment regulations are challenged in this proceeding.
. The application must be filed within 90 days. § 509(b)(1). Action which could be reviewed under this provision is not subject to judicial review in any later enforcement proceeding. § 509(b)(2).
. CPC International Inc. and the American Petroleum Institute filed briefs attacking the Administrator’s authority; the National Resources Defense Council filed briefs in support of the Administrator. References in the text to “amici” refer only to CPC and American Petroleum Institute.
. EPA argues that we would still have jurisdiction to review the regulations because of the close interrelationship between § 301 limitations and § 304(b) guidelines, and because bifurcated review of the limitations and guidelines would frustrate an important purpose behind the judicial review provisions of the Act — expeditious and consistent application of effluent limitations. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); E. I. DuPont de Nemours v. Train, 383 F.Supp. 1244, 1253-1254 (W.D.Va.1975), appeal pending, No. 74-2237 (4th Cir.). Cf. National Resources Defense Council, Inc. v. Train, 519 F.2d 287, 290 (D.C.Cir. 1975). We need not reach this point in view of our conclusion as to § 301. In American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), cited infra, p. 449, et seq., the court (p. 1045, et seq.) reviewed effluent regulations issued under both § 301(b) and § 304(b) and found that they did not meet the requirements of § 304(b). It is not contended in the case at bar that the requirements of § 304(b) were not complied with.
. Both EPA and amici apparently assume that rejection of EPA’s interpretation of § 301 would require a radical change in the way the Act is now administered. This is far from clear. Admittedly, if amici’s view of § 301 were accepted, effluent limitations applicable to a particular source could not be set until the permit issuance proceeding, but it does not necessarily follow that, before issuing the permit, EPA would be forced to gather and analyze data on the individual characteristics of each plant. Instead, EPA could perhaps include minimum effluent limitations in the guidelines and place the burden on the applicant of justifying a higher effluent limitation. In effect, the applicant would be required to apply for a variance from the standard set by the guideline. A similar regulation could be established to govern EPA approval of state-issued permits. A strong argument, at least, could be made for the validity of this approach under § 501(a), 33 U.S.C. § 1361(a), which gives EPA the power to make “such regulations as are necessary to carry out” its functions. See United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); National Petroleum Refiners Ass’n v. FTC, 157 U.S.App.D.C. 83, 482 F.2d 672, 692 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974). In short, the issue here is not whether EPA’s whole approach to administering the statute is wrong, but simply whether it has misinterpreted the particular method by which it was to carry out its functions.
. Section 301(c) provides for variances from the 1983 standards for individual plants. The Act itself does not contain a comparable provision with respect to 1977 standards (perhaps because Congress contemplated they would be less rigorous) but the regulations do provide for variances from the 1977 standards. 42 C.F.R. §§ 432.12, 432.22, 432.32, 432.42.
. Amici have urged us to distinguish Train on the ground that there the agency’s statutory interpretation was contemporaneous with Congress’ consideration of the legislation, whereas here EPA actually expressed a contrary view during hearings on the Act and now urges an interpretation it adopted only some time after the Act was passed. We think, however, that this distinction is not substantial enough to overcome the strong policy announced by the Supreme Court in Train in favor of according great deference to EPA’s interpretation of the statutes it administers, having in mind the complexity and technical nature of the statutes and the subjects they regulate, the obscurity of the statutory language, and EPA’s unique experience and expertise in dealing with the problems created by these conditions.
. The Eight Circuit in CPC International Inc. v. Train, supra, 515 F.2d at 1038, also attempted to distinguish between “standards” and “limitations.” Section 316(b)’s reference to “[ajny standard established pursuant to section 301” tends to undermine that position.
. Remarks by Senator Muskie, made in a similar context before passage of the Clean Air Act, have been held to be “entitled to significant weight.” Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722, 734 (1974).
This opinion has been circulated among all judges of this court in regular active service, in view of the conflict between our holding in Part I and that of the Eighth Circuit in CPC International Inc. v. Train, supra, 515 F.2d 1032, and no judge has requested that the issue decided in Part I be reheard in banc.
. This is a minority of all plants. See note 4, supra.
. A. S. Johnson, “Meat,” in Industrial Waste-Water Control 49 (C. F. Gurnham ed. 1965).
. AMI’s submittal states:
“[I]n the winter months, the biological activity of the anaerobic lagoon is reduced slightly as the result of colder water temperatures.”
. Hester & McClurg, “Operation of a Packing Plant Waste Treatment Plant” (1970) (paper presented at the 25th Purdue Industrial Waste Conference). This article was not listed in the initial certified list EPA filed in lieu of the record under Rule 17(b), Fed.R.App.P., but EPA has filed a motion to supplement that list. The affidavit supporting the motion states that the materials in question were actually before the agency but were accidentally deleted in compiling the list. Since AMI had an opportunity in its reply brief to respond to these materials, it has not been prejudiced by EPA’s delay in designating these materials. Accordingly, we grant EPA’s motion.
. This means that at a typical low-processing packinghouse with a raw waste BOD of 8.1 kg/1000 kg LWK 7.45 kg/1000 kg LWK would be removed at the anaerobic lagoon, leaving only .65 kg/1000 kg LWK. To reach the 1977 limitation for low-processing packinghouses, the combined efficiency of the rest of the system would have to be only about 75%.
. The plant’s performance was also very poor in October and November of one year, which EPA says was caused by a change in equipment combined with operation in excess of the design capacity of the plant.
. If we assume for purposes of illustration that each component in a system is 100% efficient under optimum conditions, and that this efficiency is reduced to 50% in winter, then in winter the anaerobic pool would remove only 50% of the pollution, the aerated pool 50% of the remainder, leaving 25%, and the aerobic pool 50% of that, leaving 12'/2% of the initial effluent. The total removal efficiency would be 87!/2% even though each part of the system was working at only 50% efficiency. EPA’s brief contains a table which illustrates that a 10% decrease in anaerobic removal results in only a 1% decrease in total removals, assuming unimpaired functioning of the rest of the three-lagoon system.
. Neither additional aerobic ponds nor submerged aerators were included in EPA’s cost evaluation, and we are not directed to any evidence in the record as to their effectiveness or feasibility. EPA cites an article not contained in the record to support the feasibility ■ of longer detention, but we note that the article concludes by saying that longer detention is not effective “in regions where long periods of ice prevail.”
. According to the Florida Meat Packers’ Association, “In southern climates algae will grow in lagoons to the extent that T.S.S. will actually increase in some cases.”
. The development documents do not identify the exemplary plants on which the effluent limitations for each subcategory are based. They were identified by EPA during the pend-ency of this review proceeding in response to an informal request by AMI’s engineering consultants.
. The plant’s worst performances during the relevant period took place in September 1971 and April 1972. Raw waste in September contained 6877 lbs. BOD5, of which 99.7% was removed. This leaves 0.3% or 20.6 lbs. BOD5. Live weight killed was 660,000 lbs. The discharge in September was .03 lb. BOD5/1000 lbs. LWK, well under the .12 effluent limitation. A similar calculation for April 1972 gives a discharge of .11 lb. BOD5/1000 lbs. LWK, based on a removal rate of 98.9%, raw BOD5 of 6365 lbs., and LWK of 691,000 lbs. AMI also argued that months in which the plant did not discharge should be disregarded, an argument we rejected above (in the paragraph following note 26).
. One of the three plants (Cornwell) must be discarded because the technology used there was not cost justified. EPA used figures of 96.2% and 95.3% for the other two plants. The average of these two figures is 95.7%.
. Although the Final Development Document does not refer to AMI’s comment as a basis for the standard, it is clear from the comments ■ to the final regulation that EPA relied on industry comments in setting the final effluent limitations. 39 Fed.Reg. 7895, 7896. Cf. American Iron and Steel Institute v. EPA, supra, at 1050-1051.
. The data from the Wilson plant at Cherokee, Iowa, for February shows a 45% efficiency for the aerated pond, even though efficiency decreases in winter. Moreover, aerated lagoons are “generally designed to achieve an average BOD5 reduction of 50 to 60%,” as reported at an EPA industrial seminar on waste treatment systems. On balance, EPA’s 40% figure seems to be supported by the record.
. EPA argues that two months of violation were caused by equipment changes (see note 24, supra), that the pollution control system was overloaded, and that primary treatment was very poor.
. While we do not ordinarily consider arguments raised for the first time in a reply brief (see note 44, infra), AMI did challenge the basis for the standard in its opening brief, and presumably it would have advanced this additional theory at that time had EPA’s figures been legible. Only for this reason do we now make an exception and reach the merits of this argument. As noted in the text, EPA had a chance to respond at oral argument. Any additional justification which EPA might have for this limitation should be fully delineated on remand.
. In the Final Development Document (at 143), EPA states that two other plants were only 25-30% over the average. AMI contends that the figure should be higher, and EPA did not pursue the point.
. We have some difficulty in following both AMI’s and EPA’s calculations for Illini Beef and Swift. AMI assumes that the average waste load for complex slaughterhouses is 10.5 lbs./1000 lbs. LWK, while EPA places the figure at 10.9 lbs. The source cited by both, FDD 39, gives a figure of 9.6. EPA says that Swift’s raw waste load was 9.6 lbs./1000 lbs. LWK, while the data base summary, using questionnaire responses, quotes a raw waste load of 7.8 for Swift and 7.78 for Illini Beef. The figure given in the data base for each plant is approximately 19% below the 9.6 average for complex slaughterhouses.
. By adding mechanical aeration, the plant could achieve the 1977 limitation. EPA has cost-justified the incremental addition of mechanical aeration, as we observed earlier.
. The Routh plant is discussed in more detail in connection with the TSS standasds.
. The regulations provide for adjustments in the effluent limitations of plants that process hides or blood from, or perform rendering on, animals slaughtered elsewhere. See 40 C.F.R. § 432.12(b)-(e) (simple slaughterhouses); id. § 432.22(b)-(e) (complex slaughterhouses); id. § 432.32(b)-(e) (low-processing packinghouses); id. § 432.42(b)-(e) (high-processing packinghouses).
. According to the Final Development Document, “Secondary processes used interrelate with both the final products and waste characteristics; however, the kind of manufacturing process is more relevant than the specific by-product. The process by which a byproduct is made determines the waste load. Thus, it is the nature of the secondary processes rather than by-products themselves which define the categories. Unfortunately, there are a number of secondary manufacturing processes that can be used within each by-product area. Furthermore, there is no typical or usual combination of secondary manufacturing processes in the industry. Therefore, some other means of grouping plants by secondary manufacturing processes is required.” FDD 30.
. To accept AMI’s position, we would have to assume not only that industry members submitted inaccurate data, but also that for some unknown reason data for plants in one subcategory was less accurate than data from others.
. AMI again argues that the questionnaire data is undermined by North Star’s verification testing, an argument we have previously rejected.
. By combining Routh’s aerated and aerobic lagoons with an anaerobic lagoon, the typical low-processing packinghouse could easily meet the 1977 TSS standard. The average TSS level in raw waste from low-processing packinghouses is 5.9 kg/1000 kg LWK. The lagoon system at Routh has a removal efficiency of 94%. As shown in the text, a conservative figure for anaerobic removal is 70%. Thus, after anaerobic treatment only 1.77 kg TSS/1000 kg LWK would remain. Routh’s lagoon system would remove 94% of the remainder, leaving .106 kg/1000 kg LWK. The 1977 standard for low-processing packinghouses is .24 kg/1000 kg LWK.
. Our Circuit Rule 10 (1973) provides that “[a] reply brief shall present only matter in reply to questions discussed in appellee’s brief.”
. Since the 1983 BOD5 and TSS standards have been set at approximately 25% of the 1977 standards, AMI reasons correctly that whatever additional technology is utilized will have to maintain a removal efficiency of 75%. Estimates for sand-filter removal range between 40 to 90% for BOD5 and 60 to 75% for TSS.
. AMI also criticizes the use of “slow” sand filters, as opposed to “rapid” sand filters which operate under pressure, because of the maintenance problems (mainly, hand raking) connected with them. The solution to this problem would appear to be the use of rapid sand filters where slow sand filters are not feasible.
. EPA states in the Final Development Document (at 149) that it has given due consideration to the cost of the techniques to be utilized in achieving the 1983 limitations, as required by § 304(b)(2)(B). Since AMI does not here raise cost as an issue, there is no need for us to require further justification.
. The Final Development Document states (at 150) that “[t]he Best Available Technology Economically Achievable [the 1983 technology] includes that listed under the Best Practicable Control Technology Currently Available [the 1977 technology].” See also note 45, supra.
. The Final Development Document reports that ammonia stripping is “a well-established industrial practice in the petroleum refinery industry” and that the “only significant difference” in its application to meat-slaughtering plants would be the smaller size of stripping tower required. FDD 104. But other than these conclusory comparisons, the record is barren of information which would permit us to conclude that the technology employed in the petroleum industry might be capable of coping with meat-slaughtering-plant wastes or otherwise capable of meeting the limitations established for the meat product industry.
. EPA in its brief also cites two other studies not a part of the record, which we could not consider even if the validity of the standard turned upon nitrification efficiency. Cf. Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 722, 729 n.10 (D.C.Cir. 1974). EPA will, of course, be free to rely upon these additional studies in its reconsideration of the standard upon remand.
. Letter from T. Driscoll, OASES Wasterwater Treatment Systems, to D. Denker, Oscar Mayer & Co. (Jan. 18, 1974).
. These regulations, in proposed form at the time this case was briefed, have since been adopted with some modifications in final form. 40 Fed.Reg. 902 (January 3, 1975).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.3823529411764706, Costs: 0.07352941176470588
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MOORE, District Judge:
This case involves the addition of approximately 112,400 acres of land (“Addition Lands”) to the Big Cypress National Preserve in the State of Florida (“Original Preserve”). The Original Preserve was established by the Big Cypress National Preserve Act, 16 U.S.C. § 698f(a), and consists of over 574,000 acres. In 1988, Congress authorized the National Park Service (“NPS”) to acquire the Addition Lands, which are the subject of this suit.
The Addition Lands contained approximately 244 miles of Off-Road Vehicle (“ORV”) trails that were open for public use prior to their acquisition by the NPS. In 1996, the NPS closed these trails for public use once it began official administration of the Addition Lands. Also, the NPS began the process of drafting a General Management Plan (“GMP”) for the Addition Lands, which included the possibility of ORV use on the existing trail network. As required by the Wilderness Act, 16 U.S.C. § 1131-1136, the NPS initially assessed the Addition Lands to determine their eligibility to be designated as wilderness under the act. Following a 2006 wilderness workshop, the NPS’s -initial eligibility assessment concluded that 111,601 acres could be designated as wilderness.
While developing a GMP, the NPS was also in the process of formulating a framework for an ORV trail system in the Addition Lands. The process used available maps, aerial photographs, and global positioning system (“GPS”) equipment to map existing trails and other disturbed areas. In addition, NPS staff conducted field investigations to assess the sustainability of the existing ORV trails, which the NPS defined as “a travel surface that can support currently planned and future uses with minimal impact to the natural systems of the area.” Ultimately, the NPS determined that approximately 140 of the 244 miles of existing ORV trails met its definition of sustainable.
Prior to NPS management of either the Original Preserve or the Addition Lands, ORV use was permitted in these areas and not restricted to designated trails. In May 2009, the NPS completed a draft GMP and environmental impact statement (“EIS”) entitled “Draft Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement.” The 2009 draft, which closely tracked the plan implemented for the Original Preserve, included an ORV management plan that restricted ORV use in the Addition Lands to a designated trail system. The 2009 draft also designated approximately 93,426 acres of Addition Lands as primitive backcountry, in which ORV access would be prohibited. The ORV trails were limited to a 52,431-acre parcel designated as a backcountry recreation management zone. ORV use would be allowed in this zone, but restricted to approximately 140 miles of trail.
During the public comment period, the NPS received almost 17,000 comments from agencies, Indian tribes, Florida state agencies, organizations, and individuals. These comments ranged from support for to argument against any ORV usage in the Addition Lands, as well as varying disagreement with the NPS’s assessment of those portions of the Addition Lands eligible for wilderness designation under the Wilderness Act. Some comments argued that the existing ORV trails, along with an area adjacent to the trails, were ineligible for wilderness designation based on the existence of human engineering that altered the natural landscape. In addition, the NPS received several comments contending that designating the area containing ORV trails as wilderness, which would temporarily prohibit ORV access, would severely restrict motorized access needed for emergency response, fire management, exotic species control, "wildlife management, hydrogeologic restoration, and other traditional activities.
The NPS convened a second wilderness workshop in November 2009 to address the various concerns raised during the public comment period. During this second workshop, the NPS considered what wilderness-eligible Addition Lands it should recommend to the President for final designation as wilderness. As a result of the second workshop, the NPS reduced its initial recommendation that 85,862 acres of Addition Land receive the wilderness designation to only 48,130 acres.
According to NPS Management Policy, it must preserve all lands identified as wilderness-eligible until Congress decides whether to actually designate that land as wilderness. However, the NPS Director has authority to waive this policy on a case-by-case basis. The Superintendent of Big Cypress sought such a waiver for certain lands determined to be wilderness-eligible in 2006, but not recommended for wilderness designation in 2009. In his request, the Superintendent explained that the waiver was requested for lands that “will require [] indefinite and continued active intervention in order to accomplish and maintain restoration goals related to exotic species of animals and plants as well as hydrology.” In his opinion, “[a] wilderness designation of these lands would seriously affect [the NPS’s] ability to take appropriate and necessary management action within these lands and over the long term.” Ultimately, the Director denied the requested waiver.
Following the denial, the NPS convened a third workshop in February 2010 to assess the earlier public comments contending that certain portions of the Addition Lands, including those that formed the basis of the waiver request, were actually ineligible for wilderness designation. According to the workshop notes, the participants reviewed the previous criteria used to determine wilderness eligibility and revisited certain assumptions relied upon in the initial 2006 study. The participants agreed to use two assumptions as part of the 2010 workshop: first, the substantial imprint of human work would include roads, trails, or other areas created by man and requiring substantial human intervention for restoration; second, the viewpoint of a land manager, rather than a common visitor, would be used to determine whether the imprint of human work was substantially unnoticeable.
Using these new parameters, the participants reviewed topographic maps, geographic information systems, and aerial photography, and relied on their own personal knowledge to reassess the earlier findings regarding wilderness eligibility. Based on the “lack of opportunities for solitude and the presence of human disturbance,” the ORV trails and a fé-mile buffer around the trails were determined to be ineligible for wilderness designation. The 2010 workshop resulted in a reduction in the amount of wilderness-eligible land from 111,601 acres to 71,260 acres.
Based on the third workshop, the NPS completed its final wilderness eligibility assessment for the Addition Lands in April 2010. The final assessment carried forward the assumptions used during the 2010 workshop and determined that only 71,260 acres were eligible to be designated as wilderness, which did not include the.- former ORV trails and the fé-mile buffer. With respect to the buffer, the final assessment concluded that a y4-mile buffer in either direction from the trail centerline was appropriate “to accommodate environmental protection and safety considerations, such as for fire management, exotic/invasive plant and animal control, hunting and retrieval of game, and traditional uses including the gathering of native materials.”
In October 2010, the NPS finalized its GMP and EIS for the Addition Lands. The GMP included a management plan for ORV use in the Addition Lands, which restricted such use to designated trails, provided for nightly and seasonal closures, and required ORV inspection and permitting. The GMP limited the number of ORV permits to 650 per year.
Pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1531-1544, the NPS engaged in informal consultation with the U.S. Fish and Wildlife Service (“FWS”). concerning the potential impact of the Addition Lands GMP on the eastern indigo snake. The NPS conducted its own Biological Evaluation, concluding that their recommendation to allow ORV use in the Addition Lands was unlikely to adversely affect the eastern indigo snake. The FWS concurred with the NPS’s conclusion.
The NPS also engaged in formal consultation with the FWS concerning the Florida panther. As a result, the FWS issued its Biological' Opinion in November 2010. In this opinion, the FWS determined that the GMP is unlikely to jeopardize the con-timed existence of the Florida panther. Addressing the planned ORV use, the FWS stated that while recreational ORV use has been associated with alterations in panther behavior, those alterations “have not been correlated with any change in reproductive success or survival.” The opinion authorized incidental loss of panthers in the form of habitat harassment, but outlined non-discretionary terms and conditions with which the NPS must comply, such as collection and monitoring of panther use of the Addition Lands. The opinion also required the NPS to again formally consult with the FWS should the level of incidental loss exceed expectations.
Unhappy with the GMP, Appellant National Park Conservation Association (“NPCA”) filed suit in the Middle District of Florida. In its complaint, the NPCA contended that the GMP’s inclusion of ORV trails for the Addition Lands was arbitrary, capricious, and in violation of the Wilderness Act and Organic Act. Appellant Public Employees for Environmental Responsibility (“PEER”) filed a separate suit in the Middle District of Florida. Similarly, this complaint alleged that the decision to allow permitted ORV use in the Addition Lands was arbitrary, capricious, and contrary to the Wilderness Act, Organic Act, and ESA. The two cases were consolidated and referred to a Magistrate Judge.
Following a de novo review of the Magistrate Judge’s Report and Recommendation, the District Court concluded that the NPS did not violate the Wilderness Act, finding that the 2010 reassessment of the wilderness eligibility determination was the result of reasoned decision-making rather than political manipulation. With respect to the /é-mile buffer, that court determined that the NPS’s rational for excluding those lands from wilderness eligibility was supported by the record. Also, the court found that the NPS did not violate the Organic Act by failing to promote conservation because the record supported the NPS’s conclusion that the existing ORV trail network retained the imprint of human engineering and would continue to handle ORV traffic from private property owners accessing their property. Finally, the District Court concluded that the NPS’s Biological Evaluation and the FWS’s Biological Opinion regarding the eastern indigo snake and Florida panther were supported by the record.
The NPCA argues on appeal that the NPS’s wilderness assessment for the Addition Lands in Big Cypress National Park is inconsistent with the Wilderness Act such that it is arbitrary and capricious rather than the result of reasoned decision-making. In addition, the NPCA contends the NPS’s determination that implementation of the GMP would not impair the Addition Lands’ resources violated the Organic Act because the NPS improperly failed to consider the potential safety and other impacts of the proposed ORV trail system to existing visitor use. PEER raises the same arguments, but also maintains that both the NPS’s Biological Evaluation and the FWS’s Biological Opinion violated the ESA by failing to fully analyze the impacts of the ORV trail system on the eastern indigo snake and Florida panther.
ANALYSIS
I. Standard of Review
Under the Administrative Procedures Act, 5 U.S.C. § 706(2), a court may only set aside an agency’s decision if it is determined to be arbitrary, capricious, an abuse of discretion, or contrary to law. A decision is arbitrary and capricious
“where the agency has relied on factors which Congress has 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.”
Defenders of Wildlife v. United States Dep’t of the Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (quoting Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)). This standard is exceedingly deferential, prohibiting a court from substituting its judgment for the agency’s decision. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). Moreover, courts are required to defer to conclusions reached by an agency that are bases on its specialized expertise. City of Oxford v. FAA, 428 F.3d 1346, 1352 (11th Cir. 2005) (citing N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir. 1990)).
However, the reviewing court must consider whether the record contains substantial evidence in support of an agency decision. 5 U.S.C. § 706(2)(E). Substantial evidence is “ ‘relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.’ ” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th Cir. 2012) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). This standard precludes a reviewing court from “deciding the facts anew, making credibility determinations, or re-weighing the evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per cu-riam). The ability to find' adequate support in the record for a contrary conclusion is insufficient to overturn an agency’s factual conclusion. DeKalb Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th Cir. 2016).
II. Wilderness Act
In this case, Appellants argue that the NPS’s adoption of a heightened standard for determining whether, under the Wilderness Act, the ORV trails were wilderness-eligible was arbitrary and capricious. Appellants contend that these standards are unprecedented and rely on factors not expressed in the Wilderness Act. In addition, Appellants advance the generally unsupported accusation that the reassessment of wilderness-eligible lands was the result of political pressure by the State of Florida and advocacy groups to permit extensive ORV use in the Addition Lands. In response, Appellees maintain that the NPS did not adopt a new interpretation of the Wilderness Act, but only made certain assumptions concerning how to assess the Addition Lands’ eligibility for wilderness designation.
The Wilderness Act defines wilderness as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c). According to statute, wilderness is an “area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions.” Id. The only factors contained in the Wilderness Act state that eligible wilderness
(1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable;
(2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation;
(3) has at least five thousand acres of land. or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and
(4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.
Id.
It is difficult to see how the NPS ran afoul of these statutory directives. While the factors are objective, there are a myriad of parameters that can be used to as-' sess whether an area “generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable.” Id. While the 2006 workshop considered trails that required significant engineering as an example of a substantial human imprint, the 2010 workshop expressed it as trails “created by man and used significantly over time that would require substantial human intervention to restore.” To be fair, the language is not parallel between the two workshops. Giving the NPS due deference, however, it does not appear that these are two wholly differing standards. In short, they are not so diametrically opposed to permit the Court to conclude that the NPS drastically changed its criteria with the express purpose to omit the ORV trails from wilderness eligibility.
Appellants’ argument concerning the point of view from which to determine wilderness eligibility also lacks merit. Appellants assume that the 2006 workshop assessed the condition of an area from the viewpoint of the common visitor, while the 2010 workshop used the viewpoint of a land manager. First, it is not particularly clear what viewpoint participants utilized in the 2006 workshop. The record is silent in that regard. Appellants only assume a common visitor viewpoint because the 2010 workshop specifically expressed it as a land manager viewpoint and not that of common visitor. Second, the language of the Wilderness Act does not express either a preference for or prohibition against the use of either viewpoint. Indeed, a reasonable application of the Wilderness Act’s factors could rely on either viewpoint. Third, it seems that the use of a land manager viewpoint would be more reasonable. The Wilderness Act expresses this factor as the impact of humans being substantially unnoticeable. It is reasonable to assume that training and experience is either necessary or preferred when assessing human impact on an area. Moreover, NPS policy requires a “managerial determination” as to eligibility, suggesting that a certain level of expertise should be employed when making eligibility determinations. In short, an area’s eligibility for wilderness designation is a highly technical judgment that is likely to be more ably performed by an informed individual with a trained eye, rather than by a mere common visitor.
Contrary to Appellants’ argument, the NPS did not require that an area be pristine and untouched by humans to be found wilderness-eligible. The record shows that the NPS required the area to be free of any substantially noticeable human imprint, which is what is required under the Wilderness Act. Given the NPS’s technical expertise and the evidence in the record, this Court concludes the NPS’s determination that the former ORV trails, along with the jé-mile buffer, contains a substantially noticeable human imprint is the result of reasoned decision-making, and not arbitrary and capricious.
Finally, there is no indication in the record that the NPS conducted the reassessment simply to appease the State of Florida and special interest groups. Agency decisions are entitled to a presumption of regularity. Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1216 (11th Cir. 2012) (quoting Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708 (11th Cir. 1985)). Absent evidence in the record, this Court is unwilling to ascribe some improper motive to the NPS’s decision to reassess the wilderness eligibility of the Addition Lands. Appellants point to no substantial evidence suggesting that the NPS caved to these groups. Rather, Appellants simply point to public comments that the ORV trails should be ineligible and the subsequent reassessment by the NPS. However, it is entirely expected that some of the 17,000 comments would contend that the area should not be designated as wilderness. The NPS is free to take to heart those comments and reassess its initial findings should it see fit.
III. Organic Act
Appellants argue that the NPS violated the Organic Act by failing to account for the impairment of visitor experience by the ORV trail system. Also, Appellants contend that the NPS violated the Organic Act by elevating recreational use above preservation. In response, Appellees maintain that the Organic Act does not include visitor experience as a factor that must be considered when creating a GMP. In addition, Appellees deny that the GMP for the Addition Lands impermissibly elevated recreation over conservation.
In interpreting the Organic - Act’s non-impairment provision, NPS Management Policies provides that the fundamental purpose of the park system is to conserve park resources and values. The Management Policies further provide that “when there is a conflict between conserving resources and providing for enjoyment of them, conservation is to be predominant.” Agency decisions that fail to promote conservation over recreation run contrary to the express directives of Congress and cannot be upheld.
The record in this case does not establish that the GMP improperly advanced recreational use over conservation of resources in the Addition Lands. The NPS analyzed the impact of the proposed ORV use on numerous conservation issues, and adopted measures to minimize and mitigate environmental harm. In addition, the GMP provides for adaptive management of Addition Lands by restricting ORV capacity as necessary to avoid negative impacts on the environment. The record more than supports Appellees’ claim that, relying on the NPS’s expertise in the field, the limited recreational use promoted by the GMP would not cause unacceptable environmental impairments or impacts. Moreover, the Addition Act permits the NPS to allow “traditional recreational opportunities,” 16 U.S.C. § 698m-2, so long as “that use will not cause impairment or unacceptable impacts” Based on the evidence in the record and giving due deference, there is no basis for concluding that the GMP’s inclusion of the ORV trail system is arbitrary and capricious.
With respect to visitor experience, Ap-pellees are correct in their argument that visitor experience is not a park resource or value that must be considered when assessing an activity’s impact. In arriving at this conclusion, the NPS reasonably interpreted its Management Policies and Interim Guidance. The Interim Guidance does identify “appropriate opportunities to experience enjoyment of ... resources, to the extent that can be done without impairing them.” Giving the NPS appropriate deference, it is a reasonable interpretation that the Interim Guidance only requires visitors to have the opportunity to enjoy park resources, but does not mandate any specific level of enjoyment. Therefore, Appellants’ argument that the GMP imper-missibly failed to assess the impact of the ORV trails to visitor experience and non-ORV user safety lacks merit.
IV. Endangered Species Act
Appellant PEER argues that the NPS and FWS violated the ESA by failing to engage in formal consultation regarding the eastern indigo snake. Also,' Appellant PEER contends that the FWS failed to properly analyze the impacts of ORV use on the endangered Florida panther. In response, Appellees maintain that the NPS and FWS were not required to engage in formal consultation regarding the eastern indigo snake because they concluded that ORV use was not likely to adversely affect that species. With respect to the Florida panther, Appellees point to evidence in the record establishing that ORV use is unlikely to jeopardize the continued existence of the Florida panther, as well as the inclusion of a sufficient trigger in the Biological Opinion for the reinitiation of formal consultation based on incidental loss of habitat.
The ESA requires federal agencies 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” or destroy critical habitat. 16 U.S.C. § 1536(a)(2). To implement this directive, federal agencies must informally consult with the FWS where an action may affect a listed species or its critical habitat. 50 C.F.R. § 402.14(a). Should an agency and the FWS determine that an action is not likely to have an adverse effect, no further action is required. Id. § 402.13(a). If further formal consultation is required, the agency and the FWS prepare a Biological Opinion advising the agency whether a listed species is likely to be jeopardized, along with possible reasonable and prudent alternatives to the proposed action. Id. § 402.14(h)(3).
The record in this case supports the NPS’s and FWS’s determination that formal consultation with respect to the eastern indigo snake was not required based on the lack of adverse effects posed by ORV use. Appellees correctly point to the NPS’s and FWS’s findings that while ORV use could alter eastern indigo snake behavior, any disruption would be negligible and not result in death or injury of any individual snakes. Because there is no likelihood of any measurable impact, formal consultation was not required. Affording the NPS’s and FWS’s conclusions due deference, their decision to forego formal consultation is not a violation of the ESA.
Similarly, the record supports the NPS and FWS’s Biological Opinion that ORV use was unlikely to jeopardize the Florida panther’s continued existence. The Biological Opinion did state that the ORV trails, along with their íé-mile buffer, would result in 16,808 acres of suitable habitat being seasonally affected. However, the NPS and FWS relied on several scientific studies suggesting that Florida panthers are likely to seasonally avoid this habitat due to other causes, such as movement of prey, habitat composition, or hydrology. In any event, the Biological Opinion concluded that any migration away from ORV trails would have minor to no biological consequences. Deferring to the NPS and FWS’s judgment, those agencies appropriately analyzed the effects of ORV use on the existing Florida panther population.
Finally, Appellant PEER incorrectly states that the Biological Opinion fails to include an appropriate trigger for reinitiation of formal consultation. This argument appears to rely on an amended version of C.F.R. § 402.14(i)(l)(i), which requires a clear standard for determining when the level of incidental loss has been exceeded. The regulation in place at the time the Biological Opinion was generated only required a statement specifying the impact of incidental loss. This prior version has been interpreted to permit the use of a trigger expressed in terms other than actual population loss where using actual population loss would be impractical. Miccosukee Tribe, 566 F.3d at 1275 (“We apply instead the rule that specific population data is required unless it is impractical.”). In this case, the NPS and FWS used habitat loss as the appropriate trigger based on the impracticality of maintaining an accurate population count of Florida panthers. Appellant PEER does not contest the impracticality of maintaining such a count. Because there is no evidence in the record to the contrary, the NPS and FWS’s use of habitat loss as the sufficient trigger is reasonable and their decision comports with the ESA.
CONCLUSION
In the final analysis, Appellants’ arguments can be reduced to a disagreement regarding the NPS’s and FWS’s ultimate conclusions. It is unsurprising that reasonable minds can differ regarding the interpretation of the copious amount of data upon which the NPS and FWS relied when making their decisions. However, it is clear to this Court that the record contains substantial evidence to support those conclusions. As a result, it is beyond the power of Appellants and this Court to second guess these agencies’ reasoned decision-making. Accordingly, the judgment of the district court is AFFIRMED.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1111111111111111, Costs: 0.2333333333333333
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OPINION OF THE COURT
Before VAN DUSEN, ADAMS and WEIS, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal challenges a December 31, 1974, order vacating approvals previously given for a project for the construction of a flood control dam (Pa-466), since the project violates the National Environmental Policy Act of 1969, 42 U.S.C. § 4321ff., and permanently enjoining defendants from taking any further action with respect to such construction until final approval by the appropriate Government officials after the filing and consideration of an environmental impact statement. As explained more fully below, an opinion filed on January 24, 1975, makes clear that the court concluded that there had been a substantive violation of § 5 of the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1005. The defendants appeal only from this conclusion that there has been a violation of 16 U.S.C. § 1005. We vacate the December 31, 1974, order only to the extent that it holds there has been a violation in the failure to apply to Dam Pa-466 only the benefits-costs determination required by 16 U.S.C. § 1005 and remand for further proceedings consistent with this opinion, including the filing and consideration of an environmental impact statement.
The area near Canadensis, Pa., is located at the confluence of several of the rivers and creeks that wind through the Pocono Mountain region of northeastern Pennsylvania, and, during recent decades, has been the scene of recurrent floods that have exacted a heavy toll in both human life and property. To mitigate the threat posed by the flooding, local governmental authorities and the Soil Conservation Service (SCS) of the Department of Agriculture (USDA), acting under authority of the Watershed Protection and Flood Prevention Act of 1954, 16 U.S.C. § 1001 et seq. (P.L. 566), developed a Work Plan for the construction of four floodwater detention dams north and west of Canadensis. This appeal from a final injunction restraining responsible SCS and USD A officials from awarding a contract for the construction of one of those dams (Dam Pa-466), presents as the principal issue whether § 5 of P.L. 566, 16 U.S.C. § 1001 et seq., as interpreted and applied, requires as a prerequisite to federal assistance that the benefits of Dam Pa-466 exceed its costs.
The floodwater detention dam at issue is a $2 million, 90-foot high, earthen structure proposed for construction along the Buck Hill Creek, a tributary of the Brodhead Creek. It is part of the four dam project originally envisioned for the Brodhead Creek area above Canadensis. A Work Plan prepared in March of 1961 described the project and provided, inter alia, that SCS would pay for the major portion of construction costs while the Monroe County Commissioners would acquire all necessary easements and rights of way (474a). The Work Plan also contained a cost/benefit analysis which ascribed to the project, evaluated as a whole, a benefit to cost ratio of 1.2 to 1. Pursuant to the Act, the 1961 Work Plan was transmitted to Congress where it was approved by resolutions of the Agriculture Committees of both Houses of Congress. See 16 U.S.C. §§ 1002, 1005(3).
Due primarily to Monroe County’s failure to acquire certain rights of way from the Buck Hill Falls Co., little progress towards actual construction of the project was made during the years subsequent to 1961. In February of 1970, however, Buck Hill Falls Co. conveyed the necessary rights of way for a nominal consideration, subject to the condition that one of the four dams be deleted and Dam Pa-463 be modified as it was described in the 1961 Work Plan. These changes were incorporated into a Supplemental Watershed Work Plan issued in October of 1971. The Supplemental Work Plan contained an updated average annual cost/benefit analysis which fixed the benefit to cost ratio at 1.8 to 1. The project was again evaluated as a whole. SCS computed average annual cost by using a 3.25% discount rate.
All but one of the dams now remaining in the Brodhead Creek Watershed Project have either been completed or are now under construction. The third dam, however, Pa-466, has drawn the opposition of plaintiffs, who commenced this class action on December 10, 1974, seeking an injunction against the awarding of a contract for the construction of the dam. In addition to asserting a claim under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., plaintiffs alleged that SCS’s decision to award the contract violated § 5 of P.L. 566, 16 U.S.C. § 1005(1), which authorizes federal participation in the construction of “works of improvement” only
“[a]t such time as the Secretary [of Agriculture] and the interested local organizations have agreed on a plan for works of improvement and the Secretary has determined that the benefits exceed the costs.”
In support of their claim, plaintiffs contended that under § 5, as interpreted and applied by SCS, Dam Pa-466, viewed in isolation, must exhibit benefits exceeding its costs, regardless of the cost/benefit ratio of the Watershed Project evaluated as a whole. Plaintiffs contended that separately evaluated, the costs of Dam Pa-466 exceeded its benefits.
After conducting a five-day trial on the consolidated motions for preliminary and final injunctive relief, the district court, on December 31, 1974, entered an injunction carrying out its conclusions that filing of an environmental impact statement (EIS) was required and that the decision to construct Dam Pa-466 violated § 5 of P.L. 566. The district court expressly agreed with plaintiffs’ contention that separate cost justification is required for each dam in a multidam project. The court also concluded, inter alia that SCS had utilized an improperly low discount rate (3.25%) in violation of § 80 of the Water Resources Development Act, 42 U.S.C. § 1962d-17. This timely appeal followed.
SCS does not challenge the district court’s determination that an EIS is required under the circumstances of this case. With respect to P.L. 566, however, SCS contends that neither its cost/benefit determinations nor its decision to use a 3.25% discount is subject to judicial review. On the merits, SCS argues that neither § 5 of P.L. 566 nor its own project evaluation procedures require separate cost/benefit justifications for individual structures in a multi-dam watershed project. In SCS’s view, all that was required under the circumstances of this case was that the benefits of the project, evaluated as a whole, exceed its costs.
I. THE AVAILABILITY OF JUDICIAL REVIEW
Our analysis of the availability of judicial review begins with the question of whether plaintiffs have standing to sue and with § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702. As interpreted by the Supreme Court, a person is “adversely affected or aggrieved within the meaning of a relevant statute” and hence has standing to sue under ’§ 10 if he alleges (1) that he has or will sustain some actual or threatened injury in fact resulting from the challenged agency action, and (2) that the alleged injury is to an interest “arguably within the zone of interests to be protected or regulated by the statute in question.” Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); see e. g., United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).
The plaintiffs in this litigation are owners of property and residences situated in the area immediately surrounding the proposed dam. They have alleged that construction of the dam will diminish the value of their properties and impair their enjoyment of the area’s recreational and aesthetic resources. Such economic and conservational interests are clearly sufficient to satisfy the requirement of injury in fact. See, e. g., United States v. SCRAP, supra, 412 U.S. at 686, 93 S.Ct. 2405.
In addition, we believe that the various interests asserted by plaintiffs are “arguably” within the zone of interests to be protected by P.L. 566. Our view is based on the apparent purpose of the Act to benefit the residents of areas affected by flood dangers. And it is further supported by the language of § 1 of the Act, 16 U.S.C. § 1001, which identifies as one of the purposes of the statute the goal of “preserving, protecting and improving the Nation’s land and water resources and the quality of the environment.” Although plaintiffs might have had some difficulty satisfying the Data Processing test, if our analysis were focused exclusively on the purposes of the cost/benefit requirement of § 5, we do not believe the scope of our inquiry is so circumscribed. Davis v. Romney, 490 F.2d 1360, 1365 (3d Cir. 1974), makes clear that we are to examine “the statute, not the particular provision purportedly violated, to ascertain whether plaintiffs were ‘aggrieved . . within the meaning of a relevant statute.’ ” See 5 U.S.C. § 702.
Apart from the question of standing to sue, our inquiry into the availability of judicial review requires a separate examination of whether Congress has placed the agency’s action beyond the reach of judicial cognizance. Section 10 of the APA provides for judicial review of agency action “except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). As the party claiming the applicability of these exceptions to the general rule of reviewability, SCS bears the heavy burden of demonstrating by “clear and convincing evidence” that Congress intended to restrict access to the courts. Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 41 L.Ed.2d 377 (1975); Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); A. O. Smith v. FTC, 530 F.2d 515, 521 (3d Cir. 1976). For the reasons set forth below, we believe SCS has failed to meet that burden with respect to either cost/benefit analyses under P.L. 566 or the Secretary’s choice of discount rates under the Water Resources Development Act of 1974, 42 U.S.C. § 1962d-17.
Section 5 of the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1005(3), requires that a copy of any plan for “works of improvement” and a justification therefor be transmitted to Congress whenever, inter alia, the estimated federal contributions to construction costs exceeds $250,000. The purpose of this requirement is made clear in § 2 of the Act, 16 U.S.C. § 1002, which states:
“No appropriation shall be made for any plan involving an estimated Federal, contribution to construction costs in excess of $250,000, . . unless such plan has been approved by resolutions adopted by the appropriate committees of the Senate and House of Representatives:
In SCS’s view, this statutory scheme vests all oversight responsibilities in the congressional committees and in Congress as a whole through the appropriation process. Thus, the argument continues, the Watershed Protection and Flood Prevention Act is a statute that implicitly “preclude[s] judicial review.” See 5 U.S.C. § 701(a)(1).
The critical difficulty with SCS’s argument is that it rests on an invalid major premise — that the purpose of the legislative scheme is to give Congress exclusive jurisdiction to enforce the substantive requirements of the Act. SCS has pointed to nothing on the face of the statute or in its legislative history that indicates Congress viewed itself as the final arbiter of whether a project plan complied with the Act’s mandate that benefits exceed costs. The Act does not require the Secretary to prepare a written cost/benefit analysis. And the sections requiring committee approvals as a prerequisite to appropriations state only that the “plan and the justification therefor” must be transmitted to Congress. If Congress had intended to assume the duty of ensuring that benefits exceeded costs, we believe it would have explicitly required preparation and transmission to Congress of a written economic analysis. Further, review of economic data can be quite time-consuming and we are reluctant to impose the burden of such review on Congress where Congress may well have viewed the scheme it established as a means of freeing itself from the onus of individually authorizing watershed projects. Particularly because the approval requirement applies only to the bigger and more expensive projects, we believe Congress viewed the committee approval process essentially as a budget control measure, rather than as the exclusive means of ensuring SCS compliance with the substantive mandates of the Act. Cf. Merriam v. Kunzig, 476 F.2d 1233 (3d Cir.), cert. denied, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149 (1973); 40 U.S.C. § 606(a).
Our conclusion is in harmony with the series of cases on which SCS principally relies, all of which arose under the Flood Control Act of 1936, 33 U.S.C. § 701a et seq. In each of those cases the courts refused to examine cost/benefit analyses prepared by the Corps of Engineers because Congress had specifically authorized the projects in question after receiving and reviewing the reports. Unlike P.L. 566, no substantive provision of the Flood Control Act of 1936 required an administrative official to determine that benefits exceeded costs before proceeding. More significantly, the individual projects in the cases cited to us were specifically authorized by Congress after consideration of their economic merits. P.L! 566, in contrast, does not provide for individual project authorization and no such authorization has been passed.
We have also concluded that the Secretary’s choice of discount rates under § 80 of the Water Resources Development Act of 1974, 42 U.S.C. § 1962d-17, is subject to judicial review under appropriately limited standards. Section 80 authorizes use of the 3.25% discount rate employed by SCS in the October 1971 Supplemental Work Plan only if “the appropriate non-Federal interests [gave] . . . satisfactory assurances to pay the required non-Federal share of project costs . . . ” prior to December 31, 1969. Relying on Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn.1972), SCS contends that the “extent” of the Secretary’s discretion under this statute is so great that the determination of whether any “assurances” are “satisfactory” has been “committed to agency discretion by law” and hence is unreviewable. 5 U.S.C. § 701(a)(2).
Cases falling within this “very narrow exception” are “rare” for the exception applies only “where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). In our view, this is not such a case. See Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968). The statute indisputably vests a broad discretion in the Secretary. But that discretion is not wholly without judicially discernible limits. Although the administrative and legislative history of the Act does not define the phrase “satisfactory assurances,” it does furnish at least some “law” against which a court can measure the Secretary’s determination. Furthermore, the subject matter requires no special expertise and is not of such a nature that judicial consideration is for any other reason impractical or inappropriate.
II. THE MERITS
The principal issue on the merits of this appeal is whether each individual dam in a multi-dam watershed project must have a benefit to cost ratio of greater than 1 to 1 before federal assistance in the construction of the dam is permissible. For the reasons set forth below, we conclude that multi-dam watershed projects may be cost analyzed as a single unit and that, under the circumstances shown in this record, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), to treat the dams in the Brodhead Creek project as a single unit.
It is clear at the outset that nothing in the Act itself requires that each individual “work of improvement” proposed in a multi-unit watershed project have a favorable cost/benefit ratio. Section 5 of the Act provides in pertinent part:
“At such time as the Secretary and the interested local organizations have agreed on a plan for works of improvement, and the Secretary has determined that the benefits exceed costs . . . the Secretary is authorized ... to participate in the installation of such works of improvement in accordance with the plan.”
16 U.S.C. § 1005(1). As we understand it, § 5 requires only that the benefits of every “plan” exceed the costs associated with implementing the plan; not that every segment of the plan be cost-justified when viewed in isolation. Furthermore, § 2 of the Act explicitly states that “[a] number of sub watersheds when they are component parts of a larger watershed may be planned together when the local sponsoring organizations so desire.” 16 U.S.C. § 1002.
Although the Act may thus be read to permit the cost justification as a single unit of a group of dams that have been planned together (67a), plaintiffs contend that SCS’s own project evaluation manuals — The Watershed Protection Handbook (Handbook) and the Economics Guide for Watershed Protection and Flood Prevention (Guide)— mandate separate evaluations for individual dams. SCS vigorously disputes this interpretation of its own economic evaluation procedures.
The Guide and the Handbook each establish a three-step project formulation and evaluation procedure. The required steps, as described in the Handbook, are as follows:
1. “Reach agreement with the sponsoring local organization on a minimum level of protection to solve the flood problems of the entire watershed community.”
2. “For each hydrologic unit having an essentially separate flood plain, develop the least costly system of measures . which are needed to achieve the agreed upon levels of protection . .”
3. “Evaluate the benefits that will accrue to each system.”
It is apparent from the language quoted above that a group of separate measures may be treated as a unitary “system of measures” and may be evaluated together as long as the individual dams do not have “essentially separate flood plain[s]” and are designed to meet agreed upon levels of protection. This point is made particularly in the Guide which discusses the concept of “Evaluation Units” and states:
“In project formulation consideration needs to be given to the interrelationship of structures. Such an interrelationship exists when a group of structures protect a common flood plain. Here the most economical system for attaining the agreed upon level of protection may be evaluated as a unit.”
In reaching its conclusion that the Guide requires a separate cost/benefit justification for each dam in a multidam watershed project, the district court relied exclusively on a passage from Chapter 1 of the Guide. However, SCS interprets the language of that passage, which we have set out in the margin, in a manner that is consistent with the principle that interrelated structures may be evaluated together. And, in our view, that interpretation is reasonable and must therefore be accepted. See, e. g., Lucas Coal Co. v. Interior Bd. of Mine Operations App., 522 F.2d 581, 584 (3d Cir. 1975).
To parry the thrust of the foregoing view of the evaluation procedures established in the Guide and the Handbook, plaintiffs point out that the Guide articulates a principle of - “maximizing net benefits” which appears to be applicable to all project evaluations. As explained in the Guide:
“From an economic viewpoint, the optimum scale of project development is the point at which net benefits are at a maximum. Net benefits are maximized when the benefits added by the last increment of scale or scope of project development are equal to the cost of adding that increment.”
Guide, Chap. 2, section II-c. In plaintiffs’ view, the principle of maximizing net benefits requires SCS to evaluate each dam in a multi-dam project. Unless each dam has a favorable cost/benefit ratio, they contend, the benefit to cost ratio of the project is reduced and the maximization principle is violated. We disagree.
The principal difficulty with plaintiffs’ interpretation of the maximization principle is that it is seriously inconsistent with other sections of the Guide. By requiring SCS to make separate and independent evaluations of the component parts of a project of interrelated measures, plaintiffs’ construction would undermine the apparent purpose of permitting single evaluations of groups of measures. As we have stated in an analogous context, if plaintiffs’ view were adopted it would be “difficult to see how the number of separate [evaluations] could be kept to a minimum.” McCullough v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858, 869 (3d Cir. 1975). In addition, under plaintiffs’ interpretation, SCS might be required to reduce the desired level of protection whenever it became apparent that reaching the desired level would involve construction of a cost-inefficient dam. But nothing in the Guide suggests that the principle of maximizing net benefits invariably takes precedence over the goal of attaining agreed upon levels of protection.
In SCS’s view, there is a limited exception to the policy of maximizing net benefits where dams are interrelated in the sense that they protect a common flood plain and meet the level of protection established by SCS and the appropriate local authorities in their work plan. Although the Guide is not a model of clarity in this regard, we think this construction is more reasonable than the interpretation offered by plaintiffs, since it avoids the difficulties described above. As long as the benefits of a group of structures exceed the costs of the group and the various structures are “interrelated” in the sense that they serve to protect a common area, no purpose required by Congress or the SCS procedures would be served by requiring that the structures be located and built in such a way that the benefits of each would exceed its costs. Further, the Guide explicitly permits an exception to the maximization principle where intangible benefits, incapable of monetary evaluation, are associated with the project. Guide, Chap. 1, section I-C-2. And the 1961 Work Plan indicates that such intangible benefits were considered in the process of project formulation (471a).
Since we are dealing here with materials prepared by SCS officials and used by them on a continuing basis, their interpretation of the Handbook and the Guide should be given “controlling weight” under the circumstances of this case. McCullough v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858, 870 n. 32 (3d Cir. 1975); Budd Co. v. Occupational Safety & Health Rev. Com’n, 513 F.2d 201, 205 (3d Cir. 1975). As we stated in Lucas Coal Co. v. Interior Bd. of Mine Operations App., 522 F.2d 581, 584 (3d Cir. 1975):
“An agency’s explication of its regulations if reasonable, ... is controlling despite the existence of other interpretations that may seem even more reasonable.”
Moreover, plaintiffs seem to believe that SCS is bound to follow the principles and procedures developed in the Guide in every case. However, as we have already noted, P.L. 566 itself does not mandate such evaluations. And since the Guide and the Handbook are merely internal operating procedures, rather than regulations officially promulgated under the APA or otherwise, they do not prescribe any rule of law binding on the agency. Estrada v. Hill, 401 F.Supp. 429, 437-38 (N.D.Ill.1975); Brown v. Lynn, 392 F.Supp. 559 (N.D.Ill.1975); see McCullough v. Redevelopment Authority of Wilkes-Barre, supra, 522 F.2d at 867 & n. 27. In fact, the Guide itself commences with the observation that “no single procedure can be used in every watershed” and provides that alternative procedures may therefore be used. Thus, deviations from established procedures may be tolerated.
For purposes of review, the Guide and the Handbook serve only'as indicia of whether the evaluation procedures adopted in a particular case are “arbitrary and capricious.” See Estrada v. Hill, supra. And on this record, we cannot say that the decision to construct Dam Pa-466 without making a separate cost/benefit determination was “arbitrary and capricious.” The two Work Plans clearly establish that Dam Pa-466 was in fact treated as part of a single “evaluation unit.” In addition, it appears that all of the dams protect “the common damage center of Canadensis” and thus are interrelated.
In the second paragraph of Chapter 2-E of the Guide (670a), this wording is used:
“A simple approach is to select first a group or combination of structures that will give the desired level of protection at the least cost, then test the total group for economic feasibility. ... If the ratio of benefits to costs for the selected group is favorable, and if mutually desired, the feasibility of adding successive increments to the system up to the point where benefits are maximized may be undertaken.”
It is noted that this language discusses one approach and not the exclusive approach. The level of protection agreed upon in this case was determined after discussion and consideration of the cost of protection. Although the record does not state positively that any minimum level of protection was ever agreed upon, we think the record supports the contention of SCS that the level of protection provided by the three dams established in the amended 1971 Work Plan is the level of protection ultimately agreed upon by SCS and the local sponsors of the project.
Accordingly, the order of December 31, 1974, will be vacated to the extent it enjoins construction of Dam Pa-466 as a violation of P.L. 566, and the case will be remanded for further proceedings consistent with this opinion. We believe the trial judge should feel free to reconsider his determination that satisfactory assurances were not given prior to December 31, 1969 (see pages 35-36, above, including note 14).
. See 530a & 515a. In 1958, the County Commissioners and the Soil and Water Conservation Districts of both Pike and Monroe Counties applied for assistance under the Watershed Protection and Flood Prevention Act. The application was approved by the Governor of Pennsylvania and ultimately the planning of a watershed project was authorized by the Department of Agriculture. 16 U.S.C. § 1003. The impetus for the project was a flood in August of 1955 that claimed nine lives and caused extensive property damage in the Brodhead Creek area near (particularly north, west and south of) Canadensis.
. The class consists of “all residents and visitors of the Buck Hill Falls area and others who use and enjoy the scenic and aquatic resources of the Brodhead Creek area of Monroe County, Pennsylvania.” See Concerned Residents of Buck Hill Falls v. Grant, 388 F.Supp. 394, 400 (M.D.Pa.1975).
. The district court order reads as follows:
“1. The project of the Defendants for the construction of Dam Pa-466 violates the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq. and all approvals previously given for the project are hereby vacated.
“2. The Defendants are hereby permanently enjoined from taking any further action with respect to the construction of Dam Pa-466, including, but not limited to, the awarding of a construction contract for the disturbance of any land at the site of the proposed dam, unless and until the project shall have been given final approval by the appropriate governmental officials after the filing and consideration of an environmental impact statement.” (54a-55a).
In view of the time pressures existing when this order was entered, it is understandably not a model of clarity. The district court’s opinion filed January 24, 1975, makes it clear that the district court found a substantive violation of § 5 of the Watershed Protection and Flood Prevention Act. And the opinion concludes with the words “An order in conformance with this Opinion has been issued.” Concerned Residents of Buck Hill Falls v. Grant, 388 F.Supp. 394, 400 (M.D.Pa.1975). Construing the order in light of the opinion, we conclude that the December 31, 1974, order disposes of the claim under the Watershed Protection and Flood Prevention Act by vacating the Secretary’s approval of construction.
. The district court also concluded that SCS had improperly computed the cost of the rights-of-way by using actual costs figures, rather than fair market values, and found that SCS figures failed to take account of the energy crisis. The court found it unnecessary to determine whether the Act required resubmission of the Plan to Congress in light of the changes made in 1971, and did not discuss a number of other challenges plaintiffs levelled at the methodology of the cost/benefit analysis.
. As to the propriety of the 3.25% discount rate, see text below at page 35 and note 14.
. The notice of appeal was filed March 3, 1975, the 60th day. F.R.A.P. 4(a), 26(a).
. Supplemental briefs addressed to the issue of standing were filed by both parties in response to a request for such briefs made by the court at oral argument. We felt that the standing question was sufficiently related to the issue of reviewability and was sufficiently important that the parties should have the opportunity to express their views in writing.
. Complaint, "1, 8-10.
. SCS correctly points out that the phrases “and improving” and “and the quality of the environment” were not part of the Watershed Protection and Flood Prevention Act as originally enacted, but were added by § 201 of the Redevelopment Act of 1972, 86 Stat. 667. We attach no significance to this fact since we believe the added language is merely declaratory of the original purpose of the Act, and, in any event, is not crucial to our conclusion.
. Individual project authorization is required under the Flood Control Act of 1936, for example. 33 U.S.C. § 701a et seq.
. See, e. g., Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (8th Cir. 1972); Sierra Club v. Froehlke, 345 F.Supp. 440 (W.D.Wis. 1972), aff’d, 486 F.2d 946 (7th Cir. 1973). Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941), is inapposite. That case involved a constitutional challenge to congressional authority under the commerce power to authorize construction of a dam on the Red River in Texas and Oklahoma. The court’s refusal to examine the validity of the project planning reports that led to the decision to proceed must be considered in that constitutional context.
. General appropriations to SCS and project approval by the Agriculture Committees of both Houses of Congress are the only congressional action required as a prerequisite to expenditure of funds in this case. Appropriations acts generally cannot serve as a vehicle of substantive legislation or as a ratification of prior agency action. See Environmental Defense Fund v. Froehlke, 473 F.2d 346, 354-55 (8th Cir. 1972); Sierra Club v. Froehlke, 345 F.Supp. 440, 446 (W.D.Wis. 1972), aff’d, 486 F.2d 946 (7th Cir. 1973). We are unwilling to assume that Congress, without consideration of the constitutional issues, intended to invest congressional committees with the power to excuse violations of § 5 of the Act. Cf. Montgomery v. Ellis, 364 F.Supp. 517, 532 n. 7 (N.D. Ala. 1973) (dictum).
. Although we have found it unnecessary to reach the merits of the Water Resources Development Act issue involved in this case, we believe it is appropriate, in view of the jurisdictional nature of the reviewability question, to discuss that issue at this juncture.
. The opinion of the district court does not appear to explain the factual basis for its conclusion (page 409 of 388 F.Supp.) that satisfactory assurances were not obtained. Since the Monroe County Commissioners were vigorously negotiating for the rights of way during 1969 and exhibited a continuing interest in advancing the project during that period (427--29a), satisfactory assurances would appear to have been given if the agreement to grant the rights of way had been secured on or before December 31, 1969. Also, such assurances could have been given even without any final agreement by that date. Read in this context, their promise to provide the land could well be viewed as a “satisfactory assurance.”
. See Citizens to Preserve Overton Park, supra at 410, 91 S.Ct. 814.
. Handbook, § 105-0222 (603-04a); see Guide, Chap. 2, section I-B-2-b-c (665-66a).
. Guide, Chap. 2, section II-D (669a); see Handbook, § 102.02 (574a), and note 20, infra.
. “To facilitate construction and assure that any measures installed will provide benefits at least equal to their costs, benefits which will accrue to measures or groups of measures within a system should be identified. This requires that a number of separate evaluations be made in a given watershed, including those for subdivisions of the measures and subdivisions of the watershed. The physical interdependence of many measures, however, reduces the number of possible separate appraisals.” (Emphasis added.) Guide, Chap. 1, section I-c (658a).
. Plaintiffs also rely on passages from Guide, Chap. 1, section II-A-3, and Chap. 2, I-C-l-b. We have considered those passages and concluded that they provide no support for plaintiffs’ position on this record.
. Guide, Chap. 2, section II-D states:
“Within a given purpose the first unit for evaluation should be the scale of development that will meet the minimum needs for that purpose. For example, if it has been determined that an irrigation project needs a firm water supply of at least 500 acre-feet annually, there is no point in evaluating a project that will supply but 250.”
Guide, Chap. 2, section II-E states:
“E. Planning a System of Single-Purpose Interdependent Structures
“Usually, in planning projects, situations will be found where several proposed structures are interrelated in such a manner that each contributes to flood damage reduction in a particular reach or reaches of a flood plain, and removal of any one structure from the system will change the degree of protection afforded by the system. In this situation, the economic analysis can be handled in several ways, depending upon the amount of basic physical and economic data that will be available for analysis.
“A simple approach is to select first a group or combination of structures that will give the desired level of protection at the least cost, then test the total group for economic feasibility.”
. See generally Note, Violations by Agencies of Their Own Regulations, 87 Harv.L.Rev. 629 (1974).
. Thus the fact that Chap. 13 of the Guide normally requires land to be valued for cost purposes at fair market value does not mean that, in some circumstances, actual cost figures cannot be used.
. The 1961 Work Plan states:
“The structures are all located above the common damage center of Canadensis where the principal damage occurs and were considered as one evaluation unit.”
482a. See also 512a, 514a. With one exception in 1961, where costs and benefits were computed on a dam-by-dam basis but no ratios were calculated (495a), the benefits and costs were compared on a project basis in both plans (460a, 473a, 494a, 507a, 514a).
. 482a. Although the matter is not free from xdoubt, it appears that each dam in the project “contributes to flood damage reduction . in reaches of a flood plain” and it is undisputed that removal of Dam Pa-466 would reduce the overall degree of protection. Guide, Chap. 2, section II-E. See map at 530a. In the absence of evidence indicating that the structures protect a “discontinuous flood plain,” Guide, Chap. 2, section II-D, we cannot say it was an abuse of discretion to treat the dams as being functionally interrelated.
. This wording refers to the desired level of protection, rather than the minimum level of protection. The references to the “minimum level of protection” in Handbook 105.0222 and Guide 2-D may be more relevant to the formulation of projects than to the administration of benefit/cost analysis.
. The 1961 Work Plan states:
“It was determined that . . [four dams] . . . would give the desired degree of protection.”
We attach no significance to the fact that the level of protection was lowered by mutual agreement in 1971. The changes were effected at the request of the local sponsors and they ultimately agreed to proceed with the plan as amended.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1578947368421053, Costs: 0.02631578947368421
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OPINION
SPROUSE, Circuit Judge:
The Waterford Citizens’ Association (Citizens’ Association), in an action for declaratory judgment, claimed that the Environmental Protection Agency (EPA) is obliged to reinstitute procedures mandated by section 106 of the National Historic Preservation Act (NHPA or the Act) before a contemplated expansion of an existing sewage system can go forward. The district court concluded that the decision was within the EPA’s discretion and dismissed the suit. We affirm the judgment, although on different grounds than those relied upon by the district court.
I
Waterford is a village of 350 residents located in Loudoun County, Virginia. Because of its Quaker and industrial past, its virtually unchanged appearance since the early 1800s, and the unspoiled landscape which surrounds the village, it is listed on the National Register of Historic Places. In 1970, the Loudoun County Sanitation Authority (Sanitation Authority) contracted for the construction of a sewage collector system and treatment works for Waterford. The sewer system was completed in 1978.
Because the project was funded by the EPA and affected a site listed on the National Register, the Sanitation Authority and the EPA were required to comply with the provisions of the National Historic Preservation Act and the regulations promulgated pursuant to it. 16 U.S.C. §§ 470f, 470h-2(f). Section 106 of the Act requires federal agencies to give the Advisory Council of Historic Preservation (Advisory Council) an opportunity to comment on the effect a federal undertaking will have on a historic site. Pursuant to regulations issued under the NHPA by the Advisory Council, the EPA solicited comments regarding the impact of the proposed system upon the historic character of Waterford from the Advisory Council and the Virginia Historic Preservation Officer.
The participants agreed that the sewer system would adversely affect the historic site by damaging the buildings and landscape during the construction period and by stimulating growth and development after its construction. When adverse consequences are identified, the Advisory Council’s regulations provide that the granting agency may enter into a Memorandum of Agreement (Agreement) in which it promises to follow appropriate procedures to mitigate those effects. 36 C.F.R. §§ 800.-5(e)(4) and 800.6(c)(1). Accordingly, the EPA, Virginia’s Historic Preservation Officer, and the Advisory Council executed such an agreement. The EPA agreed, inter alia, to ensure that the Sanitation Authority submit any revision of the sewer system’s final plan to the Virginia Historic Preservation Officer.
The genesis of this litigation is the 1990 request (twelve years after the completion of the sewer system) of a developer to hook the sewer lines of a proposed townhouse development, located outside of the village boundaries, into Waterford’s sewer system. Although the treatment plant has unused capacity and the hookup will not necessitate an addition to the plant, the hookup will require additional sewer lines. Lou-doun County and the Sanitation Authority indicated that the request would be granted. The Sanitation Authority requested no additional grant money from the EPA for the expansion, nor did it consult with Virginia’s Historic Preservation Officer.
The Advisory Council and the Virginia Historic Preservation Officer interpreted the proposed hookup as a revision of the system’s final plan, however, and concluded that it triggered anew the EPA’s obligation. Accordingly, they requested that the EPA comply with the agreement by directing the Sanitation Authority to submit the proposed revisions to Virginia’s Historic Preservation Officer for review, thus reopening the section 106 process. When the EPA refused, the Citizens’ Association filed suit in the United States District Court for the Eastern District of Virginia, asking for a declaratory judgment that section 106 of the NHPA requires the EPA to comply with its agreement by interceding in the proposed expansion of the sewer lines.
The EPA responded to the complaint by moving to dismiss on the ground that the Citizens’ Association had failed to' allege standing. The court, however, granted the Association’s motion to amend its complaint on the same day, and the amended complaint alleges standing. The dismissal motion also contended that the complaint failed to state a claim because the EPA has no mandatory duty to “enforce” the Memorandum of Agreement. After a hearing, the court granted the EPA’s 12(b)(6) motion to dismiss, reasoning that because that decision was within the prosecutorial discretion of the EPA, the Citizens’ Association did not have standing to compel the EPA to implement the agreement.
II
We are . not certain that the district court invoked the doctrine of standing in the traditional sense. In any event, the Citizens’ Association clearly has standing to bring this issue to court. In considering the propriety of a Rule 12(b)(6) dismissal, the standard of review is whether the complaint, accepting the allegations as true, allows a recovery. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). Here, the Citizens’ Association has alleged a threatened injury which can be fairly traced to the conduct of the EPA and which can be redressed by a judicial decision. These are, of course, the two elements necessary to establish standing under Article III of the Constitution. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The Citizens’ Association also meets the test for organizational standing. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974 (4th Cir.1992). This court has recognized the standing of an organization to represent similar interests. See Ely v. Velde, 451 F.2d 1130 (4th Cir.1971).
We nevertheless affirm the judgment of the district court. We note at the outset that the scope of the obligations imposed upon federal agencies by the enactment of section 106 is quite narrow. The affirmative duties are clearly stated: agencies “shall prior to the approval ... of the expenditure of any Federal funds on the undertaking ... take into account the effect of the undertaking ...” and “afford the Advisory Council ... an opportunity to comment_” 16 U.S.C. § 470f. In imposing these general obligations, Congress did not create a primary role for federal agencies to protect historic sites.
Although the statute requires the EPA to evaluate the effect of the undertaking on the historical site, the language of the statute does not indicate what, if any, further action an agency should take. For example, the statute is silent on the proper disposition of a disagreement between the Advisory Council and the agency over the potential adverse effect of the “undertaking.” Nor does section 106 specify what the Advisory Council’s opportunity to comment on the project entails. The Advisory Council’s regulations and the legislative history, however, demonstrate that the total response required of the agency is quite limited.
The Advisory Council has filled the interstices of the statute by defining how federal agencies may discharge their section 106 obligation. See 36 C.F.R. Part 800.1 et seq.; National Center for Preservation Law v. Landrieu, 496 F.Supp. 716, 742 (D.S.C.1980) (Advisory Council has discretion to promulgate regulations defining section 106 obligations), aff'd per curiam, 635 F.2d 324 (4th Cir.1980). Thus, a procedural regulatory scheme guides agencies contemplating a project, or, in the language of the statute, an “undertaking.” The final outcome of that process, however, demonstrates the limited obligation of the agency. Significantly, the regulations state that if the parties are unable to agree to an accommodation of interest, they may end the section 106 consultation process. 36 C.F.R. § 800.5(e)(6).
Our review of the legislative history of section 106 substantiates our view that Congress did not intend this provision to impose general obligations on federal agencies to affirmatively protect preservation interests. The Advisory Council has only the authority for “reviewing plans for Federal undertakings and the undertakings of others involving Federal assistance or requiring a Federal license which affect sites, structures, and the like listed in the national register_” H.R.Rep. No. 1916, 89th Cong., 2d Sess., 1966 U.S.C.C.A.N. 3307, 3308. Section 106’s purposes are limited to ensuring that “the Federal agencies will not work at cross purposes with the goals of historic preservation” and to providing “a meaningful review of Federal or federally assisted projects which affect historic properties identified on the national register.” S.Rep. No. 1363, 89th Cong., 2d Sess. 8 (1966).
These limited purposes are supported by the remarks of legislators considering section 106 which emphasize that the purpose of the provision is to promote a cooperative exchange of information. The Advisory Council will advise and report on measures which coordinate the efforts of government agencies and private parties in federal undertakings. 112 Cong.Rec. 25942 (1966) (statement of Rep. Saylor). Furthermore, the committee intended “to provide an opportunity for the Government to coordinate activities affecting historic preservation.” This was made necessary because “[gjovernment departments ... need to know what other departments are doing-” Id. (statement of Rep. Widnall). “[N]o Federal agency may make money available under ... programs ... which will affect a historically significant structure until account has been taken of these effects and until opportunity has been given the Advisory Council on Historic Preservation ... to comment on the plan.” Id. at 25940 (statement of Rep. O’Brien).
There is thus no suggestion in either the statute or the legislative history that section 106 was intended to impose upon federal agencies anything more than a duty to keep the Advisory Council informed of the effect of federal undertakings and to allow it to make suggestions to mitigate adverse impacts on the historic sites under its protection. Rather than requiring agencies to independently protect historic preservation interests, it encourages them to do so by facilitating dialogue and consultation. We agree with the Court of Appeals for the District of Columbia that the provisions of NHPA “are aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.” Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989).
Here, the EPA, Virginia’s Preservation Officer, and the Advisory Council engaged in the consultation required by the statute and, pursuant to the regulations, entered into the Memorandum of Agreement. The specific section of the agreement at issue requires the EPA, .under certain circumstances, to take steps that reopen the section. 106 process.
The Citizens’ Association concedes that, absent the agreement, the EPA would have no duty to reinstitute the section 106 procedures. It strenuously urges, however, that the agreement remained in effect—even after the completion of the original project, and that the EPA is therefore required to comply with its terms. According to the Citizens’ Association, the developer’s application to add new lines to the sewer system is subject to that agreement and therefore the section 106 consultation must be reopened. We have no doubt that the EPA was bound by the Memorandum of Agreement for the period of the undertaking. See National Center for Preservation Law v. Landrieu, 496 F.Supp. 716 (D.S.C.), affd per curiam, 636 F.2d 324 (4th Cir. 1980). In our view, however, the EPA’s obligations under it were extinguished by the completion of the sewer system.
In effect, the Citizens’ Association asks us to rule that the obligation assumed in the agreement itself somehow satisfies the section 106 threshold requirement that an “undertaking” exists. We decline to do so. In our view, federal licensing or funding is required for there to be a statutory undertaking. The EPA’s obligation under the Memorandum of Agreement is simply not sufficient.
The Citizens’ Association argues that an undertaking exists in this case because the EPA has a continuing opportunity—stemming from the agreement—to exercise authority. See McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 759 F.Supp. 908, 915 (D.D.C.1991) (undertaking exists where federal agency had veto power amounting to a licensure); WATCH v. Harris, 603 F.2d 310, 319 (2d Cir.) (undertaking exists where federal agency continuously approved funds) cert, denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 275 (3rd Cir.1983) (undertaking exists where federal agency had ongoing involvement with project). Our reading of these cases, however, leads us to conclude that they do not go as far as the Citizens’ Association argues, largely because they consider compliance with section 106 rather than with a Memorandum of Agreement, and also because they involve continuous, ongoing federal projects.
We agree with the EPA that the obligation it assumed by executing the Memorandum of Agreement lasted only through the life of the original project. The language of section 106, the case law interpreting that language, and its legislative history indicate that the obligations of federal agencies under section 106 relate only to an ongoing “undertaking.” Although section 106 authorizes an agreement and although a resultant agreement is binding on the parties to it during the “undertaking,” the agreement does not, in turn, perpetuate responsibility extending beyond the term of the undertaking—here the construction of the original sewer project. The judgment of the district court is, therefore, affirmed.
AFFIRMED.
. The Waterford Citizens' Association is a nonprofit unincorporated group of village residents whose purpose is to preserve Waterford’s historic character.
. The Citizens’ Association sued the parties to the agreement at issue — the EPA, the Advisory Council on Historic Preservation, and Virginia’s Department of Historic Resources; the court allowed the Loudoun County Sanitation Authority to intervene because a decision for the Citizens’ Association 6350 35 9 would affect its ability to expand the sewage system.
. The system was conceived to eliminate the health hazards of the existing "system” of privately maintained septic tanks and cesspools. The new system is composed of 10,400 linear feet of eight inch diameter sewer lines, located largely within the village, and the treatment facility, located outside the village boundary near Catoctin Creek.
. The project was funded by the EPA under the Federal Water Pollution Control Act, 33 U.S.C. § 1251. The EPA made the final grant payment to the Sanitation Authority in 1985.
. Section 106, in its entirety, reads:
Effect of Federal undertakings upon property listed in National Register; comment by Advisory Council on Historic Preservation
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f.
. See 16 C.F.R. Part 800.
. The system was designed to serve the existing lots within the village boundaries and to provide sewer services for a population of 557. When the system was designed, it was anticipated that the development of vacant lots within the village limits would support a population of 557 people by the year 2000. The current population of the village is 350.
. Nor do we believe that this dispute implicates the prosecutorial discretion of the EPA. As we explain below, the EPA is not obliged to enter into an Memorandum of Agreement. Once it has done so, however, it has voluntarily assumed an obligation that is enforceable for as long as it is involved in the project. See 36 C.F.R. § 800.6(c) (stating that an agency "shall carry out the undertaking in accordance with the terms of the agreement' and that failure to do so reinstitutes the agency’s section 106 obligation) (emphasis added).
. An undertaking is a new or continuing project, activity, or program "under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency” which can change the character or use of a historic property. 36 C.F.R. § 800.2(o). The regulations require the agency to assess the negative effects of the project on the historic properties. 36 C.F.R. § 800.5.
If the participants agree on how to mitigate any adverse effects, they may enter into a Memorandum of Agreement which will govern the construction of the "undertaking." 36 C.F.R. § 800.5(e)(4). The agency is then obliged to “carry out the undertaking in accordance with the terms of the agreement.” 36 C.F.R. § 800.-6(c)(1).
. The Memorandum of Agreement states:
The Environmental Protection Agency will insure that the grantee, the Loudoun County Sanitation Authority, will submit any revisions to the final plans for the sewer system project to the Virginia State Historic Preservation Officer for review and approval. If the Virginia State Historic Preservation Officer finds that the final plans significantly deviate from the plans originally approved by his office so as to be detrimental or to cause an adverse effect to the setting and integrity of the Waterford Historic District, he will so notify the Advisory Council on Historic Preservation and the Environmental Protection Agency, and the Section 106 consultation, pursuant to the National Historic Preservation Act of 1966, will be reopened to attempt to mitigate the adverse effect. The grantee will provide adequate plans and accompanying information to the Virginia State Historic Preservation Officer to facilitate his review. These plans and accompanying information will contain details of proposed actions, if any, affecting the trees, walls, and sidewalks within the Waterford Historic District.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2666666666666667, Costs: 0.04
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ORDER
Pursuant to the opinion issued concomitantly with this order, we hereby enjoin any further activities on the land such as would be undertaken pursuant to the Huckleberry Mountain Exchange Agreement as executed by the United States and the Weyerhaeuser Company on March 28, 1997, until such time as the Forest Service satisfies its statutory obligations in a manner consistent with this Court’s opinion.
OPINION
PER CURIAM.
Plaintiffs Muckleshoot Indian Tribe, Pil-chuck Audubon Society, and Huckleberry Mountain Protection Society • appeal the district court’s grant of summary judgment on consolidated challenges to a land exchange between the United States Forest Service and Weyerhaeuser Company. Plaintiffs contend that the Forest Service violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, and the National Historic Preservation Act (“NHPA”), 16 U.S.C. § § 470-470w. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
I. BACKGROUND
Huckleberry Mountain, the land subject to the dispute in this case, is located in the Green River watershed in the Mt. Baker-Snoqualmie National Forest (“the Forest”) in the state of Washington. The Forest contains sixteen percent of the wilderness in the Pacific Northwest. Thirteen percent (259,545 acres) of the 1,983,774 acres within the National Forest boundary are privately owned, primarily by Weyerhaeu-ser and other large corporations. Most of the privately-owned lands are in the southern portion of the Forest, and are intermingled with federal lands in a checkerboard pattern of ownership that remains from the federal land grants to railroads a century ago.
Motivated in large part by a desire to unify land ownership, the United States Forest Service (“the Forest Service”) and Weyerhaeuser Company (“Weyerhaeuser”) began negotiations for a series of land exchanges pursuant to 43 U.S.C. § 1716, which authorizes the exchange of public lands within the National Forest system where “the public interest will be well served” by the exchange. In the 1980s, the Forest Service negotiated a land exchange with Weyerhaeuser and the Burlington Northern Railroad Company involving lands near Huckleberry Mountain. Under the terms of the Alpine Lakes Exchange, as it became known, the United States conveyed a total of 21,676 acres of federally-owned Forest land to Weyer-haeuser and Burlington Northern in exchange for other property owned by the two companies. In the present appeal, plaintiffs challenge another land exchange between Weyerhaeuser and the Forest Service, the Huckleberry Mountain Exchange (“the Exchange”), in which the Forest Service again traded old growth forest lands in the Huckleberry Mountain area. Many of the parcels conveyed by the Forest Service in the Alpine Lakes Exchange are near or contiguous to federal lands that are part of the Exchange at issue in this appeal.
Although land within the Huckleberry Mountain Exchange Area had been tentatively identified during the Alpine Lakes Exchange negotiations between 1984 and 1987, negotiations began anew in 1988 with a revised list of federal land under consideration for exchange. In July 1991, Weyer-haeuser and the Forest Service signed a Statement of Intent to enter into an exchange, which identified the parcels to be included in the exchange. Between 1992 and 1994, the Forest Service conducted surveys regarding wetlands, wildlife, rare plants, hazardous waste, cultural resources and other matters, and subsequently reduced the federal acreage proposed for transfer.
The Forest Service initiated public consultation and comment and developed a list of six exchange alternatives. In July 1996, the Forest Service released a draft Environmental Impact Statement (“EIS”), pursuant to NEPA, 42 U.S.C. § 4332(2)(C), and mailed over 300 copies to interested parties. It then conducted three open meetings in communities near the Forest. Among those who provided comments on the Draft EIS was the Muekleshoot Indian Tribe (the “Tribe”).
On November 26, 1996, the Forest Service issued a final EIS after receiving comments on the draft EIS. The EIS considered three alternatives: a “no action” alternative, and two closely related exchange alternatives. Concurrently, the Forest Service issued a Record of Decision that called for an implementation of the Exchange through a modification of “Alternative No. 3” as evaluated in the EIS.
The Pilchuck Audubon Society and the Huckleberry Mountain Protection Society (collectively “the Societies”) and the Tribe lodged separate appeals of the EIS and the ROD with the Office of the Regional Forester. These appeals were denied on March 7, 1997. On March 28, 1997, pursuant to the ROD, Weyerhaeuser and the Forest Service executed an exchange agreement under which Weyerhaeuser conveyed to the United States 30,253 acres of land in and around Mt. Baker National Forest in return for 4,362 acres of land in the Huckleberry Mountain area. In addition, Weyerhaeuser donated to the United States 962 acres to the Alpine Lakes Wilderness and 1,034 acres for Forest Service management. The National Forest lands that Weyerhaeuser received included old growth, commercial grade timber. The Forest Service also exchanged to Weyer-haeuser intact portions of the Huckleberry Divide Trail, a site important to the Tribe and that the Forest Service found eligible for inclusion in the National Register for Historic Preservation. Weyerhaeuser gave the Forest Service lands that were, for the most part, heavily logged and road-ed. Weyerhaeuser intends to log the lands it received in the Exchange.
In the spring of 1997, the Tribe and the Societies commenced separate actions in the district court seeking declaratory and injunctive relief to halt the Huckleberry Mountain Exchange. The district court consolidated the two actions and granted Weyerhaeuser’s motion to intervene because it was party to the Exchange. The combined action, brought pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-06, alleged violations of the Federal Lands Policy and Management Act, 43 U.S.C. § 1701 et seq., the .General Exchange Act, 16 U.S.C. § 485; the Weeks Act, 16 U.S.C. § 516; the National Forest Management Act, 16 U .S.C. 1600 et seq.; NHPA, 16 U.S.C. § 470 et seq., and NEPA, 42 U.S.C. 4321 et seq. The Tribe also asserted that the government breached its duty of trust to the Tribe. The district court denied all of these claims.
Plaintiffs appeal only their claims under NHPA and NEPA. The plaintiffs did not seek a stay of the district court’s, order pending appeal. The Exchange was finalized on March 12,1998.
The United States has waived sovereign immunity in this case pursuant to 5 U.S.C. § 702. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the district court decided the case on a motion for summary judgment, we review that determination de novo. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir.1998). An agency’s factual findings should be “overturned only if they are arbitrary and capricious.” Sierra Club v. Clark, 756 F.2d 686, 691 (9th Cir.1985).
II. THE NATIONAL HISTORIC PRESERVATION ACT CLAIMS
The Muckleshoot Tribe is made up principally of descendants of tribes or bands that were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek. The Tribe was organized pursuant to the Indian Reorganization Act of June 18, 1934. See United States v. State of Washington, 384 F.Supp. 312, 366 (W.D.Wash.1974). The United States, acting by and through the Secretary of the Interior and his duly authorized delegatees, has consistently recognized the Muckleshoot Tribe as the political successor in interest to certain of the Indian tribes, bands and villages that were parties to the Treaty of Point Elliott or the Treaty of Medicine Creek. Id.
The Indian ancestors to the present Muckleshoot Tribe included people from villages on the Green and White Rivers that form part of the drainage for Huckleberry Mountain. The Tribe alleges that for thousands of years, the ancestors of present tribal members used Huckleberry Mountain for cultural, religious, and resource purposes — uses that continue to the present day. The Forest Service lands exchanged to Weyerhaeuser were part of the Tribe’s ancestral grounds.
Section 10 of NHPA requires that, prior to any federal undertaking, the relevant federal agency “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register” and “afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.” 16 U.S.C. § 470f; see also Hoonah Indian Ass’n v. Morrison, 170 F.3d 1223, 1230 (9th Cir.1999); 36 C.F.R. § 800. The Exchange was such an undertaking. 36 C.F.R. § 800.2(o).
We have held that Section 106 of NHPA is a “stop, look, and listen” provision that requires each federal agency to consider the effects of its programs. See Apache Survival Coalition v. United States, 21 F.3d 895, 906 (9th Cir.1994). Under NHPA, a federal agency must make a reasonable and good faith effort to identify historic properties, 36 C.F.R. § 800.4(b); determine whether identified properties are eligible for listing on the National Register based on criteria in 36 C.F.R. § 60.4; assess the effects of the undertaking on any eligible historic properties found, 36 C.F .R. §§ 800.4(c), 800.5, 800.9(a); determine whether the effect will be adverse, 36 C.F.R. §§ 800.5(c), 800.9(b); and avoid or mitigate any adverse effects, 36 C.F.R. §§ 800.8(e), 800.9(c). The Forest Service must confer with the State Historic Preservation Officer (“SHPO”) and seek the approval of the Advisory Council on Historic Preservation (“Council”).
Additional NHPA provisions apply to Indian tribes.
(A) Properties of traditional religious and cultural importance to an Indian tribe ... may be determined to be eligible for inclusion in the National Register.
(B) In carrying out its responsibilities under Section 106, a Federal Agency shall consult with any Indian Tribe ... that attaches religious and cultural significance to properties described in Sub-paragraph (A).
16 U.S.C. § 470a(d)(6).
The Tribe’s claims under NHPA can be divided into three categories. The Tribe first contends that the Forest Service failed to consult adequately with it regarding the identification of traditional cultural properties. The Tribe also contends that the Forest Service inadequately mitigated the harmful impact of the exchange on sites of cultural significance. Finally, the Tribe argues that the Forest Service violated NHPA by failing to nominate certain sites to the National Register. We conclude that the Forest Service has not satisfied NHPA’s mitigation requirements.
A. Identification of Traditional Cultural Properties
This Court has not yet had the opportunity to interpret the specific consultation requirements of NHPA. The regulations interpreting NHPA require that:
[T]he Agency official, the State Historic Preservation Officer and the [Advisory] Council [on Historic Preservation] should be sensitive to the special concerns of Indian tribes in historic preservation issues, which often extend beyond Indian lands to other historic properties. When an undertaking will affect Indian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement.... When an undertaking may affect properties of historic value to an Indian tribe on non-Indian lands, the consulting parties shall afford such tribe the opportunity to participate as interested persons. Traditional cultural leaders and other Native Americans are considered to be interested person with respect to undertakings that may affect historic properties of significance to such persons.
36 C.F.R. § 800.1(c)(2)(iii).
Although we confront somewhat different issues, Pueblo of Sandia v. United States, 50 F.3d 856, 860 (10th Cir.1995) is instructive. The Tenth Circuit concluded that the agency’s mailing of form letters soliciting information from knowledgeable parties, combined with an address to the All Indian Pueblo Council requesting the same detailed information solicited by the form letter did not satisfy section 470f. In Sandia, the Forest Service did not find any of the properties eligible for inclusion and withheld relevant information from the SHPO during the consultation process. Id. at 862. The court found that although none of the tribes provided the information specifically solicited by the letters and presentation, the statements of the Governor of the Sandia Pueblo, a religious leader, and a highly qualified anthropologist, all indicating that the land was sacred, and that the tribes were unlikely to reveal information on the use of these lands, were sufficient to require the agency to evaluate the property for inclusion in the National Register. Id. at 861. The court also determined that the agency had failed to perform the required “good faith consultation” with the State Historic Preservation Office, and reversed the district court order approving the federal action. Id. at 862.
In the case before us, the record shows that the Forest Service researched historic sites in the Exchange area and communicated several times after the commencement of the public comment period with Tribal officials regarding the identification and protection of cultural resources that might be affected by the Exchange. The Forest Service initially identified only Mule Springs as eligible for listing in the National Register, and concluded that any adverse effect “may be negated through appropriately conducted data recovery.” Two years later, after considering the concerns of the Tribe, the Forest Service excluded Mule Springs from the Exchange and retained the Forest Service access road in a cost-share status. Because this site was excluded from the Exchange, the district court correctly concluded that the Tribe suffered no injury. The Forest Service initially concluded that the Huckleberry Divide Trail (“Divide Trail”) was ineligible for listing. After the SHPO suggested otherwise, the Forest Service reconsidered and found it eligible for listing but nonetheless included it in the lands exchanged to Weyerhaeuser. We discuss the Divide Trail in more detail below.
The Tribe also contends that the Forest Service ignored its claims that numerous other places of historical importance were situated on the portions of Huckleberry Mountain proposed for exchange. The Tribe requested a study of its historical places and trails, but in response, the Forest Service, which had already carried out research in the area, simply requested the immediate disclosure of any information the Tribe possessed about those sites. The Tribe was unable, or unwilling, to provide information sufficient to persuade the Agency that it should reconsider its decisions.
The Forest Service’s action is in tension with the recommendations of the National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties (“Bulletin 38”). Bulletin 38 provides the recognized criteria for the Forest Service’s identification and assessment of places of cultural significance. In Sandia, the Tenth Circuit’s finding that the agency had violated NHPA rested in part upon its finding that the agency failed to adhere to that document. 50 F.3d at 861. The Tribe urges us to find a comparable violation in this case.
While the deviations from Bulletin 38 policies in this case are similar to those in Sandia, they appear not to be as egregious, and probably do not provide sufficient grounds to conclude that the Forest Service failed to comply with NHPA identification and consultation requirements. First, Bulletin 38 does not impose a mandatory procedure, but merely establishes guidelines. Contravention of those recommendations, standing alone, probably does not constitute a violation of NHPA. Second, in this case, unlike Sandia, the Forest Service continued to seek the requested information over a period of time, cf. Sandia, 50 F.3d at 861-62, and the Forest Service had previously conducted research of its own to identify relevant traditional cultural properties.
Unlike in Sandia, there is no evidence that the Forest Service withheld information from the SHPO pertaining to historic sites, or failed to engage in good faith negotiations with SHPO. Cf. Sandia, 50 F.3d at 862. The record shows that the Forest Service resisted the Tribe’s requests for a formal study of cultural properties because it would impede the finalization of the Exchange. Given more time or a more thorough exploration, the Forest Service might have discovered more eligible sites. However, the record also shows that the Tribe had many opportunities to reveal more information to the Forest Service. Although the Forest Service could have been more sensitive to the needs of the Tribe, we are unable to conclude that the Forest Service failed to make a reasonable and good faith effort to identify historic properties. Because we are reversing on other grounds, and because the record shows that the Forest Service’s understanding and appreciation of the importance of the Huckleberry Mountain area to the Tribes grew over time, the Forest Service will have an opportunity to re-open its quest for and evaluation of historic sites on Huckleberry Mountain.
B. The Effects of the Exchange
The Tribe also claims that the Forest Service’s attempt to mitigate the adverse effect of transferring a portion of the Divide Trail, an important tribal ancestral transportation route, was inadequate. We agree.
When an agency determines that a property is eligible for listing, it must assess the effects of any proposed undertaking on the eligible property, 36 C.F.R. § 800.4(e), “giving consideration to the views ... of interested persons.” 36 C.F.R. § 800.5(a). Interested persons include tribes. 36 C.F.R. § 800.1(c)(2).
An undertaking has an “effect” when the undertaking “may alter characteristics of the property that may qualify the property for inclusion in the National Register ... [including] alteration to features of a property’s location, setting, or use.... ” 36 C.F.R. § 800.9(a). An “effect” is “adverse” when it may “diminish the integrity of the property’s location, ... setting ..., feeling, or association.” 36 C.F.R. § 800.9(b). Examples of “adverse effects” include physical destruction, the introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting, and transferring the property. Id.
In 1995, the Forest Service re-evaluated the eligibility of the Divide Trail for listing. The Divide Trail is a 17.5 mile historic aboriginal transportation route. The Forest Service found that portions of the trail possessed “adequate integrity of location, setting and feeling” to satisfy the eligibility criteria of 36 C.F.R. § 60.4. In the proposed Exchange, a portion of the intact trail would be transferred to Weyerhaeu-ser, where it would likely be logged and rendered ineligible for listing. Transfer and destruction of historic property are “adverse” effects. See 36 C.F.R. § 800.9(b).
The regulations offer three options to mitigate an otherwise adverse effect so that it is “considered as being not adverse,” two of which are implicated here. 36 C.F.R. § 800.9(c). First, an agency may conduct appropriate research “[w]hen the historic property is of value only for its potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research....” 36 C.F.R. § 800.9(c)(1) (emphasis added). Second, an adverse effect becomes “not adverse” when the undertaking is limited to the “transfer, lease, or sale of a historic property, and adequate restrictions or conditions are included to ensure preservation of the property’s significant historic features.” 36 C.F.R. § 800.9(c)(3) (emphasis added). The Tribe insists that the Forest Service elected the wrong remedy. We agree.
To mitigate the adverse effect of the Exchange, the Forest Service proposed to map the trail using a global positioning system and to photograph significant features along the trail. It rejected an easement or covenant because it concluded that it was too expensive and impractical to monitor Weyerhaeuser’s land practices, and because “only” 25 percent of the eligible miles of trail would be transferred out of federal ownership. It also rejected the imposition of conditions to prevent logging and other degradation. Although the Forest Service purports to have acted under (c)(3), photographing and mapping the trail are not “adequate restrictions or conditions” that “ensure preservation of the property’s significant historic features.” See 36 C.F.R. § 800.9(c)(3). The parties agree that the trail is likely to be logged if it is transferred. The Forest Service has already concluded that previously logged and “obliterated” portions of the trail are ineligible for listing.
The district court determined erroneously that the Forest Service had proceeded under (c)(1) and concluded that the agency acted properly because any adverse effect may be “negated” if the historical and archeological value of the property can be preserved by conducting research on the site. The Forest Service did not, and could not, proceed under (c)(1). Under 36 C.F.R. § 800.9(c)(1), research is appropriate. mitigation where the historic property is of value only for “its potential contribution to archeological, historical, or architectural research.” The Muckleshoots value the Divide Trail for more than its “potential contribution to ... research.”
The Forest Service insists that it acted properly, because the SHPO concurred in its proposal to document the trail, provided that it document the entire intact portion, regardless of ownership, and maintain the portions of the trail not being transferred. These “conditions” do not preserve the trail’s significant historic features. Moreover, in 1994, when SHPO first suggested that the Divide Trail probably was eligible for listing, it concluded that
[i]n view of the unusual nature and remote location of the trail, documentation is probably not an effective mitigative measure. Rather, [SHPO] suggests execution of an easement or covenant attached to the transferring instrument. This easement would provide for the ongoing preservation of the Divide Trail and its setting after the land has been transferred.
While we do not decide whether the Forest Service’s reasons for rejecting deed restrictions were valid, we note that it could have removed the trail from the Exchange as it did with Mule Springs. We conclude that documenting the trail did not satisfy the Forest Service’s obligations to minimize the adverse effect of transferring the intact portions of the trail.
C. Nomination of Historic Sites
Finally, the Tribe contends that the Forest Service violated the Preservation Act by failing to properly nominate the Divide Trail to the National Register. In light of our ruling, we need not address this issue. Upon remand, the Forest Service may wish to reconsider its treatment of the historic properties in the Exchange lands.
III. NATIONAL ENVIRONMENTAL POLICY ACT CLAIMS
NEPA requires federal agencies such as the Forest Service to prepare a detailed environmental impact statement (“EIS”) for “all major actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An EIS must address the cumulative impacts of a project and consider adequate alternatives.
In evaluating whether an agency’s EIS complies with NEPA’s requirements, we must determine whether it contains “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Neighbors of Cuddy Mountain, 137 F.3d at 1376. We review for an abuse of discretion. Id.
The plaintiffs have raised several different claims under NEPA. The Tribe contends that the identification and analysis of cumulative environmental impacts in the Forest Service’s EIS did not meet the requirements of NEPA. The Societies contend that the EIS inadequately defined the purpose and need for the Huckleberry Land Exchange as required by NEPA, and did not identify or evaluate sufficient alternatives for the exchange. We consider each of these issues in turn.
A. Assessment of Cumulative Impacts under NEPA
We first address the Tribe’s contention that the Forest Service failed to consider the cumulative impact of the exchange. A cumulative impact is defined as:
[T]he impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7.
Regulations implementing NEPA require that a federal agency consider “[c]u-mulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.” 40 C.F.R. § 1508.25(a)(2).
In City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9th Cir.1997), we noted that an EIS must “cat-alogue adequately the relevant past projects in the area.” Id. at 1160. It must also include a “useful analysis of the cumulative impacts of past, present and future projects.” Id. This requires “discussion of how [future] projects together with the proposed ... project will affect [the environment].” Id. The EIS must analyze the combined effects of the actions in sufficient detail to be “useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts.” Id. at 1160 (internal citations omitted). Detail is therefore required in describing the cumulative effects of a proposed action with other proposed actions. Neighbors of Cuddy Mountain, 137 F.3d at 1379; see also Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214-15 (9th Cir.1998).
The Tribe contends that the EIS gives inadequate consideration to the cumulative impacts of logging on the 1984 Alpine Lakes Exchange lands, of existing logging and other disturbances in the Green River watershed, and of a future land exchange with the Plum Creek Timber Company that involves lands in the same vicinity as the Huckleberry Mountain Exchange. The district court held that the Forest Service did not need to consider the 1984 Alpine Lake Exchange because it was part of the baseline environment and, as such, was considered in the EIS for the Mt. Baker Snoqualmie National Forest Land and Resource Management Plan, as amended by the 1994 Northwest Forest Plan (“LRMP”). The district court also held that the Plum Creek exchange was “too uncertain” to require a discussion of cumulative effects. We do not agree with those conclusions.
Appellees urge that because the final EIS for the Huckleberry Exchange is tiered to the LRMP, it sufficiently analyzes the cumulative impacts of the Exchange.
“Tiering” is defined as:
[T]he coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.
40 C.F.R. § 1508.28; see also 40 C.F.R. § 1502.20.
We have previously interpreted the regulations to allow tiering only to another environmental impact statement. Blue Mountains Biodiversity Project, 161 F.3d at 1214; see also 40 C.F.R. § 1508.28. The Huckleberry Exchange EIS is tiered erroneously to the Forest Plan, not the EIS for the Forest Plan. Our review of the Forest Plan and its accompanying EIS reveals that those documents do not account for the specific impacts of the Exchange and do not remedy the Forest Service’s failure to account for the impacts of the Exchange in the Huckleberry Exchange EIS. See e.g., Resources Ltd. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993) (“specific analysis is better done when a specific development action is to be taken, not at the programmatic level.”).
The LRMP EIS, prepared in 1990, was prepared before the Huckleberry Exchange lands were identified with any certainty. The concept of the Huckleberry exchange was mentioned only in a pool of possible projects that would help meet the goals of the Forest Plan. There was no detail concerning those projects and their impacts. The proposed Exchange simply was not concrete enough to allow for adequate analysis. Moreover, the LRMP EIS did not analyze the impact of increased logging on the parcels that had been transferred out of federal ownership in the 1984 Alpine Lakes Exchange. Many of those parcels are in the same vicinity as the old growth forest lands the Forest Service transferred to Weyerhaeuser. If we were to adopt the Forest Service’s approach, the cumulative impacts of land exchanges would escape environmental review.
The problem is compounded by the very general and one-sided analysis of the cumulative impact information that the Huckleberry Exchange EIS does contain. While the district court was correct in observing that there are “twelve sections entitled ‘cumulative effects,’ ” these sections merely provide very broad and general statements devoid of specific, reasoned conclusions.
For example, the cumulative impact statement regarding the impact of alternatives two and three on natural vegetation simply indicates the amount of land to be exchanged, and whether or not the land will be subject to commercial harvest. It then concludes:
Under Alternatives two and three, the Forest Service would manage for non-harvest uses an additional 16,735 (16,876 under Alternative 3) acres of young forest and non-forest vegetation. Most of this acreage ... would over time develop greater species diversity and stand structure.
The statement notably contains no evaluation whatsoever of the impact on natural resources of timber harvesting on the lands transferred to Weyerhaeuser, nor does it assess the possible impacts that such harvesting could have upon surrounding areas. The statement focuses solely on the beneficial impact the exchange will have on lands received by the Forest Service. All of those described benefits are contingent on appropriate Forest Service action and funds to promote the recovery of the harvested lands that it will acquire. This lopsided analysis is repeated in virtually every cumulative impact statement throughout the EIS.
We hold that the cumulative impact statements that are provided in the EIS are far too general and one-sided to meet the NEPA requirements. See Neighbors of Cuddy Mountain 137 F.3d at 1379. The statements fall far short of a “useful analysis” as required by City of Carmel, 123 F.3d at 1160. See also Blue Mountains Biodiversity Project, 161 F.3d at 1214-15.
The appellees also attempt to tier the Exchange EIS to the Green River Watershed Report to cure the deficiencies of the cumulative impact analysis of the Exchange EIS. Such reliance is impermissible under the NEPA regulations, which only permit tiering to prior EIS’s. 40 C.F.R. §§ 1502.20 and 1508.28.
The analysis in the Green River Watershed Report, even if appropriately allowed as a tiering document, demonstrates the need for a more thorough cumulative impact analysis. The Green River Watershed Report explicitly states that the watershed area was degraded by logging prior to the Huckleberry exchange. The Report cautions that future exchanges should be sensitive to the need to avoid additional environmental degradation. Moreover, the Report covers only a portion of the area affected by the Exchange. The Huckleberry EIS should have analyzed the cumulative effects of the logging incident to this exchange upon that damaged watershed area in conjunction with the other degradation mentioned in that document. 40 C.F.R. § 1508.7; see also Neighbors of Cuddy Mountain, 137 F.3d at 1378. The EIS performs no such analysis. It fails to evaluate the near term impacts of Weyerhaeuser’s logging of old growth timber in any meaningful fashion. Therefore, even if the Exchange EIS could be tiered to the Watershed Report, the Watershed Report is only the starting point for the required analysis. It does not fill the gaps in the Exchange EIS.
Plaintiffs also contend that the EIS failed to analyze adequately the cumulative effects of a future land exchange involving Plum Creek Timber Company that, according to plaintiffs, was “reasonably foreseeable” at the time the Exchange EIS was prepared. An agency must analyze the incremental impact of the action “when added to other past, present, and reason ably foreseeable future actions.... ” 40 C.F.R. § 1508.7 (emphasis added). The district court determined that the Plum Creek Exchange was too speculative to require analysis.
Our review of the record suggests that the Plum Creek transaction was not remote or highly speculative. Rather, it was reasonably foreseeable and it should have been considered in the EIS. A summary of the proposed Plum Creek transaction already had been prepared by the Forest Service by 1995. On June 27, 1996, five months before the Huckleberry EIS was issued, Secretary of Agriculture Dan Glickman formally announced the proposed Plum Creek Exchange to the public. USDA Press Release (June 27, 1996), at 1.
Moreover, the record reflects that the Forest Service was all but certain that the National Forest lands in the upper Green River Basin would be included in the Plum Creek exchange. The Huckleberry Exchange EIS was issued in November 1996. In July 1996, the Green River Watershed plan described the Plum Creek exchange, and in January 1997, two months after the Huckleberry Exchange EIS issued, a revised map showing lands to be exchanged in the Plum Creek Exchange was published. The Plum Creek Exchange was not too speculative in November, 1996, to be analyzed in the Huckleberry Exchange EIS.
Given the virtual certainty of the transaction and its scope, the Forest Service was required under NEPA to evaluate the cumulative impacts of the Plum Creek transaction. See La Flamme v. Federal Energy Regulatory Comm’n, 852 F.2d 389, 401 (9th Cir.1988); Neighbors of Cuddy Mountain, 137 F.3d at 1379. In the absence of an EIS that takes into consideration the cumulative effects of the planned land sales and resultant environmental impacts, we cannot conclude that the Forest Service took the necessary “hard look” at the cumulative environmental impacts of the Huckleberry Exchange. See Blue Mountain, 161 F.3d at 1216.
Nor can the Forest Service’s inappropriate use of tiering meet the requirements of the NEPA. While the LRMP EIS, which was completed in 1990, does mention the Plum Creek Exchange, it expressly indicates that at that time, its effects were too speculative to gauge. The tiering of documents that do not perform the required cumulative impact analysis falls far short of the standard articulated in Neighbors of Cuddy Mountain. In 1996, when the Huckleberry Exchange EIS was completed, the Plum Creek Exchange had moved well beyond mere speculation. The Forest Service abused its discretion in ignoring the impacts of that exchange.
B. Failure to Consider an Adequate Range of Alternatives
We also agree with the Societies’ contention that the Forest Service violated NEPA by failing to consider a range of appropriate alternatives to the proposed exchange.
The Societies first contend that the EIS fails to properly specify the underlying purpose and need to which the proposal is responding as required by NEPA regulations. See 40 C.F.R. § 1502 .13 (requiring a statement that “shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action”).
The EIS states that the purpose and need for the proposal is to “consolidate ownership and enhance future resource conservation and management by exchanging parcels of National Forest System and Weyerhaeuser land.” The Societies argue that this narrowly stated purpose fails to meet the requirements of section 1502.13 as it was interpreted in City of Carmel, where we held that “[t]he stated goal of a project necessarily dictates the range of reasonable alternatives and an agency cannot define its objectives in unreasonably narrow terms.” 123 F.3d at 1155.
While the statement of purpose contained in the EIS, taken in complete isolation, would appear too narrow to meet the standards articulated in City of Car-mel, we note that the EIS expressly incorporates it within the LRMP’s stated purpose of “creat[ing] consolidated land ownership patterns where consistent management mandates, policies and objectives apply across large blocks of land.” Because the EIS’ statement of purpose makes clear that an exchange of land with Weyerhaeuser would foster the desirable consolidation of ownership of the checkerboard land holdings, it is reasonable and should be upheld. See Citizens Against Burlington v. Busey, 938 F.2d 190, 196 (D.C.Cir.), cert. denied, 502 U.S. 994, 112 5.Ct. 616, 116 L.Ed.2d 638 (1991) (holding that agency’s stated objective should be upheld where reasonable).
However, in the course of evaluating the options that would best achieve the stated purpose of the proposed action, the Forest Service failed to consider an adequate range of alternatives. The EIS considered only a no action alternative along with two virtually identical alternatives. The selected alternative, Alternative 3, differed from Alternative 2 only in that it re-labeled a portion of the lands Weyerhaeuser transferred to the Forest Service a donation rather than an exchange, and added 141 acres of donated land.
In addressing the claims that the Forest Service erred in failing to mitigate the possible harms of the exchange, the district court concluded that there was no evidence that Weyerhaeuser would agree to plaintiffs’ proposed alternative of the Forest Service purchasing the Weyerhaeu-ser land rather than exchanging for it and that there was no evidence that the agency failed to consider, as required by Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1305 (9th Cir.1994), “a reasonably full range of alternatives.”
Our review of the record, reinforced by the statements of Weyerhaeuser’s counsel at oral argument, compel us to reach the opposite conclusion. In this case, the Forest Service, after a process of “scoping” to collect the views of the public, initially considered five action alternatives and a no action alternative for the project. Three alternatives were eliminated from detailed study. Analyses were performed on the remaining two proposals and the no action plan.
One of the alternatives that was preliminarily eliminated from detailed study would have placed deed restrictions on the land traded to Weyerhaeuser, requiring that the lands be managed under National Forest Service standards, rather than allowing Weyerhaeuser to log the land pursuant to the less stringent standards of Washington state law. That alternative was rejected on the grounds that it would decrease Weyerhaeuser’s incentive to trade. However, there is nothing in the record to demonstrate that the Forest Service even considered increasing Weyer-haeuser’s incentive to trade either by offering additional acreage, subject to deed restrictions, or by decreasing the amount of Weyerhaeuser land transferred in the Exchange.
Although NEPA does not require the Forest Service to “consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives,” Seattle Audubon Society v. Moseley, 80 F.3d 1401, 1404 (9th Cir.1996), we are troubled that in this case, the Forest Service failed to consider an alternative that was more consistent with its basic policy objectives than the alternatives that were the subject of final consideration. In this case, the applicable regulation controlling implementation of the Federal Land Policy Management Act, 43 U.S.C. § 1701 et seq., pursuant to which the Exchange was transacted, dictates that the agency officer authorized to conduct a land exchange “shall reserve such rights or retain such interests as are needed to protect the public interest or shall otherwise restrict the use of Federal lands to be exchanged, as appropriate.” 36 C.F.R. 254.3(h). A detailed consideration of a trade involving deed restrictions' or other modifications to the acreage involved is in the public interest and should have been considered.
We also recognize that an agency’s discussion of alternatives must be “bounded by some notion of feasibility.” See Vermont Yankee Nuclear Power v. NRDC, 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Counsel for Weyerhaeuser conceded at oral argument that the imposition of deed restrictions was a viable alternative to the Exchange Agreement of March 28, 1997. A “viable but unexamined alternative renders [the] environmental impact statement inadequate.” Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir.1985). Imposition of deed restrictions was a feasible alternative that could not be ignored.
The plaintiffs also argue that the land could have been purchased outright with funds from the Federal Land and Water Conservation Fund. While the Forest Service itself cannot appropriate these funds, it can request them. The record reflects that such a request was never made, and indeed, this option was not even considered.
The appellees respond that, because it was not clear that the funds would be available for such a purchase, the Forest Service had no obligation to consider it, as it constituted a “remote and speculative” alternative. Vermont Yankee, 435 U.S. at 551, 98 S.Ct. 1197. However, NEPA regulations state that agencies shall “include reasonable alternatives not within the jurisdiction of the lead agency.” 40 C.F.R. § 1502.14(c). This alternative clearly falls within the range of such reasonable alternatives, and should have been considered. We also note that in presenting the beneficial cumulative impacts of the exchange, the EIS frequently relies upon references to admittedly speculative funds that will be used by the Forest Service in restoring the forest lands that it gains through the transaction. We are troubled by this selective willingness to rely upon the availability of funding sources beyond the Forest Service’s direct control.
The Forest Service also contends that because the purpose of the transaction was to carry out an “exchange” and not a purchase, it was not required to consider this alternative. Seattle Audubon Society, 80 F.3d at 1404 (holding that an agency is not required to examine alternatives inconsistent with its basic policy objectives). To the extent that Weyerhaeuser would have been exchanging its lands for federal monies rather than federal lands, we do not recognize such an inconsistency.
NEPA “does not mandate particular results,” but “simply provides the necessary process” to ensure that federal agencies take a “hard look” at the environmental consequences of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). We conclude that in this case, the Forest Service failed to take the necessary hard look at the environmental impacts of the exchange and similarly failed to consider adequate alternatives to the proposed exchange.
IV. MOOTNESS
In this case, Weyerhaeuser (but not the United States) has contended that the appeal is moot because on March 12, 1998, the United States and Weyerhaeuser completed the Exchange through the conveyance of patents and deeds and Weyer-haeuser has secured permits to log from the State of Washington. The plaintiffs failed to obtain a stay of the district court’s order pending appeal, and Weyerhaeuser now alleges that it owns and conducts business operations on the land obtained from the United States, and has assumed the obligation, pursuant to the exchange agreement, of managing over 7,500 acres of its non-Exchange lands. According to Weyerhaeuser’s counsel at oral argument, Weyerhaeuser has already “destroyed” at least ten percent of the land it obtained through the exchange.
Conveyance of property to another does not moot a case. National Forest Preservation Group v. Butz, 485 F.2d 408, 411 (9th Cir.1973). Federal courts are authorized to “void a property transaction” where necessary. National Wildlife Federation v. Espy, 45 F.3d 1837, 1342 (9th Cir.1995). Where the actions involved in a title transfer can be undone, this court will not find meritorious the defense of mootness. Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, (9th Cir.) cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981).
Given our reluctance to invoke the doctrine of mootness, the facts that the exchange has occurred and that Weyerhaeu-ser has began to log pursuant to its state permits do not meet the “heavy” evidentia-ry burden that a party must carry in order to establish mootness. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). The only evidence properly before us simply illustrates that the property transfer has occurred. This evidence is insufficient to establish mootness. National Forest Preservation Group, 485 F.2d at 411; National Wildlife Federation, 45 F.3d at 1342. The fact that Weyerhaeuser may have “destroyed” a portion of the land does not alter the ability of the government to accept a reassignment of the property, if required.
V. CONCLUSION
We hold that the Forest Service failed to meet the requirements of NHPA and NEPA. Its attempt to mitigate the adverse effect of transferring portions of the Divide Trail by documenting the trail did not comport with the regulations. It did not adequately consider the cumulative impacts of the Huckleberry Exchange in conjunction with past or reasonably certain future transactions. To the extent it attempted an analysis of cumulative impacts, the analysis was one-sided. Finally, it did not consider adequate alternatives to implement the Exchange.
In light of our ruling, we need not reach the questions of whether the district court properly excluded evidence or whether the Forest Service was required to nominate the Divide Trail. Our remand allows the Forest Service to reconsider whether it has located all of the historic properties on the lands it proposes to transfer out of federal ownership and what protections should be required.
We REVERSE and REMAND to the district court with directions that it remand to the Forest Service for further proceedings consistent with this opinion. Given Weyerhaeuser’s representations that it has destroyed approximately ten percent of the property, and will continue to do so, we also enjoin any further activities on the land such as would be undertaken pursuant to the Huckleberry Mountain Exchange Agreement as executed on March 28, 1997 until such time as the Forest Service satisfies its NHPA and NEPA obligations. The injunction shall take effect immediately by virtue of a separate order filed concomitantly with this opinion.
. Alternative two proposed an exchange of up to 6,273 acres of Forest Service lands for up to 32,010 acres of Weyerhauser lands. Alternative three would remove 1,885 acres from the exchange. That acreage, and an additional 141 acres, would be donated by Weyer-haeuser to the Forest Service contingent on the implementation of that alternative. Nine hundred sixty two acres of the donated parcel would be donated for inclusion in the Alpine Lakes Wilderness Area and 1,034 acres would be proposed for management without timber harvest emphasis. Under that alternative, Weyerhaeuser would also retain title to the subsurface mineral estates on lands transferred to the Forest Service.
. The modifications removed 1,280 acres of federal lands located near the town of Green-water and 320 acres of federal land around Mule Springs, an important Tribal site; retained a cost-share status between the Forest Service and Weyerhaeuser for Forest Service Road 7125 to ensure continued tribal access to the site; and modified the terms of the mineral rights that Weyerhaeuser received.
. Weyerhaeuser did not retain title to certain subsurface mineral estates as described in the EIS. Instead, it retained the rights to a portion of the royalties from any minerals leased or sold by the Forest Service on those lands.
. The conclusions of the Advisory council in response to tribal allegations of procedural inadequacies captures the state of the record on this issue:
Perhaps the Forest Service fell short in involving the Tribe in developing its identification strategy, but the record demon-states the [Agency] did make a reasonable and good faith effort to identify historic properties that may be affected by the Hucklebery Land Exchange .... no further effort to identify or evaluate historic properties should be required for this undertaking.
. We note that, in proposing this mitigation, the Forest Service claimed that transferring a property "may be determined to have no adverse effect if conditions are included to ensure preservation of the. property’s historic values." (emphasis added). It misunderstands its obligations. Preserving a property’s historic values is not the same as preserving its "significant historic features.”
. We also note that NHPA regulations suggest that when federal land with historic properties is sold or transferred, this "adverse effect” becomes "not adverse” if adequate restrictions or conditions are included to preserve the property’s significant historic features. See 36 C.F.R. § 800.9(c)(3).
. Were we to construe the statement of purpose as limiting the transaction to land-for-land exchanges, it would certainly be too narrow to meet the standards for an appropriate statement of purpose as articulated in City of Carmel, 123 F.3d at 1155.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.09615384615384616, Costs: 0.01923076923076923
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SETH, Circuit Judge.
These are appeals from a judgment enjoining the defendants, Denver Urban Renewal Authority (DURA), and the United States Department of Housing and Urban Development (HUD), from proceeding with the sale of the Daniels and Fisher Tower in Denver, Colorado, to a local architectural firm, Luff/McOG, which plans to renovate the Tower into office space as part of the HUD-funded Skyline Urban Renewal Project. The injunction is to remain in effect until HUD complies with the procedures required for certain historically significant properties in accordance with the regulations of HUD based on those of the Advisory Council on Historic Preservation, 36 C.F.R. § 800 et seq. Both parties have appealed.
The Skyline Urban Renewal Project, which called for renovation of a large area in downtown Denver, was officially approved by HUD on March 7, 1968, when HUD and DURA entered into a Project Loan and Capital Grant Contract. Included in the project area is the Daniels and Fisher Tower (Tower), built in 1911 as part of the Daniels and Fisher Department Store. The Tower was patterned after the Campanile in St. Mark’s Square, Venice. The department store building was demolished as part of the project, but the Tower was left standing. On December 2, 1969, the Tower was added to the National Register of Historic Places. The Register, established by the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. §§ 470 et seq., recognizes and preserves objects significant in American history, architecture, archaeology, and culture.
The Project called for renovation of the Tower as commercial space. In furtherance of that plan, DURA purchased the Tower on April 16, 1970, and offered it for sale to area redevelopers. Two earlier other purchasers, after acceptance of their proposals by DURA, did not complete their contracts. On April 16, 1975, DURA and Luff/McOG, one of the defendants here, entered into an agreement for the purchase and sale of the Tower. It is this sale that was enjoined by the district court pending compliance with HUD regulations implementing NHPA, 36 C.F.R. §§ 800.1 et seq.
Defendants below appeal the final order granting that injunction. Plaintiffs cross-appeal the trial court’s conclusions that NEPA and the regulations drafted under its authority do not apply.
Plaintiffs’ cross-appeal is based on the premise that the district court reached the right decision for the wrong reasons. In granting the injunction, the court held neither NHPA nor NEPA applied, but rather the HUD-approved regulations under NHPA activated the procedural .requirements set out in NHPA. The plaintiffs would have us find not only the regulations but also the two Acts themselves are applicable here.
In reviewing those two Acts, we must conclude that NHPA does not apply to this case. The relevant section reads:
“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking.” 16 U.S.C. § 470f. (Emphasis added).
Plaintiffs read this section to require HUD to seek comment from the Advisory Council. However, the plain meaning of the words exempts the Tower sale from such a consideration. The Tower was not placed on the National Register until 1969, while the approval of the expenditure of Federal funds for the Skyline Urban Renewal Project was finalized by the signing of the loan and capital grant contract on March 7, 1968. The use of that contract date as the time at which this provision becomes effective has been established in other jurisdictions. See South Hill Neighborhood Ass’n v. Romney, 421 F.2d 454 (6th Cir.); St. Joseph Historical Society v. Land Clearance for Redev. Au., 366 F.Supp. 605 (W.D.Mo.); Kent County Council for Historic Preservation v. Romney, 304 F.Supp. 885 (W.D.Mich.). The analysis in each appears sound. The language of the Act is clear, particularly when compared to the comparable section of NEPA. The reading proposed by plaintiffs is strained and not in accordance with the plain meaning of the section. If in fact the key element is not approval, as the case law and the ordinary words suggest, but is the expenditure of funds, the last expenditure of federal funds involving the Tower occurred in September of 1970, when DURA purchased the Tower from a private owner. However, this is not the “expenditure” contemplated in the statute. Plaintiffs would have us use the date DURA entered into the sale contract with Luff/McOG in April 1975 as the critical date. However, no federal funds were to be expended in that sale, and thus there was no expenditure to be approved and the statute by its terms does not apply.
Plaintiffs make one further argument to apply NHPA, arguing that major amendments to the plan in 1971 and 1972 invoke the Act’s provisions. The district court found the 1972 amendment, which involved a change in density allotment, had nothing to do with the Tower while the 1971 amendment, which called attention to the Tower’s listing on the National Register, became effective without HUD approval. Neither caused the Act to apply.
We thus agree with the district court that NHPA did not require HUD’s solicitation of comments from the Advisory Council as to DURA’s agreement to sell the Tower to Luff/McOG.
The issue as to the application of NEPA is not so clear. The pertinent statutory provision states:
“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.” 42 U.S.C. § 4332.
Here the “plain meaning” is not so plain. Case law under this provision finds the catch phrases, “to the fullest extent possible” and “major Federal actions” subject to several interpretations.
In determining legislative intent, the first phrase becomes significant. It has been interpreted by one court to establish a discretionary element in the Act which the court reads further as indicative of intent to apply the Act to overall environmental problems facing the Nation as a whole as opposed to demolition of specific historic buildings. St. Joseph Historical Society v. Land Clearance for Redev. Au., 366 F.Supp. 605 (W.D.Mo.). The majority, however, have read that phrase as subjecting a continuing project to the Act’s requirements until it reaches “. . . that stage of completion where the cost of abandoning or altering the proposed project clearly outweigh [sic] the benefits [of] compliance.” Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cited in Swain v. Brinegar, 517 F.2d 766 (7th Cir.). Although these two cases involved highway construction projects rather than urban renewal plans, the theory remains the same. They hold that as long as agency decisions remain to be made or are open to revision, the Act should be applied. It is at this point that the phrase “major Federal action” comes into play. The determination to be made in the instant case is whether the loan and capital grant contract’s requirement that HUD approve all acquisitions and dispositions of property by the DURA, section 108(A)(11), (12), (16) of that contract, establishes major Federal action sufficient to mandate compliance with the Act each time that approval is given. The district court held that all major Federal action taken here occurred before the Act was in effect. In order to do so, the court found the signing of the loan and capital grant contract as the only major Federal action involved in this urban renewal project.
A review of case law interpreting the phrase “major Federal action” does not compel this restrictive conclusion. Judicial decisions in a variety of actions in which federal agencies and funds are involved have given a broad reading to the key phrase. Highway construction suits, challenged by defendants here as distinguishable simply because they deal with a highway being built rather than a Tower being renovated, have expressed the philosophy behind the Act to be long-range. In one, the date of design approval, the first of five established stages in highway construction and comparable to the signing of the loan and capital grant contract here, was rejected as the critical stage beyond which the court would not halt work to require reconsideration and the preparation of an Environmental Impact •Statement. (EIS). Arlington Coalition on Transportation v. Volpe, supra. Further, that court ruled that the determination as to whether that point had been reached must be resolved in favor of the statute’s applicability. Ibid. The court concluded that the continuing responsibility of the federal agency involved in approving specifications and estimates, along with the awarding of construction contracts, was sufficient major Federal action to require reconsideration of the plans and the filing of an EIS as required by NEPA.
This continuing federal involvement has also been recognized in actions in which the court has found the federal agency in compliance. In reviewing the Secretary of the Interior’s actions in connection with construction of electric generating facilities, the Ninth Circuit found major federal actions subsequent to the National Project Participation Agreement, which was entered into prior to NEPA’s effective date. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir.). The approval of rights-of-way and easements for the coal-haul railroad and the approval of stack heights, considered by the court to be federal actions, were both given in 1971, which made them subject to the Act. At the same time, however, a draft EIS was being prepared which indicated consideration of environmental factors prior to each approval, so the court found the agency in compliance. The court emphasized the continuing nature of the compliance, stating:
“. . . The fact that it is not practicable to reassess the basic course of action does not mean that an environmental impact statement need not be filed prior to a further major action taken pursuant to that basic course of action. . The focus must lie on the practicability of adherence to the requirements of § 102(2)(C) [§ 4332(2)(C)] as regards each major federal action contemplated, not on the project as an entirety.” Ibid., 1282-1283. (Emphasis the court’s).
Several cases dealing specifically with urban renewal projects have adopted the theory just set forth. In a challenge to the complex area renewal project in the city of Boston for which no impact statement had been filed, the First Circuit remanded the case to the district court to make findings regarding the status of amendments to the contract made after NEPA’s effective date as major federal actions. Jones v. Lynn, 477 F.2d 885 (1st Cir.). The plan had been initially approved in 1967, but in 1970 the contract was amended to allow an authorized increase in the interest paid on temporary loan notes and in 1972 to increase the relocation grant and the temporary loan authorization. The court there rejected arguments that Congress intended to exempt projects whose plans had previously been approved from NEPA coverage, finding the “continuing responsibility” language of section 4331 as well as the “to the fullest extent possible” phrasing of section 4332 to indicate an environmental role for a federal agency as long as it remains meaningfully involved in a project. In another suit involving urban renewal in Boston, the district court found that with one-third of the original funding still to be disbursed, there was major federal action contemplated sufficient to justify the granting of a preliminary injunction halting demolition of the threatened buildings. Boston Waterfront Residents Ass’n, Inc. v. Romney, 343 F.Supp. 89 (D.Mass.). See also Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323 (S.D.N.Y.).
With this ongoing project, the application of NEPA must be considered in relation to the particular matter or structure being evaluated. We are concerned with the historical value of a single structure in a very large project. This can certainly be separated from the other elements and the burden of compliance with the regulations compared with any interference or stoppage of the project or of substantial elements. HUD has treated this building separately in its negotiations and administratively as evidenced by the fact it was not demolished and has been contracted to be sold as a separate structure. This balancing is the theory of the cited highway cases and the Boston cases, and is certainly a realistic and practical view. This is what the trial court concluded. Furthermore, this is no more than what the HUD regulations contemplate.
The judgment of the trial court is AFFIRMED for the reasons herein set forth.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.03448275862068965, Costs: 0
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KATZMANN, Circuit Judge.
The New York City Empowerment Zone was created pursuant to a Congressional act and was awarded $100 million in federal block grants to foster the revitalization of economically distressed areas. This case raises an issue of first impression: whether the Zone’s subsequent use of those federal funds in connection with individual projects triggers the historic preservation review process set forth in Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. The plaintiffs argue that it does, and therefore contend that construction of the East River Plaza project, a planned East Harlem retail shopping complex to which the Zone has allocated $5 million from the previously-awarded federal block grants, cannot go forward until a Section 106 review of the project is conducted. We hold that because all approval and funding decisions as to the East River Plaza project are made at the state and local level, Section 106 — which is triggered only when a federal agency has jurisdiction or licensing authority over the project at issue — is inapplicable here. We therefore affirm the district court’s grant of summary judgment to the defendants.
I.
A.
1. The New York City Empowerment Zone: Statutory and Administrative Background
In the Omnibus Budget Reconciliation Act of 1993 (“OMBRA”), Pub.L. No. 103-66,107 Stat. 312 (1993), Congress provided for the creation of empowerment zones and enterprise communities to promote the “[rjevitalization of economically distressed areas through expanded business and employment opportunities.” H.R.Rep. No. 103-111, at 791 (1993), as reprinted in 1993 U.S.C.C.A.N. 378, 1021. As part of the OMBRA, Congress authorized the United States Department of Housing and Urban Development (“HUD”) to designate up to six urban empowerment zones that would each receive various tax incentives as well as up to $100 million in federal block grant funds from the United States Department of Health and Human Services (“HHS”) to stimulate economic and social renewal. Pub.L. No. 103-66 § 13761; 42 U.S.C. § 1397f; 60 Fed.Reg. 3034-01, at 3034. Congress further provided that local governments could nominate areas for empowerment zone status, and required any application for an empowerment zone to include a “strategic plan” that
(A) describes the coordinated economic, human, community, and physical development plan and related activities proposed for the nominated area,
(B) describes the process by which the affected community is a full partner in the process of developing and implementing the plan and the extent to which local institutions and organizations have contributed to the planning process,
(C) identifies the amount of State, local, and private resources that will be available in the nominated area and the private/public partnerships to be used, which may include participation, by, and cooperation with, universities, medical centers, and other private and public entities,
(D) identifies the funding requested under any Federal program in support of the proposed economic, human, community, and physical development and related activities,
(E) identifies baselines, methods, and benchmarks for measuring the success of carrying out the strategic plan, including the extent to which poor persons and families will be empowered to become economically self-sufficient, and
(F) does not include any action to assist any establishment in relocating from one area outside the nominated area to the nominated area, except that assistance for the expansion of an existing business entity through the establishment of a new branch, affiliate, or subsidiary is permitted if-
(i) the establishment of', the new branch, affiliate, or subsidiary will not result in a decrease in employment in the area of original location or in any other area where the existing business entity conducts business operations, and
(ii) there is no reason to believe.that the new branch, affiliate or subsidiary is being established with the intention of closing down the operations of the existing business entity in the area of its original location or in any other area where the existing business entity conducts business operationfs].
26 U.S.C. § 1391(f)(2).
Pursuant to this- application process, HUD designated the New York City Empowerment Zone — an area comprising certain sections of Upper Manhattan and the South Bronx — as one of the six initial urban empowerment zones. HHS, in turn, proceeded to make two $50 million grants, one in 1994 and, one in 1995, to the New York City Empowerment Zone. These grants were issued to entities that subsequently became known as the Empire State Development Corporation (“ESDC”), a New York State agency. The $100 million remains in an HHS “draw-down” account, from which ESDC can withdraw funds without advising HHS of the specific purpose for which the funds will be used. New York State and New York City also each pledged an additional $100 million to the New York City Empowerment Zone, to be paid over a ten-year period. Thus, the Zone ended up with a total investment pool of $300 million, drawn, equally from the federal, state, and city governments.
Several local entities were created to manage the operation and funding of the Zone. The ESDC created the New York Empowerment Zone Corporation (“NYEZC”), which is charged with reviewing and monitoring the empowerment zone program. New York State holds 51% of the stock of NYEZC, and New York City holds the other 49%. In addition, the residents of Upper Manhattan created the Upper Manhattan Empowerment Zone Development Corporation (“UMEZDC”) to develop initiatives for, and administer funds to, their portion of the Zone. The Bronx Overall Economic Development Corporation (“BOEDC”) was similarly created for the South Bronx. Representatives from UMEZDC and BOEDC sit on the board of directors of the NYEZC, along with state and city representatives. In addition, an HUD representative participated as a non-voting director of the NYEZC until 2002, at which point HUD discontinued its participation.
Two memoranda serve to document and clarify the relationships among the various entities described above. First, a Memorandum of Agreement among HUD, New York State, and New York City provides that the State and City shall submit semiannual reports and annual narrative summaries to HUD regarding actions taken in accordance with the strategic plan for the New York City Empowerment Zone, and that HUD shall make periodic findings on the continuing eligibility and validity of the designation of the Zone. It further provides that HUD may revoke the “empowerment zone” designation if it is determined that the Zone has (1) modified the boundaries of the area; (2) failed to make progress in achieving the benchmarks and goals of the Strategic Plan; or (3) not complied substantially with the goals of the Strategic Plan. This de-designation provision closely tracks the statutory language of 26 U.S.C. § 1391, which provides that designation of an empowerment zone can be revoked by HUD upon a determination that the state or local government “(A) has modified the boundaries of the area, or (B) is not complying substantially with, or fails to make progress in achieving the benchmarks set forth in, the strategic plan.” 26 U.S.C. § 1391(d)(2).
. Second, a Memorandum of Understanding among New York State, New York City, the ESDC, NYEZC, UMEZDC, BOEDC, the Bronx Borough President, and the United States Representatives for the 15th and 16th Congressional Districts provides that the local entities — namely, UMEZDC and BOEDC — will select and develop project proposals for their respective regions of the Zone, and will then submit these proposals to NYEZC for approval. It further provides that when such projects are approved to receive Zone funding, ESDC is responsible for disbursing the appropriate federal block grant funds and the New York State-provided funds to NYEZC, and that the New York City Department of Business Services is responsible for disbursing the appropriate city funds to the NYEZC. NYEZC is then, in turn, to disburse such funds to UMEZDC or BOEDC, as applicable.
2. The East River Plaza project
In 1996, defendant-appellee Tiago Holdings, LLC (“Tiago”), a real estate developer, proposed a large shopping center development project — to be known as East River Plaza^ — in East Harlem, a neighborhood that falls within the boundaries of the New York City Empowerment Zone and within the region covered by UMEZDC. The plans for East River Plaza called for a 500,000 square foot, four-story retail shopping complex, located between 116th and 119th Streets along the Franklin Delano Roosevelt Drive. At the time, the present occupant of that site was the vacant Wash-burn Wire Factory, which had been constructed during the early 1900s by descendants of Ichabod Washburn (an inventor of early wire production processes) and had ceased operations as of 1976. Tiago’s proposed plans for the East River Plaza required a demolition of the Washburn Wire Factory buildings. In connection with these plans, the New York State Office of Parks, Recreation and Historic Preservation conducted a historic resource review, and determined that the Washburn Wire Factory did not meet the criteria for inclusion in the National Register of Historic Places and that the East River Plaza project would have no impact on surrounding sites that might be eligible for inclusion in the National Register. The National Park Service of the United States Department of the Interior subsequently reviewed and affirmed New York State’s decision not to nominate the Washburn Wire Factory to the National Register.
Tiago projected the cost of the East River Plaza project to be $160 million, and requested $15 million in loans from UMEZDC for the project. On September 10, 2001, the UMEZDC staff issued a written recommendation that this loan be granted, noting that East River Plaza was likely to enhance the physical revitalization of East Harlem, to spread new development activity eastward to East Harlem, and to create approximately 1,400 full-time jobs. On October 22, 2001, the Board of Directors of UMEZDC voted in favor of Tiago’s request for $15 million in financing, and authorized UMEZDC to submit the project to the NYEZC for funding approval. On November 16, 2001, NYEZC’s Board of Directors voted to approve the requested $15 million loan — projected to come equally from city funds, state funds, and the previously-awarded federal block grants, as is the NYEZC’s typical practice — in funding for East River Plaza. Thus, a total of $5 million in federal block grant money was slated for the project.
On February 10, 2003, after the demolition of the Washburn Wire Factory began, one of the plaintiffs in this action contacted the president of UMEZDC to request that in light of the planned allocation of federal funds to the East River Plaza project, a historic preservation review pursuant to Section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, be conducted for the project. It is undisputed, however, that no Section 106 review took place.
B.
The plaintiffs proceeded to file suit under Section 106 of the NHPA, seeking (1) a declaratory judgment that HUD and HHS were obliged to conduct a historic preservation review of the East River Plaza project pursuant to Section 106, given the planned use of $5 million in federal funds for the project; (2) an injunction enjoining NYEZC, UMEZDC, and Tiago from continuing with the demolition of the Washburn Wire Factory until a Section 106 review had been completed; and (3) legal fees and costs. The defendants opposed the plaintiffs’ motion for a preliminary injunction and filed a cross-motion to dismiss the complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
By Memorandum and Order dated August 19, 2003, the district court denied plaintiffs’ motion for a preliminary injunction, finding that they had demonstrated neither a likelihood of success on the merits nor irreparable harm. After the issuance of this order, the remaining sections of the Washburn Wire Factory were demolished. On June 11, 2004, the district court issued a Memorandum and Order converting the defendants’ motion to dismiss into a motion for summary judgment, and granting the defendants’ motion on grounds that despite the likely usage of $5 million in federal block grant funds for the East River Plaza project, there was insufficient federal involvement or control over the project to trigger review under Section 106.
This appeal followed.
II.
A.
At the outset, we note the applicable standard of review. We review a grant of summary judgment de novo, construing the record in the light most favorable to the non-moving party. See, e.g., Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.2004). Where, as here, no disputed issues of material fact exist, “our task is to determine whether the district court correctly applied the law.” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995) (internal quotation marks omitted).
B.
Before evaluating the merits of the plaintiffs’ claim under Section 106 of the NHPA, we pause to note that both the parties and the district court assumed that the NHPA provides the plaintiffs with a private right of action in this case. This Circuit has not yet addressed that issue, but because this is a statutory question rather than one of Article III jurisdiction, we need not resolve it where the case can otherwise be resolved in the defendants’ favor. See, e.g., Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 n. 4 (1st Cir.2003) (similarly declining to reach the question of whether a private right of action exists under the NHPA). For the reasons set forth below, we conclude that the case can be so resolved, and thus assume, without deciding, that the plaintiffs were entitled to bring this action pursuant to Section 106 of the NHPA.
The NHPA, which was passed in 1966, has a fairly broad mandate, in keeping with the longstanding Congressional interest in historic preservation. See WATCH v. Harris, 603 F.2d 310, 320-26 (2d Cir. 1979). It “requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation.. .to administer the Act.” Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003) (internal quotation marks omitted). In this regard, Section 106 of the NHPA provides that
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f.
Section 106 is therefore primarily procedural in nature. See, e.g., Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 278-79 (3d Cir.1983). It does not itself require a particular outcome, but rather ensures that the relevant federal agency will, before approving funds or granting a license to the undertaking at issue, consider the potential impact of that undertaking on surrounding historic places. As such, courts have sometimes referred to Section 106 as a “stop, look, and listen” provision. See, e.g., Illinois Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C.Cir.1988); Pres. Coalition, Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir.1982).
The plaintiffs argue that the planned allocation of $5 million in federal funds to the East River Plaza project automatically triggers a Section 106 review of the project. They point out that Section 301 of the NHPA defines an “undertaking” as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including. . .those carried out with Federal financial assistance.” 16 U.S.C. § 470w(7)(B). They contend that as a result, the East River Plaza project must be an undertaking for purposes of the NHPA.
We note initially that under the definition set forth in Section 301, it is not entirely clear whether all projects carried out with federal financial assistance are “undertakings,” or whether only those projects that actually receive their funding “under the direct or indirect jurisdiction of a Federal agency” qualify as undertakings. Cf. Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750, 755 (D.C.Cir. 1995) (noting a similar ambiguity with respect to projects that require federal licenses). The definition of “undertaking” contained in the most recent NHPA regulations promulgated by the ACHP mirrors the definition set forth in Section 301, and thus does not clarify this issue. See 36 C.F.R. § 800.16(y) (defining “undertaking” as a “project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including.. .those carried out with Federal financial assistance”).
It is, however, unnecessary for us to reach this question. Even assuming that the East River Plaza is an “undertaking” under the Section 301 of the NHPA solely by virtue of its planned receipt of federal block grant funds, Section 106 itself still applies only to two types of entities: first, any Federal agency “having direct or indirect. jurisdiction over a proposed Federal or federally assisted undertaking,” and second, “any Federal department or independent agency having authority to license any undertaking.” See Sheridan Kalorama, 49 F.3d at 755 (“[Hjowever broadly the Congress or the ACHP define ‘undertaking,’ § 106 applies only to: 1) ‘any Federal agency having. . .jurisdiction over a proposed Federal or federally assisted undertaking’; and 2) ‘any Federal... agency having authority to license any undertaking’ ” (quoting 16 U.S.C. § 470f)); see also Fowler, 324 F.3d at 759-60. Thus, unless either of the federal agency defendants — HUD and HHS — can be said to have jurisdiction or licensing authority over the East River Plaza project, Section 106 is inapplicable to the project.
The plaintiffs have not attempted to claim that either HUD or HHS has the authority to license the East River Plaza project. Rather, the critical question is whether the project can be viewed as falling within the direct or indirect jurisdiction of HUD or HHS, given the project’s planned receipt of $5 million in federal funds. That question, in turn, requires us to determine the meaning of “direct or indirect jurisdiction.”
The NHPA nowhere explicitly defines the phrase “direct or indirect jurisdiction.” Nor do the regulations that have been promulgated by the ACHP. See 36 C.F.R. § 800 et. seq. The text of Section 106 itself, however, provides an important clue as to the meaning of these words. In stating that “[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any state... shall, prior to the approval of the expenditure of any Federal funds on the undertaking .. .take into account the effect of the undertaking,” 16 U.S.C. § 470f (emphasis added), the text indicates that to have a qualifying level of jurisdiction over the undertaking, the federal agency must have some degree of power to approve or otherwise control the expenditure of federal funds on that undertaking. Indeed, the evident purpose of Section 106 is to ensure that before federal funds are expended on an undertaking, the federal agency has taken into account the undertaking’s potential impact on surrounding historic resources. See, e.g., Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989) (“[A]n agency with jurisdiction over a federal or federally-assisted project must comply [with Section 106] before approving funds for it”) (emphasis added); Sheridan Kalorama, 49 F.3d at 755-756. If the federal agency has no direct or indirect power to effectuate the results of the Section 106 review by making a resultant funding decision, then such a review will be merely an empty exercise.
Here, based on a review of the particular statutory and administrative structure at issue, we conclude that neither HUD nor HHS has the power to control the expenditure of the federal block grant monies on the East River Plaza project. It is undisputed that HUD and HHS played no role in deciding to approve the total allocation of $15 million in NYEZC funds (including $5 million from the federal block grants) to the project. Rather, as set forth above, it was the staff of UMEZDC — the local development company for the Upper Manhattan portion of the New York City Empowerment Zone— that initially recommended the financing in question, after which point the UMEZDC Board of Directors voted to approve that funding. Thereafter, the proposal was submitted to the NYEZC, a corporation whose stock is held solely by New York City and New York State, for final approval. As such, the process by which these funds were allocated took place entirely at the state and local level. Indeed, the HUD officer with responsibility for the New York City Empowerment Zone during the relevant period submitted a sworn affidavit stating that HUD played no role in allocating or approving funds for the East River Plaza project, and that its involvement was limited solely to reviewing the project for compliance with the Zone’s overall strategic plan. HUD’s lack of participation in the funding process is fully consistent with the Memorandum of Agreement between HUD, New York State, and New York City, which does not provide HUD with such authority.
Nor does HUD or HHS have the ability to block ESDC from proceeding to withdraw the $5 million in question from the HHS draw-down account that contains the federal block grants awarded to the New York City Empowerment Zone. This is underscored by the fact that, as set forth in the sworn affidavit of an HHS officer who has worked with empowerment zones since 1993, ESDC is not even required to notify HHS of the purpose for which it draws down funds from these block grants. Indeed, it is undisputed that no federal agency has the ability to specifically block the expenditure of $5 million in federal funds for the East River Plaza project.
The plaintiffs suggest, however, that HUD still retains ultimate power over the $5 million in question — and therefore jurisdiction over the East River Plaza project— because of its ability to revoke the entire empowerment zone designation, and thereby take back the total remaining amount from the previously-awarded block grants. This argument cannot prevail because its underlying factual premise is inaccurate. It is certainly true that HUD has the power to revoke the empowerment zone designation altogether. But pursuant to both 26 U.S.C. § 1391(d)(2) and the Memorandum of Agreement among HUD, New York State, and New York City, HUD’s power to de-designate the New York City Empowerment Zone is very limited. It can do so only upon determining that (1) either the state or local government has modified the Zone’s boundaries; (2) either the state or local government is not complying substantially with the Zone’s strategic plan; or (3) either the state or local government has failed to make progress in achieving the benchmarks set forth in the Zone’s strategic plan.
None of these findings could be triggered by the results of a Section 106 review of the East River Plaza project, even if such a review concluded — contrary to the previous determination of New York State Office of Parks, Recreation, and Historic Preservation — that the East River Plaza project was likely to have a negative impact on surrounding historic resources. Such a finding would plainly have no bearing on whether Zone’s boundaries had been modified. More importantly, such a finding would likewise be irrelevant to an assessment of the Zone’s level of compliance and progress with its strategic plan. As detailed in 26 U.S.C. § 1391(f), an empowerment zone’s strategic plan addresses issues such as the involvement of local institutions and the community in the development of the geographic area, the extent to which poor individuals and family individuals will be empowered to become economically self-sufficient as a result of such development, and the like. The plaintiffs do not contend, and the record includes no evidence indicating, that the East River Plaza project itself has deviated from these considerations, let alone that the New York City Empowerment Zone as a whole has done so. On the contrary, the record indicates that funding for the East River Plaza project was approved by the relevant local and state organizations precisely because of the project’s potential to create numerous jobs in the community and to promote the physical revitalization of East Harlem. It is likely for this reason that, when engaging in its limited review of the project for compliance with the Zone’s strategic plan, HUD made no finding that the project was in any way inconsistent with that plan. The plaintiffs have not shown how any result from a Section 106 review of the East River Plaza project — a review that would exclusively assess the project’s likely impact on surrounding historic resources, a factor not included in the Congressional list of considerations relevant to an empowerment zone’s strategic plan, see 26 U.S.C. § 1391(f) — could bring about the de-designation of the entire New York City Empowerment Zone. We thus reject the argument that either HUD or HHS has sufficient jurisdiction over the East River Plaza project to trigger a Section 106 review of the project.
The plaintiffs alternatively argue that even if this Court finds that HUD and HHS lack sufficient jurisdiction over the project to trigger a Section 106 review, we should still deem such a review to be required under the regulations governing HHS block grants. They point out that under 45 C.F.R. § 96.30(a), the states must, “[ejxcept where otherwise required by Federal law or regulation,.. obligate and expend block grant funds in accordance with the laws and procedures applicable to the obligation and expenditure of its own funds” (emphasis added), and that when states in turn award at least $300,000 of such moneys to subgrantees, they are required under 45 C.F.R. § 96.31(b)(2) to ensure that the subgrantees are expending the funds in accordance with “applicable laws and regulations.” The plaintiffs contend that pursuant to these regulations, NYEZC and UMEZDC — in allocating $5 million in federal funds to the East River Plaza project — must themselves ensure that these moneys are expended in accordance with federal law, and that this obligation necessarily includes subjecting the project to the Section 106 review process.
This argument, however, assumes its conclusion: that a Section 106 review of this project is in fact required by federal law (namely, the NHPA). For the reasons set forth above, we have concluded that no federal agency has jurisdiction over the East River Plaza project, and that Section 106 of the NHPA is therefore inapplicable to the project. Therefore, it does not violate federal law for a Section 106 review of this project not to occur. Cf. Lee v. Thornburgh, 877 F.2d at 1057-58 (holding that because Section 106 applies only to federal agencies, it does not apply where Congress has appropriated federal funds directly). Accordingly, we are unpersuaded by the plaintiffs’ argument that these regulations somehow independently mandate a Section 106 review in the absence of a federal agency with jurisdiction over the project.
Finally, we note that our conclusion that Section 106 is inapplicable here is shared by the ACHP, the agency that is itself charged with overseeing the Section 106 review process. In its letter-brief to this Court, the ACHP concluded that an urban empowerment zone’s use of federal block grant funds in connection with individual projects does not trigger the requirements of Section 106, on the grounds that once an empowerment zone has been created and has received federal block grants, there is no federal involvement in the funding decisions for individual projects within the zone. This assessment — an agency opinion letter to which we owe respect under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) to the extent that it has the power to persuade, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) — accords with and provides further support for our conclusion.
III.
For the foregoing reasons, we hereby affirm the judgment of the district court granting summary judgment to the defendants.
. That estimate has since risen to at least $200 million.
. By the time the plaintiffs filed their suit, approximately 65% to 85% of the Factory had already been demolished.
. The district court's conversion of the motion into one for summary judgment was done on the basis that all parties had submitted and relied upon extensive materials outside of the Complaint. Neither side has challenged this conversion on appeal and we therefore do not address it here.
. In connection with the appeal, this Court requested and received a letter-brief from the Advisory Council on Historic Preservation (“ACHP”)-the agency that "issues regulations to implement section 106, provides guidance and advice on the application of the procedures of this part, and generally oversees the operation of the section 106 process,” 36 C.F.R. § 800.2(b)-on the issue of whether an urban empowerment zone’s use of block grant funds triggers a Section 106 review. We discuss this letter-brief infra.
. The Ninth Circuit recently held that Section 106 of the NHPA does not give rise to a private right of action and that such challenges must instead be brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et. seq. San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir.2005).
. For unspecified reasons, although UMEZDC voted in favor of the $15 million loan to the East River Plaza project in October of 2001, and the NYEZC approved that loan one month letter, the loan still had not closed as of March 15, 2004. On that date, therefore, the UMEZDC Boarcbof Directors formally rescinded the commitment to make the loan. Accordingly, at present no Zone funds are officially committed to the project. At oral argument, however, counsel for UMEZDC advised this Court that UMEZDC was likely to re-approve the $15 million loan in question in the very near future, and that the loan may well again .be divided equally among federal, state, and city funds, such that $5 million in federal funds will again be slated to the project. This Court thus proceeds to address this issue on the merits.
. As of August 2003, approximately $57 million was estimated to remain in this draw-down account.
. In this letter-brief, the ACHP thus expressly rejected the conclusory statement contained in an earlier letter by an ACHP director to one of the plaintiffs that "the Empowerment Zone Program administered by [HUD] is subject to review under Section 106 since the use of Federal funds facilitates redevelopment activities.” We share the ACHP's conclusion that this earlier letter lacked a sufficient level of explanation or analysis to warrant deference.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2702702702702703, Costs: 0
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SEYMOUR, Chief Judge.
The Pueblo of Sandia and various environmental groups brought suit for declaratory and injunctive relief against the United States and a National Forest Service supervisor, alleging that the Forest Service failed to comply with the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq., in its evaluation of Las Huertas Canyon in the Cibola National Forest. The Pueblo asserts that the New Mexico canyon contains numerous sites of religious and cultural significance to the tribe, qualifying the canyon as a “traditional cultural property” eligible for inclusion in the National Register of Historic Places. The Forest Service, however, concluded that the canyon did not constitute a traditional cultural property and instituted a new management strategy for it. The district court granted summary judgment for the Forest Service, finding that it had made a reasonable and good faith effort to identify historic properties. Because we conclude that the Forest Service’s efforts were neither reasonable nor in good faith, we reverse and remand.
I.
Las Huertas Canyon is located in the San-dia Mountains northeast of Albuquerque, New Mexico. Lying within the Cibola National Forest, the canyon is under the supervision of the Forest Service. The Sandia Pueblo reservation is nearby, and tribal members visit the canyon to gather evergreen boughs for use in significant private and public cultural ceremonies. ApltApp. at 109-11. They also harvest herbs and plants along the Las Huertas Creek which are important for traditional healing practices. Id. at 111. The canyon contains many shrines and ceremonial paths of religious and cultural significance to the Pueblo. Id. at 108-11.
In July 1988, the Forest Service released a Draft Environmental Impact Statement (DEIS) detailing eight alternative management strategies for Las Huertas Canyon. After an extended comment period, the Forest Service selected a ninth alternative, Alternative I, as the preferred strategy. Alternative I required the realignment and reconstruction of the Las Huertas Canyon Road and additional improvements to the area, including the rehabilitation and expansion of several picnic grounds and the installation of sanitary facilities at other locations. Aplt. App. at 48.
Voicing concerns that the strategy would adversely impact traditional cultural properties and practices in the canyon by encouraging additional traffic and visitation to the area, the Pueblo filed an administrative appeal of the decision. The Deputy Regional Forester affirmed the decision, altering the snow plowing and road closure provisions of Alternative I in response to complaints from other appellants. The decision became administratively final in January 1990 when the Chief of the Forest Service declined to review it.
The Pueblo filed this suit in federal court, alleging numerous statutory violations. The Pueblo subsequently amended the complaint to plead a violation of the NHPA, 16 U.S.C. 470 et seq. The Pueblo alleged that the Forest Service failed to comply with section 106 of the NHPA when it refused to evaluate the canyon as a traditional cultural property eligible for inclusion on the National Register.
The parties filed cross motions for summary judgment on the issue of NHPA compliance. By the time the district court heard the motions, the State Historic Preservation Officer (SHPO) had concurred in the Forest Service’s conclusion that certain specific sites near the roadway and picnic grounds were not eligible for the National Register. In a Memorandum Opinion and Order entered April 30, 1993, the district court noted that “[t]he administrative record is silent as to whether any of the sites found were evaluated [by the Forest Service] against the National Register Criteria as required by [the NHPA], and whether the sites met the criteria.” Memorandum Opinion and Order (April 30, 1993) at 11 (Order). The court accepted the SHPO’s concurrence as “evidence that the Forest Service met the substantive requirements with respect to the roadway and the picnic area.” Id.
Although concerned that the Forest Service “does not appear to have taken the requirements of [the NHPA] very seriously,” the court relied on the agency’s assertion that it would diligently pursue information on the potential historic value of other individual sites within the canyon. Id. at 12. On that basis, the court granted summary judgment for defendants, and plaintiffs filed this appeal.
On May 13, 1993, the SHPO concurred in the Forest Service’s final conclusion that “there is no evidence that there are Pueblo Indian traditional cultural properties in Las Huertas Canyon.” Aplee.Br., Addendum at 1, 3. Plaintiffs filed this appeal on June 19, 1993. Significantly, nine months later the SHPO withdrew his concurrence upon receiving evidence suggesting that traditional cultural properties existed in Las Huertas Canyon. Aplt.Supp.Br., Addendum 1. The SHPO stated:
We were surprised to see the [affidavits of Dr. Elizabeth Brandt and Phillip Lauriano] since we had been informed that the Cibo-la National Forest had received no comments on [Traditional Cultural Properties] from the [All Indian Pueblo Council] or from any pueblos (cf. Report 1993-03-054, prepared by Dr. Joseph A. Tainter, dated April 29, 1993). Our previous consultations on this undertaking were based on Dr. Tainter’s report. This documentation is relevant to our consultations on this undertaking. I am concerned that our not having received the affidavits has affected our ability to consult appropriately under Section 106 of the National Historic Preservation Act.
Id. The SHPO concluded that the withheld information had a substantial impact on the inquiry into the canyon’s eligibility for the Historic Register. He wrote:
Much of our consultation, dating back to September of 1992, concentrated on determining what would represent a “reasonable” attempt to identify [Traditional Cultural Properties] that may be affected by the project. Bulletin 88 ... states that “a ‘reasonable’ effort depends in part on the likelihood that such properties may be present.” Mr. Lauriano’s statement, supported by the ethnographic overview provided by Dr. Brandt, indicates that Las Huertas Canyon is used for ceremonial purposes, contains plants and soils used in traditional ceremonies and contains traditional trails that lead to other [traditional cultural properties]. This information suggests that properties that may be eligible to the National Register of Historic Places may be affected by the proposed improvements to the Las Huertas Canyon Road and recreational facilities. It is my opinion that we do not have enough information to make a determination of eligibility.
Id. Consequently, the SHPO recommended an ethnographic analysis of the canyon to further evaluate the possibility that it contained traditional cultural properties.
Consistent with Bulletin 38, this analysis should include interviews with appropriate pueblo representatives, field inspections and documentation. I recommend that the Forest Service hire a professional ethnographer to conduct this analysis. An independent professional is most likely to be able to work out any impasse that may have developed between the pueblos and the Forest Service. I also believe that this procedure will give the Pueblos a reasonable opportunity to provide us with enough documentation to conduct a formal determination of eligibility as outlined in Bulletin 38.
Id. (citations omitted).
We review the district court’s summary judgment de novo. Housing Authority v. United States, 980 F.2d 624, 628 (10th Cir.1992).
II.
The NHPA requires the Forest Service to “take into account the effect of [any] undertaking on any district, site, budding, structure, or object that is included in or eligible for inclusion in the National Register.” NHPA, § 106, 16 U.S.C. § 470f (1993). Section 106 also mandates that the agency afford the Advisory Council on Historic Preservation “a reasonable opportunity to comment” on the undertaking. Id.
The Advisory Council has established regulations for federal agencies to follow in complying with section 106. See 36 C.F.R. § 800. The process is designed to foster communication and consultation between agency officials, the SHPO, and other interested parties such as Indian tribes, local governments, and the general public.
First, the Agency Official must review all existing information on the site, request the SHPO’s views on ways to identify historic properties, and seek information from interested parties likely to have knowledge about historic properties in the area. 36 C.F.R. § 800.4(a). In light of this information, the agency determines any need for further investigation.
In consultation with the SHPO, the agency then must make a “reasonable and good faith effort to identify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register.” 36 C.F.R. § 800.4(b). Finally, for each property identified, the agency official and the SHPO must evaluate the property on the basis of the National Register criteria to determine its eligibility for inclusion. 36 C.F.R. § 800.4(c).
The Pueblo claims that the sites within the Las Huertas Canyon are traditional cultural properties which are thus eligible for inclusion in the National Register. The Pueblo asserts that the Forest Service’s conclusion to the contrary stems from that agency’s failure to make a “reasonable and good faith effort” to identify historical properties.
A. Reasonable Effort
The Forest Service contends that it engaged in reasonable efforts to identify historic properties in Las Huertas Canyon. The record reveals that the Forest Service did request information from the Sandia Pueblo and other local Indian tribes, but a mere request for information is not necessarily sufficient to constitute the “reasonable effort” section 106 requires. Because communications from the tribes indicated the existence of traditional cultural properties and because the Forest Service should have known that tribal customs might restrict the ready disclosure of specific information, we hold that the agency did not reasonably pursue the information necessary to evaluate the canyon’s eligibility for inclusion in the National Register.
During the assessment phase of the section 106 process, the Forest Service mailed letters to local Indian tribes, including the Sandia Pueblo, and individual tribal members who were known to be familiar with traditional cultural properties. Aplt.App. at 159-65. The letters requested detailed information describing the location of the sites, activities conducted there, and the frequency of the activities. Id. They also asked tribes to provide maps of the sites, drawn at a scale of 1:24,000 or better, as well as documentation of the historic nature of the property. Id.
In addition to mailing form letters to the tribes and individuals, Forest Service officials also addressed meetings of the All Indian Pueblo Council and the San Felipe Pueblo. Aplt.App. at 177,181. The officials informed the groups that traditional cultural properties are eligible for inclusion in the National Register and requested the same specific information required in the letters. Id.
None of the tribes or individuals provided the Forest Service with the type of information requested in the letters and meetings. We conclude, however, that the information the tribes did communicate to the agency was sufficient to require the Forest Service to engage in further investigations, especially in light of regulations warning that tribes might be hesitant to divulge the type of information sought.
Prior to its final determination on April 29, 1993 that Las Huertas Canyon contained no traditional cultural properties, the Forest Service was aware of numerous claims to the contrary. As early as January 5, 1987, the Governor of the Sandia Pueblo informed the Forest Service that the Las Huertas Canyon was an area “of great religious and traditional importance to the people of Sandia Pueblo.” Aplt.App. at 130. The minutes of a Las Huertas Canyon Work Group meeting on March 10, 1987 reveal that the group knew that Native Americans used the canyon area for a number of ceremonial, religious, and medicinal purposes. Id. at 133. During the period of public comment on the eight alternatives, the Sandia Pueblo supported alternative C, which it believed would be most likely “to permit the Sandia members to perform secret, traditional activities in more seclusion.” Id. at 135.
On August 9, 1989, the Regional Forester took the affidavit of Philip Lauriano, an elder and religious leader of the Sandia Pueblo. Mr. Lauriano listed several “long-standing religious and traditional practices” which take place in the canyon and alluded to sacred sites which it contains. Aplt.App. at 108-09. In 1992, Dr. Elizabeth Brandt, a highly qualified anthropologist who is an expert on the Sandia Pueblo, provided a detailed ethnographic overview of the tribe’s religious and cultural connections to the canyon. Dr. Brandt noted the canyon’s signifi-canee to the Pueblo as a source of herbs and evergreen boughs, which have been an integral part of certain Pueblo ceremonies for at least 60 years. Id. at 110-11. She also described certain ceremonial paths and sites in the canyon which “serve as gateways for access to the spirit world,” concluding that
[t]hese sites and their functions would be significantly impaired if not totally destroyed as a result of the planned development of the Canyon, thus cutting off spiritual access for religious leaders and those responsible for the actions which occur at these shrines. These sites are critical to the religious practice, cultural identity, and overall well-being of the Pueblo.
Id. at 111. Noting the secrecy which is crucial to Pueblo religious and cultural practices, Dr. Brandt expressed concern that the proposed development would allow the outside world to intrude upon and negatively impact these practices. Based on these factors, she concluded that “Las Huertas Canyon constitutes a Traditional Cultural District with multiple Sites for the Sandia Tribe.” Id. at 112.
Furthermore, the Forest Service received communications clearly indicating why more specific responses were not forthcoming. At the meeting with the San Felipe Pueblo, tribal members indicated that “[t]hey did not want to disclose any specific details of site locations or activities.” Aplt.App. at 177. A representative of the Sandia Pueblo made the same claim at the All Indian Pueblo Council meeting. Id. at 181. Dr. Brandt also commented upon the Pueblo people’s general unwillingness “to divulge any information regarding their religious practices.” Id. at 113.
This reticence to disclose details of their cultural and religious practices was not unexpected. National Register Bulletin 38 warns that “knowledge of traditional cultural values may not be shared readily with outsiders” as such information is “regarded as powerful, even dangerous” in some societies. Aplt. App. at 88. Joseph Tainter, an archeologist for the Forest Service, “acknowledged that [P]ueblos are often reluctant to provide such information” and promised confidential treatment of any communications. Id. at 181. The Work Study Group also noted that “[kjnowledge of Native American attitudes towards divulging information regarding Forest use and past experience by Forest Service cultural resources personnel indicates [sic] that general requests of tribes for information ... will go unanswered.” Id. at 134.
Determining what constitutes a reasonable effort to identify traditional cultural properties “depends in part on the likelihood that such properties may be present.” National Bulletin 38, Aplt.App. at 86. Based on the information contained in the Lauriano and Brandt affidavits, the SHPO ultimately concluded that the “properties [ ] may be eligible to the National Register of Historic Places” but “we do not have enough information to make a determination of eligibility.” Aplt. Supp.Br., Addendum 1. We agree. The information communicated to the Forest Service as well as the reasons articulated for the lack of more specific information clearly suggest that there is a sufficient likelihood that the canyon contains traditional cultural properties to warrant further investigation. We thus hold that the Forest Service did not make a reasonable effort to identify historic properties.
B. Good Faith Effort
The Pueblo also claims that the Forest Service failed to make the requisite good faith effort to identify traditional cultural properties in Las Huertas Canyon. It bases this assertion on the fact that the Forest Service withheld relevant information from the SHPO during the required consultation process. The district court expressed concern about the Forest Service’s commitment to the section 106 process and placed great weight upon the SHPO’s concurrence in granting summary judgment. Thus, the withdrawal of that concurrence upon discovery of the withheld information suggests that the Forest Service did not put forth a good faith effort to identify historic properties.
The regulations require that “[i]n consultation with the [SHPO], the Agency Official shall make a reasonable and good faith effort to identify historic properties.” 36 C.F.R. § 800.4(b). Indeed, consultation with the SHPO is an integral part of the section 106 process. See Attakai v. United States, 746 F.Supp. 1395, 1407 (D.Ariz.1990) (“[T]he regulations clearly require consultation with the SHPO.”) Affording the SHPO an opportunity to offer input on potential historic properties would be meaningless unless the SHPO has access to available, relevant information. Thus, “consultation” with the SHPO mandates an informed consultation.
The Forest Service did not provide the SHPO copies of the Lauriano and Brandt affidavits until after the consultation was complete and the SHPO had concurred. See ApIt.Supp.Br., Addendum 1. In fact, the Forest Service informed the SHPO during consultation that “[consultations with pueblo officials and elders, and other users of the Las Huertas Canyon area, disclosed no evidence that the ... area contains traditional cultural properties.” Aplt.App. at 152. The SHPO’s initial concurrence was based on this report. ApIt.Supp.Br., Addendum 1. Once the SHPO acquired access to the withheld information, he withdrew his concurrence, noting the relevance of the documents and his concern that “our not having received [them] has affected our ability to consult appropriately under Section 106 of the [NHPA].” Id.
Moreover, the regulations require that once the agency concludes that no historic properties are present, it must provide the SHPO documentation of that finding. 36 C.F.R. § 800.4(d). The Forest Service rendered its final decision that no traditional cultural properties exist in Las Huertas Canyon on April 29,1993. Aplee.Br., Addendum. The report was sent to the SHPO on May 4, 1993, prompting the SHPO’s concurrence nine days later. The relevant documents, i.e., the Lauriano and Brandt affidavits, were not communicated to the SHPO until January 14, 1994. Aplt.Supp.Br., Addendum 1. Thus, the Forest Service failed to provide documentation of its decision to the SHPO in a timely manner.
Prior to the SHPO’s letter revealing that the Forest Service withheld relevant information, the district court expressed reservations about the Forest Service’s approach to the section 106 process. The court noted its concern “that the Forest Service does not appear to have taken the requirements of this Act very seriously.” Order at 12. Those reservations were partially alleviated by the fact that the SHPO had concurred, at that time, with part of the Forest Service’s new management plan. Id. at 11. By withholding relevant information from the SHPO during the consultation process, however, the Forest Service further undermined any argument that it had engaged in a good faith effort. We thus hold that the Forest Service did not make a good faith effort to identify historic properties in Las Huertas Canyon.
Because we conclude that the Forest Service did not make a reasonable and good faith effort in its evaluation of Las Huertas Canyon, we REVERSE the judgment of the district court and REMAND for further proceedings in accordance with this opinion.
. Sandia Pueblo alleged that the Forest Service’s approval of the Final Environmental Impact Statement (FEIS) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (NEPA); the National Forest Management Act, 16 U.S.C. §§ 1600 et seq. (NFMA); the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (CWA); the American Indian Religious Freedom Act, 42 U.S.C. § 1996 (AIRFA); and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. (APA). The Pueblo abandoned the NFMA, AIRFA, and CWA claims and does not appeal the district court’s grant of summary judgment for defendants on the NEPA and APA claims.
. The National Register Bulletin 38 provides that a traditional cultural property is "eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” ApltApp. at 82.
. Although the record indicates that Dr. Brandt gave her affidavit on April 13, 1992, it is unclear when it was given to the Forest Service. The agency, however, refers to the Brandt affidavit in its brief, Aplee.Br. at 28 n. 11, and does not claim that it did not have the affidavit at the time it made its final decision that Las Huertas Canyon contained no traditional cultural properties. Therefore, we presume that the Brandt affidavit was a part of the record upon which the Forest Service based its April 29, 1993 decision.
. Orel testimony establishes that the Pueblo have gathered evergreen boughs in Las Huertas Canyon for at least 60 years. Dr. Brandt notes, however, that the canyon has probably played a role in tribal religious and cultural practices for centuries as archeological evidence reveals that the Pueblo village has remained at essentially the same site since the 1300s. Aplt.App. at 112.
. Dr. Brandt asserted that the safety of the Pueblo members might be implicated, stating that Pueblo members reported having been "placed at gunpoint by persons while gathering evergreens." Aplt.App. at 112. She also pointed to examples of shrines in other areas having been overrun or desecrated as a result of increased traffic and visitation. Id.
. Although the letters containing the SHPO's concurrence and subsequent withdrawal of that concurrence were not a part of the record below, we take judicial notice of them on this appeal. See Clemmons v. Bohannon, 956 F.2d 1523, 1532 & n. 2 (10th Cir.1992) (Seymour, J., dissenting) (en banc) (judicial notice of government reports); see also Clappier v. Flynn, 605 F.2d 519, 535 (10th Cir.1979) (judicial notice of official governmental publications).
. The SHPO has recommended that the Forest Service conduct a ethnographic analysis of Las Huertas Canyon.
Consistent with Bulletin 38, this analysis should include interviews with appropriate Pueblo representatives, field inspections and documentation.... An independent professional [ethnographer] is most likely to be able to work out any impasse that may have developed between the Pueblos and the Forest Service.
Aplt.Supp.Br., Addendum 1; see Aplt.App. at 88. We note that it is the role of the SHPO to recommend further actions to identify historic properties. See 36 C.F.R. § 800.4(a)(l)(ii).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.08, Costs: 0.03
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OPINION
SCHROEDER, Circuit Judge:
I. INTRODUCTION
This litigation represents a challenge to the construction of a 20-mile, high-speed rail system (the “Project”) from the western portion of Oahu through the downtown area of Honolulu, Hawaii. Honolulu has been unsuccessfully struggling to cope with traffic congestion since the midl960s. That was when Congress passed the Urban Mass Transportation Act of 1964, later amended in the Federal-Aid Highway Act of 1978, which mandated the creation of Metropolitan Planning boards to develop long-range plans for efficient public transportation. See 49 U.S.C. §§ 5303 and 5304. Honolulu is now reportedly the second-most congested metropolitan area in the nation. Courtney Subramanian, Top 10 U.S. Cities with the Worst Traffic, Time (May 7, 2013), news-feed.time.eom/2013/05/07/top-10-u-s-eities-with-the-worst-traffic/.
In earlier decades, Honolulu developed plans for a rail system and later for a bus system that never came to fruition. Its efforts are documented in the Environmental Impact Statement (“EIS”) that was prepared for the project we deal with in this case. A survey in 2004 showed broad public support for the concept of a rail system, and in 2005 the Legislature provided the funding mechanism for such a system. The construction of an elevated, high-capacity rail system from the University of Hawaii campus at Manoa, through downtown Honolulu, to an agricultural area known as Kapolei is now underway.
Plaintiffs are a consortium of interest groups and individuals opposing the Project. They filed the action in 2011 against the Federal Transit Administration (“FTA”), the U.S. Department of Transportation (“DOT”), the City and County of Honolulu, and various federal and local administrators. Plaintiffs raise challenges under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 to 470x-6, and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. The litigation reflects the controversies that continue over the method and route of mass transit on Oahu.
The district court granted summary judgment to Defendants on the NEPA claims, the NHPA claims, and all but three of the Section 4(f) claims, thereby permitting construction to continue on the first three phases. Plaintiffs appeal. In addition, the court enjoined construction of the fourth phase of the Project pending a remand to the agency on the remaining Section 4(f) claims. There is no appeal with respect to Phase 4.
We first deal with Defendants’ objection to appellate jurisdiction, and we then affirm on the merits.
II. BACKGROUND
Federal law requires long-range planning for a federally funded transportation system in order to identify local purposes and stating federal objectives.
On December 7, 2005, the FTA published its Notice of Intent (“2005 NOI”) to prepare an EIS and Alternatives Analysis (“AA”) for transit service in Oahu’s corridor linking Kapolei with Waikiki and the University of Hawaii campus at Manoa. An AA is required for federal funding under the Department of Transportation’s New Starts Program. See 49 U.S.C. § 5309. The AA process proceeded in three steps.
First, on October 24, 2006, the City prepared an “Alternatives Screening Memo” identifying the Project’s purpose and need as providing improved mobility in the highly congested east-west transportation corridor; providing faster, more reliable public transportation services in the corridor than those currently operating in mixed-flow traffic; providing an alternative to private automobile travel; improving mobility for travelers; improving transportation system reliability; and improving transportation equity for all travelers. It identified several alternatives to consider for meeting the City’s objectives, including No Build, a Fixed Guideway alternative (public transportation using a separate right-of-way), Transportation Systems Management (improvements to the existing transportation system, including optimizing bus service), and a Managed Lanes Alternative (“MLA”) (a new roadway for buses and other high-occupancy vehicles), and several others.
Second, the City prepared an Alternatives Analysis Report for the Honolulu City Council. That report evaluated the alternatives that had survived the City’s screening process, concluding that the Transportation Systems Management alternative would not offer community or environmental benefits. It also identified several concerns with the MLA, including the possibility of congestion on local roadways near entrances and exits to managed lanes, project costs and eligibility for federal funding, and integration of managed lanes with transit service. The Report concluded that the Fixed Guideway alternative was the most effective alternative in accommodating longer corridor transit trips and increased work commutes, reducing travel time, and consuming the least energy.
Third, the City Council formed a “Transit Advisory Task Force” to “review the AA and [ ] make findings and recommendations to assist the Council in the selection of a Locally Preferred Alternative.” 49 U.S.C. § 5309(d)(2)(A)(i) (requiring selection of a locally preferred alternative pursuant to NEPA). The City Council passed an ordinance in January 2007 selecting an elevated Fixed Guideway system as its preferred alternative, stating that “a fixed guideway system is the best selection for the long-term needs and demands of our growing island population.”
On March 15, 2007, the FTA published a Notice of Intent to prepare an EIS (“2007 NOI”). The NOI requested public comment on five possible transit technologies: light rail, rapid rail (steel-wheel-on-steel-rail), rubber-tire guided, magnetic levitation, and monorail. Experts appointed by the City Council reviewed responses to that request, as well as twelve responses from transit vehicle manufacturers, and selected steel-wheel-on-steel-rail as the technology for the Project. Honolulu voters subsequently approved a City Charter Amendment establishing such a system.
The City and the FTA then prepared a draft EIS and a final EIS (“FEIS”). The FEIS evaluated a No Build option and three development alternatives, including a Fixed Guideway option from Ala Moana Center to Kapolei via the airport, that was ultimately selected as the preferred alternative. The FEIS stated that other alternatives had been eliminated because Fixed Guideway best met the Project’s purpose and need and because the City Council had selected it as the locally preferred alternative pursuant to 49 U.S.C. § 5309(d)(2)(A)(i).
The Project’s proposed route would bring it close to several historic sites. The Project thus implicated Section 4(f) of the Department of Transportation Act, which requires that the use of land of a historic site may be approved only if “(1) there is no prudent and feasible alternative to using the land;” and (2) the project includes “all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c). “Use” is construed broadly, applying not only to areas physically taken, but also to those “significantly, adversely affected by the project.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982).
The draft EIS for the Project had been subject to a public review period that engendered many comments concerning both the chosen system and the impact on historic sites. The FEIS analyzed more than 40 historic sites as potentially affected. Because the MLA would have had a lesser impact on historic sites than the alternative chosen for the Project, numerous com-menters objected to the FEIS’s rejection of the MLA.
The FEIS’s final “Section 4(f) Evaluation,” relating to historic sites, concluded that most of the sites would not be used or would be subject only to de minimis use. Specifically, the FEIS concluded that the Project would use the Chinatown Historic District and the historic Dillingham Transportation Building, because stations would be constructed on those properties, but would not use Mother Waldron Park because the proximity of the Project route to that site would not directly affect its design or public use.
On January 18, 2011, the FTA issued a Record of Decision (“ROD”) approving the Project. The ROD included a finding that there is no feasible and prudent alternative to the Project’s use of the Chinatown Historic District and the Dillingham Transportation Building. The ROD also found that the MLA failed to meet the Project’s “Purpose and Need” because it would not support forecasted population and employment growth and would provide little transit benefit at a high cost.
Plaintiffs filed this action on May 12, 2011, seeking to enjoin construction on the ground that the FEIS and the ROD approving the Project did not comply with the requirements of NEPA, Section 4(f), and the regulations implementing those statutes. After the parties filed cross-motions for summary judgment, the district court in November 2012 issued an order dismissing all of the NEPA and NHPA claims.
As to the Section 4(f) claims, the district court granted summary judgment for Plaintiffs on three, ruling injunctive relief was appropriate. The Project includes four phases, defined geographically. The three Section 4(f) claims on which Plaintiffs prevailed affect only Phase 4. The court held that Defendants had failed to complete reasonable efforts to identify above-ground Traditional Cultural Properties (“TCPs”) prior to issuing the ROD. The court also held that Defendants had failed adequately to consider the Beretania Street Tunnel alternative prior to eliminating it as imprudent, and that Defendants had failed adequately to consider whether the Project will constructively use Mother Waldron Park.
After holding a hearing on the appropriate remedy for the Section 4(f) claims, the district court issued its judgment, which it described as its “final Judgment, which shall include partial injunctive relief,” on December 27, 2012. The judgment incorporated the prior orders granting summary judgment to Defendants on all the NEPA and NHPA and most of the Section 4(f) claims, and to Plaintiffs on three of the Section 4(f) claims. The court enjoined construction of Phase 4 pending remand of the three Section 4(f) claims to the FTA. The court instructed the agency to “complete their identification of above ground TCPs within the corridor, reconsider their no-use determination for Mother Waldron Park ...” and “fully consider the prudence and feasibility of the Beretania tunnel alternative. ...”
Since the district court granted summary judgment to Plaintiffs on three of the claims affecting Phase 4, and granted Plaintiffs’ request to enjoin construction of that phase pending further agency proceedings, Plaintiffs do not appeal the injunction. There is no cross-appeal. Phase 4 is thus not involved here.
Plaintiffs timely appeal the dismissal of the remainder of their claims. Plaintiffs contend that the district court should not have dismissed the NEPA claims, or Plaintiffs’ other Section 4(f) claims.
Defendants have filed a motion to dismiss for lack of appellate jurisdiction, arguing that the judgment was not an ap-pealable final order.
We consider the jurisdictional issue first.
III. DISCUSSION
A. Jurisdiction
Defendants challenge our appellate jurisdiction, contending that the judgment is not appealable as a final judgment under 28 U.S.C. § 1291 (authorizing appeals as of right from district court judgments). Defendants argue that the statute does not apply because the judgment not only granted summary judgment for the government on the bulk of the claims that Plaintiffs now appeal, but also granted summary judgment for Plaintiffs on three Section 4(f) claims and enjoined Phase 4 of construction pending reconsideration of the claims by the agency on remand. A remand does not finally dispose of a claim, but ordinarily does confer appellate jurisdiction for purposes of a government appeal. See Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184-86 (9th Cir.2004).
Here, Defendants could have appealed the remand order but did not. Plaintiffs are not even aggrieved by it. Since no party wants us to review the remand of the Section 4(f) claims, the remand should not defeat our jurisdiction to review the unquestionably final dismissal of the remainder of the claims. -We have said that the final judgment rule “deals in practice, not theory.” Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir.2011). As a practical matter, the work of the district court as to the dismissed claims is complete, and review of those claims is appropriate under § 1291.
Moreover, even if the judgment were not appealable as a matter of finality, it would be renewable under § 1292(a)(1) as an appeal from the grant or refusal of injunctive relief. Indeed, this litigation has always been about injunctive relief, i.e., stopping construction of the rail system. This is apparent when we look back on the nature of the underlying dispute and the district court’s resolution of it. When Plaintiffs initiated litigation in 2011, their complaint in its title said it sought “injunctive and declaratory relief.” In the body of the complaint, Plaintiffs requested injunctive relief requiring Defendants to halt progress on the Project, withdraw the ROD, and withhold re-approval until the requirements of NEPA and Section 4(f) had been met and all reasonable alternatives had been considered. The district court’s entry of summary judgment in favor of Defendants on the NEPA claims thus denied Plaintiffs’ request for injunc-tive relief on all of the dismissed claims.
Defendants’ jurisdictional argument concerns the lack of technical finality of the order under § 1291. The argument does not mention § 1292(a)(1), which Plaintiffs correctly point out is an alternative basis for appellate jurisdiction in this case. Work on the rail system is going forward and the issues need to be resolved. Since all of Plaintiffs’ claims were for injunctive relief, we have appellate jurisdiction under § 1292(a)(1). We hold that we have jurisdiction under either § 1292(a)(1) or § 1291 (or both). We therefore turn to the merits of Plaintiffs’ claims.
B. NEPA Claims
Plaintiffs’ challenges under NEPA are directed principally to the choice of the steel-wheel-on-steel-rail Fixed Guideway system. Plaintiffs contend that the district court erred in granting summary judgment on their NEPA claims because Defendants (1) unreasonably restricted the Project’s purpose and need, and (2) did not consider all reasonable alternatives as required under that Act and its regulations.
An EIS must state the underlying purpose and need for the proposed action. See 40 C.F.R. § 1502.13. Courts evaluate an agency’s statement of purpose under a reasonableness standard, id., and in assessing reasonableness, must consider the statutory context of the federal action at issue, see League of Wilderness Defenders v. U.S. Forest Serv., 689 F.3d 1060, 1070 (9th Cir.2012). Agencies enjoy “considerable discretion” in defining the purpose and need of a project, but they may not define the project’s objectives in terms so “unreasonably narrow,” that only one alternative would accomplish the goals of the project. Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir.2010). The EIS would then become merely a foreordained formality. Id. Plaintiffs claim the EIS objectives were too narrow.
The FEIS describes the Project’s purpose as follows: (1) “to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and University of Hawaii Manoa;” (2) “to provide faster, more reliable public transportation service in the study corridor than can be achieved with buses operating in congested mixed-flow traffic;” (3) “to provide reliable mobility in areas of the study corridor where people of limited income and an aging population live;” (4) “to serve rapidly developing areas of the study corridor;” and (5) to “provide additional transit capacity [and] an alternative to private automobile travel, and [to] improve transit links within the study corridor.” It describes the need for transit improvements as follows: (1) “Improve corridor mobility;” (2) “Improve corridor travel reliability;” (3) “Improve access to planned development to support City policy to develop a second urban center;” and (4) “Improve transportation equity.”
The purpose was defined in accordance with the statutorily mandated formulation of the transportation plan that preceded the FEIS. That plan was the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”). The stated objectives comply with the intent of the relevant federal statutes. Specifically, the Safe Accountable Flexible Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”) provides that a federally-funded transportation plan’s purposes may include “achieving a transportation objective identified in an applicable ... metropolitan transportation plan.” See 23 U.S.C. § 139(f)(3). The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified a Fixed Guideway system as a central component of that plan. Moreover, the statute authorizing the federal New Starts transportation program states that it is in the interest of the United States to foster transportation systems that maximize safe, secure, and efficient mobility of individuals, minimize environmental impacts, and minimize fuel consumption, 49 U.S.C. § 5301(a), and that one of the purposes of the program is to provide financial assistance to state and local governments in order to improve mobility for elderly and economically disadvantaged individuals, 49 U.S.C. § 5301(f)(4). The Project’s stated objectives are consistent with all these purposes.
Viewed in its statutory context, the Project’s objectives are not so narrowly defined that only one alternative would accomplish them. The statement of purpose and need is broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project. The district court therefore properly concluded that it is reasonable, stating: “Because the statement of purpose and need did not foreclose all alternatives, and because it was shaped by federal legislative purposes, it was reasonable.”
NEPA also requires an EIS to discuss, among other things, alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). The range of alternatives that an EIS must consider is “dictated by the nature and scope of the proposed action.” Friends of Yosemite Valley v. Kempthome, 520 F.3d 1024, 1038 (9th Cir.2008). “Judicial review of the range of alternatives considered by an agency is governed by a ‘rule of reason’ that requires an agency to set forth only those alternatives necessary to permit a ‘reasoned choice.’ ” State of Cal. v. Block, 690 F.2d 753, 767 (9th Cir.1982). “An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives.” Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401, 1404 (9th Cir.1996).
Plaintiffs contend that the EIS did not properly consider all reasonable alternatives and should have considered alternatives the state had earlier rejected. In this case, the EIS did not expressly consider alternatives that had earlier been ruled out in the screening process conducted by the state. Plaintiffs therefore argue that the City and the FTA improperly relied on the AA process to exclude certain alternatives such as the MLA and light rail from detailed consideration.
We have held, however, that an agency does not violate NEPA by refusing to discuss alternatives already rejected in prior state studies. Laguna Greenbelt, Inc. v. Dep’t of Transp., 42 F.3d 517, 524, n. 6 (9th Cir.1994). Under applicable federal regulations, a state-prepared AA may be used as part of the NEPA process as long as it meets certain requirements, including that (1) the federal lead agency furnished guidance in the AA’s preparation and independently evaluated the document, 23 U.S.C. § 139(c)(3), and (2) the AA was conducted with public review and a reasonable opportunity to comment, 23 C.F.R. § 450.318(b)(2)(ii)-(iii).
The City prepared the AA with the benefit of public comment and federal guidance. The district court cited evidence in the record that the FTA furnished guidance during the AA’s preparation and independently evaluated it, including letters between the City and the FTA about funding for alternatives considered in the AA, the ROD’S approval of the AA, internal FTA discussions about AA logistics, and the FTA’s indication that it would review the AA prior to publication. The district court also pointed to the many opportunities for public comment that generated over 3,000 comments from the public on the AA before the City selected the locally preferred alternative. The district court properly concluded that Defendants did not err in relying on the AA prepared by the state to help identify reasonable alternatives as part of the NEPA process.
Plaintiffs’ real quarrel with the process is that it failed to consider Plaintiffs’ proposed three-lane MLA alternative. The MLA alternative proposed construction of lanes dedicated for use by buses, high-occupancy vehicles, and toll-paying single-occupant vehicles, managed to maintain free-flowing speeds between Waiawa Interchange and Iwilei. Variations of the alternative included a two-lane plan versus a three-lane plan, and reversible lanes to allow higher capacity during peak hours. The Defendants did consider a two-lane alternative that the FEIS specifically addressed and rejected for cost reasons. The three-lane MLA plan would have been even more costly. The district court determined that the estimates in the AA analysis were reasonable, and the Director of the City and County of Honolulu’s Department of Transportation Services specifically stated that the three-lane alternative would increase costs.
Plaintiffs contend on appeal, as they did before the district court, that Defendants should have used a Tampa, Florida project for purposes of cost comparison, and should not have assumed that the MLA would be ineligible for federal funding. However, the City Council’s Transit Advisory Task Force had concluded that the AA’s cost estimates were “fairly and consistently prepared, and that they may be used for both planning and cost comparisons,” and that the Tampa project was not a good cost comparator because of the many differences between the two projects. The district court correctly ruled this was not unreasonable.
Plaintiffs finally maintain that Defendants arbitrarily and capriciously excluded the light-rail alternative from the EIS. Here too, Defendants properly relied'on the AA process to eliminate alternatives, including corridor-wide light rail and light rail in the downtown portions of the corridor. The FEIS explained that those alternatives lacked feasability and desired capacity:
Corridor-wide at-grade light-rail transit was rejected because it would have required conversion of traffic lanes to rail throughout the corridor, thereby substantially reducing roadway capacity since no abandoned or undeveloped alignments are available in the study corridor. At-grade light-rail would have required either the acquisition and removal of buildings throughout the corridor or the conversion of two or more traffic lanes.
The EIS’s identification of the project objectives and analysis of alternatives satisfied NEPA’s requirements.
C. The Dismissed Section 4(f) Claims
The Department of Transportation Act is intended to preserve historic sites as far as practicable. Section 4(f) allows a federal project “requiring the use of land of an historic site” to be approved only if “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c). An alternative is not prudent if, among other things, it “compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need.” 23 C.F.R. § 774.17.
Plaintiffs contend that the FTA’s approval of the Project violated Section 4(f) by (1) failing to adopt the. MLA or bus rapid transit alternative in order to avoid the use of historic sites; and (2) failing fully to identify and evaluate Native Hawaiian burial sites before approving the Project.
Defendants concluded that the MLA and bus rapid transit alternatives were not prudent because they did not meet the Project’s stated purpose and need. The record supports the reasonableness of that conclusion. The MLA failed to meet the purposes of the Project because, according to the City and FTA’s expert analysis, it would actually increase transit times, would not improve corridor mobility or travel reliability, and would not reduce congestion, support planned concentrations of future population and employment growth, or substantially improve service or access to transit for transit-dependent communities. Buses would still have to operate in mixed traffic, and would not alleviate roadway congestion. Moreover, there was no identified funding source for bus rapid transit.
Plaintiffs point to a study showing that the MLA would reduce drive times even for people who never used the lanes. They contend that Defendants acted arbitrarily and capriciously by ignoring that evidence. That evidence, however, was contrary to the studies by the government. The FTA is entitled to rely on the opinions of its own experts, and thus its decision was not arbitrary or capricious. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
The FTA was not required to further document its determination that the MLA and bus rapid transit alternatives were imprudent. It did not have to make explicit findings as to all the data presented. Section 4(f) itself does not require any formal findings, and the implementing regulations require only “sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative.” See 23 C.F.R. § 774.7; see also Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir.1982) (disregarding possible technical deficiencies in a Section 4(f) evaluation because “[wjhether or not the reports and studies use the ‘magic’ terminology, there has been a reasonable and thorough review”); Hickory Neighborhood Def. League v. Skinner, 910 F.2d 159, 163 (4th Cir.1990) (holding that the rejection of an alternative as imprudent was amply supported by the record, even though it was not expressly stated). The FTA was entitled to rely on the findings and studies that preceded the decision to construct the Project.
Plaintiffs also contend that Defendants should have completed their Section 4(f) identification and evaluation of Native Hawaiian burial sites before approving the Project. Federal regulations require that Section 4(f) property be identified and evaluated for potential use “as early as practicable in the development of the action when alternatives to the proposed action are under study.” 23 C.F.R. § 774.9(a). Sites are identified as eligible so long as they are included in, or eligible for inclusion in the National Register of Historic Places. See 23 C.F.R. §§ 774.11(f), 774.17. The process for identifying historic sites for the National Register is outlined in Section 106 of the National Historic Preservation Act. 16 U.S.C. § 470f (“Section 106”). Section 106 requires the agency official to “make a reasonable and good faith effort to carry out appropriate identification efforts.” 36 C.F.R. § 800.4(b)(1).
Plaintiffs argue that Defendants’ failure to completely identify all Section 4(f) sites prior to approval of the Project constituted an improper “phased” approach to the required identification and evaluation. See N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147 (9th Cir.2008) (finding a violation of Section 4(f) where an agency approved a project when analysis had only been conducted for one of the project’s four phases and the remaining phases would be analyzed only after the project had begun). In this case, Defendants did not conduct Archaeological Inventory Surveys (“AIS”) to identify undiscovered burial sites along the entire twenty-mile length of the Project prior to its approval, even though it is likely that construction may disturb some of such sites.
Yet there was a good reason for Defendants’ reluctance to conduct the surveys. The exact route and placement of the support columns had not yet been determined, and the surveys themselves were likely to disturb burial sites. Any changes to the plans would then result in repetition of the surveys and more disturbance to burial sites than would otherwise be necessary. Instead, Defendants commissioned an Archeological Resources Technical Report, which used soil survey data, archeological records, land survey maps, and field observations to identify unknown burial sites and predict the likelihood of finding additional burial sites during different phases of the Project. Additionally, Defendants entered into a programmatic agreement with the State Historic Preservation Officer, the Advisory Council on Historic Preservation, and other federal entities outlining the procedures for burial sites that are discovered during construction, including requiring archaeological inventory surveys prior to the final engineering and design phase of the Project and providing specific protocols for addressing burials or other archaeological resources that are discovered. See 73 Fed.Reg. 13368-01, 13379-80 (2008) (recommending such an agreement as “appropriate and desirable”).
Burial sites are eligible for Section 4(f) protection only insofar as they are identified under the Section 106 process for identifying historic sites. Defendants need only “make a reasonable and good faith effort” to identify those sites as required by Section 106. 36 C.F.R. § 800.4(b)(1); See also N. Idaho Cmty. Action Network, 545 F.3d at 1159 (noting that a Section 4(f) evaluation necessarily requires the agency to follow the Section 106 identification process); City of Alexandria v. Slater, 198 F.3d 862, 871 (D.C.Cir.1999) (noting that a Section 4(f) evaluation is predicated on completion of a Section 106 identification process). Defendants have made a good faith and reasonable effort to identify known archaeological sites along the proposed Project route and have developed an appropriate plan for dealing with sites that may be discovered during construction. Defendants have not violated Section 4(f).
CONCLUSION
The judgment of the district court dismissing Plaintiffs’ NEPA and Section 4(f) claims is AFFIRMED.
. The order provided in full as follows:
After briefing, hearing, and disposition of this case on the merits, see Honolulutraffic.com v. Fed. Transit Admin., 2012 WL 1805484 (D.Hawai’i 2012) (partial grant of summary judgment); Order on Cross-Motions for Summary Judgment, filed Nov. 1, 2012 ("Summary Judgment Order”), the parties and the court addressed the appropriate remedy. The parties submitted additional briefing on the scope of any remedies, including any equitable relief. The remedy phase was fully argued and heard on December 12, 2012. After due consideration of those arguments, briefs, and the record, the court now enters its final Judgment, which shall include partial injunctive relief, as set forth below.
As reflected in its prior orders, the court granted summary judgment to Plaintiffs on three of their § 4(f) claims — claims arising under § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. The court granted summary judgment to Defendants on all other claims raised by Plaintiffs, which include Plaintiffs' remaining § 4(f) claims, all claim[s] arising under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and all claims arising under § 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. In entering its partial permanent injunction, the court has considered the well-recognized equitable factors that apply, see, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2756, 177 L.Ed.2d 461 (2010), and finds that, to the extent Defendants!)] actions are enjoined, the four-factor test, on balance favors Plaintiffs, including: (1) irreparable injury[;] (2) the inadequacy of monetary relief; (3) the balance of hardships; and (4) the public interest.
IT IS, THEREFORE, ADJUDGED that this matter is remanded to the Federal Transit Administration, but without vacatur of the Record of Decision, to comply with the court’s Summary Judgment Order.
DEFENDANTS, their officers, agents, servants, employees, and attorneys; and all other persons who are in active concert or participation with them, are hereby restrained and enjoined from conducting any construction activities and real estate acquisition activities in Phase 4 of the Honolulu High-Capacity Transit Corridor Project (the "Rail Project”). This injunction on Phase 4 construction activities shall terminate 30 days after Defendant Federal Transit Administration files with the court notice of Defendants’ compliance with the Summary Judgment Order and evidence of such compliance, unless Plaintiffs file an objection within said 30-day period specifying how the Federal Transit Administration has failed to comply with the Summary Judgment Order. If such objection is timely filed, this injunction shall remain in effect pending the court's resolution of Plaintiffs’ objection(s).
This injunction shall not prohibit, and Defendants may prepare, Phase 4 engineering and design plans, conduct geotechnical training, and conduct other preconstruction activities, including any activities that are appropriate to complete the additional analysis required by the Summary Judgment Order. This injunction shall not apply to Phases 1 through 3 of the Rail Project.
Within 150-180 days of the issuance of this Judgment, and every 90 days thereafter, Defendants shall file a status report setting forth the status of Defendants' compliance efforts with the terms of the Summary Judgment Order. Either by stipulation of all parties or upon noticed motion, Defendants may apply to except any activity otherwise prohibited by this injunction from its terms.
In the exercise of its discretion, the court determined that each party shall bear its own costs.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.06521739130434782, Costs: 0.07246376811594203
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SELYA, Circuit Judge.
The area around the venerable towns of Lexington and Concord is commonly regarded as the birthplace of the American Revolution. The communities in that area, now fashionable Boston suburbs, are deservedly proud of both their storied history and their aesthetic advantages. When an affiliated arm of the state government — the Massachusetts Port Authority (Massport) — sought to modernize a mixed-use airport in the vicinity, a phalanx of preservationist organizations and concerned citizens treated the move as a call to arms. Massport nevertheless pushed ahead with its desired project and asked the Federal Aviation Administration (FAA) to authorize the demolition of an existing hangar and allow the development of a state-of-the-art fixed base operator (FBO) facility. The upshot was an epic battle fought with statutes, regulations, legal precedents, and expert reports.
The results of this battle are now before us by way of a petition for judicial review of the FAA’s order permitting the project to proceed. The protagonists are ably represented, and the petitioners have raised a gallimaufry of issues involving the Department of Transportation Act, 49 U.S.C. § 303(e), the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. After careful consideration of the parties’ briefs and oral arguments, helpful submissions by amici, and an amplitudinous administrative record, we conclude that the painstaking process conducted by the FAA comported with its responsibilities under the dizzying array of applicable statutes and regulations. Accordingly, we deny the petition.
I. BACKGROUND
Laurence G. Hanscom Field (Hanscom) is a general aviation airport located in Bedford, Massachusetts. The area teems with a rich cornucopia of historically significant sites, including Minute Man National Historical Park and Walden Pond (a designated national historic landmark).
During the middle of the twentieth century, the Army Air Corps leased and operated Hanscom. Later, the facility morphed into a joint military and civilian operation. Among other things, Hanscom now serves as a relief valve for Logan International Airport (the major airport in the Boston area), allowing Logan to concentrate on large-scale commercial flights.
Massport is an independent state authority established under Massachusetts law, see 1956 Mass. Acts ch. 465, §§ 1-35, which has operated Hanscom’s civilian component since 1974. Massport has intervened in these proceedings and staunchly defends the FAA’s decision to allow the requested demolition and subsequent new construction.
The focal point of the parties’ dispute is Hangar 24, which was originally built in Georgia, shipped to Massachusetts, and reconstructed at Hanscom in 1948. For several decades, Massachusetts Institute of Technology (MIT) leased the structure and used it as a research facility. In 2001, MIT deemed it unsuitable for that purpose. The hangar has been vacant ever since.
Responding to a perceived demand for increased corporate aircraft services at Hanscom, Massport issued a request for proposals to redevelop the Hangar 24 site. In 2005, it blessed a proposal that contemplated replacing Hangar 24 with an FBO facility that would “provide service, maintenance, fueling, and shelter for general aviation aircraft.” Although the putative developer later withdrew, Massport clung to the concept and proceeded with preparations for the redevelopment of the Hangar 24 site as an FBO facility — a facility compatible with the needs of modern-day corporate aircraft.
Massport’s proposed course of action not only required it to jump through a long line of statutory and regulatory hoops but also drew considerable opposition from concerned citizens and groups. The ensuing battle was waged on a variety of fronts. In July of 2006, a nonprofit organization, Save Our Heritage, Inc. (a petitioner here), requested that the Massachusetts Historical Commission (the Commission), see Mass. Gen. Laws ch. 9, §§ 26-27, evaluate Hangar 24 for possible inclusion on the National Register of Historic Places (the National Register). After mulling the matter, the Commission determined that Hangar 24 was eligible for listing only under Criterion A (association with significant historical events) and Criterion B (association with the lives of historically significant persons). See 36 C.F.R. § 60.4(a), (b). In light of this determination, the Commission asked Mass-port to study the hangar’s condition and to consider alternative uses, including possible rehabilitation for occupancy by the Massachusetts Air and Space Museum. This suggestion proved to be a dead end; after conducting a site inspection, the museum reported that Hangar 24 fell “far short of what would be necessary to make the museum a viable entity.”
Around the same time, Massport hired an aviation consultant, HNTB Corporation, to prepare a condition assessment and feasibility study for Hangar 24. HNTB documented and described the hangar’s condition, and found it “functionally obsolete” and unsuitable for aviation use. Its report listed several alternatives for redeveloping the site.
Federal law requires that, in order to remain eligible for funding, an airport must maintain a current layout plan approved by the FAA. 49 U.S.C. § 47107(a)(16)(B). In evaluating a layout plan, “[t]he FAA’s primary mission is to ensure the safety, security, and efficiency of the National Airspace System.” Exec. Order No. 13,180, 65 Fed.Reg. 77,493, 77,-493 (Dec. 11, 2000), as amended by Exec. Order No. 13,264, 67 Fed.Reg. 39,243 (June 7, 2002); see also 49 U.S.C. § 47101(a). No facility that adversely affects the safety, utility, or efficiency of the airport can be included in such a plan. 49 U.S.C. § 47107(a)(16)(C).
The FAA became involved with the Hangar 24 project to fulfill these responsibilities. It engaged in a consultation process and prepared an environmental assessment (EA) effective as of June 18, 2010. The EA addressed the potential environmental impacts of Massport’s redevelopment proposal, as well as its effects on historic properties.
In due course, the FAA approved the demolition and replacement of Hangar 24 as the only feasible and prudent alternative, found that replacing it would have no adverse effect within the meaning of the NHPA (save for the effect on Hangar 24 itself), and found no significant impact under the NEPA. The petitioners filed a timely petition for judicial review, see 49 U.S.C. § 46110, in which they challenge the FAA’s actions as noncompliant with the Transportation Act, the NHPA, and the NEPA. It is to these challenges that we now turn.
II. ANALYSIS
Our standard of review is familiar. We must uphold the FAA’s findings of fact as long as they are supported by substantial evidence. See id. § 46110(c). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Penobscot Air Sens., Ltd. v. FAA, 164 F.3d 713, 718 (1st Cir.1999) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)); see Allentown Mack Sales & Sen., Inc. v. NLRB, 522 U.S. 359, 377, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (explaining that “substantial evidence” standard “gives the agency the benefit of the doubt”).
We review an agency’s compliance with section 4(f) of the Transportation Act in accordance with the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Under the APA, we may set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The same metric governs judicial review of agency action under both the NHPA, see Neigh. Ass’n of the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50, 58 (1st Cir. 2006), and the NEPA, Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). Agency action fails under this standard “if the agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997).
A. Transportation Act.
As a functional matter, section 4(f) of the Transportation Act, which refers explicitly to the Secretary of Transportation, authorizes federal agencies dealing with transportation matters to approve projects that entail the use of historically significant sites. 49 U.S.C. § 303(c). But this authority is not unbridled. Approval may be granted in a particular case only if two preconditions are met: “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm.” Id. These preconditions apply both when a proposal involves the physical use or occupation of a protected property thought to be historic and when a proposal involves indirect (but meaningful) effects on historic venues. Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 58 (1st Cir.2001).
The EA prepared in connection with Massport’s proposal to demolish Hangar 24 explicitly considered four alternative courses of action: 1) “[d]o nothing”; 2) “[l]ocate a new hangar facility elsewhere on the airport”; 3) “[a]daptive reuse of Hangar 24”; and 4) “[rjeplace Hangar 24 as proposed by Massport.” The EA concluded that all of these alternatives were feasible, but that only the fourth was prudent. The petitioners dispute the FAA’s determination of what alternatives are or are not prudent. As a fallback, they question whether the FAA has engaged in sufficiently thorough planning to minimize harm to historic sites. We appraise these challenges sequentially.
1. Prudence. The doctrinal linchpin of the petitioners’ section 4(f) argument is their reading of the Supreme Court’s decision in Overton Park. In their view, Over-ton Park holds that, for the purpose of section 4(f), an alternative cannot be ruled out as imprudent absent a strong showing of aposematic conditions, manifested by “truly unusual factors,” “extraordinary” costs and community disruption, or “unique problems.” 401 U.S. at 413, 91 S.Ct. 814. The FAA’s section 4(f) analysis, the petitioners say, does not measure up to this benchmark.
Like alchemists who would turn dross into gold, the petitioners cherry-pick isolated phrases from the Overton Park opinion and attempt to convert those phrases into a broad, inflexible holding. This wordplay will not wash. The Court’s mention of “truly unusual,” “extraordinary,” and “unique” circumstances was intended as a gloss on the application of section 4(f) in a particular type of situation. Those descriptive terms were never meant to displace the statutory directive that the agency determine whether an alternative is “prudent.” See Eagle Found., Inc. v. Dole, 813 F.2d 798, 804-05 (7th Cir.1987); see also Hickory Neigh. Def. League v. Skinner, 910 F.2d 159, 163 (4th Cir.1990) (explaining that a section 4(f) evaluation need not explicitly find “unique problems” when record confirms “compelling reasons for rejecting the proposed alternatives as not prudent”).
Context drives .this point home. Over-ton Park involved a proposal to use publicly owned parklands for highway construction. 401 U.S. at 406, 91 S.Ct. 814. The Court reasoned that the cost of using public land will almost always be less than that of acquiring private property for alternate routes and that, in addition, building on public parkland will almost always prove less disruptive to the acquiring community because homes and businesses will not be displaced. Id. at 411-12, 91 S.Ct. 814. These verities “are common to substantially all highway construction.” Id. at 412, 91 S.Ct. 814 (emphasis supplied). If Congress had intended cost and community disruption “to be on an equal footing with preservation of parkland,” the Court declared, section 4(f) would have been unnecessary. Id.
The explanation given by the Justices in Overton Park is situation-specific, and comparing this case to Overton Park is like comparing a plum to a pomegranate. The Overton Park language is tailored to fit situations in which, from a practical standpoint, there otherwise would be a perverse incentive in favor of using protected land for federal transportation projects. Cf. City of Dania Beach v. FAA, 628 F.3d 581, 587 (D.C.Cir.2010) (noting that Overton Park analysis was premised on public/private cost and disruption disparities and that it is this “automatic advantage” that calls for “exceptional agency push-back”).
Here, however, no such perverse incentive exists. All of the feasible alternatives involve land that is already part of Hans-com (i.e., land that is already government-owned). There is no built-in impediment to preservation. It would, therefore, make no sense to wrest the quoted Overton Park language from its contextual moorings and superimpose it upon the statutory imperative. It is the statute that ultimately controls our inquiry. See Eagle Found., 813 F.2d at 804-05 (examining Overton Park against backdrop of section 4(f)’s language and concluding that an agency’s “reasons for using the protected land have to be good ones, pressing ones, well thought out”).
Let us be perfectly clear. Without question, section 4(f) imposes significant obligations upon a reviewing agency. See Save Our Heritage, 269 F.3d at 58. But the petitioners’ attempt to festoon those obligations with magic words, selectively culled from the Overton Park opinion, distorts the statute and overreads the Court’s teachings. As a general matter, the agency’s obligations are what the statute says they are. Thus, our focus must be on the statute and its application to the facts at hand. See Hickory, 910 F.2d at 162-63.
This brings us to the substance of the petitioners’ section 4(f) challenge. The starting point is the FAA’s determination that none of the three explored alternafives to the Massport proposal would be prudent. In the pages that follow, we examine the three rejected alternatives one by one.
a. Do Nothing.
The petitioners complain about the FAA’s analysis of the “do nothing” alternative. The agency rejected this alternative because “it would not meet Massport’s purpose to provide an additional location on the airport to service, maintain, fuel, and shelter general aviation aircraft.”
“It is well settled that an alternative is not prudent if it does not meet the transportation needs of a project.” Back Bay, 463 F.3d at 65. The petitioners try to circumnavigate this principle on the ground that Massport never established any “need” for the Hangar 24 project. This evasion is easily thwarted.
There are two existing FBO facilities at Hanscom. Perscrutation of the record reveals appreciable support for the proposition that a third FBO facility is needed. For example, Massport’s 2005 draft environmental status and planning report (ESPR), heavily relied on in the EA, supplies data indicating that, even though the total volume of operations at Hanscom decreased between 1990 and 2005, corporate aviation grew at a rate of 4.4 percent per year. Indeed, corporate aviation was “the only segment of general aviation that [was] growing at Hanseom” during that span. The ESPR projected that this pattern of growth would continue through 2010 and beyond. The ESPR described the methodology underlying its projections, and Massport compared the projections for 2005 with actual data for that year. The trend was evident: corporate aviation was experiencing continued growth at Hanseom, “which would increase the demand for [general aviation] hangars and associated facilities.”
The ESPR also provided background information linking this trend to the need for a new FBO facility. Among other things, it related that “the majority of FBO activity involves servicing corporate general aviation activity,” creating a link from its corporate aviation growth predictions to the need for a third FBO facility. The FAA built on this information, noting in the EA that “FBO capacity is not monolithic” and that “FBOs most frequently try to differentiate their services from those of their competitors” by, say, specializing in servicing a particular type of aircraft. The FAA’s explanation that the apron and hangar facilities at the two existing FBO sites “have inadequate storage capacity for larger ... aircraft” illustrates the pertinence of this conclusion.
In an effort to blunt the force of these data points, the petitioners insist that general aviation operations at Hanseom are in decline. This statistic misses the mark: the proposed FBO facility is not tethered to an anticipated increase in general aviation activity as a whole but, rather, to an anticipated increase in the narrower subset of corporate jet operations. Such an anticipated increase is adequately documented.
To say more on this point would be supererogatory. Given the substantial evidence of a need for the Hangar 24 project, we conclude that the FAA’s rejection of the “do nothing” alternative as imprudent was neither arbitrary nor capricious. After all, doing nothing would fail to provide additional FBO services at Hanseom (and, thus, would fail to meet a demonstrated need).
b. The East Ramp.
In its alternatives analysis, the FAA rejected the possibility of locating a new FBO facility elsewhere at Hanseom. A major drawback of this alternative is that “Hanseom Field is approaching build-out,” leaving only the East Ramp and Hangar 24 as available sites for general aviation improvements. As between these two options, the FAA determined that locating the new FBO facility on the East Ramp “would not be the most efficient use of space” because of the ramp’s distance from the terminal area and the other two FBO facilities. Furthermore, “using the East Ramp for the FBO function ... would preclude this area from being developed for general aviation aircraft hangars that are already located in this area of the airport.”
The FAA had other worries. The agency found the East Ramp alternative plagued by access problems, because it could not be reached without passing through a secure military facility. Mass-port was wary of this potential problem and investigated various road reconfiguration layouts that might help to alleviate it. None of those routes provided an obvious solution; each would require an easement of some sort, and many would pass over natural features such as rivers and wetlands, creating potential environmental issues. What is more, the EA expresses a concern that potential developers would be less enthusiastic about constructing an FBO facility in such a remote area of the airport, possibly preventing the completion of the project.
Based on this collocation of factors, the FAA concluded that it would be more prudent to build the new FBO facility at Hangar 24 and use the East Ramp for general aviation aircraft hangars. This was a judgment call — and one that fell within the purview of the FAA’s expertise. The FAA’s determination as to whether a given alternative is prudent must be informed by the statutory dictates that “the safe operation of the airport and airway system is the highest aviation priority” and that “airport construction and improvement projects that increase the capacity of facilities to accommodate passenger and cargo traffic be undertaken to the maximum feasible extent so that safety and efficiency increase and delays decrease.” 49 U.S.C. § 47101(a)(1), (7); see City of Bridgeton v. FAA, 212 F.3d 448, 462 (8th Cir.2000) (expressing “doubt whether [section 4(f) ] mandates a rigid least-harm standard in airport expansion cases,” because such an approach would be at odds with the “congressional mandate” prioritizing safety and efficiency in airport operations); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991).
The petitioners concede that there is no site at Hanscom, other than the East Ramp, that might be a viable alternative to the Hangar 24 site. But they claim that the FAA’s evaluation of the East Ramp alternative fails adequately to quantify the supposed inefficiencies, lacks specifics regarding the terminal distance differential, and includes insufficient documentation of the access problem. In support, they cite Stop H-3 Ass’n v. Dole, 740 F.2d 1442 (9th Cir.1984), a case purportedly standing for the proposition that such a level of detail is required before a feasible alternative may be discarded as imprudent.
The record refutes this claim. The FAA did not rely on taxi distance or access impediments alone to justify its decision but, rather, cited the combined effect of a number of considerations which weighed heavily against the East Ramp as a safe and efficient FBO site. An agency legitimately may invoke an accumulation of factors to rule out an alternative as imprudent. See Comm, to Pres. Boomer Lake Park v. Dep’t ofTransp., 4 F.3d 1543, 1550 (10th Cir.1993); see also Eagle Found., 813 F.2d at 805 (“A prudent judgment by an agency is one that takes into account everything important that matters. A cumulation of small problems may add up to a sufficient reason to use § 4(f) lands.”). Even the Stop H-3 court acknowledged the salience of this principle. See 740 F.2d at 1455.
In the last analysis, “it is up to those who assail [the agency’s] findings or reasoning to identify the defects in evidence and the faults in reasoning.” Save Our Heritage, 269 F.3d at 60. The petitioners have not carried this burden. Although they decry the FAA’s appraisal of the East Ramp alternative, the FAA has presented a compelling articulation of the factors that contributed to its decision. The petitioners have not offered the “sustained and organized rebuttal,” id., that would be necessary to invalidate this articulation.
c. Adaptive Reuse.
We come now to the FAA’s evaluation of the third alternative: the possibility of adapting Hangar 24 to accommodate the FBO project. The FAA explained that “this alternative has significant disadvantages because of the hangar’s poor condition, relatively small size, and functional inadequacy.” The size of both the building and the doorway apei’ture would have to be increased dramatically in order to outfit the hangar for use by larger aircraft.
Enumerating these and other considerations, the EA concluded that adaptive reuse “is expected to require substantial and impractical building modifications to allow the building to function for its intended use and bring the building into compliance with current environmental, structural, fire, safety, and energy codes.” This conclusion was reinforced by the HNTB study, which reported that any reconfigured version of Hangar 24 “would be inefficient to use and maintain ... and unusable as a hangar.” The study also noted that refurbishing Hangar 24, which “may or may not be structurally feasible,” would cost some $500,000 more than the estimated cost of constructing a brand new facility.
In rebuttal, the petitioners assert that there is no data showing that Hangar 24 would require enlargement. This assertion is at best a half-truth; it is premised on the hypothesis that there is no demonstrated demand for facilities that can accommodate larger aircraft. This hypothesis is a slight variation on a previously rejected theme, see supra Part 11(A)(1)(a), but the variation is immaterial. As we have explained, the record contains substantial support for the assertion that demand for FBO services at Hanscom is likely to continue to increase. The record likewise reveals that the two existing FBO facilities cannot readily accommodate larger aircraft, and it further notes that the existing Hangar 24 structure is too small to be compatible with G5 business jets. This information is sufficient to undergird the FAA’s conclusion that enlargement of Hangar 24 would be required in any sensible reuse scenario.
As evidence of the viability of adaptive reuse, the petitioners seize upon a suggestion that it might be feasible to raise the roof of Hangar 24 without demolishing the building. In support, they note that the roof had been raised once before and that the agency did not respond to this possibility (which first surfaced during the comment period). An agency is under no obligation to respond individually to each and every concern raised during the comment period. See Conservation Law Found, of New Engl., Inc. v. Andrus, 623 F.2d 712, 717 (1st Cir.1979). Here, moreover, the comment was not so compelling as to demand a direct response given the building’s overall condition and structural deficiencies. See 40 C.F.R. § 1508.9(a) (describing EA as “a concise public document” (emphasis supplied)).
The petitioners’ critique of the FAA’s adaptive reuse analysis gains no traction from a claimed inconsistency between the FAA’s conclusion that Hangar 24’s door height would have to be increased and Massport’s commitment to maintaining an unobtrusive building profile when redeveloping the site. There is simply no reason to believe that a door-height increase would necessarily result in a building incompatible with surrounding structures. In the absence of concrete evidence to that effect, such conjecture is insufficient to undermine the FAA’s finding regarding the imprudence of adaptive reuse. See Save Our Heritage, 269 F.3d at 60 (“Gauzy generalizations and pin-prick criticisms, in the face of specific findings and a plausible result, are not even a start at a serious assault.”).
We add that even if none of the factors cited by the FAA, standing alone, would justify its finding that adaptive reuse is imprudent, that finding would still be supported by the totality of the factors. In making judgment calls of this sort, an agency is both entitled and obliged to consider the totality of the circumstances. See, e.g., Eagle Found., 813 F.2d at 805. The whole is sometimes greater than the sum of the parts, and the considerations limned in the EA, taken together, provide a reasoned basis, adequately anchored in the administrative record, upon which the FAA could conclude — as it did — that adaptive reuse is not a prudent alternative.
There is one loose end. As discussed in the EA and as considered during the consultation period, the reuse alternative encompassed a proposal that Hangar 24 be converted into an aviation museum. The FAA discussed this option “because of the significant interest expressed on the part of consulting parties and the public.” Though the proposal was sufficiently broad to include a number of potential museum developers, one of the most likely candidates — the Massachusetts Air and Space Museum — had already declared the site unsuitable. Ultimately, the agency rejected the museum possibility because such a use would not address perceived transportation needs and would present significant security concerns that made it “undesirable and impractical.” We find no error in this determination. See 49 U.S.C. § 47101(a)(1) (“[T]he safe operation of the airport and airway system is the highest aviation priority....”); see also Back Bay, 463 F.3d at 65.
That ends this aspect of the inquiry. In this context, prudence is largely a matter of safety and efficiency; and the FAA’s determination that none of the three alternatives would be prudent was, on the record before it, well within the universe of reasonable outcomes. When that is true, it is not the place of a reviewing court to second-guess the agency.
2. Minimization of Harm. Once an agency determines that there is no feasible and prudent alternative to the use of protected land, section 4(f) requires it to consider whether the proposal at hand “includes all possible planning to minimize harm.” 49 U.S.C. § 303(c)(2). An agency determination that a submitted plan sufficiently minimizes the likely harms to historic properties must be treated respectfully by a reviewing court. Such determinations “deserve even greater deference than agency determinations concerning practicable alternatives.” Conservation Law Found, v. Fed. Hwy. Admin., 24 F.3d 1465, 1476-77 (1st Cir. 1994); see Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 702 (3d Cir. 1999).
The petitioners insist that the FAA should postpone the demolition of Hangar 24 until after the design, permitting, and financing of the new FBO facility are in place, thus leaving open the possibility that the facility might incorporate the existing hangar. We reject these importunings. When discussing minimization, the FAA specifically noted that “reuse of Hangar 24 as a hangar is neither prudent nor practical.” The FAA fully addressed the adaptive reuse approach in its analysis and supportably determined that this approach was imprudent. No more was exigible. An agency need only consider harm-minimizing steps that are feasible and prudent under existing circumstances. Back Bay, 463 F.3d at 66. A few explanatory comments may be helpful.
Section 4(f)(2)’s requirement that a project include planning to minimize harm to historic sites does not demand that an agency, having already ruled out an option as imprudent under section 4(f)(1), circle back to reconsider that option as a means of mitigating harms. Instead, the 4(f)(2) inquiry is focused on means of minimization that are compatible with the alternative or alternatives deemed feasible and prudent under 4(f)(1).
Congress established a very rigorous, time-consuming administrative process through which projects that might affect protected historic sites are reviewed and, if appropriate, approved. This administrative process is geared toward consideration of the project concept itself, regardless of which developer may ultimately carry the proposal to fruition. Of course, should the parameters of the project change materially, additional administrative approvals will likely be necessary. But so long as the project’s scope remains within the general contours of the proposal reviewed and approved by the agency, the validity of its approval is not conditioned on the presence or absence of a developer prepared to move forward with the construction.
B. NHPA.
Section 106 of the NHPA requires that federal agencies “take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. It also directs that agencies “shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment.” Id. In fine, “[s]ection 106 is a procedural statute that requires agency decisionmakers to ‘stop, look, and listen,’ but not to reach particular outcomes.” Back Bay, 463 F.3d at 60 (quoting Narragansett Indian Tribe v. Warwick Sewer Autk, 334 F.3d 161,166 (1st Cir.2003)).
Congress created the Advisory Council on Historic Preservation (the Council) to administer the NHPA. See 16 U.S.C. §§ 470i, 470s. The Council has promulgated regulations to guide agencies in performing their obligations under the statute. See 36 C.F.R. pt. 800. These regulations direct agencies to determine if a project qualifies as an “undertaking” that “has the potential to cause effects on historic properties.” Id. § 800.3(a). If so, the agency must consult with the state historic preservation officer (SHPO) to “[determine and document the area of potential effects.” Id. § 800.4(a)(1); see id. § 800.16(d). The agency, along with the SHPO, is then directed to “apply the National Register criteria” to arguably eligible sites within the area of potential effects. Id. § 800.4(c)(1). If the agency finds that historic sites may be affected, it must solicit the views of various parties. Id. § 800.4(d)(2). The agency then applies the criteria delineated in the regulations to determine if there is an effect or effects, id. § 800.5(a), and if so, engages in further consultation to resolve any such effects, id. § 800.5(d)(2).
This step involves notifying the Council so that it can decide whether its continued participation is desirable, id. § 800.6(a)(1), and looking at alternatives that might “avoid, minimize or mitigate the adverse effects,” id. § 800.6(b)(l)(i), (b)(2). If the agency and the consulting parties agree on a means of abating the effects, they must execute a memorandum of agreement (the Memorandum). Id. § 800.6(b)(l)(iv), (b)(2). The Memorandum “evidences ... compliance with section 106” and the regulations. Id. § 800.6(c).
In the case at hand, NHPA consultation began in April of 2008, when the FAA informed the Commission (the relevant state entity) that the Hangar 24 project was an “undertaking” within the purview of the regulations. The FAA concurred with the Commission’s finding that the hangar was eligible for listing on the National Register under Criteria A and B. The FAA and the Commission then defined the project’s area of potential effects to include the footprint of the hangar and its appurtenances.
In December of 2008, the FAA issued a draft EA, which was made available for public comment. The Council reviewed this document and determined that its “participation in the consultation to resolve adverse effects [was] unnecessary.” According to the Council, the EA’s discussion of alternatives was “exhaustive,” and the Commission fully concurred with the FAA’s findings about the project’s effects (and lack of effects) on historic properties. The FAA proceeded to prepare a draft Memorandum to memorialize its commitments to mitigation and circulated the Memorandum to the consulting parties for their input. The final EA responded to comments and included a final version of the Memorandum.
The petitioners advance a salmagundi of arguments as to why the NHPA requirements were not satisfied. To begin, they argue that, because the area of potential effects was determined “without reference to any specific development proposal,” that determination is inconsistent with the regulatory directive that the area’s scope should be “influenced by the scale and nature of an undertaking.” Id. § 800.16(d). It is true that when the EA was prepared, there was no developer lined up to proceed with FBO facility construction and, thus, no definitive set of development plans existed. But Massport had previously reviewed proposals and selected a plan for the site, thus evincing that it had a particular set of criteria in mind. The concept was clearly delineated.
NHPA’s implementing regulations direct agencies to “ensure that the section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered.” Id. § 800.1(c). This directive makes it pellucid that agencies are not expected to delay NHPA review until all details of the proposal are set in cement. Of course, should the project’s scope change in some material way when a specific developer is identified, additional FAA approvals may be required. But the proposal here was sufficiently well-defined to trigger the NHPA review process.
Taking a different tack, the petitioners say that the FAA erred in determining that the area of potential effects did not encompass any historic sites beyond Hangar 24 itself. This is whistling past the graveyard; the record reveals beyond hope of contradiction that the FAA examined the possibility of effects on other sites and supposedly concluded that none of the alternatives would have an effect— either direct or indirect — on any protected historic venue (apart from Hangar 24 itself).
Relatedly, the petitioners fault the FAA for neglecting to take into account, when defining the area of potential effects, the possibility that the project would alter views from nearby sites and, in the bargain, create a fire hazard attributable to fuel storage. But the 2005 ESPR noted that, due to local topographical features, the airport was not visible from most nearby locations; and in any event, Massport committed to maintaining building dimensions that would “be respectful of views from off-site vantages.” Finally, in its response to public comments appended to the EA, the FAA explained that the State Fire Marshal’s Office will regulate fuel storage at any new structure and that other measures for the containment of fuel-related hazards had been contemplated. Regardless of whether the petitioners agree with the FAA’s conclusions about these matters, they have failed to show that the conclusions are arbitrary or capricious.
The petitioners’ next plaint is equally without foundation. Although they express concern that the new FBO facility would indirectly affect noise levels by attracting additional jet traffic, the FAA explained in the EA why that scenario is unlikely to occur. There, it stated that, consistent with its mandate to provide “a safe and efficient national airspace system,” the FBO project was intended “to meet forecasted demand for adequate facilities” for corporate aircraft at Hanscom. This articulated purpose was aimed at meeting an increase in demand that the record confirms will likely take place independent of any improvements at Hanscom; it was not calculated to drive an increase in traffic.
In light of the FAA’s observation that improvements to infrastructure are not typically sufficient, on their own, to attract new activity to an airport, the record is barren of any basis for the expectation that the new FBO facility will cause any increase in traffic. In the absence of such an evidentiary predicate, it was entirely logical for the FAA to conclude that the contemplated FBO facility would produce no meaningful increase in noise levels. Cf. Save Our Heritage, 269 F.3d at 62-63 (upholding FAA finding that impacts of newly authorized flights were de minimis under NHPA and NEPA standards).
.If more were needed- — and we doubt that it is- — -we note that, notwithstanding its determination that the potential for increased noise was not a problem, the FAA went the extra mile; it made a “worst case” calculation. While the agency was under no obligation to make a worst case calculation in light of its no-effects finding, cf. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 356, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (explaining that NEPA analysis should “focus on reasonably foreseeable impacts” and that no “worst case analysis” is required), the results of that calculation reinforced its position.
Switching gears, the petitioners urge that because Walden Pond (a national historic landmark) is nearby, the FAA was required to comply with the heightened standards that pertain to such sites. See 16 U.S.C. § 4T0h — 2(f); 36 C.F.R. § 800.10. Given the FAA’s warranted determination that there would be no effects on nearby historic sites, the agency was under no obligation to move to this more intensive level of review. See Back Bay, 463 F.3d at 64.
The petitioners have one last grievance addressed to the FAA’s NHPA compliance. They argue that the FAA and the Commission blundered in finding that Hangar 24 was ineligible for listing on the National Register under Criterion C, which applies to sites that embody distinctive architectural characteristics. See 36 C.F.R. § 60.4(c). This grievance is baseless.
To be sure, the criteria used to determine whether a site qualifies for listing on the National Register will inform the choice of appropriate mitigation measures. Here, however, there is ample evidence in the record to show that the FAA and the Commission fully considered the applicability vel non of Criterion C. To this end, the Commission observed, in correspondence to the FAA, that Hangar 24 was “deteriorated” and had been “cleared of its historical scientific instrumentation, equipment, research files, and furnishings.” In a return letter, the FAA confirmed its awareness of “new information” pertinent to Criterion C proffered by the Concord Historical Commission and found that this proffer contained no insights beyond those previously considered.
The short of it is that the petitioners, despite their kaleidoscopic array of attacks, have not shown noncompliance with any of the procedures mandated by the NHPA and its implementing regulations. Nor have they shown that the FAA failed to satisfy its obligation to weigh effects. While the petitioners may disagree with the FAA’s calibration of these scales, that disagreement, in itself, is insufficient to scuttle the FAA’s findings.
C. NEPA.
The NEPA requires federal agencies to prepare an environmental impact statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Where the need for an EIS is not obvious, an agency may instead prepare an EA. 40 C.F.R. § 1501.4(b). An EA is meant to be less detailed than an EIS. See, e.g., United States v. Coal, for Buzzards Bay, 644 F.3d 26, 32 (1st Cir. 2011). If the agency, based on the EA, determines that an EIS is not needed, it may issue an explained finding of no significant impact. 40 C.F.R. § 1501.4(c), (e). The requirements imposed by the NEPA are procedural in nature and are not intended to dictate any particular substantive outcome. Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204; Robertson, 490 U.S. at 350, 109 S.Ct. 1835.
The petitioners’ NEPA challenge focuses on the FAA’s consideration of the potential to increase noise levels. Specifically, the petitioners upbraid the FAA for failing properly to quantify cumulative noise impacts. The applicable regulations define cumulative effects as “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7.
This lament does not withstand scrutiny. The record shows that the FAA considered all the relevant factors. It identified the only other reasonably foreseeable development (that anticipated for the East Ramp) and added anticipated noise from that project, calculated at 0.3 dB, to a predicted maximum noise increase of 0.2 dB from the Hangar 24 project. The 2008 East Ramp noise study upon which the FAA based its worst case calculation took account of total noise levels in the area. It added the projected increase for the East Ramp development to preexisting baseline noise conditions. See League of Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1217 (9th Cir.2008). The FAA generally regards as significant a decibel increase of 1.5 dB or greater (based on a day-night average) at or above a 65 dB noise exposure level. FAA Order 1050.1E, CHG 1, App. A, para. 14.3 (Mar. 20, 2006). The foreseeable increase here fell comfortably within that range. We conclude, therefore, that the FAA’s exercise constituted a reasonable approach to the potential problem. And as a further check, the FAA “carefully reviewed” the 2005 ESPR’s analysis of the projected cumulative noise and air quality effects of both the Hangar 24 and the East Ramp projects.
The petitioners ealumnize the FAA’s decision to extrapolate from prior studies rather than commission a new study for Hangar 24. In our view this decision was not unreasonable, especially given the agency’s prediction, based on the FAA’s experience with other airport projects, that the Hangar 24 project was unlikely to have any impact at all on noise levels. We hold, therefore, that the FAA’s noise impact calculations are impervious to the petitioners’ challenge.
Of course, if and when Massport chooses to proceed with additional development at Hanscom, that work may require additional FAA approvals. But the NEPA requires a cumulative analysis only “to ensure that a project is assessed as a whole and not sliced into ‘small component parts.’ ” Town of Marshfield v. FAA, 552 F.3d 1, 4 (1st Cir.2008) (quoting 40 C.F.R. § 1508.27(b)(7)). For NEPA purposes, an agency need not speculate about the possible effects of future actions that may or may not ensue. See, e.g., Coal, on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C.Cir.1987).
III. CONCLUSION
We need go no further. A careful reading of the administrative record shows with conspicuous clarity that the FAA was cognizant of, and complied with, its responsibilities under the applicable statutes and regulations. The conclusions that it reached, though not inevitable, are adequately grounded and in accordance with law. Accordingly, we deny the petition for judicial review.
So Ordered.
. At the expense of adding hues to a rainbow, we note that, in compiling the EA, the FAA specifically stated that its prudence inquiry centered on “extraordinary safety or operational problems” (emphasis supplied). It seems to us that this reference indicates that the agency proceeded in the spirit of Overton Park, albeit adapting its inquiry to the vastly different circumstances before it.
. The petitioners protest that the FAA incorrectly disregarded a fourth alternative: the possibility of locating the new FBO facility at Worcester. But this suggestion surfaced for the first time during the comment period, and the FAA persuasively responded that, due to the approximately 50-mile distance between Hanscom and Worcester, the idea was "not practical.” This makes eminently good sense for two reasons. First, the articulated need for a third FBO facility was based on data evidencing increased corporate jet use at Hanscom specifically, not in the region generally. Second, the record indicates that improvements to infrastructure are not usually in themselves sufficient to attract new activity to a particular airport. Air travel is, after all, tied clearly to location.
. An agency is free to rely in part on relevant, previously conducted studies when preparing an EA. See Save Our Heritage, 269 F.3d at 59; Conservation Law Found, v. Fed. Hwy. Admin., 24 F.3d 1465, 1473 n. 1 (1st Cir. 1994).
. The petitioners point out that the FAA's own internal guidance acknowledges that the “65 dB threshold does not adequately address the effects of noise on visitors to areas within a national park ... where other noise is very low and a quiet setting is a generally recognized purpose and attribute.” FAA Order 1050.IE, CHG 1, App. A, para. 14.3. This guidance does not help the petitioners. Although Hanscom is located in close proximity to at least one historic national park, the petitioners have proffered no evidence that any such park is specifically recognized for its tranquility. See, e.g., 16 U.S.C. § 410s(a) (establishing Minute Man National Historical Park and describing its purposes). For that matter, the petitioners have proffered no evidence showing a need for special noise level protection at any place in the vicinity.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1, Costs: 0.11
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WINTER, Circuit Judge:
This appeal poses the question of whether a church may be prevented by New York City’s Landmarks Law, now codified at New York City Administrative Code Sections 25-301 to 25-321 (1986), from replacing a church-owned building with an office tower. The question implicates both First and Fifth Amendment issues. Specifically, the Rector, Wardens, and Members of the Vestry of St. Bartholomew’s Church (“the Church”) appeal from Judge Sprizzo’s decision that the New York City Landmarks Law, as applied to an auxiliary structure next to the Church’s main house of worship, did not impose an unconstitutional burden on the free exercise of religion or effect a taking of property without just compensation.
The district court grounded its decision on its finding that the Church had failed to prove that the landmark regulation prevented the Church from carrying out its religious and charitable mission in its current buildings. We agree that this is the legal standard established by Supreme Court precedent governing both free exercise and takings claims. Moreover, we find no clear error in the district court’s factual determinations. We therefore affirm. We also affirm the denial of a motion to intervene by a group of persons opposed to the Church’s plans to develop its property.
BACKGROUND
St. Bartholomew’s Church is a Protestant Episcopal Church organized in 1835 under the laws of the State of New York as a not-for-profit religious corporation. The main house of worship (“the Church building”) stands on the east side of Park Avenue, between 50th and 51st Streets, in New York City. Constructed beginning in 1917 according to the plans of architect Bertram G. Goodhue, the Church building is a notable example of a Venetian adaptation of the Byzantine style, built on a Latin cross plan. Significant features include its polychromatic stone exterior, soaring octagonal dome, and large rose window. Perhaps most significantly, Goodhue incorporated into his building the Romanesque porch of St. Bartholomew’s former Church building at Madison Avenue and 44th Street. Designed by the renowned architectural firm of McKim, Mead & White, the porch is composed of a high arched central portal flanked by two lower arched doorways, all supported by slender columns. The doors themselves are richly decorated bronze, depicting Biblical themes.
Adjacent to the Church building, at the northeast corner of Park Avenue and 50th Street, is a terraced, seven-story building known as the Community House. It is the replacement of this building with an office tower that is at issue in the instant matter. Completed in 1928 by associates of Goodhue, the Community House complements the Church building in scale, materials and decoration. Together with the Church building, the Community House houses a variety of social and religious activities in which the Church is engaged. It contains a sixty-student preschool, a large theater, athletic facilities (including a pool, gymnasium, squash court, and weight and locker rooms), as well as several meeting rooms and offices for fellowship and counseling programs. A community ministry program, which provides food, clothing, and shelter to indigent persons, is operated mainly from the Church building. Meals are prepared in a small pantry on the first floor and served in the mortuary chapel. Ten homeless persons are housed nightly in the narthex.
In 1967, finding that “St. Bartholomew’s Church and Community House have a special character, special historical and aesthetic interest and value as part of the development, heritage and cultural aspects of New York City,” the Landmarks Preservation Commission of the City of New York (the “Commission”) designated both buildings as “landmarks” pursuant to the Landmarks Law. This designation prohibits the alteration or demolition of the buildings without approval by the Commission. See N.Y.C. Admin. Code § 25-305(a)(l) (1985).
The Church did not object to the land-marking of its property. In December 1983, pursuant to what is now New York City Administrative Code Section 25-307, the Church applied to the Commission for a “certificate of appropriateness” permitting it to replace the Community House with a fifty-nine story office tower. This request was denied as an inappropriate alteration. In December 1984, the Church filed a second application, sealing down the proposed tower to forty-seven stories. This application was also denied.
The Church thereafter filed a third application under a different procedure. Pursuant to Sections 207-4.0 and 207-8.0 of the New York City Administrative Code, commonly known as the “hardship exception,” it sought a certificate of appropriateness for the forty-seven story tower on the ground of the Community House’s present inadequacy for church purposes. The Church’s application was the subject of a series of public hearings before the Commission in late 1985 and early 1986. At those hearings, the Commission gathered evidence from various interested parties, including expert testimony and written reports regarding the adequacy of the Community House for the Church’s charitable programs, the necessity and cost of structural and mechanical repairs for the Church building and Community House, and the Church’s financial condition. Following the public hearings, the Commission convened in Executive Session, open to the public, on several occasions in February 1986. At these meetings the Commission discussed the Church’s application, accepted further submissions from interested parties, and took testimony and reports from its own pro bono experts. On February 24, the Commission voted to deny the application because the Church had failed to prove the necessary hardship. Several months later the Commission issued a lengthy written determination detailing the reasons for its denial.
On April 8, 1986, the Church brought the instant action for declaratory and injunc-tive relief and damages pursuant to 42 U.S.C. § 1983. The complaint set forth a host of constitutional claims. It alleged that the Landmarks Law, facially and as applied to the Church, violates both the free exercise and establishment clauses of the First Amendment by excessively burdening the practice of religion and entangling the government in religious affairs. It also alleged that the Landmarks Law violates the equal protection and due process clauses of the Fourteenth Amendment because it applies different standards to charitable and commercial institutions respectively and constitutes a taking of property without just compensation. In addition, the Church alleged a variety of procedural due process violations and brought a pendent state law claim alleging that the Church should have been granted a certificate of appropriateness under New York law.
The Church moved for partial summary judgment on its claims of facial unconstitutionality. Defendants cross-moved for summary judgment on all claims. The district court granted summary judgment to defendants with respect to the issues of facial unconstitutionality only. On the First Amendment claims, the court ruled that the Landmarks Law “creates no more than an incidental burden on the practice of religion” and that entanglement doctrine was not applicable. On the equal protection claim, the court ruled that the different hardship tests applied to charitable and commercial organizations were rational. Finally, it held that the notice and hearing provisions of the Landmarks Law comport with constitutional standards of due process.
The district court then held a bench trial with respect to the claims that the Landmarks Law is unconstitutional as applied to the Church. The parties agreed that the evidentiary record before the district court would be limited to the evidence presented to the Commission, contained in a twenty-three volume appendix. In considering the Church’s takings claim, the court adopted the standard articulated by New York State courts: An unconstitutional taking exists “where the landmark designation [of property owned by a charitable organization] would prevent or seriously interfere with the carrying out of the charitable purpose of the institution.” St. Bartholomew’s Church v. City of New York, 728 F.Supp. 958, 966-67 (S.D.N.Y.1989) (opinion and order) (citing Society for Ethical Cul ture v. Spatt, 51 N.Y.2d 449, 454-55, 415 N.E.2d 922, 925, 434 N.Y.S.2d 932, 935 (1980); Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 131, 316 N.E.2d 305, 311, 359 N.Y.S.2d 7, 16 (1974)). The district court applied the same test to the claim of an unconstitutional burden on religion. It thus stated, “[I]n this case, the First Amendment inquiry is identical in scope to the Fifth Amendment inquiry, since to prevail on either claim plaintiff must prove that it can no longer carry out its religious mission in its existing facilities.” Id. 728 F.Supp. at 966-67.
The district court then examined the record before the Commission in order to determine whether the Church had proved by a preponderance of the evidence that it can no longer carry out its charitable purpose in its existing facilities. The district court found that it had not, for three basic reasons. First, it ruled that the Church had failed to demonstrate that the Community House is insufficient to accommodate the various programs currently based there. Second, it found that the Church had exaggerated the cost of the necessary repairs to the structural and mechanical systems of the Church building and Community House. Third, the court held that the Church had failed to prove that it cannot afford to make the necessary repairs and renovations to its buildings. Having concluded that the Church had not carried its burden of demonstrating that the Landmarks Law precludes it from continuing its activities in its existing facilities, the district court rejected the Church’s First and Fifth Amendment claims and entered judgment for defendants.
On appeal, the Church renews its free exercise and takings claims and argues that the district court’s factual findings were clearly erroneous.
In the course of proceedings, the district court denied a motion to intervene on the side of defendants made by several individual parishioners and the Committee to Oppose the Sale of St. Bartholomew’s Church Incorporated, a group of St. Bartholomew’s members and others opposed to commercial development of the Church’s property. It held that the proposed intervenors had no ownership interest in the property at issue and that their participation would interfere with the efficient administration of the litigation. See St. Bartholomew’s Church v. City of New York, No. 86 Civ. 2848 (JES), slip op. (S.D.N.Y. Oct. 27, 1986) (order denying motion to intervene). A year later, after the parties agreed that the trial in the instant action should be conducted solely on the record before the Commission, the proposed intervenors renewed their motion, which was again denied. See St. Bartholomew’s Church v. City of New York, No. 86 Civ. 2848 (JES), slip op. (S.D.N.Y. Apr. 6, 1988) (order denying motion to intervene). The proposed intervenors appeal from this ruling.
DISCUSSION
Sections 1 and 2 of this portion of the opinion reject the Church’s free exercise and takings claims. Our discussion assumes the affirmance of the district court’s factual findings as detailed in section 3.
1. The Free Exercise Claim
The Church argues that the Landmarks Law substantially burdens religion in violation of the First Amendment as applied to the states through the Fourteenth Amendment. In particular, the Church contends that by denying its application to erect a commercial office tower on its property, the City of New York and the Landmarks Commission (collectively, “the City”) have impaired the Church’s ability to carry on and expand the ministerial and charitable activities that are central to its religious mission. It argues that the Community House is no longer a sufficient facility for its activities, and that the Church’s financial base has eroded. The construction of an office tower similar to those that now surround St. Bartholomew’s in midtown Manhattan, the Church asserts, is a means to provide better space for some of the Church’s programs and income to support and expand its various ministerial and community activities. The Church thus argues that even if the proposed office tower will not house all of the Church’s programs, the revenue generated by renting commercial office space will enable the Church to move some of its programs— such as sheltering the homeless — off-site. The Church concludes that the Landmarks Law unconstitutionally denies it the opportunity to exploit this means of carrying out its religious mission. Although the Landmarks Law substantially limits the options of the Church to raise revenue for purposes of expanding religious charitable activities, we believe the Church’s claims are precluded by Supreme Court precedent.
As the Court recently stated in Employment Division v. Smith, — U.S. -, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the free exercise clause prohibits above all “ ‘governmental regulation of religious beliefs as such.’ ” Id. 110 S.Ct. at 1599 (quoting Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963) and citing cases). No one seriously contends that the Landmarks Law interferes with substantive religious views. However, apart from impinging on religious beliefs, governmental regulation may affect conduct or béhavior associated with those beliefs. Supreme Court decisions indicate that while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may restrict certain activities associated with the practice of religion pursuant to its general regulatory powers. For example, in Smith the Court held that the free exercise clause did not prohibit the State of Oregon from applying its drug laws to the religious use of peyote. See 110 S.Ct. 1595. Cf. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982).
The synthesis of this caselaw has been stated as follows: “[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” Smith, 110 S.Ct. at 1600 (quoting Lee, 455 U.S. at 263 n. 3, 102 S.Ct. at 1058 n. 3 (Stevens, J., concurring)). The critical distinction is thus between a neutral, generally applicable law that happens to bear on religiously motivated action, and a regulation that restricts certain conduct because it is religiously oriented. See id. 110 S.Ct. at 1599.
The Landmarks Law is a facially neutral regulation of general applicability within the meaning of Supreme Court decisions. It thus applies to “[a]ny improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value.” N.Y.C.Admin.Code § 25-302(n) (1986).
It is true that the Landmarks Law affects many religious buildings. The Church thus asserts that of the six hundred landmarked sites, over fifteen percent are religious properties and over five percent are Episcopal churches. Nevertheless, we do not understand those facts to demonstrate a lack of neutrality or general applicability. Because of the importance of religion, and of particular churches, in our social and cultural history, and because many churches are designed to be architecturally attractive, many religious structures are likely to fall within the neutral criteria — having “special character or special historical or aesthetic interest or value” — set forth by the Landmarks Law. N.Y.C.Admin.Code § 25-302(n) (1986). This, however, is not evidence of an intent to discriminate against, or impinge on, religious belief in the designation of landmark sites.
The Church’s brief cites commentators, including a former chair of the Commission, who are highly critical of the Landmarks Law on grounds that it accords great discretion to the Commission and that persons who have interests other than the preservation of historic sites or aesthetic structures may influence Commission decisions. Nevertheless, absent proof of the discriminatory exercise of discretion, there is no constitutional relevance to these observations. Zoning similarly regulates land use but it is hardly a process in which the exercise of discretion is constrained by scientific principles or unaffected by selfish or political interests, yet it passes constitutional muster. See Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
The Church argues that landmarking and zoning differ in that landmarking targets only individual parcels while zoning affects larger segments. However, the Landmarks Law permits the designation of historic districts, see N.Y.C.Admin.Code § 25-303(a)(4) (1986), while all zoning laws provide for variances for individual sites. Even if the two forms of regulation bear the different characteristics asserted by the Church, those differences are of no consequence in light of Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). There, the Court stated:
[LJandmark laws are not like discriminatory, or ‘reverse spot,’ zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. In contrast to discriminatory zoning, which is the antithesis of land-use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city....
Id. at 132, 98 S.Ct. at 2663 (citation omitted).
It is obvious that the Landmarks Law has drastically restricted the Church’s ability to raise revenues to carry out its various charitable and ministerial programs. In this particular case, the revenues involved are very large because the Community House is on land that would be extremely valuable if put to commercial uses. Nevertheless, we understand Supreme Court decisions to indicate that neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause. See Jimmy Swaggart Ministries v. Board of Equalization, — U.S. -, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990); Hernandez v. Commissioner, — U.S. -, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). The central question in identifying an unconstitutional burden is whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices. In Lyng v. Northwest Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988), the Court explained,
It is true that ... indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amend-ment_ This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit” ...
We agree with the district court that no First Amendment violation has occurred absent a showing of discriminatory motive, coercion in religious practice or the Church’s inability to carry out its religious mission in its existing facilities. Cf. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 872 (2d Cir.1988).
In sum, the Landmarks Law is a valid, neutral regulation of general applicability, and as explained below, we agree with the district court that the Church has failed to prove that it cannot continue its religious practice in its existing facilities.
2. The Takings Claim
The Church also claims that the Landmarks Law so severely restricts its ability to use its property that it constitutes confiscation of property without just compensation in violation of the Fifth and Fourteenth Amendments. However, the Supreme Court’s decision in Penn Central compels us to hold otherwise.
In Penn Central, the Supreme Court held that the application of New York City’s Landmarks Law to Grand Central Terminal did not effect an unconstitutional taking. See 438 U.S. at 138, 98 S.Ct. at 2666. That famous beaux arts style train station, located in midtown Manhattan (just eight blocks from St. Bartholomew’s Church) was designated a landmark in 1967. See id. at 115-16, 98 S.Ct. at 2654-55. Shortly thereafter, Penn Central Transportation Company (“Penn Central”), principal owner of the Terminal, in order to increase its income, sought to build a highrise office tower atop the Terminal. The Landmarks Commission, however, denied the proposal because “ ‘[qjuite simply, the tower would overwhelm the Terminal by its sheer mass.’ ” Id. at 118, 98 S.Ct. at 2656 (quoting the record on appeal). The Supreme Court squarely rejected Penn Central’s claim that the building restriction had unconstitutionally “taken” its property. Central to the Court’s holding were the facts that the regulation did not interfere with the historical use of the property and that that use continued to be economically viable:
[T]he New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investment.
Id. at 136, 98 S.Ct. at 2665.
Applying the Penn Central standard to property used for charitable purposes, the constitutional question is whether the land-use regulation impairs the continued operation of the property in its originally expected use. We conclude that the Landmarks Law does not effect an unconstitutional taking because the Church can continue its existing charitable and religious activities in its current facilities. Although the regulation may “freeze” the Church’s property in its existing use and prevent the Church from expanding or altering its activities, Penn Central explicitly permits this. In that case, the Landmarks Law diminished the opportunity for Penn Central to earn what might have been substantial amounts by preventing it from building a skyscraper atop the Terminal. Here it prevents a similar development by the Church — one that, in contrast to the proposal to build an office tower over Grand Central Terminal, would involve the razing of a landmarked building — at least so long as the Church is able to continue its present activities in the existing buildings. In both eases, the deprivation of commercial value is palpable, but as we understand Penn Central, it does not constitute a taking so long as continued use for present activities is viable.
The Church offers several arguments to distinguish Penn Central, but we find them unavailing. First, it argues that while Penn Central stipulated that it was able to earn a “reasonable return” on the Terminal even under the regulation, see 438 U.S. at 129, 98 S.Ct. at 2662, in this case, the use of tl>e Community House for commercial purposes would yield an estimated return of only six percent. Even if true, this fact is irrelevant. “Reasonable return” analysis was appropriate to determine the viability of the existing commercial use of the Terminal but has no bearing on the instant matter because the existing use of the Community House is for charitable rather than commercial purposes. So long as the Church can continue to use its property in the way that it has been using it — to house its charitable and religious activity — there is no unconstitutional taking.
Second, the Church notes that it presented a second proposal for a smaller building to the Commission, but Penn Central did not. This hardly makes any difference. Just as the Commission in Penn Central remained open to a building addition that “ ‘would harmonize in scale, material and character,’ ” 438 U.S. at 137, 98 S.Ct. at 2666 (quoting record on appeal), with the Terminal, it invited appellant to propose an addition to the Community House in the instant matter. Finally, we reject as unsupported appellants argument that in Penn Central the property owner continued to enjoy valuable, transferrable rights to develop the airspace above the Terminal, see 438 U.S. at 137, 98 S.Ct. at 2666, while the Church’s development rights have little value. See Section 3(a) infra.
3. Findings of the District Court
The principal factual finding of the district court — one central to its rejection of the Church’s free exercise and takings claims — was that the Church “failed to show by a preponderance of the evidence that it can no longer conduct its charitable activities or carry out its religious mission in its existing facilities.” St. Bartholomew’s Church v. City of New York, 728 F.Supp. 958, 974-75 (S.D.N.Y.1989) (opinion and order).
The Church claims that the Community House is an inadequate facility in which to carry out the various activities that presently comprise the Church’s religious mission and charitable purpose. It further claims that it cannot afford to make the needed repairs and renovations to the Community House and Church building. It concludes that it must be allowed to replace the Community House with a revenue-generating office tower. The district court was unconvinced. It found that the Church failed to prove that the Community House is fundamentally unsuitable for its current use and that the cost of repair and rehabilitation is beyond the financial means of the Church. Appellant argues on appeal that these findings were clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); Sygma Photo News, Inc. v. High Society Magazine, 778 F.2d 89, 95-96 (2d Cir.1985). We disagree.
a. Adequacy of the Community House
The Church claims that the amount and configuration of usable space in the Community House is insufficient to accommodate the Church’s various programs. It relies principally upon an analysis of space in the Community House by Walker Associates, an interior design firm hired by the Church. Presented to the Commission in three written reports and related oral testimony (collectively, “the Walker Report”), this study concluded that the demands for space by the Church’s various programs exceeded the capacity of the Community House. Additionally, the Walker Report stated that renovation or expansion was impractical due to the structural inflexibility of the building.
The district court discredited the Walker Report. With regard to space, there is no dispute that the Community House currently is too small. The Walker Report found that 8000 square feet of extra space is needed. The Commission placed the deficiency at about 4500 square feet.
Fatal, however, to the Church’s claim is the absence of any showing that the space deficiency in the Community House cannot be remedied by a reconfiguration or expansion that is consistent with the purposes of the Landmarks Law. The Walker Report assumed that the Community House had an outmoded structure that precluded such an option. In fact, the building has a modern, light steel frame structure and was designed so that two additional floors could easily be added. Moreover, the Commission has indicated that it would be receptive to a proposal from the Church for such an addition. While expanding the amount of available space in the Community House may not provide ideal facilities for the Church’s expanded programs, it does offer a means of continuing those programs in the existing building. Certainly the intermediate option of limited expansion must be thoroughly explored before jumping to replacement with a forty-seven story office building.
b. Cost of Repair and Rehabilitation
The Church also argues that the necessary repairs to the physically deteriorating Church building and Community House would be prohibitively expensive. It relies on a study of the mechanical systems and exteriors of those buildings prepared by O’Brien, Krietzburg and Associates, a construction management firm, and submitted to the Commission through written reports and oral testimony (collectively, “the OKA Report”). The OKA Report estimated that it would cost approximately $11 million over two years to bring the buildings’ mechanical, electrical, and plumbing systems into proper working order and to repair the buildings’ exteriors.
The district court also rejected this conclusion, faulting the OKA Report for being biased in favor of replacement over rehabilitation, ignoring actual conditions at the property site, and using an inappropriate method of estimating costs. Further, the district court pointed to contradictory evidence presented to the Commission, both by persons opposing the proposed development and by neutral consultants. Based on this information, the court found $3 million “phased in over a period of several years” to be a reasonable estimate for repairs and replacement.
On appeal, the Church does not seriously defend the $11 million estimate contained in the OKA Report. Instead, it accepts the $3 million estimate for the work that it covers, but argues that this figure disregards certain “major elements of cost.” In particular, the Church asserts that an additional $500,000 is necessary for life safety measures, $647,000 for repair of the church organ, and $360,000 for architectural and engineering fees. The City counters that the life safety additions would unnecessarily exceed building code requirements, that organ repair is not a proper expense for this proceeding, and that design fees would be negligible.
We need not rule on this dispute over approximately $1.5 million because it is not crucial to the district court’s operative factual finding. As our discussion in the next section indicates, even if the potential cost of repairs totaled $4.5 million, the Church has not adequately, demonstrated that it is unable to meet this expense. Thus, the district court’s central finding that the Church had failed to prove that it cannot continue in its existing facilities does not hinge on whether any portion of this $1.5 million was excluded from its estimate of repair costs.
c. The Church’s Finances
As a corollary to its claim that repair and rehabilitation of the Church building and Community House would be too costly, the Church argues that its financial condition does not allow it to make the necessary improvements and also continue its other programs. The district court, however, found that appellant had failed adequately to prove this assertion, a finding that is not clearly erroneous.
The Church has three primary sources of support and revenue: contributions in the form of pledges and offerings collected at worship services, income earned on investments, and fees charged for participation in activities conducted under its sponsorship. Investment income is derived from the Church’s investment portfolio, known as the Consolidated Church Fund, the value of which stood at nearly $11 million at the end of 1984. The principal of this endowment consists of funds received as gifts or bequests. In addition, the Church’s endowment includes a Properties Fund, representing resources in Church-owned property at acquired cost, net of depreciation, and a miscellaneous General Fund. Combined, these funds totalled just under $3.5 million at the end of 1984, giving the Church an overall endowment of about $14.3 million at that time. Over the decade preceding 1985, the Church’s sources of revenue have sporadically kept pace with expenses, exceeding them in 1975, 1977, 1980, 1983 and 1984, and falling behind in 1976,1978,1979, 1981, and 1982. On the whole, the Church had only a slight net deficit over this period.
The Church’s principal argument is that a major improvement expenditure of the type required to repair and renovate the Church building and Community House would severely damage this “precarious” balance of revenues and expenses. Because such an expenditure would come from endowment funds, the Church contends, future investment income will inevitably decline as the result of a depleted portfolio. Such a decrease in future revenues, it concludes, will produce “severe deficits.”
While a reduced principal will yield less investment income, the Church has not demonstrated that its budget cannot withstand building improvement expenditures under a reasonable financing procedure. For example, as the district court noted, withdrawals from the endowment might be made gradually to minimize lost investment income, or the Church might borrow against its endowment, and repay the loan over an extended period of time. Appellant has offered no financial projections or cash flow analyses' to prove that these financing methods are not feasible. Without such data, the district court’s finding that the Church failed to prove prospective financial hardship is not clearly erroneous.
We also cannot ignore the paucity of evidence offered by the Church to show that other forms of revenue are not available. Its claim that a capital fundraising drive already has been exhausted as a financing possibility is undercut by evidence that longtime members of the congregation cannot recall any such drive. Also, evidence before the Commission indicated that the transferrable development rights for the airspace above the Church property are, contrary to the Church’s claim, not worthless.
Finally, the Church argues that even if its endowment could withstand a building project, it is not at liberty to withdraw large sums for that purpose because of legal restrictions on the use of its investment funds. In particular, it urges that Section 717 of the New York Not-For-Profit Corporation Law prohibits the Church from expending the sums necessary to undergo a building project. That provision, however, does no more than impose upon the Church a fiduciary duty of care to manage the congregation’s money in a prudent and responsible fashion, see N.Y. Not-for-Profit Corp. Law §§ 513, 717 (McKinney Supp.1990), and would be implicated only if the expenditures in question would unacceptably impair the Church’s financial condition.
4. The Motion to Intervene •
The proposed intervenors argue that the district court should have granted their motion to intervene on the side of the defendants at trial. We may reverse the denial of a motion to intervene only for “abuse of discretion.” See United States v. Hooker Chemical & Plastics, 749 F.2d 968, 990 (2d Cir.1984). No such abuse is present here. The district court properly denied intervention as of right under Fed. R.Civ.P. 24(a)(2) because the proposed in-tervenors lack any legally protectable interest in this matter. Under New York law, as a Protestant Episcopal Church, St. Bartholomew’s is a corporate body placed in the trusteeship of its church wardens and vestrymen. See New York Religious Corporation Law § 41 (McKinney Supp.1990). To the extent that the proposed intervenors are members of the parish, they enjoy only the right to vote in the election of the church wardens and vestrymen. See id. § 43. Thus, the Rector, Wardens and Members of the Vestry is the proper party to litigate the constitutionality of encumbrances placed on Church property.
Nor did the district court abuse its discretion by denying permissive intervention under Rule 24(b). It was eminently reasonable to conclude that intervention only would complicate the litigation, and thereby “unduly delay ... the adjudication of the rights of the original parties.” Fed.R. Civ.P. 24(b).
CONCLUSION
For the reasons stated above, we affirm both the judgment of the district court in favor of the defendants-appellees and the order of that court denying the motion to intervene.
. Now found at Section 25-309, the provision states that a certificate of appropriateness shall be granted to a not-for-profit applicant who shows, inter alia, that such
improvement has ceased to be adequate, suitable or appropriate for use for carrying out both (1) the purposes of such owner to which it is devoted and (2) those purposes to which it had been devoted when acquired unless such owner is not [sic] longer engaged in pursuing such purposes.
N.Y.C.Admin.Code § 25-309(a)(2)(c) (1985).
. The district court treated the Church’s remaining procedural due process and state law claims as abandoned, because the Church had disavowed any interest in having a new hearing before the Commission, the only relief available to remedy these claims.
. The Landmarks Law made a cameo appearance in a recent best-selling novel as a vehicle for political retaliation against a clerical official seeking to develop Church property. See T. Wolfe, Bonfire of the Vanities 569 (1987) ("Mort? You know that church, St. Timothy’s? ... Right ... LANDMARK THE SON OF A BITCH!”).
. The Church also argues that the Landmarks Law involves an excessive degree of entanglement between church and state in violation of the establishment clause. The district court dismissed this argument as irrelevant in the present context, reasoning that the entanglement doctrine applies only to instances of government funding of religious organizations. However, in Jimmy Swaggart Ministries the Supreme Court considered an entanglement claim in the context of government taxation of the sale of religious materials by a religious organization. The Court found no constitutional violation, as the regulation imposed only routine administrative and recordkeeping obligations, involved no continuing surveillance of the organization, and did not inquire into the religious doctrine or motives of the organization. See 110 S.Ct. at 697-99. These same factors are of course largely true of the Landmarks Law. The only scrutiny of the Church occurred in the proceedings for a certificate of appropriateness, and the matters scrutinized were exclusively financial and architectural. This degree of interaction does not rise to the level of unconstitutional entanglement.
. The Fifth Amendment provides in part, "nor shall private property be taken for public use, without just compensation,” U.S. Const, amend. V, and is applicable to the states through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).
. Appellant urges further that application of the Landmarks Law to the Church does not substantially advance a legitimate state interest. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 834-35, 107 S.Ct. 3141, 3146-47, 97 L.Ed.2d 677 (1987). While land use restrictions must be reviewed in the context of the individual property in question, see Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928), the same government interest held to be valid in Penn Central — “preserving structures and areas with special historic, architectural or cultural significance,” 438 U.S. at 129, 98 S.Ct. at 2662—is equally applicable here.
. The Walker Report determined that the total space required in the Community House is 41,-500 square feet, as against 33,500 square feet of available useable space. The Commission accepted the figure for requirements, but estimated the available useable space at approximately 37,000 square feet.
. For instance, the existing building cannot readily accommodate the larger gymnasium or greater theater wing space sought by the Church.
. Although the Church also points to Section 513 of the Not-for-Profit Corporation Law, which deals with the administration of assets received for specific purposes, see N.Y. Not-for-Profit Corp. Law § 513 (McKinney Supp.1990), it concedes that donor-imposed restrictions are not a "principal constraint” preventing the improvement of its property. It does not challenge the district court's finding that enough of the Church’s funds are unrestricted so as to allow it to undertake a building project.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.06666666666666667, Costs: 0
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RYAN, Circuit Judge.
The Sierra Club and other plaintiffs brought suit against federal, state, and municipal officials in their official capacities under numerous federal statutes, seeking to prevent the construction of an urban corridor development project known as the Buckeye Basin Greenbelt Project, also known simply as the Project, in Toledo, Ohio. The centerpiece of the Project is an approximately 3.5-mile-long four-lane highway connecting downtown Toledo and its northern suburbs, and is referred to as the Parkway. Currently, construction on the Project is scheduled to be completed in mid-1998.
The district court granted summary judgment to the defendants with regard to all of the plaintiffs’ claims. The plaintiffs now appeal, raising numerous issues. Concluding that their assignments of error are uniformly without merit, we will affirm the district court’s judgment.
I.
About twenty-five years ago, in 1972, planning commenced for the highway project at the center of this lawsuit. Federal funding was first requested in 1974.
The parties do not agree what, precisely, constitute the components of the Project as a whole. All agree that the centerpiece is the Parkway, which is meant to serve as a connection between downtown Toledo, 1-280, and Point Place, in the northern suburbs of Toledo, and is intended to provide commercial, industrial, and residential development in North Toledo. But while all parties agree that the City of Toledo has contemplated certain other construction projects, they disagree whether those projects are properly considered part of the Project. According to the defendants, the Project consists of nothing other than the Parkway; a paved bike-way paralleling part of the Parkway; and an extension of Champlain Street from its current northeastern terminus beyond 1-280, called the Champlain Extension. The plaintiffs claim that two other construction projects — a paved connection of the Anthony Wayne Trail and 1-75 with the Parkway through the Central Business District of Toledo, called the CBD Connection or CBD Connector, and a Development Scheme including, among other things, four industrial parks — are also part of the Project, despite the defendants’ contention that these are separate and distinct endeavors. The defendants point out that no federal funding has ever been received, or even sought, for these projects, and that no federal permit or certification has ever been requested. The defendants also claim that it is “currently unlikely” these projects “will ever come to fruition.”
Because the Project required federal funds, it was necessary to comply with the National Environmental Policy Act of 1969, or NEPA, 42 U.S.C. § 4321 et seq., which requires that an environmental impact statement, or EIS, be filed before any major federal action is undertaken that will significantly affect the environment. The Federal Highway Administration, or FHWA, delegated preparation of the EIS to the Ohio Department of Transportation, which in turn delegated responsibility for the necessary environmental studies to the City of Toledo. A draft EIS was completed in 1981, and the final EIS was approved by FHWA in February 1984. In April 1984, the FHWA then issued a Record of Decision, or ROD, memorializing its approval.
Another environmental consideration arose because the Parkway is intended to run through the Buckeye Basin, which contains naturally occurring wetlands. The Project is, therefore, subject to federal laws that prohibit federally subsidized construction in wetlands unless there is no practical alternative, and unless all practical measures to minimize harm to the wetlands have been taken. Federal law requires that a party seeking to place fill material in a wetland must first obtain a special permit from the Army Corps of Engineers, called a § 404 permit. However, at an early stage of the Project, the Corps concluded that the Buckeye Basin wetlands benefitted from an exception to this general rule, because they were covered by a nationwide permit authorizing the filling of isolated wetlands of less than ten acres under certain circumstances, and rendering unnecessary a § 404 permit. Almost ten years later, however, in 1989, the Corps altered this determination following a change in the legal definition of “wetlands,” and concluded that a § 404 permit was necessary. The City applied for the requisite permit in 1990, and it was granted in 1992. The Corps determined that some impact on the wetlands was unavoidable, and so, the permit was conditioned on the implementation of a wetland mitigation plan, intended to minimize any negative effects.
More than three years elapsed between the approval of the final EIS and the inception of construction on the Project. Consequently, it was necessary under the regulations for the FHWA to prepare a written reevaluation of the EIS. The purpose of the reevaluation was to determine whether a supplemental EIS was required. The reevaluation discussed the impact of the Project on the wetlands, certain hazardous waste implications, and design modification measures; it also reevaluated the environmental impacts previously considered in the final EIS. After performing the reevaluation, the FHWA determined in January 1995 that no supplemental EIS was required.
In June 1995, the plaintiffs filed a five-count complaint in federal court against various federal, state, and municipal defendants, alleging that the Project violated NEPA, 42 U.S.C. § 4321 et seq. (Counts I and II); § 4(f) of the Federal-Aid Highway Act, 23 U.S.C. § 138 (Count III); the National Historic Preservation Act, or the NHPA, 16 U.S.C. § 470 (Count IV); and the Intermodal Surface Transportation Efficiency Act of 1991, or ISTEA, 23 U.S.C. § 134©, and the Clean Air Act, 42 U.S.C. § 7401 et seq. (Count V). Four months later, plaintiffs filed an amended complaint adding a Count VIII, although the pleading contained no Counts VI and VII, alleging violations of § 404 of the Clean Water Act, 33 U.S.C. § 1344; § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403; and of NEPA and the NHPA. The amended complaint names, as federal defendants, the Secretary of the United States Department of Transportation, officials of the Federal Highway Administration and the Advisory Council on Historic Preservation, and the Secretary of the Army Corps of Engineers. The state defendants are the Ohio Historical Preservation Office, the Ohio Department of Transportation, and the Ohio Environmental Protection Agency. Finally, the municipal defendants are the Toledo Metro Area Council of Governments and the Mayor of the City of Toledo.
The district court ruled on a number of pretrial motions, including the motions for summary judgment filed by various defendants, which it granted. Sierra Club v. Pena, 915 F.Supp. 1381 (N.D.Ohio 1996). A motion for supplementation of the record, filed by the plaintiffs, was granted in part and denied in part. While those determinations are challenged in this appeal, the plaintiffs do not take issue with the district court’s determination that two of their claims in Count V, brought under ISTEA, were barred because no private right of action under IS-TEA exists. Id. at 1390-91. The plaintiffs likewise do not complain of the district court’s denial of their motion to file a second amended complaint.
II.
A.
We begin with the plaintiffs’ claim that the district court erred in holding that many of the plaintiffs’ claims are time-barred. The district court reasoned that the plaintiffs’ so-called NEPA claims were, in actuality, brought under the Administrative Procedure Act, 5 U.S.C. §§ 701-06, since NEPA itself provides no private right of action. The court then reasoned that APA actions were subject to the six-year statute of limitations imposed by 28 U.S.C. § 2401(a).
The court then undertook to determine which, in particular, of the plaintiffs’ claims were barred by the six-year limitations period, and concluded that (1) Count I, alleging NEPA violations in the preparation of the-final EIS, became ripe for review on the date of the issuance of the ROD memorializing the final approval of the EIS, April 16,1984, and thus, was time-barred in its entirety; (2) Count II, alleging a failure to supplement the EIS, was not time-barred, because the claim accrued in January 1995 when the FHWA determined that no supplement was necessary; (3) Count III was time-barred with respect to allegations that the USDOT violated 23 U.S.C. § 138 in 1984 when it issued the ROD, but not with respect to allegations that the USDOT violated that same statute in 1995 when it reevaluated the Project; (4) Count IV, alleging an improper delegation of responsibilities under the NHPA at the time of the preparation of the EIS, was time-barred; (5) Count V, alleging violations of the Clean Air Act in connection with the defendants’ failure to include the CBD Connector in the Project when the EIS was prepared, was time-barred; and (6) Count VIII was not time-barred insofar as it alleged that the § 404 permit issued in 1992 was improperly granted, but was time-barred insofar as it alleged improprieties in the 1979 determination by the Corps that no special permit was required, and insofar as it alleged that the City improperly filled the wetlands in 1988. In sum, the district court disposed of Counts I, IV, and V in whole because of statute-of-limitations problems, and disposed of Counts III and VIII in part. Count II was not time-barred either in whole or in part.
On appeal, the plaintiffs argue that because NEPA contains no statute of limitations, and because NEPA creates an equitable remedy, the only applicable time limitation is that imposed by the doctrine of laches. They argue, in the alternative, that even if a six-year limitations period applies, it should not be “mechanically” enforced. They also take the position, without citation to authority, that there was no final agency action until 1995, at which time the FHWA authorized ODOT to proceed using federal funds, because only then did the project “bec[o]me irrevocable.” Finally, they assert, the ROD issued in 1984 was not a final agency action, or rather, it somehow became un-fi-nal by virtue of the fact that it was later necessary to evaluate the necessity for a supplemental EIS.
Whether the district court correctly concluded that the plaintiffs’ claims were barred by the applicable statute of limitations is a question of law for plenary review by this court. See Wind River Mining Corp. v. United States, 946 F.2d 710, 712 (9th Cir.1991).
Section 102(2)(C) of NEPA requires that federal agencies prepare a detailed EIS for every “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see 40 C.F.R. § 1502.1-.25.
NEPA does not work by mandating that agencies achieve particular substantive environmental results. Rather, NEPA promotes its sweeping commitment to “prevent or eliminate damage to the environment and biosphere” by focusing Government and public attention on the environmental effects of proposed agency action. By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989) (citation omitted). NEPA itself does not contain a statute of limitations, see Park County Resource Council, Inc. v. United States Dep’t of Agrie., 817 F.2d 609, 617 (10th Cir.1987), and many courts, including this one, have routinely applied the laches doctrine when faced with timeliness challenges to NEPA actions, see Environmental Defense Fund v. TVA, 468 F.2d 1164, 1182 (6th Cir.1972). These courts have never, however, explicitly addressed the issue of whether NEPA suits are subject to some other time limitation, such as the general six-year statute of limitations of the Tucker Act, 28 U.S.C. § 1491, which contains the following general six-year statute of limitations:
[Ejvery civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.
28 U.S.C. § 2401(a).
As we have said, NEPA does not authorize a private right of action. See Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). The Administrative Procedures Act, however, provides for judicial review of agency action. 5 U.S.C. § 702. We have long recognized that federal courts have jurisdiction over NEPA challenges pursuant to the APA, see Environmental Defense Fund, 468 F.2d at 1171, and so have many other courts, see, e.g., Public Citizen v. United States Trade Representative, 5 F.3d 549, 551 (D.C.Cir.1993); Sierra Club, 857 F.2d at 1315.
Like NEPA, the APA does not contain a specific limitations period. See Sierra Club, 857 F.2d at 1315. Numerous courts have held, however, that a complaint under the APA for review of an agency action is a “civil action” within the meaning of section 2401(a). See, e.g., Wind River, 946 F.2d at 712. These courts have held that the six-year statute of limitations in section 2401(a), therefore, applies to the APA. See Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 445 (D.C.Cir.1994); Sierra Club, 857 F.2d at 1315.
It appears to us beyond question that the plaintiffs’ action was brought pursuant to the APA; indeed, they do not suggest otherwise. It likewise appears beyond question that the six-year statute of limitations of section 2401(a) applies to actions brought pursuant to the APA. Again, the plaintiffs do not directly suggest otherwise, despite pleading that the statute of limitations should not be applied “mechanically.” Mechanical application, however, is generally the sine qua non of a statute of limitations, and while the plaintiffs eonelusorily allege malfeasance by the defendants, they do not articulate an equitable-tolling argument.
The next question we must address, then, is when did the plaintiffs’ right of action first accrue. The plaintiffs, to prevail on this issue, must show that their action first accrued at some time later than the issuance of the ROD. Indeed, they argue that their claim accrued at the time the FHWA decided not to issue a supplemental EIS.
Under the APA, a right of action accrues at the time of “final agency action.” 5 U.S.C. § 704. In determining whether a particular agency action is final, “[t]he core question is whether the agency has completed its deci-sionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636 (1992). Although this court has never addressed the question, it appears well-established that a final EIS or the ROD issued thereon constitute the “final agency action” for purposes of the APA. See, e.g., Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir.1995); Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir. 1975). See generally Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Comm’n, 869 F.2d 719 (3d Cir.1989).
The plaintiffs simply offer no case-law support for their position that the relevant final agency action occurred at the time the FHWA opted not to issue a supplemental EIS. Their position, moreover, defies logic because they complain of actions taken by the FHWA at the time the final EIS was approved and the ROD was issued. We, therefore, reject their arguments, and conclude that the district court correctly dismissed the various claims described above on the ground that they were time-barred.
B.
Our disposition of the statute of limitations issue largely resolves the plaintiffs’ next argument: that the Project was improperly “segmented” because of the exclusion of two projects, the so-called CBD Connector and the Development Scheme, from the 1984 final EIS, and their related assertion that these alleged aspects of the Project were likewise improperly excluded at the time of the 1990 application for a § 404 wetlands permit.
It is unnecessary to address the merits of the plaintiffs’ segmentation claims, even though they arise both in the context of their time-barred complaints about the EIS and their non-time-barred complaints about the § 404 process. Fundamentally, the plaintiffs complain that when the Project was formulated, it improperly excluded the CBD Connector and the Development Scheme. The formulation of the Project occurred at or before the time of the EIS. Interestingly, the plaintiffs themselves assert that the segmentation occurred at a “critical” meeting in 1979. If there were any impropriety in the exclusion of the two additional projects, the resulting claim arose at that time, and is now time-barred. There was no repetition of the alleged wrongdoing in 1990 at the time of the § 404 permit, as that permit application was founded on the scope of the Project as it was framed in the EIS.
C.
The district court rejected the plaintiffs’ claim, raised in Count II of their complaint, that the defendants should have supplemented the EIS. When reviewing an administrative agency’s final decision under the APA, we review the district court’s summary judgment decision de novo, while “applying the appropriate standard of review to the agency’s decision.” Schuck v. Frank, 27 F.3d 194, 197 (6th Cir.1994). Here, the appropriate standard of review is that we set aside the agency determination only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Marsh, 490 U.S. at 375, 109 S.Ct. at 1860; Communities, Inc. v. Busey, 956 F.2d 619, 623 (6th Cir.1992); see also 5 U.S.C. § 706(2)(A) & (D).
The plaintiffs argue that the district court was simply mistaken in stating that detailed scientific study supported the decision that the supplement was unnecessary, because the court improperly relied on the Reevaluation Environmental Impact Study in reaching this conclusion. We understand that they contend various adverse effects were not adequately taken into account: 1) the replacement of a filled roadbed through the Manhattan Marsh; 2) the addition of the “Detwiler Dike” as part of the wetlands mitigation plan, and the wetlands mitigation plan itself; 3) the planned construction of the I-280 Maumee River Crossing; 4) the “unnoticed existence” of certain historic properties; 5) the failure to consider a limited-build alternative; and 6) once again, the exclusion of the CBD Connector and the Development Scheme.
The Supreme Court dealt extensively with supplemental environmental impact statements and the standards governing them in Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377. The Court initially observed that “[t]he subject of postdecision supplemental environmental impact statements is not expressly addressed in NEPA,” but that regulations issued by the Council on Environmental Quality “impose a duty on all federal agencies to prepare supplements to either draft or final EIS’s if there ‘are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’ ” Id. at 370, 372, 109 S.Ct. at 1857, 1858 (citations omitted). The Court wrote as follows with regard to the standard governing an agency’s decision whether to perform a supplemental EIS:
[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmak-ing intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. On the other hand, ... NEPA does require that agencies take a “hard look” at the environmental effects of their planned action, even after a proposal has received initial approval. Application of the “rule of reason” thus turns on the value of the new information to the still pending decision-making process. In this respect the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains “major Federal actio[n]” to occur, and if the new information is sufficient to show that the remaining action will “affec[t] the quality of the human environment” in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.
Id. at 373-74, 109 S.Ct. at 1859 (footnotes and citations omitted).
The Court further held that the agency’s decision about the significance of any effect on the environment was “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. at 1860. The Court pointed out that in the case before it, the arguments for setting aside the decision not to issue a supplemental EIS were, essentially, that the “expert review of the new information was incomplete, inconclusive, or inaccurate.” Id. at 376-77,109 S.Ct. at 1861. As such,
[t]he dispute ... does not turn on the meaning of the term “significant” or on an application of this legal standard to settled facts. Rather, resolution of this dispute involves primarily issues of fact. Because analysis of the relevant documents “requires a high level of technical expertise,” we must defer to “the informed discretion of the responsible federal agencies.” ... Accordingly, as long as the [agency’s] decision not to supplement ... was not “arbitrary or capricious,” it should not be set aside.
Id. at 377, 109 S.Ct. at 1861 (footnote and citations omitted).
The Court then turned to an analysis of whether the decision was arbitrary or capricious:
[T]he reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” This inquiry must “be searching and careful,” but “the ultimate standard of review is a narrow one.” When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.
Id. at 378, 109 S.Ct. at 1861 (citation omitted).
The plaintiffs have simply failed to present anything that would justify a conclusion by this court that the agency decision in question was arbitrary and capricious. The district court concluded as follows:
The Court has reviewed the administrative record in this case. The record contains several hundred pages of government documents addressing specifically the question of whether a supplemental EIS is necessary. The determination contains a detañed evaluation of añ the claims raised by Plaintiffs in this lawsuit. The record indicates that Plaintiffs raised each of their claims with Defendants during the administrative process, that each claim was carefully considered, and that each claim was rejected on its merits. The record indicates that Defendants’ evaluation was far from the cursory and arbitrary process Plaintiffs claim it to be. For each of Plaintiffs’ claims, there are at least ten pages, and in most cases twenty to thirty pages, of detañed scientific study by neutral professionals and explanation of why Defendants made the substantive decisions they did. The record reveals a decisionmaking process that was not merely adequate, but exemplary. On such a record, the Court cannot find that Defendants’ determination not to supplement the EIS to be arbitrary and capricious or a violation of law.
Sierra Club, 915 F.Supp. at 1395-96. Unlike the Marsh plaintiffs, the plaintiffs here have not even pointed to any conflicting expert views. We find it noteworthy that their assertions are not supported by any citations to the record, either with regard to the actuality of the adverse effects or with regard to the treatment in the reevaluation. They have, instead, simply set forth their unsupported views about the effect of various factors. Whfie they contend that these effects were not “adequately” taken into account, they do not dispute that they were in fact considered and addressed by the defendants. In short, the plaintiffs believe that the defendants reached the wrong conclusion. That, it is plain, is not the type of argument that allows a court to conclude that an agency’s decision was arbitrary and capricious.
D.
The plaintiffs argued below that the Secretary of Transportation failed to determine whether there were feasible prudent alternatives before taking certain properties required for this Project that are known as so-called § 4(f) properties. Section 4(f) property is a “public park, recreation area, or wüdlife and waterfowl refuge of national, State, or local significance, ... or any land from an historic site of national, State, or local significance.” 23 U.S.C. § 138. Part of the plaintiffs’ claims in this regard related to the initial determination ratified in the 1984 ROD that there was no feasible and prudent alternative to taking the wetlands and other § 4(f) properties affected by the Project. The district court concluded that these claims were time-barred. See Sierra Club, 915 F.Supp. at 1396. The plaintiffs also argued, however, that in conducting the subsequent reevaluation, the defendants erroneously decided in 1995 that no new § 4(f) sites were involved. On appeal, the plaintiffs claim that dozens of § 4(f) properties were simply ignored in the reevaluation process, contrary to the district court’s finding.
Once again, our treatment of this argument is determined by our earlier conclusion regarding the applicable statute of limitations. There has been no change to the plan for the Parkway since the time of the initial EIS. Thus, nothing new occurred affecting § 4(f) properties in the period between the 1984 EIS and the 1995 reevaluation. The plaintiffs’ arguments, therefore — even though ostensibly predicated on flaws in the reevaluation — are simply an attempt at a second bite at the apple.
Equally important, however, is the fact that the plaintiffs have simply given this court nothing to work with in evaluating their claimed error. Federal statutes provide as follows with respect to so-called § 4(f) properties:
(a) It is the policy of the United States Government that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.
(c) The Secretary may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife or waterfowl refuse of national, State, or local significance, or land of an historic site of national, State, or local significance ... only if—
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
49 U.S.C. § 303; see also 23 U.S.C. § 138. This court has held that in reviewing § 4(f) decisions, a court should affirm a decision if it concludes “ ‘that the Secretary could have reasonably believed that in [the] case there are no feasible alternatives or that alternatives do involve unique problems.’” Communities, Inc., 956 F.2d at 624 (citation omitted). It is, further, the responsibility of the plaintiffs to propose cognizable alternatives that would not use § 4(f) resources. See id. at 625.
The plaintiffs’ one-page argument contains no citations to the record purporting to illustrate the alleged adverse effect on the properties, nor does it demonstrate the alleged failure to evaluate. The district court concluded that all of the plaintiffs’ arguments were considered and fully addressed by the agency — and, once again, our review of the agency’s action is limited to a determination whether the agency acted arbitrarily, capriciously, or otherwise not in accordance with the law. See id. at 623. The plaintiffs, however, do not contest the defendants’ assertion that the properties that concern the plaintiffs are simply not affected by the Project. Indeed, the plaintiffs never even bother to specify which sites they believe are § 4(f) properties, apparently anticipating that this court will comb through the plaintiffs’ lower court arguments and constructively apply them on appeal. In short, once again, the plaintiffs have fallen far short of demonstrating that the defendants’ decisions were arbitrary and capricious.
E.
As alluded to previously, the Army Corps of Engineers determined at an early planning stage that a special wetlands permit was not required for the Project, but later changed its position following a change in the legal definition of wetlands. The City then applied for a special § 404 permit, pursuant to 33 U.S.C. § 1344(a), which was approved in 1992. On appeal, the plaintiffs renew five objections, raised below, to the adequacy of the § 404 application and approval process.
1.
The plaintiffs’ first contention is that the Corps should have prepared an EIS in connection with the § 404 permit process, and that the district court erroneously concluded that the Environmental Assessment/Finding of No Significant Impact, or EA/FONSI, prepared by the Corps complied with § 404. The plaintiffs assert that the EA/FONSI in fact “listed a litany of adverse effects” that would result from the Project.
The necessity for preparing an EIS is a decision that is the responsibility of the agency in question. See Park County, 817 F.2d at 621. The applicable regulations require that, “[i]n determining whether to prepare an environmental impact statement!,] the Federal agency shall ... prepare an environmental assessment.” 40 C.F.R. § 1501.4(b)-(c); see Sierra Club, 857 F.2d at 1312. Thus, agencies first prepare an “environmental assessment” (EA) in order to determine whether the project’s effect on the environment will be significant enough to warrant a more detailed “environmental impact statement.” 40 C.F.R. § 1501.4(b)-(c). If the agency decides that an environmental impact statement is unnecessary, then it prepares a “finding of no significant impact,” or FONSI. 40 C.F.R. § 1501.4(e). ‘“An EA allows the agency to consider environmental concerns, while reserving agency resources to prepare full EIS’s for appropriate cases. If a finding of no significant impact is made after analyzing the EA, then preparation of an EIS is unnecessary.’ ” Park County, 817 F.2d at 621 (quoting Sierra Club v. United States Dep’t of Transp., 753 F.2d 120, 126 (D.C.Cir.1985)). This court will overturn an agency decision not to issue an environmental impact statement only if it is found to be arbitrary, capricious, or an abuse of discretion. See Crounse Corp. v. ICC, 781 F.2d 1176, 1193 (6th Cir.1986).
The district court rejected the plaintiffs’ § 404 argument, as follows:
[T]he Court in this case ... faces a situation in which the administrative record reveals that the federal agency conducted a detailed survey of the potentially affected areas, considered the impact of the planned project, and determined that there would be no significant adverse effects on the environment. Plaintiffs misrepresent the Statement of Findings produced by the Corps to the extent that they claim it contains several findings of “substantial adverse impacts.” When read in context, the phrases quoted by Plaintiffs ... prove to refer to either (a) temporary impacts during the construction phase of the Project only, or (b) effects that would occur in the absence of mitigation efforts. Every reference to adverse impacts concludes with the determination that there are no substantial long-term detrimental impacts from the Project.
Sierra Club, 915 F.Supp. at 1398-99.
On appeal, the plaintiffs have wholly failed to acknowledge the observations of the district court that the Corps conducted a detailed survey, considered the impact of the Project, and determined that there would be no significant adverse effects. Their claim that the Corps in fact found multiple adverse effects likewise ignores the district court’s observation that the language they point to is taken out of context, and refers either to temporary effects only, or to effects that would occur in the absence of a mitigation plan. In sum, the plaintiffs have failed to demonstrate arbitrary or capricious action on the part of the agency.
2.
The plaintiffs next contend that the Corps improperly failed to give the Advisory Council on Historic Preservation, or the ACHP, an opportunity to review and comment on its conclusion of “no adverse effect” on historic properties. In response, the defendants point out that the district court found that the FHWA submitted its own “no adverse impact” findings to the ACHP, and that those findings were identical to the findings of the Corps. Although the plaintiffs grudgingly concede that the findings of the two entities “may have been similar,” they maintain, without elaboration, that the FHWA’s record “was not at all similar to the record that would have been submitted by the Corps” if the Corps had complied with its obligation to compile and submit a record.
The NHPA requires that
[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register ... [and] afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f. The regulations of the Corps provide that “[i]n processing a permit application, the district engineer will generally accept ... the Federal agency’s or Federal lead agency’s compliance with the requirements of the NHPA.” 33 C.F.R. pt. 325, app. C2(c).
The plaintiffs do not dispute that the ACHP was fully apprised of the FHWA findings regarding historic properties; that the FHWA findings were identical to those of the Corps; and that the ACHP concurred in the no-adverse-effect finding. The regulations of the Corps make clear, as the defendants argue, that it is entitled to rely on the lead agency — here, the FHWA — in complying with the NHPA requirements. In short, we conclude, the plaintiffs simply fail to articulate any recognizable error here.
3.
The plaintiffs next contend that the § 404 permit was invalid because the Corps did not previously prepare a final, detailed mitigation implementation plan, as opposed to mitigation goals. They appear to contend that the goals formulated here were too vague and general to suffice.
As both the defendants and the district court have observed, however, numerous cases have held that it is not necessary to have a final, detailed mitigation plan prior to approval of a § 404 permit; instead, a permit conditioned on future implementation of a mitigation plan complies with the dictates of the Clean Water Act. See Preserve Endangered Areas of Cobb’s History, Inc. v. United States Army Corps of Eng’rs, 87 F.3d 1242, 1248 (11th Cir.1996); National Wildlife Fed’n v. Whistler, 27 F.3d 1341, 1343, 1346 (8th Cir.1994); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1528-29 (10th Cir.1992); Friends of the Earth v. Hintz, 800 F.2d 822, 825-26, 836-37 (9th Cir.1986). And the plaintiffs are simply incorrect when they assert that the § 404 permit was predicated merely on vague mitigation goals rather than on a sufficiently detailed plan; the mitigation plan relied on by the Corps here, was, in fact, quite specific. Again, therefore, we reject the plaintiffs’ argument.
4.
Next, the plaintiffs contend that the Corps failed to adequately consider alternatives to the Project. In particular, they assert, the Corps should not have rejected an alternative proposed by the plaintiffs that involved improvements to Summit Street.
Applicable regulations provide that the Corps may not issue a § 404 permit if “there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). The definition of “practicable” allows the taking into consideration of “overall project purposes.” Id. at § 230.10(a)(2)
The district court rejected the plaintiffs’ argument on this score, writing as follows:
Plaintiffs’ next objection is that ODOT failed to show that no practical alternatives to the proposed roadway existed. This objection lacks merit. While Plaintiffs may disagree with Defendants’ substantive determination that there were no practical alternatives to the proposed roadway, the administrative record indicates that several alternatives were proposed, weighed, and rejected on the merits. The administrative record on this one issue is lengthy, detailed, and exhibits a careful evaluation on the part of Defendants. The Court cannot hold ODOT’s determination that no practical alternatives to the proposed roadway existed to be arbitrary.
Sierra Club, 915 F.Supp. at 1398. We conclude that the plaintiffs’ argument is, once again, flawed due to their failure to refute, or even address, the district court’s observation that the Summit Street alternative, along with others, was proposed, weighed, and rejected on the ground that it was impracticable given the Project’s overall purpose. This type of rejection is not arbitrary and capricious.
5.
Finally, the plaintiffs contend that the § 404 public notice failed to mention a required Ohio EPA water quality certification, and that this failure was fatal to the permit. They offer basically no explanation of their position. The defendants contend that the failure to include a citation to water quality certification was harmless error because the Ohio EPA had been aware since 1989 that its certification would be requested. Because the notice requirement was functionally satisfied, there is no basis for reversal.
The plaintiffs are correct that regulations require that the Corps refer, in its public notice, to a requirement that the Project receive water quality certification from the relevant state agency. See 33 C.F.R. § 325.3(a)(8). The purpose of the certification is to notify the state agency—here, Ohio EPA—of the need for its certification. In addressing and rejecting the plaintiffs’ argument below, however, the district court noted the absence of any prejudice resulting from the apparent failure here:
[T]he Corps failed to refer in their public notice to the requirement that the Project receive water quality certification from OEPA, such reference being required by 33 C.F.R. § 325.3(a)(8). The Defendants concede that the required reference was omitted from the notice, but argue that the error was harmless, since OEPA in fact received notice that its certification would be requested____ [Thus, t]his notice requirement to OEPA was functionally satisfied. Plaintiffs have suggested no credible reason why omission of the reference to OEPA would affect the public’s review of the proposal, or in any way change the comments made by them to the Corps. Therefore, the Court finds this omission to be harmless error.
Sierra Club, 915 F.Supp. at 1397-98.
As the district court correctly recognized, this court applies a harmless-error rule to APA cases, such that a mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis for reversing an agency’s determination. See Blackman v. Busey, 938 F.2d 659, 664 (6th Cir.1991). We find the plaintiffs’ argument to be, at best, nitpicking. There is no question that the Ohio EPA was aware of the need for certification, and that it in fact waived the certification requirement. The plaintiffs fail to show any prejudice resulting from the technical failure to comply with the regulation.
F.
Finally, the plaintiffs advance three arguments concerning the district court’s disposition of various discovery and procedural disputes. These remaining arguments may be dealt with in summary fashion.
1.
The plaintiffs deposed Bernard Leite, the Director of Public Service for Toledo, on September 18, 1995. Approximately ten days later, the plaintiffs filed a notice for the taking of additional deposition testimony irom Leite; two weeks after that, they filed yet another notice to depose Leite, along with another individual. At this point, the defendants filed motions contending that the taking of depositions was inappropriate, on the ground that judicial review should be limited to the administrative record. The district court then issued a ruling allowing depositions only by leave of court. On appeal, the plaintiffs contend, with virtually no explanation, that the court “acted prejudicially and unlawfully” in not allowing the Leite deposition to proceed, given that it had already begun.
This court reviews a district court’s decision with respect to discovery matters using an abuse of discretion standard. See Theunissen v. Matthews, 935 F.2d 1454, 1465 (6th Cir.1991). While this court has held that “‘summary judgment should not ordinarily be granted before discovery has been completed.’” Smith v. Freland, 954 F.2d 343, 348 (6th Cir.1992) (citation omitted), a plaintiff complaining that a district court granted summary judgment without allowing adequate discovery must, at a minimum, be able to show that he could obtain information through discovery that would disclose material facts, see Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir.1989). Here, the plaintiffs have failed to make the slightest effort to explain what information they hoped to be able to uncover during the Leite deposition, or how the deposition would have aided their opposition to summary judgment. Without this type of explanation, we are simply unable to conclude that the district court’s limitations on the discovery process constituted an abuse of discretion.
2.
The plaintiffs filed a motion below requesting that the district court supplement the administrative record with other records related to the Project. In ruling on the motion, the district court noted that the plaintiffs “ha[d] provided a proffer of exhibits containing most of the items Plaintiffs seek to have admitted.” Sierra Club, 915 F.Supp. at 1387-88. The defendants objected to supplementation on the ground that “the items proffered by Plaintiffs are not properly part of the record, and are irrelevant to the Court’s review of the agencies’ determinations,” and that supplementation “w[ould] serve only to delay resolution of the case.” Id. at 1388. The district court nonetheless granted the plaintiffs’ motion in part, limiting supplementation to the items that had already been proffered:
The Court finds that the equities in this case favor granting Plaintiffs’ motion to supplement the record as to the items contained in Plaintiffs’ proffer, and denying Plaintiffs’ motion to supplement as to all other items. The items already submitted on the record cause no harm and may be helpful to the Court. Defendants will incur no additional cost or delay, because the items have already been provided by Plaintiffs. Because the case is being tried to the Court, the Defendants need not worry that a jury will misuse the evidence ____
The equities balance differently as to all other items requested by Plaintiffs. An order to supplement with any items not yet in the record could cause cost and delay to Defendants. Plaintiffs have not made a sufficient showing of “bad faith or improper behavior” as to justify such an affirmative order. Supplementation with those items will not be ordered.
Id. (citation omitted).
The plaintiffs now assert that “[s]pace prohibits detailing the supplementations sought,” but contend that “[a] reviewing court may consider evidence outside the record.” With no further argument, and no attempt to address the district court’s reasoning, they conclude that, therefore, supplementation was wrongly denied.
The APA requires courts to “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. As a general matter, “courts confine their review to the ‘administrative record,’” which “includes all materials ‘compiled’ by the agency[ ] that were ‘before the agency at the time the decision was made.’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996) (citations omitted), cert. denied, - U.S. -, 117 S.Ct. 737, 136 L.Ed.2d 676 (1997). Several reasons justify supplementation of the administrative record, such as when an agency deliberately or negligently excludes certain documents, or when the court needs certain “ ‘background information’ in order to determine whether the agency considered all of the relevant factors.” Id. (citation omitted); see United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1428 (6th Cir.1991). Courts have suggested that in order to justify supplementation, a plaintiff must make a “ ‘strong showing’ of bad faith.” James Madison, 82 F.3d at 1095.
While this court has not addressed the issue, other courts have held that “a district court’s refusal to supplement the administrative record” is akin to “a district court’s denial of discovery.” Id. The decision is, accordingly, reviewed on appeal for an abuse of discretion. See id. Here, the plaintiffs have failed to point to a single factor that would suggest the administrative record was inadequate for an assessment of their claims. They have not, therefore, demonstrated that the district court’s decision was an abuse of discretion.
3.
After concluding its exhaustive analysis leading to a grant of summary judgment on behalf of the defendants, the district court noted that “[a]ll other currently pending motions,” which included the plaintiffs’ motion for summary judgment, would be “denied as moot.” Sierra Club, 915 F.Supp. at 1399. We are now left with the plaintiffs’ final argument, that their motion for summary judgment was not moot. As best as we can understand, the plaintiffs contend that because they sought summary judgment based on information developed during the course of this litigation and because the motion was “timely filed,” therefore, the district court should have addressed the motion on the merits. It is quite evident, however, that the district court could not have granted summary judgment both to the defendants and to the plaintiffs. Since it concluded that the defendants were entitled to summary judgment, therefore, the plaintiffs’ motion for summary judgment no longer presented a justiciable controversy. In other words, it was moot.
III.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1875, Costs: 0.075
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BLOCK, District Judge
Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED.
The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.
Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED .
The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.
In National Mining Association v. Zinke , 877 F.3d 845 (9th Cir. 2017), we upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. That withdrawal did not extinguish "valid existing rights." In these consolidated appeals, we consider challenges by the Havasupai Tribe ("the Tribe") and three environmental groups-Grand Canyon Trust, Center for Biological Diversity and Sierra Club (collectively, "the Trust")-to the determination of the United States Forest Service (the "Forest Service") that Energy Fuels Resources (USA), Inc., and EFR Arizona Strip LLC (collectively, "Energy Fuels") had a valid existing right to operate a uranium mine on land within the withdrawal area. As elaborated below, we affirm, with one exception, the district court's order rejecting those challenges.
I
Much of what we said in National Mining Association concerning the history of uranium mining in the area and the Secretary's withdrawal decision is also relevant here. To that we add some additional background regarding the particular mine at issue in this case.
Grand Canyon National Park is bordered to the north and south by the Kaibab National Forest. The southern portion of the forest-which is included in the withdrawal area-contains Red Butte, a site of religious and cultural significance to the Tribe.
In 1988, the Forest Service approved a plan to build and operate what became known as Canyon Mine, a 17.4-acre uranium mine in the area around Red Butte. During the approval process, the Forest Service prepared an Environmental Impact Statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"). NEPA requires an EIS for any "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
At that time, the Forest Service also addressed the mine's impact under the National Historic Preservation Act of 1966 ("NHPA"). Section 106 of the NHPA requires federal agencies, prior to issuing a license for any "undertaking," to "take into account the effect of the undertaking on any [historic property]." Pub. L. No. 89-665, § 106 (codified, as amended, at 54 U.S.C. § 306108 ). Historic property is defined as "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register." 54 U.S.C. § 300308.
Based on its review, the Forest Service required mitigation measures to minimize the impact on possible relics buried on the site of the mine. The review did not include nearby Red Butte because that site was not eligible for inclusion on the National Register until 1992. See National Historical Preservation Act Amendments of 1992, Pub. L. No. 102-575, tit. XL, § 4006 (making "[p]roperties of traditional religious and cultural importance to an Indian tribe" eligible for inclusion on the National Register). The EIS, however, did address the tribal religious significance of Red Butte.
The Tribe sought judicial review, but both the district court and this Court rejected the challenge. See Havasupai Tribe v. United States , 752 F.Supp. 1471 (D. Ariz. 1990), aff'd sub nom. Havasupai Tribe v. Robertson , 943 F.2d 32 (9th Cir. 1991), cert. denied , 503 U.S. 959, 112 S.Ct. 1559, 118 L.Ed.2d 207 (1992). The mine operator built surface facilities and sank the first fifty feet of a 1,400-foot shaft, but placed the mine on "standby" status in 1992 due to the unfavorable conditions in the uranium market that we described in National Mining Association .
As noted, the Secretary's withdrawal decision was "subject to valid existing rights." 77 Fed. Reg. 2563 (Jan. 18, 2012). A few months before the decision became final, Energy Fuels-which had become Canyon Mine's owner-notified the Forest Service that it intended to return the mine to active operations. At the Service's request, Energy Fuels agreed not to resume sinking the mineshaft pending review of its claim of existing rights.
On April 18, 2012, the Forest Service issued a "Mineral Report." It found that Energy Fuels' predecessors-in-interest had "located" mining claims at the site in 1978 and "discovered" uranium ore there between 1978 and 1982. It further found that there were 84,207 tons of uranium ore on the site, and that "under present economic conditions, the uranium deposit on the claims could be mined, removed, transported, milled and marketed at a profit." Based on those findings, the Forest Service concluded that Energy Fuel had "valid existing rights that were established prior to the mineral withdrawal."
The Forest Service also reviewed its 1988 decision, including its EIS and the mine's approved plan of operations ("PoO"), "for any changes in laws, policies or regulations that might require additional federal actions to be taken before operations resume." In a "Mine Review" dated June 25, 2012, it concluded that the existing PoO was "still in effect and no amendment or modification to the PoO is required before Canyon Mine resumes operations under the approved PoO." It further concluded that "[n]o new federal action subject to further NEPA analysis is required for resumption of operations of the Canyon Mine."
With respect to historic preservation, the Mine Review concluded that "there will be no new federal undertakings subject to NHPA Section 106 compliance." It noted, however, that Red Butte had become eligible for inclusion on the National Register, and opined that the site "could be considered a newly 'discovered' historic property." Applying the regulation applicable to such discoveries, 36 C.F.R. § 800.13(b)(3), the Forest Service immediately contacted the Tribe to "enter into government-to-government consultation" to "develop 'actions' to resolve or minimize the adverse effects" on Red Butte. In response, the Tribe insisted on a revised PoO, a supplemental EIS and a full consultation under section 106 of the NHPA. The Forest Service and the Tribe continued to correspond, but never settled on a specific plan of action. The Mine Review alludes to the likely reason: "Tribes have commented that most anticipated impacts, including the most serious impacts, cannot be mitigated if uranium mining is conducted at the Canyon Mine site."
Consultation with the Tribe ended in March 2013, when the Tribe and the Trust jointly filed suit against the Forest Service in the district court. Energy Fuels intervened as a defendant.
As amended, the complaint asserted four claims under the Administrative Procedure Act ("APA"):
1. the Forest Service's determination that Energy Fuels had valid existing rights to operate the Canyon Mine notwithstanding the January 2012 withdrawal was a "major federal action significantly affecting the environment," and, therefore, the service violated the NEPA by not preparing an EIS in connection with its determination;
2. the Forest Service's determination was an "undertaking," and, therefore, the service violated the NHPA by not conducting a full consultation under section 106 in connection with its determination;
3. alternatively, the Forest Service violated the NHPA by not properly updating its original section 106 analysis to account for the impact on Red Butte; and
4. the Forest Service violated several federal laws by failing to take various costs into account in its determination that Canyon Mine could be operated at a profit.
As relief, the plaintiffs sought a declaration that the Forest Service was acting in violation of the NEPA, the NHPA and other laws; an order setting aside any "approvals or authorizations" for operations at Canyon Mine; and an injunction prohibiting "any further uranium exploration or mining-related activities at the Canyon Mine unless and until the Forest Service fully complies with all applicable laws."
The parties cross-moved for summary judgment. In an order dated April 7, 2015, the district court held (1) that the plaintiffs had Article III standing, (2) that the plaintiffs lacked prudential standing with respect to their fourth claim, and (3) that the Mineral Report-which the district court referred to as the "VER [Valid Existing Rights] Determination"-was a final agency action subject to review under the APA. See Grand Canyon Tr. v. Williams , 98 F.Supp.3d 1044, 1055-61 (D. Ariz. 2015). Turning to the merits, the district court held (1) that the Mineral Report was not a "major federal action" requiring an EIS under the NEPA; (2) that the report was not an "undertaking" requiring a full section 106 consultation under the NHPA; (3) that the Forest Service's decision to consider the effect on Red Butte under 36 C.F.R. § 800.13(b)(3) was reasonable; and (4) that the Forest Service had complied with that regulation. See id. at 1062-73.
Both the Tribe and the Trust timely appealed.
II
The Forest Service argues that we lack jurisdiction because its determination that Energy Fuels has valid existing rights was not a final agency action. See Ukiah Valley Med. Ctr. v. FTC , 911 F.2d 261, 266 (9th Cir. 1990) (" '[F]inal agency action' is a jurisdictional requirement imposed by [ 5 U.S.C. § 704 ]."). We review this threshold issue de novo. See Minard Run Oil Co. v. U.S. Forest Serv. , 670 F.3d 236, 247 (3d Cir. 2011).
" '[A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act[.]" 5 U.S.C. § 551(13). "[R]elief," in turn, includes the "recognition of a claim, right, immunity, privilege, exemption, or exception." Id. § 551(11)(B).
The Forest Service claims that it has no authority to recognize mining rights, and that the Mineral Report represents only the agency's "opinion" as to their validity. But whether or not the Mineral Report was legally required, it was prepared. Its conclusion that Energy Fuels had valid existing rights at the time of the withdrawal falls within the plain meaning of "recognition of a claim."
We further conclude that the Mineral Report was final. "As a general matter, two conditions must be satisfied for agency action to be 'final[.]' " Bennett v. Spear , 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). "First, the action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature." Id. at 177-78, 117 S.Ct. 1154 (citation and internal quotation marks omitted). It is true that the final decision to contest a claim of existing rights rests with the Department of the Interior's Bureau of Land Management ("BLM"). See Best v. Humboldt Placer Mining Co. , 371 U.S. 334, 336, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). If, however, the Forest Service finds a claim is valid, nothing else happens. The district court sensibly described that outcome as "the Forest Service's 'last word' on the validity of the Canyon Mine mineral rights," Grand Canyon Tr. v. Williams , 38 F.Supp.3d 1073, 1078 (D. Ariz. 2014), and we agree with that description.
In addition, to be final, "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett , 520 U.S. at 178, 117 S.Ct. 1154 (internal quotation marks omitted). Rights to a mineral deposit on public land are not conferred by agency action; they are acquired by the miner's own actions of location and discovery. See American Law of Mining § 4.11 (2d ed. 1997) ("[The prospector] may seek 'valuable minerals' and, if he finds them, may initiate a vested right without the approval of anyone else, including representatives of the government that owns the land."). Nevertheless, the Mineral Report determined that such rights existed with respect to Canyon Mine, and that is all Bennett requires.
We have observed that "courts consider whether the practical effects of an agency's decision make it a final agency action, regardless of how it is labeled." Columbia Riverkeeper v. U.S. Coast Guard , 761 F.3d 1084, 1094-95 (9th Cir. 2014). We therefore focus on both the "practical and legal effects of the agency action," and define the finality requirement "in a pragmatic and flexible manner." Or. Nat. Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 982 (9th Cir. 2006) (citations omitted). We agree with the district court's assessment that the Mineral Report was a practical requirement to the continued operation of Canyon Mine because "the Forest Service, Energy Fuels, and interested tribes all understood that mine operations would not resume until the VER Determination was completed." Grand Canyon Tr. , 38 F.Supp.3d at 1079.
III
The challenges to the merits of the district court's judgment raise three issues: (A) Was the Mineral Report a "major federal action" under the NEPA? (B) Did the Mineral Report approve an "undertaking" under the NHPA? (C) Did the Trust fall within the zone of interests of either the Federal Land Policy and Management Act of 1976 ("FLPMA") or the General Mining Act of 1872 ("Mining Act")? Our review of each question is de novo. See N. Cheyenne Tribe v. Norton , 503 F.3d 836, 845 (9th Cir. 2007) (compliance with NEPA and NHPA on summary judgment); Mills v. United States , 742 F.3d 400, 406 (9th Cir. 2014) (zone of interests).
A. NEPA
We have held that "where a proposed federal action would not change the status quo, an EIS is not necessary." Upper Snake River Chapter of Trout Unlimited v. Hodel , 921 F.2d 232, 235 (9th Cir. 1990). Nor is an EIS necessary to "discuss the environmental effects of mere continued operation of a facility." Burbank Anti-Noise Grp. v. Goldschmidt , 623 F.2d 115, 116 (9th Cir. 1980). We applied those general principles in Center for Biological Diversity v. Salazar , 706 F.3d 1085 (9th Cir. 2013) (" CBD ").
At issue in CBD was the resumption of mining at a uranium mine, "after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988." 706 F.3d at 1088. We held that "no regulation requires approval of a new plan of operations before regular mining activities may recommence following a temporary closure." Id. at 1093. We further held that the original approval of the plan was a major federal action, but that "that action [wa]s completed when the plan [wa]s approved." Id. at 1095 (quoting, with alterations, Norton v. S. Utah Wilderness All. , 542 U.S. 55, 73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ). By contrast, in Pit River Tribe v. United States Forest Service , 469 F.3d 768 (9th Cir. 2006), we held that a lease extension was a major federal action that altered the status quo because without it, the lessee would not have been able to continue operating a power plant on the leased property. See id. at 784.
The district court correctly held that CBD , not Pit River , governs this case. As in CBD , the original approval of the plan of operations was a major federal action. And as in CBD , that action was complete when the plan was approved. Unlike Pit River , resumed operation of Canyon Mine did not require any additional government action. Therefore, the EIS prepared in 1988 satisfied the NEPA.
B. NHPA
As we explained, the NHPA requires consultation pursuant to section 106 prior to any "undertaking."
54 U.S.C. § 306108. As pertinent here, " 'undertaking' means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including ... those requiring a Federal permit, license, or approval[.]" Id. § 300320(3). Here, too, we agree with the district court that the Mineral Report did not "permit, license, or approv[e]" resumed operations at Canyon Mine; it simply acknowledged the continued vitality of the original approval of the PoO. Just as that approval was the only "major federal action" requiring an EIS under the NEPA, it was the only "undertaking" requiring consultation under the NHPA.
The Tribe concedes that the approval process in 1986 included the necessary consultation, and that the cultural and religious impacts on Red Butte were not included because they were not required to be at that time. It argues, however, that the NHPA imposes a continuing obligation on federal agencies to address the impact on historic property at any stage of an undertaking.
The statutory definition of "undertaking" dates from 1992. Prior to that, it was defined by the Advisory Council on Historic Preservation ("ACHP"), the agency charged with implementing the NHPA, to include "continuing projects, activities, or programs and any of their elements not previously considered under section 106." 36 C.F.R. § 800.2(o) (1991). But that definition was superseded by 54 U.S.C. § 300320(3), which omits the reference to continuing projects. The regulatory definition now conforms to the statutory definition. See 36 C.F.R. § 800.16(y). We therefore disagree with the Tribe that the current definition of "undertaking" encompasses a continuing obligation to evaluate previously approved projects.
Although continuing obligations have been removed from the definition of "undertaking," they remain in 36 C.F.R. § 800.13(b) :
If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process ..., the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties and:
(1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve adverse effects pursuant to § 800.6; or ...
(3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve adverse effects, and notify the [state or tribal historical office], any Indian tribe ... that might attach religious and cultural significance to the affected property, and the [Advisory Council on Historic Preservation] within 48 hours of the discovery. The notification shall describe the agency official's assessment of National Register eligibility of the property and proposed actions to resolve the adverse effects. The ... Indian tribe ... and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out appropriate actions. The agency official shall provide the ... Indian tribe ... and the Council a report of the actions when they are completed.
As noted, the Forest Service concluded that this regulation applied to Canyon Mine. It further concluded that subsection (3) applied because construction had begun in the early 1990s, although it acknowledged that the 20-year hiatus presented a "somewhat unusual situation."
The Tribe objects that Red Butte was not a newly discovered historic property-and that the effect of operating a uranium mine near it was not unanticipated-because it had informed the Forest Service of the religious and cultural significance of this site decades earlier. While that is true, the Tribe does not dispute that Red Butte was not a "historic property" eligible for inclusion on the National Register until 2010. As a result, the NHPA did not obligate the Forest Service to take the site into account when it conducted a full section 106 consultation in 1986. And while we agree that eligibility for inclusion on the National Register is not exactly a "discovery," there is no other regulation requiring an agency to consider the impact on newly eligible sites after an undertaking is approved. In other words, by invoking § 800.13(b), the Forest Service may have given the Tribe more than it was entitled to demand.
The Tribe further argues that if § 800.13(b) applies, the Forest Service should have proceeded under § 800.13(b)(1), instead of § 800.13(b)(3). In sum, the agency must engage in a full section 106 consultation if it "has not [yet] approved the undertaking or if construction on an approved undertaking has not [yet] commenced." 36 C.F.R. § 800.13(b)(1). If, however, the agency "has approved the undertaking and construction has commenced," it can engage in a simplified process to "determine actions that the agency official can take to resolve adverse effects." Id. § 800.13(b)(3).
Canyon Mine fits squarely within the scope of subsection (3). The mine was approved in 1988, and construction of the surface facilities began shortly thereafter. The Tribe argues that subsection (3) was intended to address emergency situations, but there is no express limitation to such situations.
Finally, the Tribe briefly argues that the Forest Service did not comply with § 800.13(b)(3). Having reviewed the record, we conclude that the Forest Service made a good-faith effort to ascertain steps it could take to resolve the possible adverse effects of mining on Red Butte. If that effort was not successful, it is because the Tribe insisted on a full consultation under section 106, which was not legally required, and a complete ban on mining around Red Butte, which the Forest Service lacks the authority to impose.
C. FLPMA and Mining Act
The plaintiffs' fourth claim, advanced by the Trust, challenged the merits of the Forest Service's conclusion that Energy Fuels had valid existing rights predating the withdrawal because its predecessors-in-interest had discovered a deposit of uranium ore that could be "mined, removed, transported, milled and marketed at a profit." The district court did not address this claim, instead holding that the Trust lacked prudential standing to make it. See Grand Canyon Tr. , 98 F.Supp.3d at 1058-60.
"[A] person suing under the APA must satisfy not only Article III's standing requirements, but an additional test: The interest he asserts must be arguably within the zone of interests to be protected or regulated by the statute that he says was violated." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 224, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (internal quotation marks omitted). We agree with the district court that the Trust's fourth claim falls outside the Mining Act's zone of interests. See Grand Canyon Tr. , 98 F.Supp.3d at 1059 (explaining that the Mining Act's obvious intent was "to reward and encourage the discovery of minerals that are valuable in an economic sense," and that the Trust's interests are environmental and historical, but not economic).
However, the Trust also argued that the Forest Service's VER determination violated the FLPMA. The district court did not address the FLPMA's zone of interests in its analysis, concluding that "the sections of the [FLPMA] to which Plaintiffs cite do not relate to validity determinations or mineral examinations.... and do not provide the Court with any relevant law to apply in deciding claim four." Id. at 1059 n.8. It is true, of course, that the plaintiff must fall within the zone of interests of the "statutory provision whose violation forms the legal basis of his complaint." Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, we conclude that the FLPMA, and not the Mining Act, forms the legal basis of the Trust's fourth claim.
We described the FLPMA at length in National Mining Association . See 877 F.3d at 845. Relevant here, the FLPMA confers on the Secretary authority to withdraw federal lands for specified purposes, 43 U.S.C. § 1701(a)(4), but makes that authority "subject to valid existing rights." Pub. L. 94-579, § 701(h), 90 Stat. 2743, 2786 (1976). Thus, the VER determination that the Trust challenges in this case was made to decide whether Canyon Mine would be subject to a withdrawal made pursuant to the FLPMA.
Here, the Forest Service looked to the Mining Act to make its VER determination. However, that does not conclusively establish that the Mining Act, and not the FLPMA, forms the "legal basis" of the Trust's fourth claim. Had Energy Fuels claimed rights of a different nature, the Forest Service would have consulted a different statutory scheme, but it still would have made a VER determination. Regardless of the statute consulted, a VER determination affects whether activities on federal land can be limited under the FLPMA. See 43 U.S.C. § 1703(j) (stating that the purpose of a withdrawal is to "limit[ ] activities ... in order to maintain other public values"). That question implicates the Trust's asserted environmental concerns.
In sum, the Forest Service applied the relevant standards from the Mining Act to make its VER determination, but the Trust's claim that Canyon Mine should not be exempt from the withdrawal because the VER determination was in error remains a claim under the FLPMA. And since the Trust's claim seeks to vindicate some of the same concerns that underlie the Secretary's withdrawal authority, it falls within the statute's zone of interests. See W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 485-86 (9th Cir. 2011) (plaintiffs' environmental interests fell within the NEPA and the FLPMA's zone of interests); Desert Citizens Against Pollution v. Bisson , 231 F.3d 1172, 1179 (9th Cir. 2000) (plaintiffs' aesthetic and recreational interests fell within the FLPMA's zone of interests).
IV
With respect to the claims under the NEPA and NHPA, the judgment of the district court is AFFIRMED . With respect to the claim under the FLPMA, the judgment is VACATED and the case is REMANDED for consideration of the claim on the merits.
The district court also rejected the defendants' argument that two of the plaintiffs' claims were barred by collateral estoppel. See Grand Canyon Tr. , 98 F.Supp.3d at 1061-62. That ruling has not been challenged on appeal.
The Supreme Court recently reminded courts that "[o]nly Congress may determine a lower federal court's subject-matter jurisdiction." Hamer v. Neighborhood Hous. Servs. of Chi. , ---- U.S. ----, 138 S.Ct. 13, 17, 199 L.Ed.2d 249 (2017) (quoting Kontrick v. Ryan , 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ). Since the final agency action requirement is statutory, Hamer does not call into question its status as a jurisdictional limitation.
In the district court, the Forest Service further argued that the plaintiffs lacked Article III standing. It has not pursued that argument on appeal, but we are satisfied that the plaintiffs have suffered injuries in fact that are fairly traceable to the Service's actions and that could be redressed by a favorable judicial determination. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Continued uranium mining at Canyon Mine causes concrete injury to the Tribe's religious and cultural interests and the Trust's aesthetic and recreational interests. While the parties dispute whether continued mining required the Forest Service's approval, we must assume that it did in assessing standing. See Equity Lifestyle Props., Inc. v. Cty. of San Luis Obispo , 548 F.3d 1184, 1189 n.10 (9th Cir. 2008) ("The jurisdictional question of standing precedes, and does not require, analysis of the merits."). If the Tribe and Trust are correct that continued mining required approval, then their injuries are fairly traceable to that approval and could be redressed by setting it aside.
In a letter to the Forest Service, the ACHP opined that subsection (3) applies "where construction activities have begun and would be ongoing, and thus, the agency had limited time and opportunity for consultation." Normally, an agency's interpretation of its own ambiguous regulation is "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted). Subsection (3) is not ambiguous. Moreover, the letter was motivated by a concern that proceeding under subsection (3) "would continue the unproductive conflict between the Forest Service and the Indian tribes that consider Red Butte a sacred place." We agree with the district court that the letter "appears to be more tactical advice than an interpretation of the regulation." Grand Canyon Tr. , 98 F.Supp.3d at 1070.
As the district court's language reflects, the additional test was, until recently, described as a matter of "prudential standing." See Match-E-Be-Nash-She-Wish , 567 U.S. at 224-28, 132 S.Ct. 2199. But in Lexmark International, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), the Supreme Court called that description "misleading," id. at 125, 134 S.Ct. 1377, and "in some tension with ... the principle that a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging," id. at 126, 134 S.Ct. 1377 (internal quotation marks and citations omitted). It held that the zone-of-interests inquiry instead asks "whether a legislatively conferred cause of action encompasses a particular plaintiff's claim," id. at 127, 134 S.Ct. 1377, or, in the APA context, whether a plaintiff's interests "are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue," id. at 130, 134 S.Ct. 1377 (internal quotation marks and citations omitted).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05303030303030303, Costs: 0
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TASHIMA, Circuit Judge:
The Morongo Band of Mission Indians (“Morongo Band” or “Tribe”) petitions for review of a Record of Decision (“ROD”) of the Federal Aviation Administration (“FAA”), implementing the Los Angeles International Airport (“LAX”) East Arrival Enhancement Project (“AEP”). The Morongo Band raises claims under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, section 4(f) of the Transportation Act, 49 U.S.C. § 303(c), and various FAA regulations.
We have jurisdiction over this timely petition for review under 49 U.S.C. § 46110(a), and we deny the petition.
BACKGROUND
The Morongo Reservation is located on over 32,000 acres in Riverside County, California, approximately 90 miles east of Los Angeles. The Reservation includes canyons and undeveloped areas where tribal members conduct traditional ceremonies, as well as sites that they consider sacred for cultural and spiritual purposes.
In February 1997, the FAA began what is called the NEPA scoping process for the AEP. Pursuant to that process, the FAA sent letters to all federal and state agencies, local governments, and private organizations, including the Morongo Band, that might have an interest in the project. The letter stated that the FAA was beginning an environmental assessment of the proposed AEP, described the proposed action, and invited comments about it.
The description of the project enclosed with the letter noted that the volume of arrivals at LAX had increased and was projected to continue to grow in the future, resulting in the need to revise arrival procedures in order to ensure safety and efficiency. In particular, the system of dealing with arrivals from the east, as opposed to the north and west, was in need of change. The FAA therefore proposed to move one of the three existing arrival routes eight miles south, which, unfortunately for the Morongo Band, would cause the flight path to cross the Reservation, instead of bypassing it to the north.
The Tribe responded to the initial scoping letter with a letter detailing some of its concerns, such as the adverse impact on the Reservation of the increased air traffic (an additional 180 aircraft per day). There followed a series of letters, as well as a meeting between the FAA and an Environmental Officer of the Tribe. On June 12, 1997, the Morongo Band sent a letter proposing an alternate route designed to satisfy the AEP’s goals without crossing the Reservation. According to the FAA, the draft Environmental Assessment (“EA”) was already being printed for publication on June 18, 1997, so the Tribe’s proposal could not be included in the draft. The proposal was, however, included in the final EA.
On July 10, 1997, the FAA held a public information meeting on the AEP at the Mor-ongo Tribal Hall. On July 29, 1997, the FAA met with Thomas McCort, the Tribe’s technical consultant.
The final EA was issued on August 29, 1997, with a comment period that ran until October 3. In the EA, the FAA discussed several alternatives, including the Tribe’s proposal, but concluded that the best solution was the route that crossed the Reservation. The Morongo Band wrote a letter to the FAA asking technical questions about its own proposal and requesting another meeting before final approval of the EA. The FAA, however, decided that the Tribe had raised no new issues; therefore, on October 24, 1997, it issued a Finding of No Significant Impact (“FONSI”) and, on January 30, 1998, issued its ROD granting final approval of the EA. The FAA declined the Tribe’s request to stay the project and implemented it on March 10,1998.
STANDARD OF REVIEW
Under the Administrative Procedure Act (“APA”), an agency’s decision may be set aside if the court finds it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In determining whether an agency’s decision is arbitrary or capricious, the court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citation omitted).
Agency decisions regarding NEPA are reviewed under the arbitrary and capricious standard of the APA. Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 1158, 1183 (9th Cir.1997). The court may not substitute its judgment for that of the agency regarding environmental consequences of the agency’s actions. Id. Rather, the court must simply “ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Id. (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). Decisions regarding NHPA and the Transportation Act are similarly reviewed under the arbitrary and capricious standard. Communities, Inc. v. Busey, 956 F.2d 619, 623-24 (6th Cir.1992).
Judicial review of agency decisions is generally limited to review of the administrative record. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). The Morongo Band, however, seeks to introduce new evidence, on the basis that
in NEPA eases, the court may extend its review beyond the administrative record and permit the introduction of new evidence where the plaintiff alleges that an [Environmental Impact Statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism ... under the rug.
Id. at 526-27 (alteration in original) (internal quotations and citation omitted). “[T]he court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine the sufficiency of the agency’s consideration.” Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 760 n. 5 (9th Cir.1996) (internal quotations omitted). Thus, when the plaintiff alleges that the agency failed to take into consideration all relevant factors, the court may need to “look[ ] outside the record to determine what matters the agency should have considered but did not.” Id.
The Tribe contends that the court must apply the “usual canon of construction that a statute designed to benefit Indians must be liberally construed in favor of the Indian beneficiaries.” (Citing Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir.1994), amended on denial of reh’g, 99 F.3d 321 (9th Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).) Although Rumsey does state that “statutes benefitting Native Americans generally are construed liberally in their favor,” id., the statutes at issue in the instant case were not designed to benefit Indians. Moreover, Rumsey also states that this canon of liberal construction does not permit the court to contradict the plain words of a statute. Id.
DISCUSSION
I. United States Trust Responsibility Toward Indian Tribes
The Tribe argues that the United States bears a trust responsibility toward Indian tribes, “which, in essence, consists of acting in the interests of the tribes.” Skokomish Indian Tribe v. FERC, 121 F.3d 1303, 1308 (9th Cir.1997). It is true that agencies of the federal government owe a fiduciary responsibility to Indian tribes. Id.; Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir.1995); Covelo Indian Community v. FERC, 895 F.2d 581, 586 (9th Cir.1990); Nance v. EPA, 645 F.2d 701, 710 (9th Cir.1981). The court in Sko-komish, however, also stated that the FERC must exercise this responsibility in the context of the Federal Power Act; therefore, the agency properly declined to afford the tribe “greater rights than they otherwise have under the FPA and its implementing regulations.” 121 F.3d at 1309. Moreover, in Nance, we noted that procedures provided by the Clean Air Act and EPA regulations (such as consulting with the tribe before taking action) were sufficient to fulfill the EPA’s fiduciary responsibility. 645 F.2d at 711.
In United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), relied on by the Morongo Band, the Supreme Court held that the United States was liable for damages for the breach of its fiduciary duties in the management and operation of Indian lands and resources. Although the Court noted the general trust relationship between the United States and the Indian people, the main reasons for its conclusion' were the specific obligations placed on the government by statutes and regulations, and the fact that the government “assume[d] such elaborate control over forests and property belonging to Indians.” Id. at 225.
Thus, although the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.
II. LAX Arrival System
The FAA has established 20 Air Route Traffic Control Centers (“Centers”) throughout the United States, which are responsible for the control of aircraft during flight. Centers divide their airspace into sectors, each of which is handled by one controller. Each center delegates control over certain sectors to local terminal radar approach control facilities (“TRACONs”), which control aircraft arriving at and departing from major airports. The center is responsible for the initial sequencing of aircraft, providing adequate separation from other traffic, and then transferring control to the local TRACON.
The LA Center is responsible for airspace in parts of Arizona, Nevada, Utah, and southern California. Under the former system, planes approaching LAX from the east passed through two sectors controlled by LA Center, sectors 19 and 20. The Southern California TRACON routes traffic into and out of all major airports in southern California. It controls two LAX arrival sectors, the northern and southern sectors.
LAX has four parallel runways running east-west, grouped in pairs north and south of the terminal. The outer runways are used for arrivals and the inner ones for departures. Under the former system, aircraft arrived from the east on three routes and were merged into one stream by LA Center. LA Center then gave control of this stream to the TRACON responsible for the southern approach to LAX. The northern approach was controlled by a different TRACON and was used primarily by aircraft arriving from the north and west.
Because more planes arrive from the east and south than from the north and west, the southern approach was much busier than the northern approach. That imbalance resulted in delays in the south, as well as imbalances in the workload between the northern and southern controllers. Under the AEP, the FAA reorganized the sectors and moved Route 3, the southernmost route, renaming it Route 4. LA Center’s former sector 19 was split into new sectors 19 and 20, with new sector 20 encompassing the northern portion and new sector 19 encompassing the southern portion of the former sector 19. Route 4 is eight miles south of Route 3, allowing it to be controlled by new sector 19, landing on the southern runway, while Routes 1 and 2 now are controlled by new sector 20, landing on the northern runway. However, because Route 4 is further south than Route 3 was, it crosses the Reservation, whereas Route 3 was situated north of the Reservation. Splitting the eastern arrivals into two traffic streams equalized the air traffic controllers’ workloads and reduced delay along the southern runway.
III. NEPA Claims
NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) when they propose to undertake “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Northwest Envtl. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1535-36 (9th Cir.1997) (“NEDC”); Inland Empire, 88 F.3d at 757-58. The goals of NEPA are: “(1) to ensure the agency will have detailed information on significant environmental impacts when it makes its decision; and (2) to guarantee that this information will be available to a larger audience.” Id. at 758. NEPA is satisfied once this information is properly disclosed; thus, NEPA exists to ensure a process, not a result. NEDC, 117 F.3d at 1536; Inland Empire, 88 F.3d at 758.
The Council on Environmental Quality (“CEQ”) has promulgated regulations implementing NEPA. See 40 .C.F.R. § 1500.1. Under these regulations, an agency is required to prepare an EA in order to determine whether to prepare an EIS or a FONSI. 40 C.F.R. §§ 1501.4; 1508.9. A FONSI means the agency has determined that an action will “not have a significant effect on the human environment.” 40 C.F.R. § 1508.13. If a FONSI is made, the agency need not prepare an EIS. Id.
A. Evaluation of Alternatives
The Tribe contends that the FAA violated NEPA, a Department of Transportation (“DOT”) Environmental Justice Order, and Executive Order No. 12898 by failing to evaluate or develop alternative routes. As the FAA points out, both the Environmental Justice Order and Executive Order specifically state that they do not create any right to judicial review for alleged noncompliance. See DOT Environmental Justice Order, 62 Fed.Reg. 18377, 18378 (1997) (“The Order is an internal directive to the various components of DOT and does not create any right to judicial review for compliance or noncompliance with its provisions.”); Exec. Order No. 12898, 59 Fed.Reg. 7629, § 6-609 (1994) (“This order shall not be construed to create any right to judicial review involving the compliance or noneompliance of the United States, its agencies, its officers, or any other person with this order.”).
NEPA’s regulations require agencies to “[rjigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14. “The ‘existence of a viable but unexamined alternative renders an environmental impact statement inadequate.’ ” Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.1993) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)). An agency, however, is “entitled to identify some parameters and criteria'— related to Plan standards—for generating alternatives to which it would devote serious consideration. Without such criteria, an agency could generate countless alternatives.” Id. (quoting Mumma, 956 F.2d at 1522). The “touchstone for our inquiry is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” City of Angoon v. Hodel, 803 F.2d 1016, 1020 (9th Cir.1986) (internal quotations and citation omitted).
The FAA discussed a number of alternative routes in the EA and the ROD, including two, Alternatives 7a and 7b, that were designed to avoid the Reservation. Alternative 7a proposed moving Route 4 either further north or further south in order to avoid crossing the Reservation. The FAA stated that the definition of a new airspace sector required the new route to be at least ten nautical miles south of the existing routes. Thus, moving Route 4 any further north would have precluded the definition of, a new airspace sector, frustrating one of the main objectives of the AEP. Moving Route 4 further south would have caused the route to conflict with departures from LAX and arrivals to Ontario International Airport. Alternative 7a therefore was rejected as infeasible and as not accomplishing the project’s objectives.
Alternative 7b proposed extending Route 4 further west, thus avoiding the Reservation before turning south along the original proposed path for Route 4. This route was called Route 4b. The FAA discussed the absence of suitable navigational aids in the area, as well as the time and distance required to complete the turn, and concluded that this proposal would place Route 4b too close to the existing routes to allow the definition of a new airspace sector. This alternative therefore was also considered infeasible.
The FAA thoroughly discussed alternatives that would have bypassed the Reservation, but found them unsuitable for accomplishing the primary purpose of the project— definition of a new airspace sector. As stated in the ROD, “[t]he ability to designate one sector to control aircraft on Routes 1 and 2 and another to control aircraft on Route 4 is the key to the efficiencies sought through this project.” “An agency is required to examine only those alternatives necessary to permit a reasoned choice.” Association of Pub. Agency Customers, 126 F.3d at 1185. The agency thus fulfilled its obligation under NEPA to “[rjigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14.
The Tribe contends that the FAA arbitrarily chose the location of the new airspace sector boundary and ignored proposed alternative routes that infringe upon that boundary. In support, they submit a declaration from their expert, Thomas McCort. Although McCort states that there “appear to be” alternative routes that would fulfill the AEP’s purpose without crossing the Reservation, where an issue requires “a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.” Marsh, 490 U.S. at 377, 109 S.Ct. 1851; see also id. (“When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential.”) (quoting Baltimore Gas & Elec. Co., 462 U.S. at 103, 103 S.Ct. 2246); id. at 378, 109 S.Ct. 1851 (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”). Moreover, the Morongo Band has failed to point to a specific feasible alternative that would have bypassed the Reservation while still allowing the creation of a new sector.
Related to this issue, the parties dispute who has the burden of offering feasible alternatives. It is true that the FAA has the responsibility to “study, develop, and describe appropriate alternatives.” 42 U.S.C. § 4332(2)(E). The FAA has fulfilled that requirement, however, by developing and discussing a number of alternatives, including Alternatives 7a, 7b and 4b.
Moreover, in City of Angoon, we stated that the parties claiming a NEPA violation “had not offered a specific, detailed counter-proposal that had a chance of success. Those who challenge an EIS bear a responsibility ‘to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.’ ” 803 F.2d at 1022 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). The Seventh and Eighth Circuits have similarly implied that the burden is on the party challenging the agency action to offer feasible alternatives. See Olmsted Citizens for a Better Community v. United States, 793 F.2d 201, 209 (8th Cir.1986) (“Olmsted Citizens to succeed on its claim must make some showing that feasible alternatives exist. Absent such a showing Olmsted Citizens asks this court to presume that an adequate alternate site exists somewhere and that the government did not try hard enough to find this site (internal citations and footnote omitted); River Rd. Alliance, Inc. v. Corps of Eng’rs of United States Army, 764 F.2d 445, 452-53 (7th Cir.1985) (“The Corps was entitled not to conduct a further study of alternatives unless the plaintiffs were prepared to shoulder the burden of showing that National Marine had overlooked some plausible alternative site — and they were not.”). The FAA has fulfilled its obligation to consider reasonable alternatives.
B. Evaluation of Noise Impact
The Tribe makes four claims regarding the FAA’s evaluation of the noise impact. It contends that the FAA: (1) mischaracterized existing noise levels on the Reservation; (2) inappropriately used urban noise significance criteria in evaluating the impact of noise on the Reservation; (3) failed to consider single-event noise levels; and (4) should have prepared an EIS, because the noise violates tribal noise standards. In support of their contentions, the Tribe relies on a declaration by Hans Giroux, an “acoustical specialist.” We have generally rejected plaintiffs’ attempts to “engage in a battle of experts” regarding issues such as air quality and noise because, “when specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Price Rd. Neighborhood Ass’n, Inc. v. United States Dep’t of Transp., 113 F.3d 1505, 1511 (9th Cir.1997) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992)); see also Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir.1993) (“We are in no position to resolve this dispute because we would have to decide that the views of Council’s experts have more merit than those of the [government’s] experts.”) (internal quotations omitted). Nevertheless, we address each of the Tribe’s claims seriatim.
1. Existing Noise Levels
The Tribe complains that the FAA did not monitor actual noise levels on the Reservation and that actual background noise levels were below 30 decibels (“dB”) and as low as 20 dB, whereas the lowest background noise level used in the EA was 30 dB CNEL. If the FAA overstated background noise levels, the impact of new noise created by the AEP would be underestimated.
The FAA based its 30 dB CNEL background noise level on measurements by the National Park Service and a private consultant. The National Park Service measured sound on and near the rim of the Grand Canyon, finding noise levels from 34-48 dB at actively visited areas and in the low 20’s in more remote areas. Although the Park Service did not use the Ldn or CNEL standards, the FAA stated that a steady sound level of 23 dB for 24 hours would correspond to 30 dB CNEL. The consultant whom the FAA used measured noise in Scottsdale and Tucson, Arizona, as well as a rural area outside Phoenix, and showed background noise levels in sparsely developed desert areas to be below 40 Ldn or CNEL. Based on these two measurements, the FAA concluded that 30 dB CNEL was “a reasonable estimate of a background noise level in completely undeveloped desert and mountain areas.”
Although noise levels on the Reservation may not seem comparable to those in the heavily-visited Grand Canyon, the FAA relied on the Park Service’s measurement in more remote locations of the Grand Canyon, rather than the actively visited areas. Furthermore, it is not for the court to assess whether a “rural area” outside Phoenix would have background noise levels similar to those on the Reservation. The Morongo Band has failed to establish that the FAA’s decision to use the 30 dB CNEL level was arbitrary or capricious.
2. Urban Noise Significance Criteria
The Tribe contends that the FAA inappropriately used urban noise significance criteria in assessing the noise impacts on the Reservation. The Tribe apparently argues that the FAA claims that average daily noise levels above 45 dB CNEL do not have any impact on land uses and that noise levels below 65 dB CNEL cannot have a significant impact on ordinary activities. However, the portion of the EA that the Tribe cites deals with the effects of changes in the CNEL depending on the existing noise exposure, rather than the effect of an existing CNEL. The EA does state that 65 dB CNEL is the threshold above which aircraft noise is considered to cause a significant adverse impact in residential areas. The EA then goes on to explain, however, that, if existing CNEL noise exposure is 45-60 dB, an increase of 5 dB would have a marginal impact, whereas if existing CNEL is greater than 65 dB, an increase of only 1.5 dB would have a significant impact. Moreover, in the EA’s discussion of the noise impacts of its various alternatives, its focus was on the effect of the increase, not on the actual existing noise level: “Even in undeveloped areas with very low background noise levels, increases in total ambient noise with Alternatives 5A and 5B are far too small to be considered either significant or marginal impacts.”
The Morongo Band analogizes to National Parks and Conservation Ass’n v. FAA, 998 F.2d 1523, 1533 (10th Cir.1993), in which the Tenth Circuit concluded that the FAA’s determination of no significant impact on a recreational area was irrational, because the agency provided no empirical evidence to support the claim, basing its determination only on a subjective evaluation of the impact of noise on recreational users of a national park. Unlike National Parks and Conservation Ass’n, however, where the FAA argued that its analysis needed to be “subjective and inexact” because there was “no acceptable methodology to measure noise impacts,” id., the FAA in the instant case performed a detailed analysis using figures obtained from the LAX Master Plan and the Southern California TRACON to estimate the numbers of aircraft and relied on its standard methodology for airport noise studies. This case therefore is distinguishable from National Parks and Conservation Ass’n, because the FAA’s methodology and reasoning cannot be described as irrational or subjective. See id. (“The FAA explicitly rejected the Ldn methodology and performed the noise impact analysis based on various assumptions and subjective values which did not provide us with a ‘rational’ decision that we could assess.”).
Finally, in response to another petitioner’s challenge to the FAA’s use of 65 Ldn as the threshold of significance for noise impacts, we stated that “NEPA authorizes federal agencies to develop their own methods and procedures in regard to environmental analysis.” Seattle Community Council Fed’n v. FAA, 961 F.2d 829, 833 (9th Cir.1992). The Tribe has failed to establish that the FAA’s methodology was arbitrary or capricious.
3. Single-Event Noise Impact
The Tribe further contends that the FAA was required to consider single-event noise levels rather than average daily noise levels because of tjie sensitive cultural and religious uses of the land. However,
Neither the CEQ regulations nor the FAA’s own regulations require single-event testing in addition to or in lieu of cumulative testing. In fact, the FAA’s regulations appear to require the use of cumulative data. “The exposure of individuals to noise resulting from the operation of an airport must be established in terms of yearly day-night average sound level....” 14 C.F.R. § 150.9(b) (1991) (emphasis added).
Id.; cf. Busey, 956 F.2d at 624 (upholding the FAA’s use of cumulative noise impact methodology as opposed to individual-event noise analysis as an exercise of the agency’s discretion).
The Morongo Band points to National Parks and Conservation Ass’n as evidence that the FAA is aware of the limitation of average noise criteria and so has used single-event noise levels to measure noise impacts on undeveloped areas. However, as discussed above, the Tenth Circuit reversed the FAA’s decision in that case, concluding that the FAA’s rejection of the Ldn methodology and subjective evaluation of noise impacts was irrational. 998 F.2d at 1533. The Tribe has pointed to no authority that would require us to conclude that the FAA’s decision to rely on average noise levels, rather than single-event noise impacts, was arbitrary or capricious.
4. Tribal Noise Standards
Finally, the Tribe argues that the FAA violated its own regulations, which require preparation of an EIS if the project “is determined not to be reasonably consistent with plans or goals that have been adopted by the community in which the project is located.” (Quoting DOT, FAA Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts,” Dec. 5, 1986 (“FAA Order 1050.1D”).) Although, understandably, the Tribe may be unhappy with any increase in noise that interferes with its traditional practices, it fails to put forth any evidence of “plans or goals ... adopted by the community” with which the AEP is inconsistent. Unfortunately for the Morongo Band, it appears that its quarrel is with the result reached by the EA. As we have stated, however:
NEPA does not mandate particular substantive results, but instead imposes only procedural requirements. Thus, in considering a challenge under NEPA, [we] may not substitute [our] judgment for that of the agency concerning the wisdom or prudence of a proposed action. Under our “rule of reason,” we determine whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences by making a pragmatic judgment whether the [EIS’s] form, content and preparation foster both informed decision-making and informed public participation.
Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 523 (9th Cir.1994) (alterations in original) (citations and internal quotations omitted).
C. Segmenting, Growth-Inducing and Cumulative Impacts
The Tribe contends that the FAA improperly segmented the AEP from a larger project, the LAX Expansion Project, for which the FAA is preparing an EIS. The Tribe claims that: (1) the two projects are “connected” and thus should be considered in the same EIS; (2) the FAA should have considered the growth-inducing impact of the AEP on the Expansion Project; and (3) the FAA failed to consider the cumulative impact of the two projects.
1. Connected Actions
CEQ regulations require “connected actions,” meaning those that are closely related, to be discussed in the same EIS. 40 C.F.R. § 1508.25(a)(1). Although federal agencies are given “considerable discretion” in defining the scope of an EIS, connected actions must be considered together in order to preclude an agency from “divid[ing] a project into several smaller actions, each of which might have an insignificant environmental impact when considered in isolation, but which taken as a whole have a substantial impact.” Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Serv., 56 F.3d 1060, 1068 (9th Cir.1995) (“NRIC ”). Actions are connected if they: “(i) Automatically trigger other actions which may require environmental impact statements, (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously, (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(1).
In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), we concluded that the construction of a road in a forest and the sale of timber were connected actions within the meaning of the CEQ regulations. Because the timber sales could not proceed without the road, and the road would not have been built but for the timber sales, the two were “inextricably intertwined.” Id. at 759. The analysis of Thomas was closely followed in Save the Yaak Comm. v. Block, 840 F.2d 714, 720 (9th Cir.1988), in which we similarly found a “clear nexus” between timber sales and the improvement of a road. In Save the Yaak Comm., there was “no indication that the road was reconstructed for any ... reason” other than the timber sales. Id.
By contrast,, we rejected a claim that actions were “connected” when each of two projects would have taken place with or without the other and thus had “independent utility.” NRIC, 56 F.3d at 1068. In NRIC, both an ongoing salmon transportation program and proposed river flow improvement measures “could exist without the other, although each would benefit from the other’s presence.” Id. at 1069 (quoting Sylvester v. United States Army Corps of Eng’rs, 884 F.2d 394, 400 (9th Cir.1989)).
Unlike Thomas and Save the Yaak Comm., but like NRIC, the AEP and the LAX Expansion Project have independent utility. There is no indication in the EA or ROD that the AEP would not have been implemented apart from the Expansion Project. On the contrary, the primary purpose of the AEP was to deal with existing problems of delay and inefficiency in the arrival system.
In describing the need for the AEP, the FAA did discuss the increase in LAX air traffic since 1980 and the projected increase in the future. The FAA stated that “the current problems will only become more serious as traffic at LAX increases.” However, the stated purpose of the project was “to improve the efficient use of airspace, reduce air traffic delays, balance controller workload, and improve coordination among controllers.” Thus, although the FAA was concerned about the pressure that increased traffic would place on the system, the purpose of the AEP was to deal with existing problems caused by the inefficient “use of airspace for arrivals to LAX from the east.” The ROD similarly focused on the delay and inefficiency caused by the former system and stated that the AEP would “improve the safety of air traffic operations by reducing congestion in the airspace and air traffic controller workloads.” Thus, although growth at LAX would exacerbate the problems being addressed by the project, the AEP was necessarily independent of any future expansion of the airport.
2. Growth-Inducing Impact
The Morongo Band contends that the FAA improperly failed to consider the “growth-inducing” impact of the AEP, as required by 40 C.F.R. § 1508.8(b) (defining “indirect effects” as those “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable,” including “growth inducing” effects). The Tribe’s argument centers on the point that the AEP removes a constraint to growth at LAX because, without the project, growth could not occur safely.
The EA does not discuss the growth-inducing impact of the AEP. This fact, however, is not dispositive. In Seattle Community Council Fed’n, the FAA did not consider cumulative effects caused by the expected increase in air traffic after changes in flight patterns were implemented. In considering whether that failure required remand for the FAA to consider the issue, we focused on the stated purpose of the plan and concluded that, although the increased efficiency and reduction in delays would “necessarily allow the volume to increase,” the plan was intended to and did deal with the existing air traffic. 961 F.2d at 835. The increased air traffic caused by the plan therefore was not considered to be a growth-inducing effect under 40 C.F.R. § 1508.8(b). Id.
Similarly, in City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1162 (9th Cir.1997), we acknowledged that a planned freeway “may induce limited additional development,” but reasoned that it was “the existing development that necessitate^] the freeway.” By contrast, in City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975), the area was not already well developed and so the construction of a freeway interchange would necessarily lead to development.
Growth certainly may be a foreseeable indirect effect of the AEP. However, the project was implemented in order to deal with existing problems; the fact that it might also facilitate further growth is insufficient to constitute a growth-inducing impact under 40 C.F.R. § 1508.8(b).
3. Cumulative Impact
The Tribe argues that the FAA failed to consider the cumulative impact of the AEP with the Expansion Project. An agency is required to consider cumulative impacts in an EIS, meaning actions that “when viewed with other proposed actions have cumulatively significant impacts.” 40 C.F.R. § 1508.25(a)(2); see Association of Pub. Agency Customers, 126 F.3d at 1184; City of Carmel-by-the-Sea, 123 F.3d at 1160. A cumulative impact is defined as:
the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7.
In its discussion of cumulative actions, the FAA noted that one action that could have a cumulative impact was an “increase in the number of flights to LAX using the proposed new alternative flight routes.” The agency concluded, however, that this increase would not have a significant impact, noting that the noise consequences were considered in Section 4.1.
Other actions potentially having a cumulative impact were increases in traffic at other airports in the area affected by the AEP. Regarding this concern, the FAA stated that “the noise analysis has demonstrated conclusively that the increases in noise attributable to the proposed project are extremely small” and further pointed out that other airport projects would deal with noise impacts in their own EAs or EISs. Finally, the FAA noted that the AEP would have no significant impact on air quality and explained why other increases in high altitude ah- traffic in the area affected by the AEP would not affect air quality in the Los Angeles coastal basin.
Assuming that the cumulative impacts of the Expansion Project should have been considered in the EA, because it appears to be a project that is both foreseeable and similar to the AEP, as both projects deal with increasing arrivals at LAX, see Resources Ltd., 35 F.3d at 1306 (“Where several foreseeable similar projects in a geographical region have a cumulative impact, they should be evaluated in a single EIS.”) (internal quotations and citation omitted), this requirement was met. The FAA relied on projections from the LAX Master Plan study and the Southern California TRACON in order to derive data for its noise analysis. Thus, when the agency made projections about aircraft arrivals in the years 2000 and 2015 throughout its noise analysis, it necessarily considered the cumulative impact of increased traffic due to the Expansion Project. The projected increases in arrival traffic at LAX, and the resulting impacts on noise levels, were fully integrated into the FAA’s noise analysis, thus fulfilling the agency’s requirement to consider cumulative impacts.
IV. NHPA Claims
NHPA requires a federal agency to “take into account the effect of [any] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. The agency also must give the Advisory Council on Historic Preservation a “reasonable opportunity to comment with regard to such undertaking.” Id. In consultation with the State Historic Preservation Officer (“SHPO”), the official responsible for representing the interests of the State and its citizens, 36 C.F.R. § 800.1(c)(1)(h), the agency “shall make a reasonable and good faith effort to identify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register.” 36 C.F.R. § 800.4(b). An agency has satisfied the NHPA process if it shows that the project will have no adverse effect on historic resources, submits documentation of this finding to the SHPO for review, and the SHPO does not object within 15 days. 36 C.F.R. § 800.5(b).
The Tribe contends that the FAA violated NHPA by failing to prepare an EIS as required by NHPA and FAA Order 1050.1D and by failing to obtain the Tribe’s consent for the AEP.
A. Preparation of EIS
The Morongo Band cites FAA Order 1050.1D, ¶ 37.a(l), which states that an EIS shall be prepared if an FAA action has an effect that is “not minimal” on properties protected by NHPA. In the EA, the FAA stated that the only change caused by the AEP would be increased “high altitude aircraft overflights.” According to the EA, the altitude of LAX traffic overflying the Reservation would be 18,000 feet above sea level, or 16,000 feet above ground level. Thus, the FAA’s noise, land use, and visual impact studies all concluded that the project would cause no adverse impacts, leading to the conclusion that historic resources would be “unaffected” by any of the alternatives. Id. Because the effect would be minimal, an EIS was not required pursuant to FAA Order 1050.1D.
The Morongo Band relies on Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir.1995), in which the Tenth Circuit held that the agency did not make a reasonable effort to identify property eligible for the National Register because it failed to follow up on information indicating the existence of such property. Id. at 860 (“a mere request for information is not necessarily sufficient to constitute the ‘reasonable effort’ [NHPA] requires”). The court also held that the Forest Service failed to make a good faith effort to identify cultural property in the canyon, because the agency told the SHPO . that there was no evidence of such property when, in fact, the agency had withheld from the SHPO two affidavits alluding to sacred sites and traditional ceremonies in the canyon. Id. at 862.
Like the Forest Service in Pueblo of Sandia, the FAA made only a “request for information” and did not follow up on a letter from the Tribe, although the letter indicated the possibility of historic or cultural property in the area. This case, however, is distinguishable from Pueblo of Sandia. Here, the FAA’s conclusion was not based on a finding of no cultural properties in the area, but on the fact that the noise and other studies showed that there would be no impact on any type of property in the project area. Thus, the failure to identify specific potential sites or properties is irrelevant. The FAA informed the California SHPO of its finding that the AEP would have “no effect on cultural values,” submitting as documentation the draft EA. The SHPO had no objection to the FAA’s determination of no effect on historic properties because of “the unique high altitude nature of the undertaking.” The Morongo Band has failed to establish that the agency’s studies were arbitrary or capricious; thus, the FAA did not violate NHPA.
B. Failure to Obtain Consent
The Tribe argues that NHPA required the FAA to obtain the Tribe’s consent before implementing the AEP. The regulations state:
The Agency Official, the [SHPO], and the Council should be sensitive to the special concerns of Indian tribes in historic preservation issues, which often extend beyond Indian lands to other historic properties. When an undertaking will affect Indian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement.
36 C.F.R. § 800.1(c)(2)(iii).
Consent is required, however, only if the action is found to have an effect on the land and, here, a finding of no effect was made. The Tribe cites Attakai v. United States, 746 F.Supp. 1395, 1408 (D.Ariz.1990), which discusses the importance of an Indian tribe’s concurring “in any agreement regarding undertakings which affect its lands.” The projects in Attakai, however, involved the construction of three fence lines, a pipeline and a tank on the land. Id. at 1399. There is no question that the projects affected the Indian lands in Attakai, whereas the effect in the instant case is much more remote. Where, as here, any effect is insignificant or minimal, the FAA was not required to obtain the Tribe’s consent before implementing the AEP.
V. Transportation Act Claim
Finally, the Tribe claims that the FAA violated section 4(f) of the Transportation Act, 49 U.S.C. § 303(c), which provides that a transportation project may “use” historic sites only if (1) there is no prudent and feasible alternative, and (2) the project includes all possible planning to minimize harm to the site resulting from the use. “The term ‘use’ is to be construed broadly, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). The section’s provisions, however, do not apply unless there is a determination that the land is to be “used.” Id.
The EA quotes an FAA Order that provides that an action is compatible with the normal activity associated with land and, therefore, does not constitute “use” under section 4(f) if the action “would not affect the normal activity or aesthetic value of’ the land. (Quoting FAA Order 5050.4A, Airport Environmental Handbook.) The FAA acknowledged that aircraft noise levels that “substantially interfere” with the use or value of section 4(f) property would constitute constructive use. The noise analysis in Section 4.1 concluded, however, that the resulting noise would not be “loud enough to create significant impacts anywhere along either of the proposed alternative routes (Routes 4 and 4a).” The FAA also discussed potential visual impacts and concluded that the project would not cause significant visual impacts.
“[S]ection 4(f) will not be invoked where the activity complained of will have only an insignificant effect on the existing use of the parkland.” Allison, 908 F.2d at 1030. The FAA undertook a thorough analysis in the EA and concluded that the AEP would have only an insignificant impact on the existing use of the land. We do not find that this decision was arbitrary or capricious.
CONCLUSION
The FAA’s decision to implement the AEP was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The FAA did not violate NEPA, NHPA, or the Transportation Act. Accordingly, the Morongo Band’s petition for review is
DENIED.
. McCort worked for the FAA in various capacities for a number of years.
. CNEL stands for "community noise equivalent level," the standard adopted in California for the measurement of noise levels in airport noise studies. The CNEL measurement is similar to the day-night sound level (DNL or Ldn) standard that the FAA uses for airport noise studies in all other states. Ldn measures cumulative noise exposure over a 24-hour period and is generally designed to determine the potential of noise to interfere with human activity.
. Bill Johnstone of the FAA stated in his declaration that the City of Los Angeles is "midway" through the "airport redevelopment planning process,” i.e., the LAX Master Plan (which we assume is the "LAX Expansion Project” to which the Tribe refers), and that the draft EIS is to be published in September, 1998.
. The portions of the draft EA dealing with the AEP's impact on historic property are essentially identical to those in the final EA.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1854304635761589, Costs: 0.04304635761589404
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HAYS, Circuit Judge:
By Opinion No. 584, dated August 19, 1970, the Federal Power Commission granted a license to Consolidated Edison Company of New York, Inc., to construct, operate, and maintain a pumped storage project along the western shore of the Hudson River at Cornwall, New York. Eight parties have filed petitions pursuant to Section 313(b) of the Federal Power Act, 16 U.S.C. § 8251(b) (1964) seeking to set aside this order on various grounds. The issues raised by these petitions are both complex and important, involving, as they do, the conflict between the needs of a highly technological society and the increased awareness of environmental considerations.
The opinion and order of the Federal Power Commission presented here for review follow by five years the earlier remand by this court in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert, denied sub nom., Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U. S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966), in which the petitions challenged three 1965 orders of the Commission licensing the project and refusing to reopen proceedings and take additional evidence on various issues. In the intervening period extensive hearings have been held, two decisions have been rendered by a Hearing Examiner and the Commission has issued its own opinion.
The new proceedings have produced a project that is different in some ways from the project that was before this court in 1965.
The functional elements of the project remain the same. It is still to be the largest pumped storage plant in the world and its principal function, to provide energy for peak load periods, is unchanged. The proposed location is the same as that previously proposed, the Hudson River at approximately river mile 56.5, about 40 miles north of New York City at Storm King Mountain near Cornwall, New York, “an area of unique beauty and major historical significance.” Scenic Hudson, supra at 613. The project would consist, as did the earlier version, of an upper reservoir, a tunnel between the reservoir and the powerhouse, and the powerhouse itself, a pumping-generation station located at the riverside containing eight reversible pump-turbine and motor generation units as well as switching gear and primary transmission lines. However, unlike the project presented in 1965, which provided for a powerhouse that was 80 per cent underground, the powerhouse now licensed by the Commission is to be entirely underground.
The upper reservoir would be situated approximately 10,000 feet south and west of the powerhouse in a natural mountain basin behind Storm King Mountain. When filled to its maximum elevation it would have a surface area of 240 acres. It would be formed and enclosed by five earth and rock dikes. The lower reservoir would be the Hudson River itself.
The capacity of the eight pumping-generating units in the powerhouse would be 2,000 megawatts, or 2,000,000 kilowatts. However, the project would be constructed in a manner which would permit enlargement to a maximum of 3,000 mw. Eight discharge tunnels from the reversible pump-turbine and motor generation units would convey water between each turbine and an open tailrace leading to the river. The tailrace with abutments at both ends would run 685 feet along the river. A fish protective device is to be located in front of the tailrace intake.
The third major facet of the project relates to transmission facilities. Submarine cable installations and spare pipes would transmit the energy generated in the powerhouse under the Hudson River and would continue underground on the east side of the river for approximately 1.6 miles to a point out of sight of the river. At this point overhead transmission would commence and would continue for approximately 9.2 miles through Putnam County to Con Edison’s existing Pleasant Valley-Millwood-Sprain Brook transmission right of way. Changes have been made in the proposed route and the towns of Cortlandt, Putnam Valley and Yorktown, which challenged the route before this court in 1965, no longer do so.
The project would function in the manner described in our earlier opinion. Scenic Hudson, supra at 612. The units in the powerhouse would use off-peak energy generated not at the project but at other facilities in the Con Ed system to pump water from the Hudson River to the upper reservoir. When needed for peak power production, that is, during hours of highest kilowatt demand, the units would reverse direction of rotation and provide power derived from the fall of the water released into the river from the upper reservoir. This power would then be transmitted through the transmission system described above. “The water in the upper reservoir may be regarded as the equivalent of stored electrical energy; in effect, Consolidated Edison wishes to create a huge storage battery at Cornwall.” Scenic Hudson, supra at 612.
A visitor’s information center and picnic and parking facilities, proposed in the original project for the powerhouse site, have been eliminated. In their place, a 57 acre, mile-long park is to be constructed along the riverfront. Additional recreational facilities are to be provided at a 36 acre scenic overlook inland from the project with access from the existing State Highway 9-W.
As an alternative the Commission has licensed the powerhouse aspect of the project at a location within Palisades Interstate Park, approximately one and one-half miles downstream from the Storm King Mountain site. Construction at the Palisades site is to be considered approved by the Commission only if construction at the Storm King Mountain site “shall be precluded on a petition to review this order.”
The petitions in this case are occasioned by the “grave concern” aroused among conservationist groups by the Storm King project. Scenic Hudson, supra at 612. The petitions allege lack of compliance with the terms of our earlier remand, absence of substantial evidence to support the Commission’s findings, and failure to comply with statutory mandates. We find, however, that the Commission has fully complied with our earlier mandate and with the applicable statutes and that its findings are supported by substantial evidence. In view of the extensive powers delegated to the Commission and the limited scope of review entrusted to this court, it is our duty to deny the petitions.
I.
Congress has given the Federal Power Commission broad responsibility for the development of national policies in the area of electric power. In Section 4(e) of the Federal Power Act, 16 U.S.C. § 797(e) (1964), the Commission is authorized
“To issue licenses * * * for the purpose of constructing, operating, and maintaining dams, water conduits, res-servoirs, power houses, transmission lines or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction * *
There are statutory limitations on the issuance of such licenses. Section 10(a) of the Act, 16 U.S.C. § 803(a) (1964), requires
“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 waterpower development, and for other beneficial public uses, including recreational purposes * *
The Commission is now obliged also to consider the environmental factors covered by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (§ 1970).
In the Federal Power Act Congress granted the Commission “sweeping authority and a specific planning responsibility.” The Act “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.” Scenic Hudson, supra at 613 and authorities cited there.
The scope of review of the Commission’s exercise of its authority and responsibility is narrowly limited. The Act, § 313(b), provides that “[t]he finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” 16 U.S.C. § 8251(b). In assessing the factual contentions raised in the petitions, this court’s authority “is essentially narrow and circumscribed.” Permian Basin Area Rate Cases, 390 U.S. 747, 766, 88 S.Ct. 1344, 1360, 20 L.Ed.2d 312 (1968). The licensing of projects such as the Storm King plant and the evaluation of their environmental impact has been entrusted to “the informed judgment of the Commission, and not to the preferences of reviewing courts.” Id. at 767, 88 S.Ct. at 1360.
The statutory standard of substantial evidence is “something less than the weight of the evidence and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). In a recent case involving these principles of court review, the Supreme Court said:
“Insofar as the Court of Appeals’ opinion implies that there was not substantial evidence to support a finding of some benefits, it is clearly wrong. And insofar as the court’s opinion implies that the responsibilities assumed by Gainesville in combination with the benefits found to accrue to Florida Power were insufficient to constitute ‘compensation * * * reasonably due,’ the Court of Appeals overstepped the role of the judiciary. Congress ordained that that determination should be made, in the first instance, by the Commission, and on the record made in this case, the Court of Appeals erred in not deferring to the Commission’s expert judgment.” Gainesville Utilities Department v. Florida Power Corp., 402 U.S. 515, 527, 91 S.Ct. 1592, 1599, 29 L.Ed.2d 74 (1971).
Petitioners would have us reject these familiar principles because, they argue, different standards ought to prevail with respect to issues arising in an environmental context. There is an effort to find a basis for this position in our earlier remand in Scenic Hudson and in cases which have taken a similar approach. See, e. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Zabel v. Tabb, 430 F.2d 199, 213 (5th Cir. 1970), cert, denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971).
To read these cases as sanctioning a new standard of judicial review for findings on matters of environmental policy is to misconstrue both the holdings in the cases and the nature of our remand in Scenic Hudson. An element common to all these cases was the failure of an agency or other governmental authority to give adequate consideration to the environmental factors in the situations with which they were presented. In Citizens to Preserve Overton Park, Inc. v. Volpe, swpra, 401 U.S. at 416, 91 S. Ct. at 824, for example, the Court remanded the case to the district court to determine whether the Secretary of Transportation’s decision “was based on a consideration of the relevant factors.” The Court pointed out that “[ajlthough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. In Udall v. Federal Power Commission, supra, 387 U.S. at 450-451, 87 S.Ct. 1712, the remand to the Commission instructed it to explore the “neglected phases of the cases” and to make “an informed judgment on these phases of the cases.” The Court explicitly stated that it expressed “no opinion on the merits.” It added, “It is not our task to determine whether any dam at all should be built or whether if one is authorized it should be private or public.” Id. at 450, 87 S.Ct. at 1724.
In our opinion in Scenic Hudson, supra, remanding the 1965 orders of the Commission, we were careful to make it clear that we were raising no question of change in the basic standard of administrative review and that the purpose of our remand was only to require the proper performance of its functions by the Commission. We said:
“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.” Id. at 612 of 354 F.2d.
“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. * * The Commission must see to it that the record is complete.” Id., at 620.
Where the Commission has considered all relevant factors, and where the challenged findings, based on such full consideration, are supported by substantial evidence, we will not allow our personal views as to the desirability of the result reached by the Commission to influence us in our decision. We now turn therefore to an examination of whether our remand has been complied with, whether there is substantial evidence to support the Commission’s decisions on the issues remanded and other challenged issues, and whether the Commission has complied with all applicable statutory requirements.
II.
In our opinion remanding this proceeding to the Commission we directed the Commission to weigh a number of factors which we believed had not been given adequate consideration. Holding that “recreational purposes” in § 10(a) of the Act (16 U.S.C. § 803(a) (1964)) “encompasses the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites,” we required the Commission “properly [to] weigh each [such] factor.” Scenic Hudson, supra, at 614. We held “that the Commission is under a statutory duty to give full consideration to alternative plans” (Id. at 617). We criticized the Commission’s refusal to receive “proffered information on fish protective devices and underground transmission facilities. * * * ” Id. at 620, and directed it to “take the whole fisheries question into consideration before deciding whether the Storm King project is to be licensed.” (Id. at 624). We ordered the Commission to weigh “the aesthetic advantages of underground transmission lines against the economic disadvantages” (Id. at 623). In sum the Commission was admonished to “reexamine all questions on which we have found the record insufficient and all related matters.” (Id. at 624).
On January 25, 1966, acting on our remand, the Commission ordered that further proceedings be commenced before a Hearing Examiner. In that order the Commission said:
“We do not understand the Court’s order as restricting any further proceedings to the specific matters on which it found the present record insufficient to support our previous determinations and we do not believe it would be in the public interest to do so. The record in the first two hearings in the proceeding will, of course, be part of the present hearing. But all parties will be free to offer timely presentations of evidence on all matters relevant to the question whether a license should be granted.”
The hearings were commenced on November 14, 1966 and with several brief recesses, were concluded on May 23, 1967. A motion of the State of Connecticut’s Board of Fisheries and Game to intervene was subsequently granted, and further hearings were held on the issue of the protection of fish. These hearings were closed on October 16, 1967. On August 6, 1968, the Hearing Examiner issued his Initial Decision recommending that Con Ed be granted a 50 year license for the project. On November 19, 1968, the proceedings were reopened in response to a petition by the City of New York to intervene and introduce evidence on possible hazards to its Catskill Aqueduct. At this proceeding, further evidence was taken on the alternative site in Palisades Interstate Park. The Hearing Examiner issued a Supplemental Initial Decision on December 23, 1969, which concluded that the project did not endanger the Aqueduct and that the alternative site was “not a proper and preferable alternative location for applicant’s projected project.” In all other respects, except for minor items, the Initial Decision remained unchanged.
The proceedings on remand involved 100 hearing days, the testimony of some sixty expert witnesses, and the introduction of 675 exhibits. The record comprises more than 19,000 pages. Both the Hearing Examiner and the Commissioners arranged with the parties to visit the proposed site and the surrounding area before rendering their decisions.
On August 19, 1970, the Commission issued its decision. In its opinion the Commission reviewed the power needs of the area served by Con Ed and considered possible alternatives to the Storm King project in terms of reliability, cost, air and noise pollution, and overall environmental impact. Concluding that there was no satisfactory alternative, the Commission evaluated the environmental effects of the project itself. It held that the scenic impact would be minimal, that no historic site would be adversely affected, that the fish would be adequately protected and that the proposed park and scenic overlook would enhance recreational facilities. The Commission found that further undergrounding of transmission lines would result in unreliability in the delivery of power and would be too costly. The Commission determined that construction of the project would entail no appreciable hazard to the Aqueduct.
We find that the proceedings of the Commission and its report meet the objections upon the basis of which we remanded the earlier determination. Examination of the Commission’s conclusions and the evidence on which the conclusions are based establishes that the Commission has complied with our instructions and that the evidence supporting the Commission’s conclusions amply meets the statutory requirement of substantiality.
A. “Alternative plans”
The Commission gave detailed and comprehensive consideration to alternatives. Its initial statement of the basic issues of the case before it and the manner of its subsequent dealing with those issues demonstrates that there is no sound basis for petitioners’ contention that the Commission’s approach was too narrow. The Commission said:
“The weighing of social values required by the concept of the public convenience and necessity in this case involves on the one hand the alleged greater and much needed reliability, economic savings, and anti-air pollution benefits which this project offers compared with any feasible alternative, and on the other hand the alleged aesthetic and environmental detriment the project would impose on an area of great scenic, natural and historic value.
Simply put, the issue is whether the project offers substantially more reliable electric service as well as cheaper electricity generated in a cleaner manner than any other feasible alternative and, if so, whether the project will create detrimental aesthetic and environmental conditions of such degree as to lead on balance to a judgment that the public convenience and necessity would be better served by denying the application herein.”
In deciding this issue the Commission proceeded to evaluate the needs of Con Ed and the probability that the proposed project would supply these needs in a more desirable way than would the possible alternatives.
The Con Ed system serves the densely populated area of New York City’s five boroughs and part of Westchester County. The electric load requirements that Con Ed must meet are constantly growing. The Commission found that in 1970 Con Ed’s capacity would be approximately 10,126 mw, plus 520 mw contracted from other utilities. However, much of the system is outdated and about 2,000 mw of its present capacity are due to be eliminated by 1978. And yet by 1979, Con Edison’s annual peak load will be approximately 10,850 mw.
Two factors were cited by the Commission as necessary to insure availability of the required amount of energy and to prevent major power failures, such as that which occurred in the northeast United States in 1965, as well as the lesser “brownouts” and “blackouts” which have become all too frequent in the New York area. The first of these two factors is the existence of adequate power facilities to meet the growing demand for electrical energy in the area served. The second is an adequate “reserve,” a part of which must be what is called a “spinning reserve.” This “spinning reserve” is provided by units operating at less than full capacity but synchronized to the system so that the energy generated by them will all be immediately available to meet an increase in loads. It is this latter need that the Storm King project is designed to meet.
The Commission found that in order to prevent a major power failure the “spinning reserve” must be fully available within two minutes. The Commission expressed the opinion, based on the record before it, that “if Cornwall or a pumped storage equivalent with its very fast pick-up characteristics had been available the blackout of 1965 might have been avoided.”
The Commission examined in detail the possibility that there were alternatives more desirable than the Storm King project which would be capable of meeting these needs. Our earlier opinion required the Commission to consider the use of gas turbines. The Commission determined that using gas turbines alone would not be a feasible alternative to a pumped storage unit since the turbines would be less reliable and more expensive. Gas turbines, the Commission found, take between three minutes and ten seconds and four minutes to be brought to full operation from a cold start. Moreover, the Commission stated, unlike pumped storage units, gas turbines have a relatively low capacity for storage of rotational energy, and thus do not provide as substantial a cushioning effect in the event of a disturbance.
Gas turbines were found to be considerably more expensive to operate than pumped storage units. The Commission adopted the conclusion of a staff study that the operating costs of a pumped storage project would be at least $119,-000,000 less over a twenty-year period than the operating costs of gas turbines. It would cost about $38,000,000 less, the study estimated, to construct the pumped storage project than to provide the gas turbines.
The Commission also considered the possibilities of a project composed entirely of nuclear units but found that such an alternative would be inadequate for reasons which are fully developed in the report. The Commission was of the opinion that a nuclear-gas turbine combination
“suffers from the shortcomings inherent in its components, that is, unless the gas turbines are spinning they cannot be brought into operation soon enough to meet emergencies and the nuclear component has relatively slow response characteristics which when combined with the forced outage reduces the reliability quotient of such a combination.”
“[T]he reliability quotient of a nuclear-gas turbine combination,” the Commission said, “is far less than Cornwall’s.”
The Commission estimated that construction of the nuclear-gas turbine alternative would cost |158,794,000 more than Cornwall. On the basis of these findings the Commission said:
“We do not accept the proposition put forth by Scenic Hudson that this extra cost is de minimis when spread among all of Con Ed’s customers. There are often good reasons why it is in the public interest to utilize a more expensive alternative. In appropriate cases the extra cost may even be substantial. But whether substantial or not, the extra cost must be justified by a showing that the alternative is in the public interest. There has been no showing that a combination nuclear-gas turbine alternative offers any advantages or indeed is even reasonably equivalent to Cornwall.”
The Commission also considered the feasibility of using power purchased from outside sources to supply Con Ed’s needs as an alternative to building the Storm King plant. It found that the maximum amount that could be assured would be slightly in excess of 1000 mw. Thus this alternative, the Commission held, would not provide sufficient power.
Petitioners do not suggest that interconnections alone could provide a feasible solution. Scenic Hudson proposed a combination of 810 mw of purchased power with gas turbines. However since the gas turbines in this combination would not be used to generate spinning reserves but to take on the load, the Commission found that this alternative would not serve the principal function for which the Storm King project is designed:
“In view of the assumption inherent in this suggestion by Scenic Hudson that the gas turbines would not operate as a spinning reserve, the spinning reserve would have to come from the purchase sources if this alternative is to be comparable to Cornwall. Accordingly this possibility cannot be deemed reliable, since such purchases would not be available in the event of a separation, the very time they would be most needed.”
The Commission also examined the possibility of alternative sites for a pumped storage project. As the Commission points out, none of the petitioners offered any evidence on possible alternative hydro-electric sites. However, both Con Ed and the Commission staff conducted extensive surveys to determine if such alternatives existed within a hundred mile radius of New York City. Detailed studies for five such sites showed that they would be more costly and less reliable than the Cornwall project. All of them would require the construction of long transmission lines. For example, the Bashbish site, in New England, would require a transmission system of between 32 and 56 miles, with attendant effects on the surrounding land, as compared to the 9.2 miles of overhead corridor planned for the Cornwall project.
In its examination of alternatives the Commission considered their effect on air pollution, noise pollution and the overall environmental situation. Nuclear energy was found by the Commission to be the method of generation of electric power involving the least pollution. However since nuclear energy by itself is inadequate for peaking purposes, the effect on air pollution must be measured with relation to gas turbines, operating either as part of a nuclear-gas turbine system or operated partly loaded as spinning reserve. The Commission pointed out that the peaking energy generated at the Cornwall project is itself pollution free. Whatever pollution results from the operation of the project will be caused by the plants which supply the power for pumping the water into the reservoir. As the Commission said, “if the energy necessary to pump Cornwall comes from polluting power plants in New York City that would otherwise be idle, little or nothing would be gained in reducing the air pollution problem.” The Commission concluded, however, that “water for Cornwall will normally be pumped by use of electric energy from non-polluting sources * * The Commission believed that construction of the Cornwall project would permit a more rapid replacement of old relatively inefficient steam-electric plants with large nuclear plants. Even during the early years of the project’s operation, because pumping would take place during off-peak hours, i. e., at night, “clean-burning” natural gas would probably be available in amounts sufficient to meet a large part of the Cornwall requirements.
The Commission pointed out that proposed alternative methods of meeting Con Ed’s need for power, since they too require construction of new facilities, would have an overall impact on the physical environment similar to that to which the opponents of the Cornwall project are objecting.
“Still another approach to weighing ‘alternatives to the proposed action’ from an environmental standpoint is to compare the operational consequence to the environment of the Cornwall project with similar consequences which would result from any reasonable alternative project. We conclude that none of the most likely proposed alternatives, including an all-nuclear unit or the mixed nuclear and gas turbine combination, could be sited within 100 miles of New York City with any less physical impact on the environmental aspects of the affected area than the Cornwall project.”
B. “The conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.”
The Commission gave extended consideration to the environmental aspect of our remand order. Testimony was taken from “a veritable ‘Who’s Who’ of conservation, each witness discussing a different facet of this esoteric and subjective matter.” The Commission said: “[O]ur conclusion that the license must issue does not rest upon any discounting of the case made by the intervenors relating to the natural beauty, historical significance, and spiritual qualities of the Storm King Mountain in its setting.” Its essential finding in this regard was that the Cornwall project, as modified by the Commission to make any structures not buried “as unobtrusive as ingenuity can make them,” constitutes “no real impairment of the environmental and scenic aspects of the Highlands.”
The original plan for the project provided for a powerhouse that would be 80 per cent underground. The project licensed by the Commission now calls for the powerhouse to be completely underground. While in an area visually part of Storm King Mountain, the powerhouse would not be under the mountain itself but in the Village of Cornwall “on a small river-bottom foothill.” Scenic Hudson’s witness Vincent J. Scully, professor of art and architecture at Yale University, although he was opposed to other features of the project, stated that the underground powerhouse itself did not “enter into the problem of visual relationship.” The external features of the powerhouse site would all be located below the cut of Storm King Highway on the mountain. The only features on the powerhouse site which would be aboveground would be the entrance to the underground plant, an access road, and the tailrace. The Commission said that “the land surface above the power station will be planted and as much of the existing growth as possible preserved.”
The tailrace and abutments would be located at the river’s edge, in an area partially occupied at present by a decidedly unseenic railroad bridge. The tail-race would be 685 feet long, with a vertical rock cut rising from 10 to 32 feet above the river. At the east end of the tailrace the visible height of the cut would be at most 20 feet above the existing railroad bridge. At the west end, the cut would be completely obscured by the existing bridge. The Commission pointed out that the “planting of vines on the rock face behind the tailrace would further serve to amelioriate the view from the river.” With respect to the effect of the construction of the tail-race on the view of the mountain, the Commission said:
“The tailrace would be located where the river widens above the gorge and curves west by north, above the powerhouse. From the bank directly across the river the distance is 4000 feet. Because of the curved shoreline at that distance, at the river level there would be no direct view of the tail-race.”
The tailrace and the vertical cut would not, therefore, destroy a scenic, unspoiled view of the mountain. They would in large part be hidden from view by existing man-made structures or natural phenomena. The scenic impact of that part of the tailrace and cut that would be visible are to be evaluated not in terms of the number of square feet potentially visible but in terms of the entire visible panorama. The total area that would be occupied would be minuscule in proportion to the total area encompassed within a viewer’s peripheral vision. The Commission could reasonably find that with the river in the foreground and the mountain majestically rising 1343 feet behind, the tailrace and the vertical cut would not seriously impair the mountain’s scenic aspects.
The Commission found, in summary, that:
“Limiting the external features at the powerhouse site to the portal entrance, tailrace, and access road, totalling approximately 3 or 4 acres — out of Storm King’s total of over 400 acres — should reduce to a minimum the visual impact on the scenic vistas of Storm King Mountain or the Highland Gorge of the Hudson River and thereby preclude any material scenic impairment or detriment.”
The reservoir would not be on Storm King Mountain itself but behind the mountain from the river about two miles south and west of the powerhouse site, on lands owned in part by the Village of Cornwall and in part by Harvard University. It would not be visible from the river; its visibility from other points “varies in relation to the elevation and distance of the view.” From many of the points from which the reservoir can be seen various industrial developments can be seen as well.
The Commission found that, although the 240 acre reservoir will be larger than any of the other nearby bodies of water, “in the scale of the area it does not reasonably appear to dwarf the scene. Nor should it be materially different in appearance from ponds in the area and thus should not be deemed incongruous with the present character of the area.”
Finally with respect to the contention that the inside walls of mud, or rock fill, would be exposed as the reservoir rises and falls, the Commission found that the rock and earth comprising the dikes would not be out of character with the rock and bare spots common in the Highlands and that “[t]he plantings and natural growth which would adhere to the exterior and possibly interior surfaces of the dikes would also serve to ameliorate any intrusion of the reservoir and dikes on the natural scene.”
The Commission’s criticisms led to the substantial modification of the recreational aspects of the project. Con Ed’s original proposal included an information center and recreation area to be located in the vicinity of the powerhouse site. These features were eliminated by the Commission. The Commission approved the construction of a riverfront park and a scenic overlook. The park is to be built on the rock excavated from the site of the power plant. It would be located in that part of the river to the north and west of the project adjacent to the shoreline. This 57 acre mile-long recreational facility, to be linked by two bridges to the Town of Cornwall to which it will be transferred upon completion, is to consist of play area, picnic sites, shelters, and sanitary facilities. The scenic overlook is to occupy a 36 acre tract abutting State Highway 9-W, and would also include picnic sites. The Commission found that the overlook would enable visitors to enjoy “the scenic vistas of the Hudson River” and “will not seriously or substantially impinge on the scenic historic or environmental qualities of the area.”
The Commission heard extensive testimony on the effect of the project on historic sites in the area. There is no record that any event of historical significance took place at Cornwall or on Storm King Mountain. Constitution Island and West Point, and Forts Clinton and Montgomery, which are at Bear Mountain considerably below the project site, are the closest areas of historical importance. The project site is not visible from either Constitution Island or West Point. However, Constitution Island, which has the best preserved revolutionary fortification in the Highlands, will be visible from the proposed scenic overlook. None of the parties has offered any specific rebuttal to the Commission’s conclusion that “the project will not cause the destruction of any historical site.”
The thrust of petitioners’ arguments is that the principle of preservation of scenic beauty permits of no intrusion at all into this area and that, therefore, no power plant, no matter how innocuous, may be built. This is clearly a policy determination which, whatever may be our personal views, we do not have the power to impose on the Commission. The Commission has complied with the terms of our remand by giving careful and thorough consideration to the impact of the project on the environment. The conclusions it has reached are supported by substantial evidence.
C. The “fisheries question.”
In our remand order, in addition to requiring further consideration of the overall environmental impact of the project, we specifically directed the Commission to “take the whole fisheries question into consideration before deciding whether the Storm King Project is to be licensed.” Scenic Hudson, supra at 624, of 354 F.2d. We had in mind the allegations of fishermen’s groups that the project threatened to destroy the eggs of the striped bass whose major spawning grounds, they maintained, are in the immediate vicinity of the project, and “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.” Id.
The Commission took official notice of the report of the Hudson River Policy Committee entitled “Hudson River Fisheries Investigations 1965-1968,” which was based upon a study sponsored by the New York State Conservation Department and the United States Fish and Wildlife Service and conducted under the field direction of a technical advisor of the United States Bureau of Sport Fisheries.
The “Hudson River Fisheries Investigations” concluded that:
“ * * * the evidence indicates that there would not be any significant adverse effects to the striped bass and American shad fisheries of the Hudson River from a pumped storage generating plant at Cornwall, New York.”
The Policy Committee’s study lends strong support to the views presented by a number of witnesses at the hearings to the effect that the spawning grounds of striped bass extend from locations at river mile 35 to river mile 123, and that these spawning grounds are, in the Commission’s words, “not consistently more favorable in one location than another.” The Commission found “that bass spawn substantially in the Hudson River over an 80 mile reach, including the Cornwall area, and that no part thereof is distinguished as a major spawning area.”
The devices originally proposed to protect the fish have been redesigned to afford greater protection. Referring to the testimony of a fishery biologist from the Commission staff, the Commission said:
“ * * * that while the mortality rates of fish, fish eggs, and larvae inhabiting the water which will be drawn through the screen and the plant cannot be measured short of actual measurement during project operation, in his own opinion the losses to the fishery caused by the operation of the project would not significantly affect the Hudson River fishery resources.”
In order to compensate for the loss of fish resulting from the operation of the proposed plant, Con Ed proposed, and the Commission approved, construction of a fish hatchery.'
The Commission concluded:
“Witness Raney’s fear as to what might or could happen [is] counterbalanced by testimony based on sampling studies which relating egg producing capacity of the striped bass to volumes of water in plant operation indicates that the impact on Hudson fishery would not be substantial. Thus even if none of the fish and eggs at Cornwall survived, the total impact would be small. The evidence, however, is to the effect that no such disaster would befall the Cornwall segment. Eggs, larvae and fish entering the plant would have a survival rate in the area of 80 per cent. Further, hatchery operations elsewhere indicate the feasibility of an operation in the Hudson which would be capable of replacing any losses attributable to the project.”
D. The “aesthetic advantages of underground transmission lines against the economic disadvantages” and related routing problems.
In compliance with our mandate, the Commission investigated the possibility of constructing the transmission lines of the project entirely underground. The Commission weighed the obvious aesthetic advantage of underground transmission as against its economic and functional disadvantages.
The evidence shows that putting the transmission lines underground would cost substantially more than having them overhead. The Commission’s staff estimated that considering both construction and maintenance costs, underground lines would be approximately 16 times as expensive as overhead lines. The Commission explained that:
“The relative costs of undergrounding can be appreciated from the fact that the problems inherent in transmitting power underground at high voltages are not simply a matter of putting an overhead transmission line, which is merely a bare insulated piece of metal conductor, into a trench. The phenomena of heat buildup and condenser (or capacitance) effect require that underground cables be an entirely different species of equipment.”
The Commission cited a number of technological factors that result in higher labor and material costs for underground-ing. Underground cable requires a type of insulation which can be applied only by highly skilled labor. Transmission of power by underground lines presents problems which can be solved only by the installation of large magnet-type coils every 2 to 3 miles. Various other expensive techniques, such as intricate splicing, are needed to meet other problems presented by the electrical and thermal properties of underground lines.
The Commission found that there were functional disadvantages in underground cables. Although overhead lines have more outages, there can generally be immediate automatic reclosure with no disruption of service. Outages in underground cables, on the other hand, result in considerably greater disruption of service since the failure must be located, the damaged area excavated, and complicated repairs made.
The Commission, balancing the several factors which are involved, concluded:
“It is thus apparent that only for the most cogent reasons, as where no feasible alternative is possible or where the aesthetic detriment is so violent as to preclude any consideration of overhead transmission facilities, that undergrounding should be required.
Nor do we believe it is in the public interest to burden consumers with the cost of undergrounding cables unless it were necessary to prevent such destruction or serious damage.”
The transmission route which is now approved is different from the route challenged before this court in 1965. The new route is not the route preferred by Con Ed, but is a modified route developed by the Commission staff. Although it is 5 to 6 miles longer than the route proposed by Con Ed, it would require 4 miles less of transmission corridor because it uses a greater length of the existing Pleasant Valley-Millwood corridor. The alternative route was selected because “it will impinge less on the area through which it passes than would any other route.” The area traversed is “rough, wooded and hilly. More importantly, its valleys lie in a north-easterly direction and are oriented so as to provide the possibility of locating lines below crests.” The wooded nature of the area will provide natural screening. The Commission found that “the area will remain what it is now — scenic and pleasant, with open farmland and orchards and partly wooded with some brooks. To say that this will be seriously damaged or destroyed by an overhead transmission line is not consistent with reality.”
Since the Commission’s conclusions on this issue are based upon consideration of all relevant factors and are supported by substantial evidence, they cannot be rejected.
E. The Catskill Aqueduct
The issue of possible danger to New York City’s Catskill Aqueduct was not involved in the earlier proceeding. It is presented in the new application because of the change in the Cornwall project to provide for construction of the powerhouse completely underground. As a consequence of that change the powerhouse is to be located at its closest point a distance of about 140 feet from the Moodna Pressure Tunnel, a link in the Catskill Aqueduct system. The Catskill system is one of three systems that supply New York City with substantially all of its water. Twenty-odd communities in upstate counties also have the right to, and do tap the Catskill Aqueduct.
The city contends that the Cornwall project interferes with its control of the Catskill Aqueduct and is therefore precluded by Section 27 of the Federal Power Act, 16 U.S.C. § 821 (1964), which provides that:
“Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.”
The argument based on Section 27 is without merit. The license that the Commission has issued does not authorize Con Ed to divert any of the city’s water or to interfere with the tunnel. Moreover the “only purpose of section 27 is to preserve to holders of state-conferred water rights a right to compensation if those rights are taken or destroyed as an incident to the exercise by another, of a license granted by the Commission.” Portland General Electric Co. v. Federal Power Commission, 328 F.2d 165, 176, & n. 23 (9th Cir. 1964), citing City of Fresno v. California, 372 U.S. 627, 629-30, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963) and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 291, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), both of which involved the very similar language of Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 383 (1964). Section 27 was not intended to give the city the power to veto Commission action.
The Commission concluded that excavation of the powerhouse site would not cause damage to the Moodna Pressure Tunnel, that controlled blasting during construction would not endanger the Aqueduct and, generally, that “the probability of damage to the Aqueduct is remote.” We think that there is substantial evidence in the record to support the Commission’s determination.
The Commission found that the rock underlying the project “is a very large mass of dense uniform crystalline rock underlain by sedimental rock capable of sustaining great loads.” The city contends that, on the contrary, instability of the rock at the Aqueduct site can be deduced from a failure of the original Moodna Tunnel in 1913 and by the phenomenon of “popping rock” encountered in construction of the tunnel. However, the evidence shows that the failure of the original Moodna Tunnel was due to excessive water pressure and insufficient rock cover. The tunnel was corrected by construction of an alternate shaft and has operated for a period of over 50 years without untoward incident. The Commission found that “[t]he phenomenon of ‘popping rock’ occurs in rock of this area only at depths below 1,000 feet,” far below the depth proposed for the Cornwall project.
Although witnesses for the City testified that stress changes caused by the powerhouse excavation and by blasting might present hazards to the Aqueduct, other witnesses seriously disputed these contentions. Smith, a consulting geologist for Con Ed, testified, as the Commission said, “that he could conceive of no possible condition in this area which would make the proposed plan hazardous from a geological point of view.” Dr. Bartlett W. Paulding, Jr., Associate Professor and Acting Head of the Basic Engineering Department of the Colorado School of Mines, who was retained by Con Ed at the suggestion of the City, testified that the effect of excavations on the aqueduct would be insignificant. Dr. Paulding, whom the Commission described as “a geologist and geophysicist specializing in rock mechanics,” concluded, in the Commission’s words
“that the absence of adverse geological conditions, coupled with the results of a photoelastic analysis of the stress conditions around rectangular openings * * * indicate that the existing Catskill Aqueduct will not be endangered * * * during * * * excavation for the power plant.”
Similar testimony was offered by Charles P. Benziger who based his conclusion on low stress conditions at the site as shown by seismic tests in drilled holes at the point where the power station is to be located.
The Commission’s conclusion that blasting would pose at most a remote possibility of damage has ample 'support in the record. The city’s own witness, Don Deere, testified that it was “possible, but unlikely that blasting, if restricted and properly controlled, will cause damage to the pressure tunnel.” Another of the city’s witnesses, Malcolm T. Wane, testified that the effects of blasting are somewhat conjectural. Con Ed’s witness Paulding testified that the Aqueduct would not be endangered if blasting charges were limited to 55 pounds per charge. The Commission’s conclusion that properly controlled blasting presented at most a “remote” danger is not seriously challenged by the city.
It is clear that the resolution of highly complex technological issues such as these was entrusted by Congress to the Commission and not to the courts. Where the Commission’s conclusions are supported by substantial evidence, the courts must accept them. It seems to us that it would be very difficult indeed to argue that the evidence supporting the Commission’s determination with respect to the Aqueduct is insubstantial. In fact the argument presented to us on this issue appears to be either that some higher burden of proof should be imposed with respect to the matter or that the city should be able to exercise what, in effect, amounts to a veto power. However, there is no authority whatever to support the imposition of any greater burden of proof than that provided in the statutory standard and “[s]uch a veto power easily could destroy the effectiveness of the federal act. It would subordinate to the control of the [city] the ‘comprehensive’ planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.” First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 164, 66 S.Ct. 906, 912, 90 L.Ed. 1143 (1946) (footnote omitted).
III.
The only remaining concern is the allegation that the Commission failed to comply with certain statutory directives.
The first of these statutes is Section 10(a) of the Federal Power Act, 16 U.S.C. § 803(a) (1964 & Supp. 1971) which provides:
Ҥ 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 waterpower 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.”
This is the statute upon which, to a large extent, our earlier remand was based. In our opinion we said that the phrase “recreational purposes” “undoubtedly encompasses the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.” Scenic Hudson, supra at 614 of 354 F.2d. We directed the Commission to consider all of these factors in reaching its decision.
It is obvious that in finding compliance with our remand order, we also find compliance with the statute on which that order was based. As we have pointed out, the Commission has given careful and thorough consideration to “recreational purposes,” and, indeed, has used its “authority to require the modification of [the] project” in a number of aspects related to this end.
There is no real dispute as to other findings required by the statute. The Commission found that there would be no impediment to navigation, that use of the Hudson River for electric generation by this project is “well adapted to development of the waterway for the use or benefit of interstate or foreign commerce,” and that the project will not interfere with any future program for the river since it will discharge no chemical, thermal or solid pollutants into the waterway. In short, the Commission has given full consideration to all of the statutory factors and has thus performed the “specific planning responsibility” entrusted to it by Congress in Section 10(a).
The petitioners also claim that the Commission has violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (Supp.1971). This Act was passed after the close of the hearing, but before the Commission’s decision. Its applicability to this proceeding is clear, and is conceded. See Zabel v. Tabb, 430 F.2d 199, 213 (5th Cir. 1970), cert, denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed. 2d 808 (1971). Section 101 “recognizing * * * the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man” requires the federal government to
“(b) * * * use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, whenever possible, an environment which supports diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities. * * * ” 42 U.S.C. § 4331 (Supp.1971).
Section 102 of the Act, 42 U.S.C. § 4332 (Supp.1971), requires agencies of the federal government to take certain prescribed measures.
The policy statement in Section 101 envisions the very type of full consideration and balancing of various factors which we, by our remand order, required the Commission to undertake. Like our remand, the Act does not require that a particular decision be reached but only that all factors be fully explored. The eventual decision still remains the duty of the responsible agency.
The Commission has complied with the specific directives contained in Section 102 of the Act. The hearings reflected the “systematic, interdisciplinary approach” required by that section. The Commission consulted with other agencies, as required by Section 102, including the Chief of Engineers, the Advisory Council on Historic Preservation, the Department of the Interior, the Atomic Energy Commission and a number of state and local groups that stand to be affected. The environmental statement required by Section 102(2) (C) of the Act, 42 U.S.C. § 4332(2) (C) (Supp. 1971) was submitted in the form of the Commission’s opinion. In view of the exhaustive environmental findings which occupy a substantial portion of the Commission’s opinion, and the Commission’s explicit conformance with the enumerated portions of the required statement, we conclude that full compliance with the National Environmental Policy has been demonstrated.
IV.
We do not consider that the five years of additional investigation which followed our remand were spent in vain. The petitioners performed a valuable service in that earlier case, and later before the Commission. By reason of their efforts the Commission has reevaluated the entire Cornwall project. The modifications in the project reflect a heightened awareness of the conflict between utilitarian and aesthetic needs. Whether the project as it now stands represents a perfect balance of these needs is not for this court to decide. Since the Commission has fully performed the duties and responsibilities imposed upon it, it is our obligation to deny the petitions in all respects.
. All of the petitioners except Palisades Interstate Park Commission object to the licensing order of the Federal Power Commission in toto. The Palisades Interstate Park Commission opposes only the site 2 alternative which calls for the location of the powerhouse within Palisades Interstate Park. The objection of petitioner City of New York is based on the aqueduct and air pollution question alone. The Izaak Walton League of America rests its objection primarily on tlie fisheries question and other environmental factors. All other petitioners raise virtually all the issues discussed in this opinion. Intervenor Consolidated Edison Company of New York, Inc., supports the Commission’s order, as does intervenor Town of Cornwall.
. One megawatt (mw) equals 1 million watts; one kilowatt (kw) equals one thousand watts. We will use the megawatt terminology throughout this opinion.
. Sive, Some Thoughts of an Enviromental Lawyer in the Wilderness of Administrative Law, 70 Colum.L.Rev. 612 (1970), seeks to provide support for such a position.
. Id. at 631 et seq. and 650-651.
. The Initial Decision was amended “only to provide for the location of a switching station at Carmel on Applicant’s main transmission system instead of Kent; and for the redesign of the Cornwall East switching station and the Cornwall transformer gallery, in connection with the relocation of circuit breakers, bus and related equipment. * * * ”
. The Commission, disagreeing with its Hearing Examiner, authorized use of the alternative site within Palisades Interstate Park on the conditions to which we have referred above. In view of our denial of the petitions in this case, it will be unnecessary for us to review this last determination.
. The Commission noted that the annual peak loads have shifted from the winter season to the summer.
. See Prevention of Power Failures, A Report to the President by the Federal Power Commission July 1967, Volume I at 43-44.
. “It appears from the evidence that to be effective in such an event 70 to 75% of the spinning reserve should be synchronized and available in 30 seconds to one minute, with all of the reserve available within two minutes.”
. A Con Ed study had estimated a twenty year operating savings of $137,023,000.
. Several combinations of gas turbines and a nuclear unit were proposed. Con Ed believed that eight gas turbines would be required, Scenic Hudson, five. The staff study concluded that six somewhat larger units would be adequate. The Commission based its conclusions on the combination found by the Examiner to be most appropriate: seven turbine units coupled with a 1000 mw nuclear unit.
. The New Power Pool consists of the Upstate New York System and the Southeastern New York Companies (SENY). The Commission estimates that the seasonal exchange between these two would amount to 500 mw in 1975 taking into account tlie requirements for maintenance of generating capacity. Another 4G5 mw could be secured from the New England Power Pool and the Pennsylvania-New Jersey-Maryland Power Pool.
. The highway crosses the mountain at an elevation varying from 200 feet to 280 feet. The height of Storm King Mountain is 1,343 feet.
. The part owned by Harvard is a portion of Black Rock Forest, a 3,700 acre experimental tract of timber. About 240 acres at the east end of the forest would be acquired for the jDrojeet. The remaining land will be unaffected.
. The Commission noted that all large ponds in the area are artificial.
. Of the one hundred and forty acres to be acquired by Con Ed, over 100 acres is to be transferred to the Palisades Interstate Park Commission for recreational use.
. This accords with the findings of the New England-New York Inter-Agency Committee, Report of the New England-New York Region, Subregion “E” (Hudson River Basin), 999(d) (reprinted as Sen.Doc. No. 14, 85th Cong., 1st Sess. (1957) which recommended for the Hudson River Gorge “ * * * establishment of a system of highway waysides * * * to make available, in a safe manner, the scenic vistas of the countryside.”
. The propriety of the use by the Commission of the findings of the Advisory Council on Historic Preservation, set up by the Historic Preservation Act of 1966, 16 U.S.C. § 470f (Supp.1971), is the subject of some dispute. The Advisory Council found that plans for the project would have a “minimal adverse effect” on the scenic values of the area. Petitioner Scenic Hudson contends that the Council’s finding is not only contrary to evidence but also that it ought not to be considered by the Commission because Scenic: Hudson did not participate in the deliberations of the Council while the Commission’s staff did. The Commission ruled that it had a statutory obligation to consider the report. We need not resolve this minor issue since the Commission stated that its “finding is made on the basis of record evidence, independent of consideration of the findings of the Advisory Council, which simply affirms our conclusion.”
. Scenic Hudson’s witness, Raney, testified :
“Anything that man does is substantially opposed to nature. So if you build any sort of a structure you will have situations which are not found naturally in the environment so here you have an additional situation where you have fishes drawn up into an artificial impoundment, eggs drawn up, larvae drawn up, possibly thirty species upon which they feed. So it is a very complicated business to try to evaluate the overall effect this will have. But basically the effect will be harmful to the fishes.
I think anything that affects any substantial number of eggs, larvae, young or adult, could ultimately have a substantial effect on a fishery. But the degree of the effect I don’t know.”
. Con Ed is required by the license order to follow recognized guidelines for the construction of overhead transmission lines. Article 35(5) of the Commission’s license order includes the guidelines contained in the Hudson Valley Power Commission’s “Power Lines and Scenic Values in the Hudson River Valley.” In addition, Con Ed is bound by the Commission’s Order No. 414 which prescribes general regulations for the “protection and enhancement of aesthetic and related values in the design, location, construction, and operation of project works” (35 Fed.Reg. 18585 (1970)).
. That statute provides :
“Nothing in sections * * * of this title shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested rights acquired thereunder. * * * ” 43 U.S.C. § 383 (1964).
. Torris Eide, consultant engineer to the Chief Engineer of the New York City Board of Water Supply testified that the removal of 254,000 cubic yards of rock might disturb the equilibrium in the forces within the rock formation, and thus present a risk to the Aqueduct. However, he had conducted no geologic or seismic tests of the area. Thomas Fluhr, engineering geologist and consultant to the New York City Board of Water Supply testified that the rock in the area appeared to be under stress. He stated “[t]he risk of failure of the aqueduct cannot be regarded as imminent but it represents a definite hazard.” He conceded that the risk was small, but stated that “there certainly is some risk.” He too had made no surveys beyond general mathematical studies. Malcolm T. Wane, Associate Professor of Mining and Engineering at Columbia University, testified for the city that he found 'that a vertical stress relief of 14% and a horizontal stress relief of 11% would result from excavation. He did not know what effect such changes would have since the present state of equilibrium of the Aqueduct was unknown. Don Deere, Professor in the Department of Civil Engineering and Geology at the University of Illinois, testified that there were too many unknowns to permit evaluation of stress changes. He believed that “there was a small but real risk involved to the present aqueduct because of the changes in stress and other activities associated with the construction of the project at this site.”
. The Act became effective January 1,1970.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.07142857142857142, Costs: 0
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GEWIN, Circuit Judge:
Treasure Salvors, Inc., and Armada Research Corp., Florida corporations, sued for possession of and confirmation of title to an unidentified wrecked and abandoned vessel thought to be the Nuestra Señora de Ato-cha. The Atocha sank in the sea off the Marquesas Keys in 1622 while en route to Spain. The United States intervened, answered, and counterclaimed, asserting title to the vessel. Summary judgment was entered for the plaintiffs, 408 F.Supp. 907 (S.D.Fla.1976), and the government appealed. We modify the district court’s judgment, and affirm.
This action evokes all the romance and danger of the buccaneering days in the West Indies. It is rooted in an ancient tragedy of imperial Spain, and embraces a modern tragedy as well. The case also presents the story of a triumph, a story in which the daring and determination of the colonial settlers are mirrored by contemporary treasure seekers.
In late summer of 1622 a fleet of Spanish galleons, heavily laden with bullion exploited from the mines of the New World, set sail for Spain. Spain, at this period in her history, was embroiled in the vicious religious conflicts of the Thirty Years’ War and desperately needed American bullion to finance her costly military adventures. As the fleet entered the Straits of Florida, seeking the strongest current of the Gulf Stream, it was met by a hurricane which drove it into the reef-laced waters off the Florida Keys. A number of vessels went down, including the richest galleon in the fleet, Nuestra Señora de Atocha. Five hundred fifty persons perished, and cargo with a contemporary value of perhaps $250 million was lost. A later hurricane shattered the Atocha and buried her beneath the sands.
For well over three centuries the wreck of the Atocha lay undisturbed beneath the wide shoal west of the Marquesas Keys, islets named after the reef where the Marquis of Cadereita camped while supervising unsuccessful salvage operations. Then, in 1971, after an arduous search aided by survivors’ accounts of the 1622 wrecks, and an expenditure of more than $2 million, plaintiffs located the Atocha. Plaintiffs have retrieved gold, silver, artifacts, and armament valued at $6 million. Their costs have included four lives, among them the son and daughter-in-law of Melvin Fisher, plaintiffs’ president and leader of the expedition.
Jurisdiction
The district court did not specify its basis of jurisdiction. With respect to the controversy presented by the parties, it was clearly within the court’s power to declare title to those objects within its territorial jurisdiction. The government, however, contends that the court lacked in rem jurisdiction to determine the rights of the parties to that portion of the res situated beyond the territorial jurisdiction of the court.
In rem actions in admiralty generally require, as a prerequisite to a court’s jurisdiction, the presence of the vessel or other res within the territorial confines of the court. American Bank of Wage Claims v. Registry of District Court of Guam, 431 F.2d 1215, 1218 (9th Cir. 1970); 7A Moore’s Federal Practice K E.05, at E-202 (1977). This rule is predicated upon admiralty’s fiction of convenience that a ship is a person against whom suits can be filed and judgments entered. Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 22-23, 80 S.Ct. 1470, 1472-1473, 4 L.Ed.2d 1540, 1543 (1960). Personification of the ship allows actions to be brought against the vessel when her owner can not be reached. Id. In these circumstances the fiction may perform a useful and salutary function. But when a legal fiction which exists solely to effectuate the adjudication of disputes is invoked for the opposite purpose, we have no hesitation in declining to employ it.
Other courts faced with similar challenges to their jurisdiction have refused to myopically apply this fiction where its application was inappropriate to the situation before them. In Booth Steamship Co. v. Tug Dalzell No. 2, 1966 A.M.C. 2615 (S.D.N. Y.1966), the claimant to the res contested the court’s in rem jurisdiction on the grounds that the res was not within the territorial jurisdiction of the court. In its pleadings the plaintiff had alleged, as in the case before us, that the res was within or during the pendency of the proceedings would be within the court’s jurisdiction. The claimant’s answer admitted this allegation. After reviewing the decisions on this question the court held:
[T]he mandate of Admiralty Rule 22 requiring that in an in rem action, the libel allege the presence of the res in the district, does not relate to subject matter jurisdiction, and therefore actual local seizure or a tangible substitute thereof, such as the posting of a bond, is not a prerequisite to the maintenance of an in rem action. The claimants-petitioners, by admitting the presence of the res within the district, by filing a claim to the tug Dalzell # 2 and by filing and serving a general appearance, have submitted that vessel to the jurisdiction of this court. Id. at 2618.
The Third Circuit reached a similar conclusion in Reed v. Steamship Yaka, 307 F.2d 203 (3d Cir. 1962), rev’d on other gds., 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). There, the res was also outside the court’s territorial jurisdiction, but the claimant voluntarily appeared and answered the complaint “to avoid attachment and delay of the vessel if it should subsequently be present” within the court’s jurisdiction. The court held that by this act the claimant had waived the requirement that the res be arrested by the court and had consented to the court’s jurisdiction over its interest in the vessel. Id. at 204-05.
Finally, the Supreme Court, in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960), aff’g, 268 F.2d 240 (5th Cir. 1959), permitted the transfer under 28 U.S.C. § 1404(a), with the claimant’s consent, of an in rem action in admiralty to a district in which the res was not present. The Court based its decision upon the fact that this transfer would prevent “unnecessary inconvenience and expense to parties, witnesses, and the public.” Id. at 21, 80 S.Ct. at 1472, 4 L.Ed.2d at 1542. It is true, as Justice Whit-taker stated in his dissent in Continental Grain, that the Court did not decide the question of whether the owner’s consent can confer in rem jurisdiction in an action where the res is not within the territorial jurisdiction of the court. However, as commentators have noted, the Supreme Court appears to favor the position that the presence of the res within the district is not an absolute prerequisite to the court’s jurisdiction.
These decisions evidence the common concern of the courts with finding the most practical and efficacious means of resolving the disputes before them. An interest in rendering justice rather than an automatistic reliance upon rigid legalisms characterizes each of them. It is with these examples before us that we turn to an examination of the merits of the government’s jurisdictional challenge.
Initially we note that for all practical purposes it was impossible to bring the entire remains of the vessel and her cargo within the territorial jurisdiction of the court. Thousands of items retrieved from the wreck site were brought into the district, but the bulk of the wreck lies buried under tons of sand in international waters. The district court did everything within its power to have the marshal arrest the vessel and bring it within the custody of the court. Thus, there is little danger that the res, against which any claims might be satisfied, will escape an in rem decree against it.
In this case, as in the three cases we have discussed, the court had in personam jurisdiction over the claimants, thus rendering the vessel’s arrest nonessential to the resolution of the action. The United States intervened in plaintiffs’ in rem action as a party defendant and filed a counterclaim asserting a property right in the res. The government, by intervening in this action and by stipulating to the court’s admiralty jurisdiction (A. 67), waived the usual requirement that the res be present within the territorial jurisdiction of the court and consented to the court’s jurisdiction to determine its interest in the extraterritorial portion of the vessel.
Alternatively, we note that assuming a lack of in rem jurisdiction of that part of the wreck lying outside the territorial waters of the United States, the district court is not deprived of jurisdiction over the government’s counterclaim if that claim rests upon an independent basis of jurisdiction. Sachs v. Sachs, 265 F.2d 31 (3d Cir. 1959); Haberman v. Equitable Life Assurance Soc’y of United States, 224 F.2d 401, 409 (5th Cir. 1955); Isenberg v. Biddle, 75 U.S.App.D.C. 100, 102, 125 F.2d 741, 743 (1944). In its counterclaim the government requested that “a declaratory judgment be issued affirming the property right of the United States in the Atocha, her tackle, armament, apparel and cargo.” (A. 10). While no basis of jurisdiction was stated in the counterclaim regarding the extraterritorial portion of the wreck, the record reveals that the government based its claim to rights in the sunken vessel on the Antiquities Act, 16 U.S.C. § 431 et seq., and the Abandoned Property Act, 40 U.S.C. § 310. The district court thus had jurisdiction under 28 U.S.C. § 1331 to determine the applicability of these statutes to that portion of the vessel situated in international waters.
To summarize, the district court properly adjudicated title to all those objects within its territorial jurisdiction and to those objects without its territory as between plaintiffs and the United States. In affirming the district court, we do not approve that portion of its order which may be construed as a holding that plaintiffs have exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other claimants, if any there be, who are not parties or privies to this litigation.
One further procedural matter must detain us. The government asserts that summary judgment was improper in light of two material issues of fact left unresolved by the district court. The first issue, whether the United States has established procedures for the protection and recovery of objects on the outer continental shelf, concerns administrative or legislative action which is subject to judicial notice. See Wright and Miller, Fed. Practice and Procedure § 2410. The government was obliged, under Fed.R.Civ.P. 56(e), to set forth any procedures or controlling statutes not already brought to the attention of the court. The government cannot claim to be a party unable, under Fed.R.Civ.P. 56(f), to gather and present material showing the existence of such procedures or statutes.
The second issue, whether plaintiffs were in possession of the Atocha and that portion of her tackle, armament, apparel, and cargo which had not been found, cannot be said to be in dispute as a matter of fact. The government adopted plaintiffs’ description of the vessel in its claim of ownership (A. 6). It is uncontested that other artifacts exist in the vicinity of plaintiffs’ salvage operation. The government offered no affidavits or other evidence contesting plaintiffs’ protection and control of the wreck site. Absent evidence disputing plaintiffs’ affidavits, the district court appropriately considered the facts settled on motion for summary judgment. .
Salvage
The government argues that one of the elements of a salvage action — the existence of a marine peril — is absent from this controversy, and that the district court erred in applying the law of salvage. We believe the government misconstrues both the nature of the law applied by the district court and the law of salvage itself.
The Atocha is indisputedly an abandoned vessel. Whether salvage law or the adjunct law of finds should be applied to property abandoned at sea is a matter of some dispute. Martin J. Norris, in his treatise on salvage law, states that under salvage law the abandonment of property at sea does not divest the owner of title. M. Norris, The Law of Salvage, § 150 (1958). Courts, however, have rejected the theory that title to such property can never be lost and have applied the law of finds. Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456-57 (E.D.Va.1960). See Nippon Shosen Kaisha, K.K. v. United States, 238 F.Supp. 55, 59 (N.D.Cal.1964); Rickard v. Pringle, 293 F.Supp. 981, 984 (E.D.N.Y.1968). Under this theory, title to abandoned property vests in the person who reduces that property to his or her possession. In Rickard, for example, the court held that title to a propeller recovered from a vessel abandoned on the ocean floor for sixty years vested in “the first finder lawfully and fairly appropriating it and reducing it to possession, with the intention to become its owner.” Id. at 984, citing Wiggins, supra, sub nom. The Clythia.
The court below correctly applied the law of finds. Disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths. The law of salvage does not contemplate a different result. Salvage awards may include the entire derelict property.
The government’s argument that no marine peril existed ignores the reality of the situation. Marine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation. In Thompson v. One Anchor and Two Chains, 221 F. 770, 773 (W.D.Wis.1915), “[t]he ‘marine peril’ consisted in the fact that the anchors and chains were actually lost. If they had been resting on a reef, where they could be seen, they would undoubtedly have been in ‘peril’ of being lost, and the ‘marine peril’ certainly was not diminished or extinguished by the fact that they were actually lost.” There is no dispute that the Atocha was lost. Even after discovery of the vessel’s location it is still in peril of being lost through the actions of the elements. Thus, under either theory plaintiffs are entitled to award of the property if the government does not prevail in this action.
On this appeal the United States claims the treasure chiefly upon two grounds: (1) Application of the Antiquities Act, 16 U.S.C. §§ 431-433, to objects located on the outer continental shelf of the United States; and (2) The right of the United States, as heir to the sovereign prerogative asserted by the Crown of England, to goods abandoned at sea and found by its citizens. In support of the second contention the government relies not only upon English common law but also upon the Antiquities Act, supra, the Abandoned Property Act, 40 U.S.C. § 310, and other generalized statutes and regulations.
The Antiquities Act
The Antiquities Act authorizes executive designation of historic landmarks, historic and prehistoric structures, and objects of historic or scientific interest situated upon lands owned or controlled by the United States as national monuments. Permission to examine ruins, excavate archaeological sites, and gather objects of antiquity must be sought from the secretary of the department exercising jurisdiction over such lands. As the district court noted, the Antiquities Act applies by its terms only to lands owned or controlled by the Government of the United States. The wreck of the Atocha rests on the continental shelf, outside the territorial waters of the United States.
The government asserts that the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., demonstrates Congressional intent to extend the jurisdiction and control of the United States to the outer continental shelf. OCSLA was passed, along with the Submerged Lands Act, 43 U.S.C. § 1301 et seq., to clarify the respective interests of coastal states and the United States in the natural resources of the subsoil and seabed of the continental shelf. A look at the background and interpretation of OCSLA is necessary to determine its scope.
The Truman proclamation of September 28, 1945, spurred national and international interest in exploitation of the mineral wealth of the oceans. The proclamation asserted the jurisdiction and control of the United States over the mineral resources of the continental shelf, but was not intended to abridge the right of free and unimpeded navigation of waters above the shelf, nor to extend the limits of American territorial waters. See 13 Dep’t State Bull. 485 (Sept. 30,1945). The Convention on the Continental Shelf, written thirteen years later, assured to each coastal nation the exclusive right to explore and exploit the resources of the seabed and subsoil, not only of its territorial sea, but also of the adjacent continental shelf beyond the territorial sea. See Master’s Report, supra n.14, at 69.
During the years following the Truman proclamation, intense interest in exploiting ocean resources resulted in disputes between the United States and coastal states asserting jurisdiction over territorial waters. In United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), and its progeny, the United States was held to have rights in the offshore seabed superior to and exclusive of the states. The political reaction to these decisions led to passage of the Submerged Lands Act in May 1953 and the Outer Continental Shelf Lands Act a few months later. See 15 Va. J.Int’l. L. 1009, 1011 (1975). By enactment of the Submerged Lands Act, Congress recognized the coastal states’ title to and ownership of the lands and natural resources beneath navigable waters within the territorial sea. See United States v. Maine, 420 U.S. 515, 525, 95 S.Ct. 1155, 1160, 43 L.Ed.2d 363, 370-71 (1975). In the Outer Continental Shelf Lands Act, “Congress emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit.” Id. at 526, 95 S.Ct. at 1161, 43 L.Ed.2d at 371.
The superiority of the federal claim to resources on the outer continental shelf to the claims of the states was clearly established in 1975 in United States v. Maine, supra. The United States asserted in its complaint in Maine only “. . . sovereign rights over the seabed and subsoil underlying the Atlantic Ocean, lying more than three geographic miles seaward from the coastline to the outer edge of the continental shelf for the purpose of exploring the area and exploiting its natural resources. . . .” Master’s Report, supra n.14, at 3. The special master found the “basic question involved” in the litigation to be “whether the right to explore and exploit the natural resources of the seabed and subsoil of that portion of the continental shelf . . . belongs to the United States or to the defendant States or any of them.” Id. at 1. After Maine, the primacy of federal over state interests in the natural resources of the outer continental shelf cannot be doubted. But the decision in Maine did not address the extent of control by the United States of the shelf in all circumstances.
43 U.S.C. § 1332(a) declares the policy of the United States to be “that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.” Certain language in the Conference Committee report on the bill supports the view that Congress intended to extend the jurisdiction and control of the United States to both the seabed and subsoil. However, this language must be taken in the context of the bill’s stated purpose “. . . to amend the Submerged Lands Act in order that the area in the outer Continental Shelf beyond boundaries of the States may be leased and developed by the Federal Government. . . . ”
This court held in Guess v. Read, 290 F.2d 622, 625 (1961), cert. denied, 386 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962), that “[t]he Continental Shelf Act was enacted for the purpose, primarily, of asserting ownership of and jurisdiction over the minerals in and under the Continental Shelf.” The structure of the Act itself, which is basically a guide to the administration and leasing of offshore mineral-producing properties, reinforces this conclusion. The Act consists almost exclusively of specific measures to facilitate exploitation of natural resources on' the continental shelf. In addition, 43 U.S.C. § 1332(b) provides that the Act “shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected.” As the court below noted, an extension of jurisdiction for purposes of controlling the exploitation of the natural resources of the continental shelf is not necessarily an extension of sovereignty.
We believe that a limited construction of the Act comports with the primary purpose of resolving competing claims to ownership of the natural resources of the offshore seabed and subsoil. So read, the Act is consistent with Article 2 of the Convention on the Continental Shelf:
1. The coastal state [nation] exercises over thé continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
The Convention on the Continental Shelf was a product of the United Nations Conference on the Law of the Sea convened at Geneva in 1958. It was the result of eight years’ work by the International Law Commission. See generally Neblett, The 1958 Conference on the Law of the Sea: What was Accomplished, in The Law of the Sea (L. Alexander ed. 1967). The Convention on the Continental Shelf became effective as law in the United States eleven years after passage of the Outer Continental Shelf Lands Act and superseded any incompatible terminology in the domestic statute. United States v. Ray, 423 F.2d 16, 21 (5th Cir. 1970). See Cook v. United States, 288 U.S. 102, 118-19, 53 S.Ct. 305, 311, 77 L.Ed. 641, 649-50 (1932).
Interpretations of the Convention and the Act by legal scholars have, with remarkable accord, reached the same conclusion regarding the nature of control of the United States over the continental shelf. The most compelling explication of the Convention regarding national control over non-resource-related material in the shelf area is contained in the comments of the International Law Commission:
It is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil. This comment is consistent with the Commission’s general perception of national jurisdiction over the continental shelf:
[The Commission] was unwilling to accept the sovereignty of the coastal State over the seabed and subsoil of the continental shelf. . . . the text as now adopted leaves no doubt that the rights conferred upon the coastal state cover all rights necessary for and connected with the exploration and exploitation of the natural resources of the continental shelf.
We have demonstrated the limited scope of American control over the wreck site. We conclude that the remains of the Atocha are not situated on lands owned or controlled by the United States under the provisions of the Antiquities Act.
Sovereign Prerogative
The United States also claims the treasure as successor to the prerogative rights of the king of England. At first glance the English prerogative would seem irrelevant to the wreck of a Spanish vessel discovered by American citizens off the coast of Florida. The government contends, however, that the English common law rule — granting the Crown title to abandoned property found at sea and reduced to possession by British subjects — is incorporated into American law, and that Congress has specifically asserted jurisdiction over the res in this dispute.
While it may be within the constitutional power of Congress to take control of wrecked and abandoned property brought to shore by American citizens (or the proceeds derived from its sale), legislation to that effect has never been enacted. The Antiquities Act, which was intended to facilitate preservation of objects of historical importance, could hardly be read to subrogate the United States to the prerogative rights of the Crown. The Abandoned Property Act, 40 U.S.C. § 310, authorizes the administrator of General Services to protect the interests of the government in wrecked, abandoned, or derelict property “being within the jurisdiction of the United States, and which ought to come to the United States.” But the Abandoned Property Act has limited application.
In Russell v. Proceeds of Forty Bales Cotton, 21 Fed.Cas. No. 12,154, p. 42 (S.D. Fla.1872), the United States intervened and claimed, as its prerogative, the residue of proceeds after a salvage award from the sale of goods found derelict at sea. The government relied upon the predecessor of 40 U.S.C. § 310 as statutory authority for its claim. In a thorough and scholarly opinion, the district court determined that the Act applied only to property which should belong to the United States as a result of its participation in the War between the States. The judgment was affirmed on appeal without opinion, 21 Fed.Cas. p. 50. The court in United States v. Tyndale, 116 F. 820 (1st Cir. 1902) presented with the same question, held “[t]he resolution of June 21, 1870 (16 Stat. 380), now section 3755 of the Revised Statutes, relates, apparently, to property which ought equitably to go to the United States, and not to wreckage of any kind.” 116 F. at 822.
We accord great weight to the decision in Russell, especially since the court was construing legislation then only two years old. However, we believe the less narrow construction accorded the Act in Tyndale is more appropriate in light of continued, through infrequent, use of the Abandoned Property Act by the government to regulate salvage of property abandoned on its lands, Corbino v. United States, 488 F.2d 1008, 203 Ct.Cl. 278 (1973), or property in which it has an equitable claim to ownership, 23 Op.Atty.Gen. 76, 77 (1900) (concerning Spanish vessels lying on Cuban coast, wrecked by naval vessels of United States during Spanish-American War). In any event, the Abandoned Property Act is not a legislative enactment of the sovereign prerogative. Since the United States has no claim of equitable ownership in a Spanish vessel wrecked more than a century before the American Revolution, and the wreck is not “within the jurisdiction of the United States,” the Abandoned Property Act has no application to the present controversy. We have considered other statutes and regulations cited by the United States and find no support for the government’s position in them.
The government insists that a legislative assertion of the sovereign prerogative is not a necessary prerequisite to the exercise of that jurisdiction by courts of the United States. A number of the royal colonies having asserted certain prerogative rights to abandoned property found within their jurisdiction, the sovereign prerogative is said to have become a part of American maritime law and practice before the Revolution. After the Revolution, according to Kent, “if found at sea, they [wrecks] are supposed to belong now to the United States, as succeeding in this respect, to the prerogative of the English crown.”
In spite of the arguments advanced by Chancellor Kent, the notion of sovereign prerogative never took root in America. One early decision, Peabody v. Proceeds of Twenty-Eight Bags of Cotton, 19 Fed.Cas. No. 10,869, p. 39 (D.Mass.1829), a veritable treatise on the disposition of derelict property found at sea, concluded that sovereign prerogative had become a part of American maritime law. Peabody did not control the decision in Gardner v. Ninety-Nine Gold Coins, 111 F. 552 (D.Mass.1901), and it was overruled in United States v. Tyndale, 116 F. 820, 822-23 (1st Cir. 1902). The reasoning of that court is impeccable:
Notwithstanding these propositions, the United States rely on the very learned opinion of Judge Davis in Peabody v. Proceeds of 28 Bags of Cotton . . The difficulties which we meet were not considered by Judge Davis, the whole force of whose reasoning only leads up to the proposition, which we admit, that it is within the constitutional powers of congress to take control of this fund, and of others like it. The conclusions which he draws from what was said by Mr. Dane and Chancellor Kent are hardly supported by the text of those learned writers. .
* * * it is enough to say that, whatever was the title of the king at common law, it was based on the royal prerogative, was appurtenant to the crown, and was, for the most part, classified among the royal revenues. This is fully explained at various points by Blackstone, and by Lord Chief Justice Hale in “De Jure Maris.” It is clearly summed up by Hall on the Seashore (2d ed.) 80, as follows:
“In like manner, wreck (when no owner can be found) is part of the king’s ordinary revenue, in right of his royal prerogative, and is a flower of the crown. So, also, flotsam, jetsam, and ligan are prerequisites of the crown.”
All of these could be granted by the king without authority of parliament. A singular instance of this is given by Dane (volume 3, 137) in reference to the grant of the province of Maine from the King to Sir Ferdinando Gorges. While there can be no question that the sovereign peoples in Anglo-Saxon America, whether the various states or the United States, did, in some way, succeed to all the rights of the English king and of the English people, yet, until some recognized line of procedure or some action of congress intervenes, it is not within the province of the courts to determine that the treasury of the United States represents any particular royal prerogative.
Other American cases are in accord with Tyndale. See Russell v. Proceeds of Forty Bales Cotton, 21 Fed.Cas. No. 12,154, pp. 42, 45-50 (S.D.Fla.1872), aff’d 21 Fed. Cas. p. 50; In re Moneys in Registry, 170 F. 470, 475 (E.D.Pa.1909); Thompson v. United States, 62 Ct.Cl. 516, 524 (1926). Although at least one state court has invoked English common law to award ownership of a sunken vessel to the sovereign, the “American rule” vesting title in the finder has been widely recognized by courts and writers. See Kenny and Hrussoff, The Ownership of the Treasures of the Sea, 9 Wm. & Mary L.Rev. 383, 392-98 (1967). See also H. Miller, International Law and Marine Ar-chaeology 18 (1971). We accept the “American rule” as it has been uniformly pronounced in the courts of this nation for over a century.
Finally, the United States asserts a generalized power to control the activities of its citizens and corporations beyond the limits of territorial jurisdiction. While this power no doubt exists, we can find no authority in law or in reason to countenance interference with plaintiffs’ activities simply because they are American citizens, or because they chose to incorporate in Florida rather than in some other country.
The judgment is modified and as modified is AFFIRMED.
. Plaintiffs began their salvage operation pursuant to a contract with the state of Florida. Under the contract, the state was entitled to 25% of the finds. The decision in United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975), refuted Florida’s claim to the wreck site, and the contract was can-celled. See also United States v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976). It is undisputed that the wreck lies on the continental shelf, outside the territorial waters of the United States. (A. 68).
. Our brief historical summary is based in part on Lyon, The Trouble with Treasure, 149 National Geographic 787 (June 1976).
. The fiction of a ship’s personality is criticized in G. Gilmore & C. Black, The Law of Admiralty, 615-22 (2d ed. 1975).
. See 7A Moore’s Federal Practice H E.05 at E203-E206 (1977); The Law of Admiralty, supra n.3, at 616 n. 75a. See also 2 E. Benedict, The Law of American Admiralty § 242 (1940).
. Plaintiffs strenuously argue that in addition to the artifacts seized and brought within the jurisdiction of the court, the vessel itself was in custodia iegis pursuant to an order of the court. The record lends some support to this contention. On February 26, 1976, the United States moved the court “for an order commanding the United States Marshal for the Southern District of Florida, to arrest and take into custody the defendant vessel, her tackle, apparel, cargo and armament, and to retain the same in his custody until further order of this Court,” and, in the alternative, “for an order continuing its order of October 28, 1976 (sic), appointing plaintiffs custodians of the defendant vessel.” (A. 88). On October 28, 1975, the court had ordered “that TREASURE SALVORS, INC., and ARMADA RESEARCH CORP. be, and are hereby appointed the custodian of said vessel to retain the same in his [sic] custody for possession and safekeeping for the aforementioned compensation until further order of this court,” and had further ordered that “all Marshal’s costs be paid prior to the release of said vessel and all further constructive costs be borne by Plaintiffs.” (A. 51). The Marshal’s return filed November 11, 1975, certifies service of a warrant in rem upon “The unidentified Wrecked and Abandoned Sailing Vessel . . . Located within 2500 yards of a point at coordinate 24°31.5' North Latitude and 82°20' West Longitude, said sailing vessel is believed to be the ‘Nuestra Señora de Atocha’.” (A. 28).
. In The Fairisle, 76 F.Supp. 27, 34 (D.Maryland), the court held that owners who appeared in an in rem action to contest the plaintiffs’ claim “may equitably be treated as if they had been brought into court by personal process,” citing The Dictator, L.R. Probate Division 304 (1892). This view was adopted by the Ninth Circuit in Mosher v. Tate, 182 F.2d 475, 479-80 (1950). See The Law of Admiralty, supra n.3, at 802-05.
. The government invoked these statutes in its claim of ownership filed in the district court pursuant to admiralty rule 6(c). (A. 6-7).
. On February 19, 1976, the district court entered the following order of final judgment: Pursuant to this Court’s opinion Order of Summary Judgment' of February 2, 1976, it is ORDERED and ADJUDGED that judgment be and the same hereby is entered in favor of plaintiffs and against the United States of America and all other claimants. The Counterclaim of the United States of America is hereby dismissed with prejudice.
It is further ORDERED that plaintiffs, Treasure Salvors, Inc. and Armada Research Corporation, are confirmed in their sole title to, and right to immediate and sole possession of, the vessel identified in this matter as “Nuestra Señora de Atocha “together with all her tackle, armament, apparel and cargo, wherever the same may be found.
It is further ORDERED and ADJUDGED that no person, organization or governmental agency shall interfere with the plaintiffs in the lawful exercise of their right to possession or of their salvage rights in the vessel, tackle, armament, apparel and cargo.
Jurisdiction of this matter is hereby retained for the purpose of enforcement of this Order.
(A. 86-87).
. The parties stipulated that “the wreck believed to be the Nuestra Señora de Atocha, her tackle, armament, apparel and cargo has been abandoned by its original owners.” (A. 69)
. See Eleazer, The Recovery of Vessels, Aircraft, and Treasure In International Water 34— 35, in Some Current Sea Law Problems, (S. Wurfel ed. 1975) (University of North Carolina Sea Grant Publication No. U.N.C.-SG-75-06).
. Norris raises the spectre of violent clashes between competing finders in international waters if abandoned property is held to be a find. Norris, supra at § 158 (Supp.1974). We fail to see how salvage law, which gives the right of possession to first salvors, Norris, supra at § 152, would provide a more effective deterrent to such clashes. Under either doctrine the property or an award for the value of the salvage efforts goes to the one who is first able to seize possession. The primary difference between the two doctrines is that under salvage law the claim of the finder of abandoned property is satisfied by proceeds from the sale of the property paid into court. See Norris, supra at § 156.
. See Brady v. S.S. African Queen, 179 F.Supp. 321, 324 (E.D.Va.1960).
. According to Norris, The Law of Salvage § 185 (1958), “[t]he peril required in a salvage service need not necessarily be one of imminent and absolute danger. The property must be in danger, either presently or reasonably to be apprehended.” See Fort Myers Shell & Dredging Co. v. Barge NBC512, 404 F.2d 137, 139 (5th Cir. 1968).
. The continental shelf is defined as the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas. This is a legal, not a geological, definition. The territorial sea of the United States includes those waters lying not more than three miles (or three marine leagues in the Gulf of Mexico in the case of certain Gulf states) from the baseline (the artificial coast line). All parts of the sea not included in the territorial or internal waters of a nation constitute high seas. Nations maintain limited jurisdiction over waters lying not more than twelve miles from the baseline, in order to prevent or punish infringement of customs, fiscal, immigration or sanitary regulations within their territory or territorial sea. This belt of limited control is the contiguous zone. See generally Convention on the Continental Shelf, done April 29, 1958, [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, in force June 10, 1964; Convention on the Territorial Sea and the Contiguous Zone, done April 29, 1958, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5639, in force Sept. 10, 1964; Convention on the High Seas, done April 29, 1958, [1962] 13 U.S.T. 2312, T.I.A.S. No. 5200, in force Sept. 30, 1962; Report of Albert B. Maris, Special Master, United States v. Maine 65-68 (No. 35 Original, August 27, 1974) [hereinafter Master’s Report]; Note, Marine Archaeology and International Law: Background and Some Suggestions, 9 San Diego L.Rev. 668, 673-77 (1972) [hereinafter Note, Marine Archaeology],
. Pres.Proc. No. 2667, 10 Fed.Reg. 12303, 59 Stat. 884.
. Convention on the Continental Shelf, done April 29, 1958, [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, in force June 10, 1964.
. United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950).
. . . the jurisdiction and control of the United States is extended to the seabed and subsoil of the entire outer Continental Shelf adjacent to the shores of the United States instead of merely to the natural resources of the subsoil and seabed as in the original House version . . . Conf.Rep. No. 1031, 83rd Cong., 1st Sess. (1953), reported at 2 U.S.Code Cong. & Admin.News 1953, p. 2184.
. House Report No. 413, 83rd Cong., 1st Sess. (1953), reported at 2 U.S.Code Cong. & Admin. News 1953, p. 2177.
. Natural resources are defined in Article 2 as “the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species.
. See Perry, Sovereign Rights in Sunken Treasures, 7 Land and Natural Resources Division Journal 89, 111-12 (1969); H. Miller, International Law and Marine Archaeology 22, 25-26 (1971) (monograph by Counsel to Subcommittee on Oceans and Atmosphere, Committee on Commerce, United States Senate, published by Academy of Applied Science); Note, Marine Archaeology, 9 San Diego L.Rev. 668, 675, 686, 697 (1972).
. 11 U.S. GAOR, Supp. 9 at 42, U.N. Doc. A/3159 (1956).
. Id, In the same vein:
The Commission accepted the idea that the coastal State may exercise control and jurisdiction over the continental shelf, with the proviso that such control and jurisdiction shall be exercised solely for the purpose of exploiting its resources; and it rejected any claim to sovereignty or jurisdiction over the superjacent waters.
Id. at 40.
. We note that even were we to find that the Antiquities Act did cover this salvage operation, its enforcement provision, 16 U.S.C. § 433, has been held unconstitutionally vague. United States v. Diaz, 499 F.2d 113 (9th Cir. 1974).
. The decision in The Aquila, 1 C. Rob. 36, 41-42, 165 Eng.Rep. 87, 89 (1798), is often referred to:
It is certainly very true that property may be so acquired [by finding and possession]: but the question is, to whom is it acquired? By the law of nature, to the individual finder or occupant: But in a state of civil society, although property may be acquired by occupancy, it is not necessarily acquired to the occupant himself; for the positive regulations of the State may have made alterations on the subject; and may, for reasons of public peace and policy, have appropriated it to other persons, as, for instance, to the State itself, or to its grantees.
It will depend, therefore, on the law of each country to determine, whether property so acquired by occupancy, shall accrue to the individual finder, or to the sovereign and his representatives? and I consider it to be the general rule of civilized countries, that what is found derelict on the seas, is acquired beneficially for the sovereign, if no owner shall appear. Selden (De Don. Maris, lib. i, c. 24) lays it down as a right annexed to sovereignty, and acknowledged amongst all nations ancient and modem. Loccenius (Lib. i, c. 7, 10) mentions it as an incontestable right of sovereignty in the north of Europe. Valin (Lib. iv, tit. 9, art. 26) ascribes the same right to the crown of France . . .. In England this right is as firmly established as any one prerogative of the crown. . . .
. 16 Stat. 380 (1870). The statute originally authorized the Secretary of the Treasury “to make such contracts and provisions as he may deem most advantageous for the interests of the government, for the preservation, sale, or collection, of any property, or the proceeds thereof which may have been wrecked, abandoned, or become derelict, being within the jurisdiction of the' United States, and which ought to come to the United States, [and any moneys, dues, and other interests, lately in the possession of or due to the so called Confederate States, or their agents, and now belonging to the United States, which are now held or retained by any person, corporation or municipality whatever, and which ought to have come into the possession and custody of, or been collected or received by, the United States.”] The bracketed clause was omitted as obsolete when the statute was codified.
. “The naval and military operations, both of the United States and the so-called Confederate States during the late war, had strewn the harbors of the entire coast with numerous wrecks, and also many portions of the country with abandoned or derelict property, that rightfully ‘should come to the United States,’ either from being originally the property of the United States, or the property of the public enemy, or from having been engaged in violating the blockade. The continuation of the resolution points more plainly at the fact that in the mind of the legislator the property, dues, and claims ‘that ought to come to the United States’ through the late war were intended, and no others.” 21 Fed.Cas. at p. 43.
. The government intervened in an action by the salvors for the residue of money recovered from a body found at sea. The court had retained the money remaining after payment of a liberal salvage award in its registry for two years. The action in the district court is reported as Gardner v. Ninety-Nine Gold Coins, 111 F. 552 (D.Mass.1901).
. See Perry, Sovereign Rights in Sunken Treasure, 7 Land and Natural Resources Division Journal 89, 97-104 (1969), for a description of the aforementioned cases. He also cites unpublished Treasury Department memorandum opinions, e. g., Treasury File Op. No. 195, Oct. 16, 1936, construing 40 U.S.C. § 310 to give the United States no authority to claim derelict property in which the United States has no property interest. Id. at 102.
. See 2 Kent, Commentaries on American Law 359-60 (5th ed. 1844). Cf. Thompson v. The Catharina, 23 Fed.Cas. No. 13,949, pp. 1028, 1030 (D.Pa.1795) (“[T]he change in the form of our government has not abrogated all the laws, customs and principles of jurisprudence, we inherited from our ancestors, and possessed at the period of our becoming an independent nation.”)
. 2 Kent at 359.
. However, the court was reluctant to adopt the strict English practice of vesting property absolutely in the sovereign if unclaimed within a year and a day from the decree of salvage. He preferred “to consider the sovereign authority as holding such property in trust, to be surrendered to reasonable claims which may be presented.” 19 Fed.Cas. at p. 48.
. Ervin v. Massachusetts Co., 95 So.2d 902 (Fla. 1956), cert. denied, 355 U.S. 881, 78 S.Ct. 147, 2 L.Ed.2d 112 (1957).
. “ . . . [I]t is somewhat difficult to assess the place of State ex rel. Ervin v. Massachusetts Co. in American law. In any event, in the federal courts it remains the settled rule that, after the original owner, the finder’s claim is preferred to the sovereign’s.” Id. at 398.
. Eleazer, supra n. 10, at 34, reaches the following conclusion concerning the applicable rules:
The nations of the world fall into two groups, generally speaking, as regards the ownership of recovered treasure. For the sake of clarity, the first group will be said to adhere to the English Rule — recovered treasure belongs to the sovereign. The second group adheres to the American Rule — recovered treasure belongs to the finder. The crucial characteristic to note is that title to recovered treasure vests in either the sovereign or the finder, (footnote omitted)
. We are cited to the controls over American fishermen on the high seas, including the North Pacific Fisheries Act, 16 U.S.C. § 1021 et seq., the Northwest Atlantic Fisheries Act, 16 U.S.C. § 981 et seq., and the Tuna Conventions Act, 16 U.S.C. § 951 et seq.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1413043478260869, Costs: 0.108695652173913
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HOLLOWAY, Circuit Judge.
Plaintiff-appellant Wyoming Sawmills Incorporated brings this appeal from the district court’s order dismissing plaintiffs claim of violation of the Constitution’s Establishment Clause and holding against plaintiff on the merits of its claims of violation of the National Forest Management Act. Plaintiff commenced this action in the district court after the United States Forest Service had rejected plaintiffs challenges to the Historic Preservation Plan issued by the Forest Service for the management of the Medicine Wheel National Historic Landmark and Vicinity. Named as defendants in the complaint were the Forest Service, the Secretary of Agriculture (who is the cabinet officer with authority over the Forest Service), and three individual officers of the Service, all of whom will be referred to herein as the Forest Service or just the Service. The Medicine Wheel Coalition on Sacred Sites of North America was permitted to intervene in the district court and is aligned with the Service as an appellee in this court.
I
The Medicine Wheel National Historic Landmark was created in 1969 to preserve the Medicine Wheel, a prehistoric stone circle about 80 feet in diameter that was constructed by the aboriginal peoples of North America. The wheel includes a large cairn in the center and 28 radiating spokes of rocks. Although the age of the structure is unknown, archeological evidence indicates that human presence in the area goes back for 7,500 years or more. Many tepee rings, trails, and other artifacts and traces of human habitation are found in the vicinity. A number of Native American tribes consider the Wheel to be sacred.
The Medicine Wheel is- located on Medicine Mountain in the Bighorn National Forest in north central Wyoming. In 1957, approximately 200 acres in the Bighorn National Forest were set aside for the preservation of the Wheel, and designation as a National Historic Landmark followed twelve years later. In the 1980s, the Forest Service began to reconsider the level of protection afforded the area. An increase in the number of visitors to the monument had raised concerns of visitor safety and concern that the features and artifacts were at risk. On the other hand, apparently some officials were of the view that the flow of visitors should be facilitated.
In 1991, the process resulted in the publication of a Draft Environmental Impact Statement (DEIS) which set out management alternatives. The preferred alternative set out in the DEIS called for road construction and improvements to allow unrestricted vehicular access except during times of ceremonial use of the Wheel, construction of an enlarged parking lot adjacent to the Wheel, and so forth. The Forest Service received more than 300 comments on the DEIS, many of which were critical and called for an approach more sensitive to the concerns of Native Americans.
In response, the Service withdrew the proposal and began a more intensive consultation process with the Wyoming State Historic preservation Officer and the federal Advisory Council on Historic Preservation. The Big Horn County Commissioners, the Medicine Wheel Coalition on Sacred Sites of North America, the Medicine Wheel Alliance, and the Federal Aviation Administration also became “Consulting Parties” in the development of plans for management of the site. The Consulting Parties entered into a Memorandum of Agreement (MOA) which established that “the management priorities for management for the Medicine Wheel are its protection and continued traditional cultural use consistent with Section 110(f) of the [National Historic Preservation] Act.” I Aplt.App. 91.
The Consulting Parties comprised a committee for planning management of the site. Plaintiff notes that no representative of commercial interests was involved in this process. The Forest Service agreed in the MOA to close a portion of Forest Development Road (FDR) 12, which provides access to the Medicine Wheel; an exemption to the closing was made for the “special needs of traditional religious practitioners” to reach the site. (As will be seen, the alleged impact on logging of the decision to close FDR 12 is important to plaintiffs action). The term of the MOA appears to have been quite brief; it apparently was executed in mid-1993 and provided that it was to expire on January 1, 1994.
On August 29, 1994, the Forest Service published a Programmatic Agreement with the Consulting Parties, the stated purpose of which was to develop a plan for the long term management of the Medicine Wheel and Medicine Mountain. As part of this agreement, the Service prohibited, temporarily, any new “undertakings” in an area within 2.5 miles of the Medicine Wheel, including any new mining or timber harvesting, until the anticipated Historic Preservation Plan could be completed and adopted.
In September 1996, the Service adopted the long-term plan now at issue, titled the Historic Preservation Plan for the Medicine Wheel National Historic Landmark and Medicine Mountain (the HPP). The Service implemented the HPP on October 7, 1996, by issuing Amendment 12 to the Bighorn National Forest Plan; Amendment 12 included a “Decision Notice and Finding of No Significant Impact,” and Environmental Assessment. III Aplt.App. 573 et seq.
The HPP provides that the Forest Service will consult with the other parties to the HPP for any project within an “Area of Consultation” around the monument. The “Area of Consultation” is considerably larger than the National Historic Landmark, covering an estimated 18,000 to 20,-000 acres. The purpose of the consultation envisioned by the HPP is to facilitate the consideration of means to minimize impacts to historic resources and traditional cultural use.
The HPP recognizes explicitly that the cultural and historic importance of the Medicine Wheel is, for many Native Americans, an element of their religious tradition. Indeed, plaintiff points to the fact that the first page of each of the nine major sections of the HPP includes this statement: “The purpose of this HPP is to ensure that the Medicine Wheel and Medicine Mountain are managed in a manner that protects the integrity of the site as a sacred site and a nationally important traditional cultural property.” E.g., II Aplt. App. 263.
The Forest Service points out that preservation of the Medicine Wheel is consistent with the Service’s responsibilities under a number of statutes. The Environmental Assessment produced to evaluate the environmental effects of the HPP recites:
The Forest Service is required by law to protect and preserve National Historic Landmarks and historic properties. These laws include the Antiquities Act of 1906, the Historic Sites Act of 1935, the National Historic Preservation Act of 1966, the Archaeological and Historic Resources Preservation Act of 1974, the American Indian Religious Freedom Act of 1978, the Archaeological Resources Act of 1979 (all as amended). In addition, Executive Order No. 13007 signed by President Clinton, May 24, 1996, orders Federal agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and avoid adversely affecting the physical integrity of such sacred sites.
III Aplt.App. 582.
Plaintiff Wyoming Sawmills is a commercial timber company located in Sheridan County, Wyoming. It has been the primary purchaser of timber from the Bighorn National Forest for over 30 years. In addition to challenging the HPP, plaintiffs complaint also addressed the Forest Service’s decision not to hold one particular timber sale that it had proposed. The Service had, in September 1997, advertised for bidding on a timber sale in an area referred to as Horse Creek. The Service canceled the sale after receiving bids but before opening the bids, citing a “procedural error” in having failed to consult formally with the parties to the HPP. Internal documents indicated that the Service planned to re-advertise the sale and to proceed with it. However, after consulting with the other parties to the HPP and after further deliberations, the Service identified several potential problems with the proposed sale, including “process violations, conflicting data, and incomplete [National Environmental Policy Act] analysis.” As a result, the Service never conducted a sale of timber from the Horse Creek area; on the other hand, the Service did not decide to permanently cancel the project.
II
The Forest Service and intervenor defendant Coalition moved to dismiss the complaint, and alternatively moved for judgment as a matter of law. As relevant to this appeal, the district court addressed issues of standing for plaintiffs First Amendment claim and addressed on its merits plaintiffs claim of violation of the National Forest Management Act.
The district court concluded that plaintiff did not have standing to bring its First Amendment claims. We discuss below the concept of standing generally and the elements of standing that the judge found were satisfied. The judge held that plaintiff lacked standing as to the First Amendment claims because the court could not remedy the constitutional wrongs plaintiff had alleged. The judge first determined that the legal harm suffered was, essentially, the loss of the opportunity to bid on timber sales, an injury which flowed from the decision to close FDR 12, to withdraw the Horse Creek timber sale, and other restrictions put in place by the HPP. The judge concluded that this injury could not be redressed because, even if the HPP were declared constitutionally invalid, the Forest Service would still be under no obligation to sell any timber from the Area of Consultation. The judge cited Mount Evans Co. v. Madigan, 14 F.3d 1444 (10th Cir.1994); Wyoming v. Lujan, 969 F.2d 877 (10th Cir.1992); Ash Creek Mining Co. v. Lujan, 969 F.2d 868 (10th Cir.1992); and Baca v. King, 92 F.3d 1031 (10th Cir.1996).
The district judge then considered plaintiffs claim that the Forest Service had violated its own regulations and the National Forest Management Act (NFMA) in adopting the HPP by means of Amendment 12 to the Forest Management Plan. After concluding that the plaintiff had established standing to advance that claim, the judge ruled against the plaintiff on the merits. The gist of the district court’s ruling on this claim is that the procedural protections which plaintiff had invoked were not, in fact, required because Amendment 12 was not a “significant” alteration of the Forest Management Plan.
Ill
A
We review de novo the district court’s determination that plaintiff lacked standing to pursue its First Amendment claims. See Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994).
[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — .... Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted). The burden is on the plaintiff, as the party asserting jurisdiction, to establish these elements. Id. at 561, 112 S.Ct. 2130. Further, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, ie., with the manner and degree of evidence required at the successive stages of the litigation.” Id.
The district court held that plaintiff had met its burden at the pleading stage of showing an injury in fact because plaintiff had pleaded that it had lost the right to bid on timber contracts as a result of the adoption of the HPP. The complaint also alleges that this deprivation of opportunity was a constitutional injury because it was based on the Service’s decision to manage Medicine Mountain as a sacred site in violation of the First Amendment’s Establishment Clause. Plaintiff asserts on appeal that the district court was- correct in this determination but that the court erred in rejecting plaintiffs argument that it also was injured because it was “directly affected” by the management of Medicine Mountain as a sacred site. We address this latter point first.
B
Plaintiff contends that it has standing to complain of the alleged violation of the Establishment Clause — independent of the alleged loss of opportunity to bid on timber sales, which is discussed infra— because it is “directly affected” by the Service’s adoption of the HPP, representing the decision to manage Medicine Mountain as a sacred site. Plaintiff relies on Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and its progeny, including two cases from this court, Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir.1995), and Foremaster v. City of St. George, 882 F.2d 1485, 1489 (10th Cir.1989).
The Forest Service, in its brief, expresses doubt as to whether a for-profit corporation can sustain a non-economic injury under the Establishment Clause. Whatever the answer to that question may be, we conclude that this plaintiff has not alleged such an injury. In its attempt to explain how it has been directly affected, plaintiff repeatedly refers to the alleged restrictions on timber cutting which it says will follow from the HPP. Plaintiff asserts that it is directly affected “by the loss of the right to have federal land classified consistently with the Establishment Clause and the loss of the opportunity to bid for timber contracts.” Plaintiff-Appellant’s Opening Brief at 20. Similarly, plaintiff says that it “directed its complaint against ... the decision of the Forest Service to close 50,000 acres ... to timber harvesting” as a result of the adoption of the HPP. Id. at 21, n. 8. Elsewhere, plaintiff very similarly asserts that “the lost opportunity to bid demonstrates that Wyoming Sawmills is ‘directly affected’ by the HPP and therefore has standing.” Plaintiff-Appellant’s Reply Brief at 4.
We discern no allegation of cognizable injury separate from the alleged loss of opportunity for profitable logging. Plaintiffs invocation of such religious symbolism cases as Foremaster is unpersuasive. As an artificial person, plaintiff has not shown how it experienced the kind of constitutional injury that has been found in such cases. Instead, its arguments repeatedly refer to and rely on the alleged economic injury. We therefore conclude that plaintiffs claim for standing must turn on the alleged economic injury of the loss of opportunity for logging, to which we now turn.
C
We consider here the question whether plaintiff has suffered an economic injury. The district judge held that the loss of the opportunity to bid on future timber sales was an injury in fact sufficient to satisfy the first prong of the standing analysis and that the injury was caused by the defendant’s conduct. • On appeal, the Forest Service argues, as an alternative ground for affirming the judgment below, that plaintiff has not pleaded an injury in fact. We have previously observed that “each of the three standing elements blends into the others,” Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir.1992), and we think that the district judge cannot be faulted for his holding that the plaintiffs attempt to establish standing faltered at the third requirement rather than the first. In previous cases we have applied the standing analysis in this manner, and the district judge faithfully applied our precedents.
In Ash Creek the plaintiff was a coal mining company which desired to bid for leases in an area under federal control. The Secretary of the Interior had decided to remove the tract from competitive coal leasing so that the tract could be used in a property exchange. The plaintiffs attempt to prevent the exchange had previously been rejected on the basis that there was no final agency action. The exchange was effected and the plaintiff again brought a legal challenge. We held that the loss of the possibility of obtaining a federal lease for coal mining was an “injury not redressable by a favorable decision” and so did not give the plaintiff standing to object to the exchange of lands. 969 F.2d at 874. Indeed, we considered the issue so clear cut that we noted “detailed discussion” was not necessary. Id. See also Wyoming v. Lujan, 969 F.2d 877, 880-82 (10th Cir.1992).
In Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir.1994), we similarly held that plaintiffs who merely hoped to obtain a contractual benefit, but who had no entitlement to the benefit, lacked standing “because their injuries are not redress-able by a favorable decision.” Plaintiffs in that case had previously held the right to operate the Crest House on top of Mount Evans, a facility that provided food and souvenir sales, among other services. The Crest House had been destroyed by fire, and the Forest Service had decided not to rebuild on the summit. Plaintiffs filed suit to challenge that decision. 'They argued that a decision in their favor would require the Service to rebuild, which would give them the opportunity to compete for the concession contract. Citing Ash Creek, we rejected this argument, noting that even if a new facility were to be built as plaintiffs desired, there was “no guarantee” that plaintiffs would be the successful bidder for the concession contract and that no court could order the Service to award them the contract. Id.
We cited Ash Creek and Mount Evans with approval in Baca v. King, 92 F.3d 1031, 1036-37 (10th Cir.1996), in which we held that the plaintiffs alleged injuries were not redressable because the only two actions that would remedy the alleged wrongs were an order for the government to sell the disputed land to the plaintiff or an order compelling the government to renew the plaintiffs grazing permit, neither of which were within the power of the courts to impose because either action was completely within the discretion of the Secretary of the Interior.
Plaintiffs arguments on this issue are not persuasive. Plaintiff contends that the wrongful denial of the opportunity to bid competitively for federal contracts is a sufficient basis for standing, citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Plaintiff misstates the holding of that case. Adarand involved a federal program in which contractors were given financial incentives to hire subcontractors controlled by “socially and economically disadvantaged individuals,” with “race-based presumptions” included in the process for identifying such subcontractors. 51.5 U.S. at 204, 115 S.Ct. 2097. The Court said that the “injury in cases of this kind is that a ‘discriminatory classification prevents] the plaintiff from competing on an equal footing.’ ” Id. at 211, 115 S.Ct. 2097 (quoting Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 667, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)). For this type of case, the Court said, “the aggrieved party ‘need not allege that he would have obtained the benefit but for the barrier in order to establish standing.’ ” Id. (quoting Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297). Plaintiff Wyoming Sawmills has not alleged that it was-treated differently from any other timber company. Adarand is thus inapposite.
Plaintiff asserts that Bryant v. Yellen, 447 U.S. 352, 366-68, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980), stands for the proposition that standing is established if the plaintiff seeks to bid for property that “might become available.” But again, we find that plaintiff has stated the holding of the case in overly general terms and that the holding does not support plaintiffs claim for standing in this matter. The facts of that case are not at all analogous to the facts before this court and are rather unusual and complicated, but it is sufficient to say that the plaintiffs in that case sought- to purchase lands that the Court held would “likely” become available if the plaintiffs prevailed. Wyoming Sáwmills has not shown that a timber lease would “likely” become available on the lands within the area of consultation if plaintiff were to have the HPP set aside. As in Baca, the federal agency has complete discretion as to whether to offer the opportunity sought by the plaintiff, and accordingly the courts do not have the power to grant the only relief that would rectify the alleged injury.
Plaintiff similarly contends that the loss of an opportunity to bid was held sufficient to confer standing in Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981). Again, we disagree with plaintiffs characterization of the holding of the case. In Watt, the Court noted that the State of California claimed standing on two grounds — first, as an “involuntary ‘partner’ ” with the Federal Government in oil and gas leasing, and second, as a competitor with the Federal Government in the same endeavor. The Court held that California had standing on the first basis and did not consider the second claim of standing, contrary to Wyoming Sawmills’ description of the case. Wyoming Sawmills does not claim to be an “involuntary partner” with the Forest Service, and its argument is not supported by Watt. .
Wyoming Sawmills also relies on Arkla Exploration Company v. Texas Oil & Gas Corp., 734 F.2d 347 (8th Cir.1984). Of course, we are bound by our precedents, discussed supra, and so would not be free to follow Arkla if it supported plaintiffs argument, but we also note that the case is distinguishable. The plaintiff in that case sought the right to bid on lands which had been offered. 734 F.2d at 353-54.
We therefore affirm the district court’s holding that plaintiff Wyoming Sawmills does not have standing to bring its First Amendment claim.
IV
A
In its complaint, plaintiff alleged that Amendment 12 to the Bighorn Forest Plan (the mechanism by which the HPP was implemented) was a defacto change in the designation of lands within the Area of Consultation which were previously designated as suitable for wood fiber production (ie., logging). Plaintiff alleged, and argues on appeal, that the Forest Service failed to inquire into and disclose the effects of the HPP when it solicited public comment on the HPP. Plaintiff also maintains that the Service failed to follow its own Forest Service Handbook standards for amending the Forest Plan, in violation of the Administrative Procedures Act (APA).
The district court first found that plaintiff had standing to assert this claim. 179 F.Supp.2d at 1297-98. The judge noted that, because the NFMA does not provide for judicial review of decisions by the Forest Service, the general provisions of the APA apply. Under the APA, a person “suffering legal wrong because of agency action” may obtain judicial review. 5 U.S.C. § 701. The Forest Service did not dispute that the HPP and Amendment 12 were final agency actions, nor that timber interests are within the zone of interests protected or regulated by the NFMA,. The judge then noted that the standing requirement of redressability is applied less strictly when, as with this claim, a party is seeking to enforce a “procedural right.” See id. at 1298 (citing and quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
The intervenor-appellee, Medicine Wheel Coalition on Sacred Sites of North America, challenges plaintiffs standing to bring its claim under the NFMA, although the Forest Service does not contest the district court’s ruling on this point. We see no error in the district court’s holding on this point, however, and proceed to review the merits.
B
Our standard of review is a deferential one, and we will reverse the Forest Service’s action only if it is “ ‘arbitrary, capricious, otherwise not in accordance with the law, or not supported by substantial evidence.’ ” Citizens’ Committee To Save Our Canyons v. United States Forest Service, 297 F.3d 1012, 1021 (10th Cir.2002) (quoting Hoyl v. Babbitt, 129 F.3d 1377, 1382 (10th Cir.1997)). No deference is due to the district court’s decision in review of the agency’s action, however. Id.
The National Forest Management Act (NFMA) provides that once enacted, forest plans may “be amended in any manner whatsoever.” 16 U.S.C. § 1604(f)(4). As we explained in some detail two years ago, if
an amendment to a forest plan would be “significant,” however, then NFMA mandates substantial public involvement, planning, and input, requiring, in essence, the Forest Service “to conduct the same complex planning process applicable to promulgation of the original plan.” Sierra Club v. Cargill, 11 F.3d 1545, 1551 (10th Cir.1993) (Seymour, J., dissenting); see 36 C.F.R. § 219.10(f). Among other things, for significant amendments, NFMA requires the Forest Service to “mak[e] plans or revisions available to the public at convenient locations in the vicinity of the affected unit for a period of at least three months before final adoption.” 16 U.S.C. § 1604(d).
Citizens’ Committee, 297 F.3d at 1032-33 (footnote omitted). We have noted before that the Act does not provide guidance as to what amendments are “significant.” Cargill, 11 F.3d at 1548.
Indeed, applicable regulations “expressly commend[] the determination of the significance of an amendment to the Forest Supervisor’s judgment.” Id. According to the regulations, “Based on an analysis of the objectives, guidelines, and other contents of the forest plan, the Forest Supervisor shall determine whether a proposed amendment would result in a significant change in the plan.” 36 C.F.R. § 219.10(f) (emphasis added). If the Forest Supervisor concludes that an amendment is nonsignificant, “[he] may implement the amendment following appropriate public notification and satisfactory completion of [National Environmental Policy Act] procedures.” Id. (emphasis added).
Citizens Committee, 297 F.3d at 1033.
In the absence of specific direction from Congress, the Forest Service has adopted guidelines in its Forest Service Handbook (FSH) for consideration of the significance of amendments to a forest plan:
Although the Forest Supervisor has wide discretion in deciding whether an amendment is significant, the FSH outlines factors the Supervisor must consider when assessing the significance of a proposed amendment, including 1) the timing of the proposed change relative to the expiration or next scheduled revision of the Forest Plan (the shorter the remaining life of the plan, the less significant the amendment); 2) “the location and size of the area involved in the change” in comparison to the “overall planning area”; 3) the long-term significance of the project relative to the goals and objectives of the forest plan; and 4) the impact of the amendment on “management prescription” — whether the change applies only to a specific situation or whether it likely will affect future decisions as well. FSH 1909.12 § 5.32(3)(a)-(d).
Id. (footnote omitted). In this appeal, plaintiff accepts these criteria and frames its arguments in their terms. Accordingly, our review will also focus on these factors.
Although as explained we review the agency’s decision deferentially but without deference to the district court’s holdings, in this instance we see no error in the district court’s analysis. The first factor set out above from the FSH is the timing of the amendment. On this point, Wyoming Sawmills does not challenge the district court’s observation that the amendment came late in the planning period, after' the period’s first decade. Nor does Wyoming Sawmills dispute the conclusion that this factor favors a finding that the amendment was not significant.
Wyoming Sawmills does contest the agency’s, and district court’s, conclusion on the second factor, the size of the affected area compared to the overall planning area. The district court agreed with the agency that the size of the affected area is relatively small, observing that the Area of Consultation is only 18,000 acres or only 1.6% of the Bighorn National Forest. Plaintiff disputes this conclusion by asserting that it is improper to use the entire forest in the comparison and by contending that Amendment 12 in fact affects much more than 18,000 acres.
First, plaintiff contends that the overall planning area which should be used to determine the relative significance of the affected area should not be the entire forest but only the slightly more than 200,000 acres that are deemed “available” for timber management. But plaintiff offers neither reason nor authority to persuade us ■that the Service abused its discretion in using the acreage of the entire forest in its analysis. The deference owed to the Service does not permit us to find an abuse of discretion on this point.
Plaintiff emphatically contends that the decision to implement the HPP will affect an area much greater than the 18,000 acre Area of Consultation. Plaintiff bases this contention on the assertion that the decision to close FDR 12 and to bar the use of other roads passing through the Area of Consultation effectively closes an additional 30,000 acres of the forest north and west of the Area of Consultation.
The Forest Service and the intervenor Coalition offer several points in response that severely undercut the impact of plaintiffs argument. First, we note that plaintiff has not explained how it has determined that an additional 30,000 acres are affected. Second, the district court observed that plaintiff had not shown that FDR 12 had ever been used for timber hauling; plaintiff has not countered this point. Third, the Forest Service stated expressly in the HPP that it would “continue to explore opportunities for alternative access to National Forest System lands north of the Medicine Wheel,” an effort which it described as the “long term goal” of its management efforts. II Aplt. App. 318. Perhaps most significantly, the Service determined that implementation of the HPP “will not result in significant changes to those levels of outputs projected under the current Bighorn National Forest Plan.” Ill Aplt.App. 626.
The HPP does not prohibit logging in the Area of Consultation. At least two roads within the consultation area are not barred to timber hauling, although the HPP does require a consultation process for approval of their use. Id. at 571. More generally, Amendment 12 did not change any actual management allocations (for timber or livestock grazing, for exam-pie) but added standards and guidelines to be followed in pursuit of the existing allocations. Of the 18,000 acres in the Area of Consultation, only about ten per cent was deemed suitable for timber production. Id. at 347.
As we have noted, the third factor is the long-term significance of the project relative to the goals and objectives of the forest plan. Plaintiffs inability to convince us that the Forest Service abused its discretion in its determination of the size of the area involved is doubly important because its argument on the third factor rests entirely on the premise that the decision does affect a much larger area than just the Area of Consultation. Similarly, plaintiffs argument on the fourth factor is based largely on the same assertions. In view of the deference due to the Service’s determination, we hold that plaintiff has failed to show that the Service abused its considerable discretion in finding that Amendment 12 was not a “significant” change to the overall forest plan.
This holding disposes of plaintiffs NFMA claim. Plaintiffs allegations of deprivation of procedural rights are all dependent on the more stringent procedural requirements applicable to significant amendments.
Conclusion
The judgment of the district court is AFFIRMED.
. The district court's opinion is published at 179 F.Supp.2d 1279 (D.Wyo.2001), and in-eludes a more detailed description of the background of the litigation.
. The Service is required to consult with other federal, state, and local agencies and Indian tribes by the National Historic Preservation Act, 16 U.S.C. § 470h-2(a)(2).
. The FAA was involved because it has operated a radar site on the mountain since 1962.
.A forest plan, or land and resource management plan, is a planning document that guides natural resource management activities in a national forest over a period of ten years or more. See 16 U.S.C. § 1604.
. The district court also held that the plaintiff lacked standing to bring'the claim alleged in the complaint under the National Environmental Policy Act, and ruled against plaintiff on the merits of its claim under the Federal Advisory Committee Act. Plaintiff has not appealed these holdings of the district court.
. In the district court plaintiff also claimed other injuries, but its appellate contentions are limited to the two alleged injuries stated in the text.
. In its reply brief, plaintiff cites two cases which do support its argument, Wyoming Timber Industry Ass’n v. United States Forest Service, 80 F.Supp.2d 1245 (D.Wyo.2000), and Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1233 (D.C.Cir.1996), but we are, of course, bound by our precedents. We note that our position is consistent with that of another circuit in a case relied on by the Forest Service, Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800, 808-09 (11th Cir.1993).
. Plaintiff alleged that a de facto change of designation was also imposed on some areas outside the Area of Consultation which were serviced by FDR 11.
. We note that the withdrawal of the Horse Creek timber sale was not a final agency action; accordingly, that decision may not be reviewed at this time.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.01666666666666667, Costs: 0.08333333333333333
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OPINION
THOMAS, Chief Judge:
This case presents the question whether the federal Surface Transportation Board (“the Board”) has exclusive jurisdiction over railroad repair work done at the direction of a federally regulated rail carrier but performed by a contractor rather than the carrier itself. We conclude that it does, and we therefore reverse and remand.
I
The Oregon Coast Scenic Railroad (“Oregon Coast”) is a non-profit corporation that operates tourist trains on a portion of track in Oregon that is owned by the Port of Tillamook Bay (“the Port”). The Port is a federally regulated railroad authorized by the Board. The Port operates freight trains; it formerly ran trains on the portion of the railroad used by Oregon Coast, but in 2007 part of the track was damaged by a winter storm and freight traffic ceased on that portion of the track.
In 2012, Oregon Coast and the Port entered into a five-year agreement under which Oregon Coast would continue leasing this portion of the track, but instead of paying the Port for use of the track, Oregon Coast would instead use those funds “for deferred.maintenance and upgrading of [the Port’s] rail line and right-of-way.” The agreement provided that Oregon Coast would be “solely responsible” for rehabilitation of the railway, track maintenance, and compliance with federal and state safety and maintenance requirements. The agreement contemplated that the repair work might reestablish the track’s “connection to a mainline carrier providing service,” ' and freight traffic might resume at some point. If and when that happened, the parties agreed to negotiate a modification to the agreement that would allow Oregon Coast to continue to run tourist trains alongside the Port’s anticipated freight traffic.
Oregon Coast began repair work under this agreement in early 2014. On March 11, 2014, after approximately five weeks of work had beén completed and two to four weeks of work remained, the State of Oregon’s Department of State Lands (“the State”) sent Oregon Coast a cease and desist order. The order alleged that Oregon Coast’s repair work was violating a state “removal-fill law,” which, among other things, requires a state permit for the removal of any amount of material from waters designated as Essential Salmonid Habitat. The State alleged that Oregon Coast was engaging in unpermitted “removal-fill activity” in or near an Essential Salmonid Habitat section of the Salmon-berry River, and it contested Oregon Coast’s assertion that federal law preempted application of this state law to railroad repair work.
Oregon Coast filed a complaint in federal district court the following day, seeking declaratory and injunctive relief. Oregon Coast argued that the removal-fill law is preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. §§ 10101 et séq., which governs federal regulation of railroads. Oregon Coast sought a permanent injunction and a determination that application of the state law is federally preempted; that enforcement of the .removal-fill law constituted an impermissible burden on interstate commerce in violation of the Commerce Clause; and that enforcement of the law violated Oregon Coast’s federal rights under 42 U.S.C. § 1988. Oregon Coast also immediately moved for a preliminary injunction against the law’s enforcement.
The district court held a hearing on the preliminary injunction in April 2014. At the State’s request, the district court consolidated the preliminary injunction hearing with a hearing on the merits; it then issued a single order on all of Oregon Coast’s requested relief. The court concluded that the removal-fill law was not preempted because Oregon Coast’s tourist train activities were not sufficiently related to interstate commerce to bring Oregon Coast within the exclusive federal jurisdiction provision of the ICCTA. The court also concluded that Oregon Coast’s agreement with the Port was insufficient to establish federal preemption as to Oregon Coast on the basis of the Port’s status as a federally licensed carrier. Having concluded that Oregon Coast’s claims failed on the merits, the district court denied Oregon Coast’s requests for preliminary and permanent injunctions and for declaratory relief, and it dismissed the case.
Oregon Coast appeals, challenging (1) the district court’s conclusion that federal preemption does not apply to the repair work done by Oregon Coast; (2) its conclusion that Oregon Coast was not acting as an agent of the Port; and (3) its denial of Oregon Coast’s requests for preliminary and permanent injunctions and declaratory relief, Oregon Coast presents a federal question by alleging that enforcement of the state removal-fill law is preempted by the federal ICCTA; thus the district court had subject matter jurisdiction under 28 U.S.C. § 1331. See Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1031 (9th Cir. 2013) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). We have jurisdiction over the appeal under 28 U.S.C. § 1291.
We review de novo a district court’s decision granting or denying declaratory relief. Wagner v. Prof'l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1040 (9th Cir. 2004). We review a district court’s denial of a preliminary or permanent injunction for abuse of discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); Cummings v. Connell, 316 F.3d 886, 897 (9th Cir. 2003). In this context, “[a]n abuse of discretion will be found if the district court based its decision ‘on an erroneous legal standard or clearly erroneous finding of fact.’ ” Cottrell, 632 F.3d at 1131 (quoting Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc)).
Because it is a question of law, we review de novo a district court’s conclusion about the extent of federal preemption. In re Korean Air Lines Co., Ltd., 642 F.3d 685, 691 n.3 (9th Cir. 2011). Here, because the district court’s decisions on the preliminary injunction, permanent injunction, and declaratory relief all relied on the same analysis of the preemption question, a legal error in that analysis would affect the court’s decision on all three forms of requested relief. We therefore'focus our analysis on the district court’s conclusion as to the federal preemption question.
II
The ICCTA was passed in 1995, in part with the purpose of expanding federal jurisdiction and preemption of railroad regulation. See H.R. Rep. No. 104-311 at 95 (1995) (“[C]hanges are made to reflect the direct and complete preemption of State economic regulation of railroads.”). In order for federal preemption to apply under the ICCTA, the activity in question must first fall within the statutory grant of jurisdiction to the Surface Transportation Board, one of several federal agencies charged with railroad regulation. 49 U.S.C. § 10501(a). As modified by the ICCTA, 49 U.S.C. § 10501(a) provides in relevant part:
(1) Subject to this chapter, the Board has jurisdiction over transportation by rail carrier that is— .
(A) only by railroad; or
(B) by railroad and water [under specified circumstances].
(2) Jurisdiction under paragraph (1) applies only to transportation in the United States between a place in—
(A) a State and a place in the same or another State as part of the interstate rail network....
If the Board has jurisdiction under 49 U.S.C. § 10501(a), the question whether jurisdiction is exclusive—i.e., whether state regulation is preempted—is a separate question governed by 49 U.S.C. § 10501(b), which provides that “[t]he jurisdiction of the Board over ... (1) transportation by rail carriers ... and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive.”
In short, under the factual scenario presented by this case, Board jurisdiction under § 10501(a) is a threshold question requiring that the disputed activity meet three statutory prongs: it must be (1) “transportation” (2) “by rail carrier” (3) “as part of the interstate rail network.” Id. The parties do not dispute that the repair work done by Oregon Coast qualifies as “transportation,” which the ICCTA defines as including any “property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail” as well as “services related to that movement.” 49 U.S.C. § 10102(9). The parties’ central dispute focuses on the other two prongs of the jurisdiction analysis—that is, on whether the repair work can be considered work done “by rail carrier” through Oregon Coast’s relationship with the Port, and whether maintenance work done on an intrastate section of track can be considered “part of the interstate rail network.” For the reasons described below, we answer both questions in the affirmative.
A
The ICCTA defines “rail carrier” as “a person providing common carrier railroad transportation for compensation.” 49 U.S.C. § 10102(5). But the statute does not address whether, in the jurisdiction provision, the term “transportation by rail carrier” may include work actually performed by another party under the auspices of the rail carrier. Here, it is undisputed that the Port is a federally licensed and regulated rail carrier, authorized by the Board under the procedures set out in 49 U.S.C. § 10901. The State has conceded that the track repair work in this ease would fall under the Board’s jurisdiction if the Port were undertaking the repairs itself. Instead, the Port has essentially hired Oregon Coast to do this maintenance work on its behalf during the five-year agreement; the Port is paying Oregon Coast in the form of free track use for the duration of the agreement. This leaves us with the question whether the Port somehow divested the Board of jurisdiction over the repairs by hiring Oregon Coast to perform the work on its behalf. We conclude that it did not.
The Board itself has considered this question in similar contexts, and its decisions are instructive here. See Ass’n of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010) (drawing “guidance on the scope of ICCTA preemption from the decisions of the Surface Transportation Board ..., to which we owe Chevron deference” (citing DHX, Inc. v. Surface Transp. Bd., 501 F.3d 1080, 1086 (9th Cir. 2007))). The Board’s decisions show that work done by a non-carrier can be considered activity “by a rail carrier” if there is a sufficient degree of integration between the work done by the non-carrier and the authorized rail carrier’s own operations. See, e.g., City of Alexandria, No. 35157, 2009 WL 381800, at *2 (S.T.B. Feb. 17, 2009); Town of Babylon, No. 35057, 2008 WL 275697, at *3 (S.T.B. Feb. 1, 2008); Hi Tech Trans, LLC, No. 34192, 2003 WL 21952136, at *4 (S.T.B. Aug. 14, 2003).
The Board’s decisions emphasize that this question is a “case-by-case, fact-specific determination.” City of Alexandria, 2009 WL 381800, at *2. Factors considered by the Board include the degree of control exercised by the carrier over the non-carrier’s operations, the involvement of the carrier in day-to-day operations, the structure of payments and cost agreements, and other terms of the agreement between the carrier and the non-carrier. Id. The Board weighs these factors to determine whether the non-carrier’s activities are “an integral part of [the rail carrier’s] provision of transportation by rail carrier.” Hi Tech, 2003 WL 21952136, at *4.
Applying this framework to the current case, the repairs are properly considered done by the Port. The agreement between Oregon Coast and the Port gives Oregon Coast responsibility for the specified repair and maintenance operations; yet. Oregon Coast must adhere to the agreed-upon maintenance plan, which gives the Port a degree of control by specifying particular tasks and timelines .that Oregon Coast must meet. Moreover, track maintenance and repair are essential to providing transportation over a railway. Thus by helping the Port maintain its track and re-establish its connection to the interstate rail network, the repair work performed by Oregon Coast is “an integral part of [the Port’s] provision of transportation by rail carrier.” See id.
Finally, we note the absurd result that would occur if the Port were able to divest the Board of jurisdiction simply by hiring a contractor to perform repair or maintenance work on its behalf. The ICCTA and its predecessor, the Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887), have “been recognized as ‘among the most pervasive and comprehensive of federal regulatory schemes,'” City of Auburn v. United States, 154 F.3d 1025, 1027 (9th Cir. 1998) (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981)). Allowing a rail carrier to avoid federal jurisdiction by hiring a contractor would defeat Congress’s purpose in creating such a far-reaching regulatory scheme. Because “statutory interpretations which would produce absurd results are to be avoided,” Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (citing United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992)), we cannot conclude that Congress intended to exclude from federal jurisdiction any party carrying out a rail carrier’s essential transportation-related functions on its behalf.
Accordingly, the repair work done by Oregon Coast is properly considered “transportation by rail carrier” within the meaning of'49 U.S.C. § 10501(a)(1). The district court erred in concluding otherwise.
td
Once the other prongs of the jurisdictional inquiry are met, the ICCTA gives the Board jurisdiction over domestic rail transportation “between a place in ... a State and a place in the same or another State as part of the interstate rail network.” 49 U.S.C. § 10501(a)(2)(A). Because Oregon Coast’s repair work takeS place entirely within the state of Oregon, it satisfies this prong if it is done “as part of the interstate rail network.” Id. We conclude that it is.
' The phrase “as part of the interstate rail network” is not defined by statute, but the Board has interpreted it “broadly to include (but not be limited to) facilities that are part of the general system of rail transportation and are related to the movement of passengers or freight[ ]in interstate commerce.” DesertXpress Enters., LLC, No. 34914, 2010 WL 1822102, at *9 (S.T.B. May 7, 2010). The Board has also emphasized that the ICCTA actually expanded the Board’s jurisdiction to ensure that “transportation between places in the same state would be within the Board’s jurisdiction as long as that transportation was related to interstate commerce.” Id. at *6.
We confirmed this interpretation in City of Auburn, where we held that the Board had exclusive jurisdiction over an 'intrastate railroad repair project that aimed to prepare a section of track—at the time used only for local traffic—to join, a reestablished main line for through traffic. 154 F.3d at 1031. In that case, we “not[ed] that Congress and the courts long have recognized a need to regulate railroad operations at the federal level.” Id. at 1029. We also highlighted the fact that § 10501 itself expressly refers to the Board’s jurisdiction over “the construction ... of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” Id. at 1030 (emphasis added) (quoting 49 U.S.C. § 10501(b)(2)).
The facts of the current case closely mirror City óf Auburn. Oregon Coast contracted with -the Port to perform repair work on a section of track that was previously connected to the interstate rail network and that would, once fully repaired, reconnect the track to the interstate rail network. The agreement between Oregon Coast-and the Port expressly contemplates that the track may be reconnected to the interstate network within the five-year span of the agreement, allowing the parties to negotiate a modification to the agreement—but leaving the agreement in place—if the'“rail connection to a mainline carrier providing service [is] re-established and freight traffic resumefs].” Similarly, the lease agreement gives Oregon Coast the “option ... to reinstall the rail line and recover” eighteen train cars that are currently stranded on the severed portion of track. These provisions suggest that Oregon Coast’s repair work is aimed at reconnecting the disconnected track to the interstate rail network. Thus, as in Auburn, this repair work is done “as part of the interstate rail network.”
Moreover, even if Oregon Coast’s work did not result in full reconnection of the track,- the repairs would still be considered “part of the interstate rail network” because they involve track that is still federally authorized as part of the interstate rail system. In a similar case that is instructive here, the Board concluded that it had jurisdiction over a project to rehabilitate a depot serving a rail line that had not been in service for years but was still federally authorized. City of Creede, No. 34376, 2005 WL 1024483, at *8 (S.T.B. May 3, 2005). Here, similarly, the repair work is being done on track that is owned by the Port and is still federally authorized under the Port’s Certifícate of Public Convenience and Necessity, despite the physical disconnection caused by storm damage. The fact these repairs are integral to the functioning of a federally authorized track segment establishes that the repairs are done “as part of the interstate rail network”' within the meaning of § 10501(a)(2)(A).
Although the State cites several cases purportedly demonstrating that the Board does- not have jurisdiction over wholly intrastate segments of track, those cases do not affect our analysis. We note that Mag-ner-O’Hara Scenic Railway v. Interstate Commerce Commission, a Sixth Circuit case considering a similar question, was decided before the ICCTA expanded Board jurisdiction over intrastate transportation. 692 F.2d 441, 442-43 (6th Cir. 1982). And we are unpersuaded by the logic of more recent cases citing Magner without acknowledging the significant expansion of jurisdiction under the ICCTA. See RLTD Ry. Corp. v. Surface Transp. Bd., 166 F.3d 808, 813 (6th Cir. 1999); Fun Trains, Inc., No. 33472, 1998 WL 92052, at *2 (S.T.B. Mar. 5, 1998).
We conclude, therefore, that the repair work performed by Oregon Coast under the agreement with the Port is properly considered done “as part of the interstate rail network.” 49 U.S.C. § 10501(a)(2)(A). Because the repair work also qualifies as “transportation by rail carrier,” as discussed above, we conclude that it falls within the Board’s jurisdiction under 49 U.S.C. § 10501(a).
Ill
Once jurisdiction is established under 49 U.S.C. § 10501(a), the broad preemption provision of 49 U.S.C. § 10501(b) makes the Board’s jurisdiction exclusive over “(1) transportation by rail carriers” and “(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” This subsection also expressly provides that “the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” 49 U.S.C. § 10501(b). Because the repair work here falls squarely within this preemption provision, we conclude that state regulation is preempted.
Our decision on this question ■ is controlled by City of Auburn, in which we held that 49 U.S.C. § 10501(b) preempted not just economic but also environmental regulation, “[f]or if local authorities have the ability to impose.‘environmental’ permitting regulations on the railroad, such power will in fact amount to ‘economic regulation’ if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line.” 154 F.3d at 1031. Looking to the language of 49 U.S.C. § 10501(b), we emphasized in City of Auburn that “[i]t is difficult to imagine a broader statement of Congress’s intent to preempt state regulatory authority over railroad operations.” Id. at 1030 (quoting CSX Transp., Inc. v. Ga. Pub. Serv. Comm’n, 944 F.Supp. 1573, 1581 (N.D. Ga. 1996)). As a result, we held that 49 U.S.C. § 10501(b) “explicitly grant[ed] the [Board] exclusive authority over railway projects like” the intrastate rail repair project at issue in City of Auburn, which closely resembles the project in this case. City of Auburn, 154 F.3d at 1030.
Our subsequent decision in Association of American Railroads v. South Coast Air Quality Management District clarified that the ICCTA “does not preempt state or local laws if they are laws of general applicability that do not unreasonably interfere with interstate commerce,” but it “preempts all ‘state laws that may reasonably be said to have the effect , of managing or governing rail transportation.’ ” 622 F.3d 1094, 1097 (9th Cir. 2010) (first, citing Bos. & Me. Corp. & Town of Ayer, No. 33971, 2001 WL 458685, at *4-6 (S.T.B. May 1, 2001); then quoting N.Y. Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007)). In determining whether a law of general applicability is permissible, we explained that “[w]hat matters is the degree to which the challenged regulation burdens rail transportation.” Id. at 1097-98 (quoting N.Y. Susquehanna, 500 F.3d at 252).
Here, the State’s removal-fill law requires that Oregon Coast apply for and be granted a permit before removing “any amount of material within waters designated Essential Salmonid Habitat.” Because “the ability to impose ‘environmental’ permitting regulations on the railroad” can in fact give local authorities the power to “prevent[ a carrier] from constructing, acquiring, operating, abandoning, or discontinuing a line,” City of Auburn, 154 F.3d at 1031, such a permitting scheme would “have the effect of managing or governing rail transportation,” Ass’n of Am. R.R.s, 622 F.3d at 1097 (quoting N.Y. Susquehanna, 500 F.3d at 252). Thus even under the more subjective approach used in Association of American Railroads, we conclude that the State’s removal-fill law is preempted by the ICCTA as applied to the repair work in this case.
IV
In sum, the repair work done by Oregon Coast under its agreement with the Port falls under the Board’s jurisdiction because the work is done under the auspices of a federally regulated rail carrier and is sufficiently related to the provision of transportation over the interstate rail network. The State’s removal-fill law is preempted as applied to this work, and the district court erred in concluding otherwise. Because the district court’s rulings on the preliminary injunction, permanent injunction, and declaratory relief were all premised on this incorrect legal' determination, we reverse and remand for further proceedings with respect to each form of relief.
REVERSED and REMANDED.
. In fact, the Port undertook- very similar maintenance and repair work on almost the same segment of track in the mid-1990s. The Port hired a contractor to perform this work, and that contractor has testified that he completed the work under the auspices of the Port, without going through state permitting processes.
. Although the parties focus on whether an agency relationship was created under Oregon law, the question whether a federal statute grants jurisdiction over a particular activity is a question of federal law that does not depend on the contours of a particular state’s agency law, See, e.g., Ass'n of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1096-98 (9th Cir. 2010) (analyzing the issue of Board jurisdiction and preemption under federal law); City of Auburn v. United States, 154 F.3d 1025, 1029-31 (9th Cir. 1998) (same).
. Although this language appears in the preemption provision, 49 U.S.C. § 10501(b), rather than in the jurisdictional grant, 49 U.S.C. § 10501(a), it nevertheless informs our interpretation of the jurisdictional provision, because the general jurisdictional grant of § 10501(a) must be at least as broad as the te elusive jurisdiction provision Of § 10501(b). See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (explaining that a court may properly look to the statutory framework and surrounding provisions for guidance in interpreting the scope of preemption).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.04098360655737705, Costs: 0.04918032786885246
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LYNCH, Chief Judge.
The Rhode Island Coastal Resources Management Council (“CRMC”) challenges a decision by the federal district court, which has rejected two regulatory barriers CRMC imposed to plans to build a Liquified Natural Gas (“LNG”) terminal in the City of Fall River with a berth in Massachusetts coastal waters of Mount Hope Bay. Weaver’s Cove Energy, LLC (“Weaver’s Cove”) is the sponsor of the LNG terminal. Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 583 F.Supp.2d 259 (D.R.I.2008). The barriers, which CRMC has attempted to impose, are to necessary dredging by Weaver’s Cove in Rhode Island navigable waters, in a federal navigation channel. The Federal Energy Regulatory Commission (“FERC”) generally approved the project in 2005, subject to certain conditions. Until those conditions are met, Weaver’s Cove cannot start construction. The Commonwealth of Massachusetts, joined by the City of Fall River, has filed a brief as amicus curiae in support of CRMC.
We address three main issues. The first is whether we have Article III jurisdiction to decide these matters. The second is whether the district court erred in holding that CRMC’s failure to respond within six months to Weaver’s Cove’s application for federal consistency review requires there be a presumption of concurrence in the project, pursuant to 16 U.S.C. § 1456(c)(3)(A) of the Coastal Zone Management Act of 1972 (“CZMA”). The third is whether CRMC’s use of its state law licensing program for alterations to the coast, 04 000 010 R.I.Code R. §§ 100.1, 300.1, to block the project is preempted by the Natural Gas Act (“NGA”).
For the reasons set forth below, we affirm the district court’s decision.
I.
We first briefly explain the regulatory framework that governs this case.
Central to this dispute are two federal statutes, the NGA, 15 U.S.C. §§ 717-717z, and the CZMA, 16 U.S.C. §§ 1451-66. The NGA was originally passed in the 1930s to facilitate the growth of the energy-transportation industry and requires FERC authorization for the importing of natural gas. 15 U.S.C. § 717b(a). FERC’s authority under the NGA to regulate facilities engaged in the import of natural gas has long been interpreted as “plenary and elastic,” Distrigas Corp. v. Federal Power Comm’n, 495 F.2d 1057, 1064 (D.C.Cir.1974), and courts have interpreted the NGA to preempt state regulatory authority within the scope of FERC’s jurisdiction, see, e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988). Following a 2005 amendment, the NGA explicitly grants FERC “exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.” Id. § 717b(e)(1). Parties wishing to build an LNG terminal must file an extensive application with FERC, 18 C.F.R. § 157.6, which must then consult with states regarding safety and environmental questions, 15 U.S.C. § 717b — 1(b).
The NGA creates a consolidated regulatory process for approving LNG facilities that maintains the role of federal agencies and, in circumscribed areas, state agencies. It does so by limiting FERC’s exclusive authority in two ways relevant to this case. First, the NGA, except where expressly provided, does not affect “any Federal agency’s authorities or responsibilities related to LNG terminals.” Id. § 717b(e)(1) (emphasis added). In addition, the NGA explicitly states that, unless otherwise provided, it does not affect the rights of states under three federal regulatory statutes, of which only the CZMA is pertinent to this case. Id. § 717b(d)(1).
The CZMA establishes the relationship between state bodies, like the Rhode Island CRMC, and federal agencies during the permitting process for LNG terminal construction projects that impact coastal zones. It provides states with a limited opportunity to review applications to ensure they are consistent with state regulations, 16 U.S.C. § 1456(c)(3)(A), and, in doing so, grants states “a conditional veto over federally licensed or permitted projects,” Weaver’s Cove, 588 F.Supp.2d at 267. That conditional veto, however, is itself subject to review.
In order to conduct a consistency review, state agencies must first have obtained approval from the federal National Oceanic Atmospheric Administration (“NOAA”), a Department of Commerce agency, for the state agency’s own coastal management plan. 16 U.S.C. §§ 1454, 1455(d)-(e), 1456(c)(3)(A). Coastal management plans set forth general state polities for developing and maintaining coastal areas and, as is the case in Rhode Island, may include not only the conditions for federal consistency review but also for state licensing programs.
Once a state coastal management plan has been approved, an applicant for a federal permit wishing to undertake any activity the state plan regulates must certify with the local agency that the proposed activity is consistent with the coastal management plan. Id. § 1456(c)(3)(A). In support of the application, the applicant must submit all “necessary data and information” identified in the coastal management plan. 15 C.F.R. § 930.58(a)(2). Under federal law, the state agency has thirty days from the time the application was submitted to notify the applicant and the federal agency if it takes the position that the applicant has failed to submit all of the required information. Id. § 930.60(a)(2).
Importantly, the CZMA limits the time a state may conduct such a review, in order to prevent frustration of federal purposes. Whether CRMC failed to act within this limit is a key issue in this case. Once an applicant submits its consistency certification, the state agency has six months either to concur with the certification or to object if it concludes that the proposed activity is inconsistent with the coastal management plan. 16 U.S.C. § 1456(c)(3)(A). If the state agency fails to respond within six months, the state’s concurrence will be “conclusively presumed.” Id. If the application is incomplete and the state agency so informs the applicant within the required thirty-day time period, “the State agency’s six-month review period will commence on the date of receipt of the missing necessary data and information.” 15 C.F.R. § 930.60(a)(2). However, the state agency’s review of whether the application is complete “is not a substantive review of the adequacy of the information received,” and the agency’s request for clarification of the information provided or its assertion that the information is “substantively deficient” does not toll the six-month review period. Id. § 930.60(c). These rules encourage states to act quickly when reviewing applications so that no one state can delay the federal approval process. Congress was sufficiently concerned about the ability of local state agencies to delay projects that it did not use a generalized standard, such as “a reasonable period of time” as it did, for instance, in the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(3)(B), but capped the time at six months.
The CZMA also limits state authority to delay or prohibit projects subject to consistency review, by providing for federal review of state agency determinations. If the state agency objects to consistency certification, the applicant may appeal the decision to the Secretary of Commerce, who can override the objection on a finding “that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.” 16 U.S.C. 1456(c)(3)(A). The Secretary’s decision, in turn, may be reviewed in federal district court. See, e.g., Millennium Pipeline Co., L.P. v. Gutierrez, 424 F.Supp.2d 168, 173-74 (D.D.C.2006).
One other federal statute relevant to this case is the Rivers and Harbors Act, at section 10. 33 U.S.C. § 403. It prohibits construction or other work, such as dredging, in navigable U.S. waters without congressional authorization or a recommendation by the Army Corps Chief of Engineers as well as the Secretary of the Army’s authorization. Id. Because FERC’s exclusive authority under the NGA does not disturb the Army Corps’s authority under the Rivers and Harbors Act, 15 U.S.C. § 717b(e)(1), parties seeking FERC approval for LNG terminal proposals that include dredging in navigable waterways, like Weaver’s Cove, must also apply for approval from the Army Corps.
In Rhode Island, the federally designated agency under the CZMA is the appellant, CRMC. CRMC is responsible for administering Rhode Island’s coastal management plan, the Rhode Island Coastal Resources Management Program (“CRMP”). When a party wishes to conduct an activity listed in the CRMP, such as dredging in Rhode Island, under state law, that party should obtain from the CRMC a state law license called an “Assent.” 04-000-010 R.I.Code R. § 100.1. The more extensive “Category B Assent” process under state law is required for approval of all projects that involve major alterations proposed for Rhode Island tidal waters, shoreline features, or areas contiguous with shoreline features. Id. §§ 100.1(A), (D), 300.1. If the party’s proposed listed activity is also part of a project that is subject to federal licensing, CRMC is the body tasked with providing the required federal consistency review.
CRMC’s document, labeled the Federal Consistency Manual, emphasizes that although the Assent and consistency review processes may overlap, they are distinct approvals. R.I. Coastal Res. Mgmt. Council, Federal Consistency Manual 7, available at http://www.crmc.ri.gov/regulations/ Fed-Consistency.pdf. The same list of activities that require Assents also require consistency review. Id. at 12. Major alterations to the Rhode Island coastal area that trigger the more extensive Category B Assent process trigger the same level of review for consistency certifications. Id. at 8.
Finally, the manual states that a grant or denial of an Assent in an application when a consistency review is ongoing constitutes a concurrence or an objection for the purposes of the review. Id. at 13. A key difference between the two forms of review is that whereas the CZMA limits consistency review through the six-month time limit, administrative review by the Secretary of Commerce, and federal judicial review, no federal statute limits how long state decisions regarding Category B Assent may take or provides for federal review.
The substantive provision of the state CRMP most pertinent to this case is section 300.9(C), which requires approval by the CRMC for all dredging activities. Particularly in dispute in this case is the meaning of section 300.9(C)(7) of the CRMP, which requires that “[w]hen disposal is proposed for approved upland facilities, the applicant shall provide a letter of acceptance from that facility, unless the disposal is approved for the central landfill.” 04-000-010 R.I.Code R. § 300.9(C)(7).
The CRMC also coordinates some of its responsibilities with another state agency, the Rhode Island Department of Environmental Management (“RIDEM”). Particularly relevant to this case is RIDEM’s role in identifying a list of approved upland sites for disposal of dredged material, which CRMC is responsible for incorporating into a comprehensive plan for dredged material management. R.I. Gen. Laws § 46-6.1-5.
II.
Weaver’s Cove proposes to build and operate a LNG terminal in Fall River. The proposed project received FERC approval in 2005, subject to certain conditions. Weaver’s Cove Energy, LLC, 112 F.E.R.C. ¶ 61,070, at 61,528 (2005). FERC found that the proposal “will promote the public interest by increasing the availability of natural gas supplies in the New England market.” Id.
Under the original LNG proposal, submitted in 2003, ships carrying LNG would pass through waters in both Rhode Island and Massachusetts, traveling up the Taun-ton River to the terminal location. This has changed. According to Weaver’s Cove’s 2009 “Offshore Berth Amendment,” the proposal now calls for ships to deliver their cargo to an offshore berth in Mount Hope Bay, from which the LNG would be transported via a submerged pipeline to the onshore terminal. The offshore berth, the pipeline, and the terminal would all be located in Massachusetts. In both the original proposal and the amended version, the only planned activity in Rhode Island waters is dredging in a federal navigation channel to ensure the safe passage of the LNG tankers. That dredging is the subject of this litigation.
On December 19, 2003, Weaver’s Cove filed an application, pursuant to the NGA, for FERC approval of the proposed LNG facility. FERC, as said, approved the application in 2005 subject to a number of conditions, one of which was that Weaver’s Cove was to “file ... prior to construction documentation of concurrence from the [CRMC] that the project is consistent with the Rhode Island [CRMP].” Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶¶ 61,-550-51 (emphasis in original).
Turning to state regulatory requirements, such as Category B Assent, FERC added that “state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions in this order.” Id. at ¶ 61,-546. Although FERC encouraged Weaver’s Cove and local authorities to cooperate during local review of Weaver’s Cove’s proposal, it made clear that “this does not mean that state and local agencies, through application of state or local laws, may prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.” Id.
Following cross-motions for rehearing, FERC reaffirmed this order in 2006 in all respects relevant to this case. Weaver’s Cove Energy, LLC, 114 F.E.R.C. ¶ 61,058, at 61,164 (2006). This court declined then to review the conditional order on ripeness grounds. City of Fall River v. Fed. Energy Regulatory Comm’n, 507 F.3d 1, 6 (1st Cir.2007).
Because the proposed dredging activities also required approval from the Army Corps under the Rivers and Harbors Act, Weaver’s Cove filed an application to the Army Corps on March 18, 2004. Dredging is a listed activity in Rhode Island’s federally approved CRMP. 04-000-010 R.I.Code R. § 300.9. On filing its application to the Army Corps, Weaver’s Cove was therefore also required by the CZMA to file a consistency certification with CRMC, which it did in July 2004. With this application, Weaver’s Cove also applied for Rhode Island’s state law license for dredging, Category B Assent. However, Weaver’s Cove informed CRMC that it believed the Assent unnecessary.
Within the thirty-day window to inform applicants for concurrence that their applications are incomplete required by the CZMA, CRMC informed Weaver’s Cove by phone that its consistency certification and Category B Assent application were, in CRMC’s view, incomplete on two grounds. The validity of those grounds is at issue in this case. The first, quickly remedied by Weaver’s Cove, was that it had failed to submit the engineering plans with the stamp of a Rhode Island engineer. The second ground, at issue in this case, was that Weaver’s Cove’s application was incomplete, and so the six-month clock was not ticking, because Weaver’s Cove had failed to provide documentation, pursuant to section 300.9(C)(7) of the CRMP, that dredged materials would be accepted by “an approved upland facility].” In a letter dated August 2, 2004, Weaver’s Cove replied that because the dredged materials were to be disposed of in Massachusetts, and not in Rhode Island, section 300.9(C)(7) of the CRMP did not apply. On August 26, 2004, CRMC responded, informing Weaver’s Cove that its application was still incomplete because it failed to file a Water Quality Certificate but making no mention of the upland disposal issue. After additional communications, the parties failed to resolve the dispute. Because it claimed to lack necessary data and information, CRMC did not commence review of Weaver’s Cove’s consistency certification or its Category B assent. It still has not done so. In short, as of this date, the appellant state agency has not acted on the merits of an application which has been pending before it since July 2004.
Over a year after its original application to CRMC, Weaver’s Cove made separate filings to NOAA, FERC, and the Secretary of Commerce, requesting a determination that CRMC’s concurrence be “conclusively presumed” because CRMC had failed to act on Weaver’s Cove’s application within the statutorily required six-month deadline. 16 U.S.C. § 1456(c)(3)(A). NOAA took no action, FERC concluded it did not have authority to address the issue, and the Secretary of Commerce determined that he could not review the matter without an actual objection from CRMC. This left the matter of whether CRMC’s concurrence should be conclusively presumed to the courts for resolution.
Weaver’s Cove filed suit in the U.S. District Court for the District of Rhode Island on June 29, 2007. It sought declaratory and injunctive relief, claiming that the disposal information and the water quality certification, which the appellant CRMC had requested, were not “necessary data and information,” as required by the CZMA. Weaver’s Cove asserted the CZMA’s six-month deadline should not be tolled and CRMC’s concurrence should be conclusively presumed. In an amended complaint, Weaver’s Cove also argued that Category B Assent was preempted by provisions of the NGA that grant FERC “exclusive authority” in approving LNG facilities, 15 U.S.C. § 717b(e)(l), and unlawful under the dormant Commerce Clause.
The district court granted summary judgment in favor of Weaver’s Cove, on both the CZMA and the NGA claims. Weaver’s Cove, 583 F.Supp.2d at 262. The court found that neither the disposal information, nor the water quality certificate were necessary data and information, and so Weaver’s Cove’s application was not incomplete. Id. at 272-73. Thus, CRMC had failed to meet the statutory deadline and its concurrence was conclusively presumed. Id. at 275. In particular, with respect to the disposal information, the court found, based on statutory interpretation and the interpretation which the other state agency of Rhode Island, RIDEM, had adopted, that the term “approved upland facilities” in section 300.9(C)(7) of the CRMP referred only to disposal facilities in Rhode Island. Weaver’s Cove, 583 F.Supp.2d at 270-75. Since Weaver’s Cove intended to dispose of the dredged material out of state (in Massachusetts) at that time, the court concluded that CRMC could not require proof that the material would be accepted. Id. The district court, acting under the NGA, also held the Category B Assent process utilized by CRMC was preempted on three grounds. First, it found the process expressly preempted by the language of 15 U.S.C. § 717b(3)(1), granting FERC “exclusive authority to approve or deny an application” to build an LNG terminal. Weaver’s Cove, 583 F.Supp.2d at 280-83. Second, the court found the assent process implicitly field preempted because “Congress clearly intended that the NGA occupy the entire field of LNG regulation.” Id. at 283-84. Finally, the district court found the Category B Assent process preempted here because it specifically conflicted with FERC’s jurisdiction to regulate LNG facilities. Id. at 284-85. The court also held that the case was not rendered moot by the changes in the project that occurred after the date Weaver’s Cove submitted its consistency certification. Id. at 275-76. It did not reach the dormant Commerce Clause question.
III.
A. Jurisdiction
We first hold that we have jurisdiction to hear this case. CRMC does not raise any challenge to standing, mootness, or ripeness. Massachusetts, in its brief amicus curiae to this court (but not to the district court), argues broadly that there is no case or controversy here, based on standing, mootness, and lack of ripeness. Amici cannot insert new arguments, not made by a party, into a case. Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 74 n. 5 (1st Cir.2001). Nonetheless, we review standing, mootness, and ripeness in the constitutional sense to see whether we have Article III jurisdiction because we are independently obligated to do so, regardless of whether the parties raise the issue. Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir.2006). For the reasons discussed below, we are satisfied we have jurisdiction.
We first address standing. Massachusetts asserts that because Weaver’s Cove has not shown that a decision in their favor “will relieve a discrete injury” to them, Weaver’s Cove lacks standing. Massachusetts v. EPA 549 U.S. 497, 525, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)) (internal quotation marks omitted). It argues that “events completely unrelated to CRMC’s regulatory processes” have prevented the project from proceeding. Massachusetts is not entirely clear in explaining what those events are, but its briefs earlier description of the project suggests it is referring to challenges Weaver’s Cove has faced in satisfying other state and federal permitting requirements. Because CRMC’s regulatory requirements do affect Weaver’s Cove’s ultimate ability to receive federal approval, we conclude that Weaver’s Cove has standing.
A plaintiff wishing to establish standing must show “a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendant’s actions, and a likelihood that prevailing in the action will afford some redress for the injury.” City of Bangor v. Citizens Commc’ns Co., 532 F.3d 70, 92 (1st Cir.2008) (quoting Me. People’s Alliance & Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir.2006)) (internal quotation marks omitted). The plaintiff need not show that “the defendant’s actions are the very last step in the chain of causation” for the injury. Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). It suffices if the plaintiff can show “injury produced by determinative or coercive effect upon the action of someone else.” Id.
In this case, CRMC’s actions have directly affected the federal regulatory processes that determine whether the LNG terminal project can proceed. Consistency review is a condition for FERC approval, and FERC has stated it has no authority to address CRMC’s refusal to act. While CRMC’s inaction may not be the exclusive reason federal approval has not been granted, it is clear that failure to obtain concurrence from CRMC has a “determinative or coercive effect” on the federal agencies. Bennett, 520 U.S. at 169, 117 S.Ct. 1154. Weaver’s Cove therefore has standing to make its CZMA-related claims.
In addition, Weaver’s Cove has standing to make its preemption claims because it suffers a concrete injury from Rhode Island subjecting it to a preempted state law. Even if CRMC’s concurrence in Weaver’s Cove’s consistency certification were presumed, Category B Assent would still bar LNG construction if we did not address it here. This “would impose a palpable and considerable hardship” on its project. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201-02, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983).
This case is not rendered moot by Weaver’s Cove’s failure to achieve complete regulatory approval for its original proposal or by its submission of the Offshore Berth Amendment. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). We will only find a case moot if an intervening event “makes it impossible for the court to grant any effectual relief.” Gulf of Me. Fisherman’s Alliance v. Daley, 292 F.3d 84, 88 (1st Cir.2002) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)) (internal quotation marks omitted).
Weaver’s Cove’s efforts to obtain regulatory approval for the LNG terminal from all of the relevant actors do indeed constitute a live issue. These efforts are ongoing and the Offshore Berth Amendment represents an attempt by Weaver’s Cove to address some of the concerns that may have earlier delayed approval. While Weaver’s Cove still has conditions to meet following the amendment, Weaver’s Cove did, for example, get approval from the Coast Guard, which previously had been a hurdle. Since CRMC’s consistency certification remains a requirement of FERC and of the Army Corps, that question is clearly live. This is especially so because the Offshore Berth Amendment itself does not render moot the dispute here with Rhode Island. As the Army Corps has itself noted, the planned dredging activities in Rhode Island have not changed, even under the amendment. A decision in favor of the plaintiff in this case would provide “effectual relief’ because it would clear a barrier to achieving approval for the project.
This case is also ripe. Although federal regulatory approval for the Offshore Berth Amendment is ongoing, our review of this case is neither “advisory” nor “irrelevant to the ultimate approvability of the project.” Fall River, 507 F.3d at 8.
Massachusetts cites Fall River in an attempt to argue that this case will lack ripeness until the project receives authorization from several key federal agencies. But it disregards important differences in the facts and procedural background of this case. In Fall River, we held that a challenge to FERC’s conditional approval of this project was not ripe because the decision was not final until the completion of reviews by the United States Coast Guard and the Department of the Interior. Id. at 7. Because FERC’s decision was not final we could not be sure our opinion would not be advisory. Id. at 7-8. In contrast, the plaintiffs requested relief in this case would be final. CRMC’s consistency review and Category B Assent requirements would cease to be barriers to ultimate approval of the project. Another difference from Fall River is that FERC and the other relevant agencies have expressly declined to resolve the issue raised by this appeal on the grounds that they have no authority to do so. It is true that resolutions of these issues might not secure the project’s ultimate approval, but it would neither be “advisory” nor “irrelevant.”
B. CZMA Consistency Review: “Conclusive Presumption of Concurrence ”
We hold that CRMC’s concurrence with Weaver’s Cove’s dredging plans must be conclusively presumed under 16 U.S.C. § 1456(c)(3)(A). We affirm the district court. Weaver’s Cove, 583 F.Supp.2d at 270-75.
A district court may grant summary judgment on a finding that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,’ and a fact is material if it has the ‘potential to affect the outcome of the suit.’ ” Velázquez-García v. Horizon Lines of P.R., Inc., 473 F.3d 11, 15 (1st Cir.2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000)) (citation omitted). On appeal, we review a district court’s grant of summary judgment de novo. Torrech-Hernandez v. General Elec. Co., 519 F.3d 41, 46 (1st Cir.2008).
We review the district court’s holding that, in this case, a letter certifying acceptance of dredged material, as listed in section 300.9(C)(7) of the CRMP, did not constitute necessary data and information within the meaning of 15 C.F.R. § 930.58(a)(2) because Weaver’s Cove did not intend to dispose of the waste in Rhode Island. Weaver’s Cove, 583 F.Supp.2d at 271-72. If, as CRMC contends, the letter is necessary data and information required by the CRMP, CRMC is not compelled to commence reviewing the consistency certification until Weaver’s Cove provides it. 15 C.F.R. § 930.60(a)(2). The six-month deadline for presumed concurrence would be tolled until that time. Id. If, on the other hand, the letter is not necessary data and information, as the district court found, the six-month period from Weaver’s Cove’s submission of the consistency certification in July 2004 has clearly expired, and we are required to find CRMC’s concurrence presumed. 16 U.S.C. § 1456(c)(3)(A). We affirm the district court’s conclusion.
As the district court noted, the state CRMP does not define “approved upland facilitfy].” Weaver’s Cove, 583 F.Supp.2d at 271. However, other Rhode Island laws have shed light on the language’s meaning. Rhode Island’s Marine Waterways and Boating Facilities Act of 2001 (“Waterways and Boating Act”), R.I. Gen. Laws §§ 46-6.1-1 to -10, and associated regulations, set forth a comprehensive system regulating dredging activities and disposal of dredged materials in the state. The district judge relied on these regulations to conclude that facilities outside of Rhode Island are not among the “approved upland facilities” from which the CRMP requires a letter of acceptance. Weaver’s Cove, 583 F.Supp.2d at 271-72.
We agree with the district court that the language of section 300.9(C)(7) of the CRMP can only be read to cover facilities located in the state of Rhode Island because the state’s regulatory framework for dredging only provides for the identification of “approved upland facilities” within the state.
We begin with the Rhode Island statutes that govern regulation of dredging in the state. Rhode Island law makes the CRMC responsible for “preparing], adopting] and maintaining] ... a comprehensive plan for dredged material management for dredging that takes place in the coastal zone.” R.I. Gen. Laws. § 46-6.1-5(a). But the same statute delegates to RIDEM the task of “adopting] by rule a list of upland sites and types of areas suitable for beneficial use and disposal of dredged materials.” Id. § 46-6.1-5(b). This list is then “incorporated in the [CRMC’s] comprehensive plan for dredged material management.” Id. The Waterways and Boating Act does not define “upland sites,” but it does define “[ujpland areas” as “areas that are not in the coastal zone.” Id. § 46-6.1-4(16). Thus, while both agencies may be responsible for interpreting whether “upland disposal facilities” can include out of state disposal facilities, only RIDEM is charged with approving upland sites.
RIDEM has in turn promulgated its own Rules and Regulations for Dredging and the Management of Dredged Material (“Dredging Regulations”) pursuant to the Waterways and Boating Act. R.I. Dept, of Envtl. Mgmt., Rules and Regulations for Dredging and the Management of Dredged Material § 2, available at http:// www.dem.ri.gov/pubs/regs/regs/water/dred 0203.pdf [hereinafter “R.I. Dredging Regulations”]. These regulations are also intended to be consistent with the CZMA, id., and must be implemented according to a written protocol jointly adopted by CRMC and RIDEM, id. § 3. Among the stated purposes of these regulations is to “[ijdentify and list upland sites suitable for beneficial use and/or disposal of dredged material,” id. § 1.5, and, as the district court noted, the Dredging Regulations “apply to all aspects of dredging proposed in marine waters of the State of Rhode Island,” id. § 3. The Dredging Regulations do not contain an express definition for “approved upland facilities,” but they do define “Upland Areas” more narrowly than the corresponding term in the Waterways and Boating Act, R.I. Gen. Laws § 46-6.1-4(16), as “[a]ll areas of the state that are not in the coastal zone.” R.I. Dredging Regulations § 4.20 (emphasis added).
Since RIDEM is tasked with approving upland disposal facilities, R.I. Gen. Laws § 46-6.1-5(b), and it only approves upland facilities within the state of Rhode Island, R.I. Dredging Regulations § 4.20, it follows that the “approved upland facilities” referred to by section 300.9(C)(7) of the CRMP should be read to be facilities within the state of Rhode Island. “To hold otherwise would render the C[R]MP’s specific language a nullity.” Weaver’s Cove, 583 F.Supp.2d at 272.
In any event, appellant has not pointed to any regulatory process for the approval of upland sites outside of Rhode Island, nor has it produced a list of approved facilities outside of the state. Absent language in Rhode Island law to the contrary, we presume state laws, like this one, not to have extraterritorial effect. Cf. Carnero v. Boston Sci. Corp., 433 F.3d 1, 7 (1st Cir.2006).
CRMC responds that it has an interest in confirming that material dredged from its coast is properly disposed, regardless of the ultimate location, and that the district court improperly relied on another agency’s interpretation of the Waterways and Boating Act, which it administers. Citing language from both the Waterways and Boating Act, R.I. Gen. Laws § 46-6.1-3(1), and the CRMC’s organic statute, id. § 46-23-l(e), that designate CRMC as the “lead agency” for purposes of regulating dredging activities, CRMC argues that federal courts must defer to its broader interpretation of its own regulations for its own purposes. It explains that although RI-DEM may, in its limited role of approving disposal sites, only be concerned with upland facilities within Rhode Island, CRMC is more broadly concerned with ensuring the proper disposal of dredged material.
CRMC cites no authority in support of its view, and in this context, the view is untenable. Since for the purposes of CZMA consistency review, we are only concerned with the requirements of the CRMP, CRMC’s argument that it is entitled to deference in its interpretation of the Waterways and Boating Act is inappo-site. We are concerned only with its interpretation of section 300.9(C)(7) of the CRMP, and complementary regulatory schemes to the extent they shed light on its meaning.
It is true, as CRMC points out, that federal agency interpretations of their own regulations (when authorized by Congress) are “controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). However, even if we applied that standard here, CRMC cannot satisfy it because the plain language of section 300.9(C)(7) of the CRMP calls for “approved upland facilities” (emphasis added). Thus, even if upland facilities can be interpreted to include facilities outside of Rhode Island, CRMC has not pointed to any regulatory scheme that deals with the approval of out-of-state facilities or even a list of approved out-of-state facilities. The only regulatory scheme for approving upland facilities is that administered by RI-DEM, and CRMC’s interpretation of its regulation is therefore clearly erroneous.
This construction of state law also permits us to avoid an issue of whether a different construction would violate federal law. As noted, see supra note 1, an individual state may not purport to undertake out of state regulation for consistency review purposes without getting NOAA’s consent. 15 C.F.R. § 930.154(e).
C. Preemption of State Category B Assent to Dredging by Section S of the Natural Gas Act and by FERC’s Conditional Approval
We review the district court’s finding that CRMC’s state law licensing program for coastal dredging, the Category B Assent process, is preempted by the NGA, at least on the facts here. At stake is whether CRMC may still delay the project based on Weaver’s Cove’s failure to satisfy section 300.9(C)(7) of the CRMP or other CRMP requirements, despite our conclusion that concurrence in Weaver’s Cove’s consistency certification should be presumed. Our standard when reviewing a district court’s finding of preemption is de novo. Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir.2008); SPGGC, LLC v. Ayotte, 488 F.3d 525, 530 (1st Cir.2007).
While the district court found the Category B Assent process preempted on a number of grounds, Weaver’s Cove, 583 F.Supp.2d at 279-85, we affirm for the narrowest reason, that of conflict preemption.
In its order, FERC analyzed Weaver’s Cove’s proposed dredging activities in both Rhode Island and Massachusetts, assessed the environmental impact the dredging would have and compared it with alternatives, and analyzed the effect on the water and wildlife, land use, recreation, ship traffic, and air quality. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,540 (discussing environmental issues reviewed and adopting the findings of FERC’s Final Environmental Impact Statement (“FEIS”)); Office of Energy Projects, Fed. Energy Regulatory Comm’n, Docket No. CP04-36-000, Weaver’s Cove LNG Project Final Environmental Impact Statement (May 2005) [hereinafter “Weaver’s Cove FEIS ”]. Further, FERC concluded that the dredging was part of the construction and operation of the terminal project. Thus, Category B Assent clearly conflicts with FERC’s “exclusive authority,” as exercised here, to license the “siting, construction, expansion, or operation” of LNG terminals. 15 U.S.C. § 717b(e)(1).
To simplify a complex area of law, preemption arguments are generally divided into three categories. Fitzgerald, 549 F.3d at 52. The first, express preemption, results from language in a statute revealing an explicit congressional intent to preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). The second, field preemption, is that Congress may implicitly preempt a state law by creating a pervasive scheme of regulation. Fitzgerald, 549 F.3d at 52; N. Natural Gas Co. v. Iowa Utils. Bd., 377 F.3d 817, 823 (8th Cir.2004) (holding a state’s site-specific environmental review field preempted because FERC has authority under the NGA to consider environmental issues). The third category is conflict preemption. In this category, state law is “pre-empted to the extent it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 53 (quoting Good v. Altria Group, Inc., 501 F.3d 29, 47 (1st Cir.2007)).
Weaver’s Cove asks us to find preemption under the first two grounds. It also stresses the district court’s application of a field preemption test set forth in a NGA preemption case. Weaver’s Cove, 583 F.Supp.2d at 285 (citing Schneidewind, 485 U.S. at 301, 108 S.Ct. 1145).
We prefer to decide on the narrowest grounds: conflict preemption. In this case, FERC has interpreted the dredging activities in the Weaver’s Cove’s project, including those in Rhode Island, to be within its preemptive jurisdiction. See Fitzgerald, 549 F.3d at 55 (“The proposition that federal agency action, taken pursuant to its interpretation of a statute, may itself preempt is quite correct.”). CRMC does not argue that the proposed dredging is not a part of the LNG terminal’s “siting, construction, ... or operation” under 15 U.S.C. § 717b(e)(1), although Massachusetts, as amicus, does. In its original order, FERC extensively reviewed the dredging as part of the overall terminal construction and operational plan. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,535-36, 61,545, 61,550. Here, FERC carefully reviewed the very dredging Rhode Island seeks to further regulate and, after considering environmental impacts, authorized the project. Id. at 61,-546. The FEIS, adopted by reference in the FERC order, id. at 61,540, found that the dredging was necessary “to accommodate the passage of LNG ships” to the facility, Weaver’s Cove FEIS, at 2-25 (May 2005), and that it would be impossible to “reduce, the volume or extent of dredging and still satisfy the objectives of the project at the proposed site,” id. at 3-70. Thus, FERC concluded that the dredging was part of the construction and the operation of the terminal facility. That ruling is final and binding because no objections were made to FERC’s findings on these points in the parties’ request for rehearing. Further, the dredging is in an approved federal navigation channel.
By finding the dredging activities were part of the construction and operation of the terminal facility, FERC has interpreted the Rhode Island dredging at issue in this case to be within its jurisdiction. Thus, the Category B Assent process utilized by Rhode Island clearly collides with FERC’s delegated authority and is preempted. FERC made this clear in its order regarding Weaver’s Cove’s application, which stated that state agencies could not use state law to “prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.” Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546. FERC affirmed this point on rehearing, in response to the City of Fall River’s challenge. Weaver’s Cove Energy, LLC, 114 F.E.R.C. at ¶ 61,185-86.
CRMC’s handling of the Category B Assent process both conflicts with and is an obstacle to the authority FERC has asserted in this case. Unlike CZMA consistency review, which allows the CRMC to review the dredging proposals, limited by a six-month deadline and administrative and federal judicial review, the Category B Assent process contains no such limitations, and to this date the appellant has not processed this application or reached any decision on the merits. CRMC has taken the position that it must carry out the Category B Assent process concurrently with the consistency review, and because the consistency review has not commenced, it cannot address the application for Category B Assent. Thus, even if concurrence were presumed, CRMC’s position is that the Category B Assent process would itself independently block full licensing of the facility. This is clearly an application of state law that delays or has the potential to prohibit the ultimate licensing and construction of the LNG terminal. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546. Further, CRMC’s two bites at the apple approach necessarily conflicts with the federal process for and interest in defining what is necessary data. Because CRMC’s actions here conflict with FERC’s jurisdiction and the limits for consistency review, it is preempted.
D. Rivers and Harbors Act
Finally, CRMC argues that the federal Rivers and Harbors Act saves its state Category B Assent process from preemption. Pointing to language in the NGA qualifying FERC’s exclusive authority to the extent that it affects law “related to” the authority of other federal agencies, 15 U.S.C. § 717b(e)(1), CRMC argues that the NGA preserves not only the Army Corps’s role in approving dredging activities but also the entire body of law “related to” that role. Since the Army Corps’s approval process under the Rivers and Harbors Act does not preempt state licensing schemes, CRMC argues that the savings clause in the NGA must therefore protect Category B Assent.
These arguments, assuming arguendo they were preserved in the district court, are meritless. The language of § 717b(e)(1) is plainly aimed at preserving the authority of federal agencies and not that of state agencies like CRMC. CRMC’s argument that its state licensing program is “related to” the authority of FERC is also untenable. As CRMC points out in other parts of its brief, CRMC’s authority to require Category B Assent derives from Rhode Island’s status as a sovereign, whereas the Army Corps’s authority derives from the federal government. The fact that the Rivers and Harbors Act does not itself preempt Category B Assent is therefore irrelevant to the NGA’s preemptive effect.
Under its exclusive authority, FERC considers the dredging in Rhode Island to be a part of the LNG construction. FERC, as required by the NGA, has provided CRMC an opportunity to review the project through CZMA consistency review. CRMC cannot now avoid presumed concurrence by relying on a nearly identical state law licensing procedure.
The district court’s judgment is affirmed.
. A state is prohibited from undertaking interstate consistency review of activities occurring in a different state unless the state requests and obtains interstate review authority from NOAA. 15 C.F.R. § 930.154(e).
. A state may reopen review of a certification if the applicant makes a "major amendment” to the project. 15 C.F.R. §§ 930.51(b)-(c), (e), 930.66(b). That provision is inapplicable here.
. LNG, produced by cooling natural gas to a liquid state, has less volume and so can be more economically transported. The terminal proposed by Weaver’s Cove would receive imported LNG from tanker ships, regasify it, and inject it into the U.S. natural gas grid. According to Weaver’s Cove, the proposed terminal would supply fifteen percent of New England’s "peak day" natural gas demand in 2010. Weaver’s Cove, 583 F.Supp.2d at 262-63, 262 n. 2.
. The original proposal to the Army Corps set forth a Massachusetts disposal site but also considered offshore disposal at a federal ocean disposal site approved by the Environmental Protection Agency and the Army Corps.
. Because CRMC has not itself challenged the district court's finding with respect to mootness, we do not address CRMC’s challenge to the jurisdictional questions raised in footnote 18 of the district court’s opinion. In re Williams, 156 F.3d 86, 90 (1st Cir.1998) ("[F]ederal appellate courts review decisions, judgments, orders, and decrees — not opinions, factual findings, reasoning, or explanations.”).
. The Army Corps also requires Weaver's Cove to submit verification that its application to CRMC is complete before it can complete its review.
. We affirm the district court's holding that the Offshore Berth Amendment does not affect CRMC’s consistency review. Weaver’s Cove, 583 F.Supp.2d at 275-78. That FERC is reviewing the Offshore Berth Amendment is irrelevant and does not moot this appeal regarding findings by a Rhode Island agency. What effect that amendment may have on dredging activities in Massachusetts is not at issue before us.
. We note that Weaver's Cove no longer intends to dispose of the dredged materials at any “upland facility]” and instead now plans to dispose of the waste at an offshore site. As CRMC points out in its reply brief, this was not the case at the time of the original consistency review application. Weaver’s Cove at that time planned to dispose of the waste at its Fall River Facility. We do not address this change, because it occurred after the time concurrence would have been presumed, and neither party has raised it on appeal.
. Thus, in order to prevent a hypothetical “trash barge to nowhere scenario,” in which Rhode Island is forced to dispose of dredged material that no one else will accept, CRMC is entitled to demand proof that Weaver's Cove's proposed upland disposal facility will accept it. Of course, this is not a barge to nowhere situation, because Weaver's Cove has identified a disposal site subject to the jurisdiction of other agencies that play a role under the CZMA.
. We also reject CRMC's argument that it deserves deference under Mountain Rhythm Resources v. Fed. Energy Regulatory Comm'n, 302 F.3d 958 (9th Cir.2002). That case involved review of a federal agency's decision to adopt a state's interpretation of its coastal management plan under the arbitrary and capricious standard. Id. at 966. Here we are reviewing the state agency's interpretation itself.
. This provision of the NGA was not in effect until August 8, 2005, after FERC issued its order on July 15, 2005. However, FERC’s interpretation of its own preemptive authority under the NGA to regulate construction of LNG facilities was clearly articulated before this provision came into force. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546. Further, FERC reaffirmed its approval of Weaver's Cove’s application after the provision became effective. Weaver’s Cove Energy, LLC, 114 F.E.R.C. at ¶ 61,185-86.
. Rather CRMC argues that Section 10 of the River and Harbors Act saves Category B Assent from preemption by the NGA, a contention we consider below.
. The parties never raised objections to these findings in their request for rehearing to FERC and thus courts have no jurisdiction to review this determination by FERC. 15 U.S.C. § 717r(a) (“No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.”).
. CRMC and Massachusetts also incorrectly argue that the district court based its Category B Assent preemption on the doctrine of federal navigational servitude and that a finding of preemption under the servitude was improper because Congress failed to invoke it expressly within the NGA. The argument misreads the district court's holding and is irrelevant. Congress’s power to preempt state regulation here emanates not only from its power to regulate navigation but also from its power to regulate commerce itself. U.S. Const. art. I, § 8, cl. 3; 43 U.S.C. § 1314(a) ("The United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, [and] navigation see also First Iowa Hydro-Elec. Coop. v. Federal Power Com., 328 U.S. 152, 182, 66 S.Ct. 906, 90 L.Ed. 1143 (1946) ("The states possess control of the waters within their borders, subject to the acknowledged jurisdiction of the United States under the Constitution in regard to commerce and the navigation of the waters of rivers.’ ”) (quoting United States v. Appalachian Elec. Power Co., 311 U.S. 377, 404, 61 S.Ct. 291, 85 L.Ed. 243 (1940)).
In its reply brief, CRMC raises a new argument that while Congress could preempt commercial regulation under the Commerce Clause, it could not displace Rhode Island's property rights without invoking the navigational servitude doctrine. Because arguments raised for the first time in reply briefs are procedurally barred, we need not consider this contention. United States v. Hall, 557 F.3d 15, 20 n. 3 (1st Cir.2009). In any event, the argument is wrong. The Supreme Court has held that state property interests in land may not preempt federal statutes enacted pursuant to the Commerce Clause. Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 283-84, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2291666666666667, Costs: 0.04166666666666666
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DIANE P. WOOD, Circuit Judge.
This case involves the efforts of a consortium of Illinois municipalities to find a place to dump their trash. The Solid Waste Agency of Northern Cook County (“SWANCC”) thought that it had found such a spot in a 533-acre parcel of land straddling Cook and Kane Counties, Illinois. Before its “balefill” could open, however, approximately 17.6 acres of ponds and small lakes located on the parcel had to be filled in. This case presents the question whether the U.S. Army Corps of Engineers (“the Corps”), acting under § 404 of the Clean Water Act (“the Act”), 33 U.S.C. § 1344, had jurisdiction to require SWANCC to obtain a permit for its fill operations. SWANCC initially applied for such a permit, but the Corps denied it. SWANCC then sued, claiming both that the Corps had no business meddling in the matter at all and that it was wrong on the merits. For its part, the Corps claimed jurisdiction under the so-called “migratory bird rule,” which interprets the Act as extending to certain intrastate waters based on their actual or potential use as habitat for migratory birds. (The parties dispute whether this is a mere interpretation of statutory language, or something that should be regarded as a freestanding rule — a point that we discuss later in this opinion. Our use of the common phrase “migratory bird rule” is not intended to suggest a position on that issue.)
The district court granted summary judgment in the Corps’ favor on the jurisdictional point. At that point, SWANCC decided voluntarily to dismiss the remainder of its claims, so that the district court could enter a final judgment from which it could appeal. See 28 U.S.C. § 1291. We conclude that the Corps properly asserted jurisdiction in this matter, and we therefore affirm.
I
SWANCC is a group of 23 municipalities that banded together to form a municipal corporation for the purpose of locating and developing a disposal site for nonhazardous waste. It found and purchased the 533-acre site to which we have already referred, from which it hoped to carve out approximately 410 acres for a “balefill”— that is, a landfill where the waste is baled before it is dumped. Approximately 298 acres of the proposed balefill site is what is known as an early successional stage forest. At one time, it was a strip mine, but when the mining operation'shut down approximately 50 years ago, a labyrinth of trenches and other depressions remained behind. Over time, the land evolved into an attractive woodland vegetated by approximately 170 different species of plants. What were once gravel pits are now over 200 permanent and seasonal ponds. These ponds range from less than one-tenth of an acre to several acres in size, and from several inches to several feet in depth. The forest is also home to a variety of small animals. Most important for our purposes are the 100-plus species of birds that have been observed there. These include many endangered, water-dependent, and migratory birds. Among the species that have been seen nesting, feeding, or breeding at the site are mallard ducks, wood ducks, Canada geese, sandpipers, kingfishers, water thrushes, swamp swallows, redwinged blackbirds, tree swallows, and several varieties of herons. Most notably, the site is a seasonal home to the second-largest breeding colony of great blue herons in northeastern Illinois, with approximately 192 nests in 1993.
This litigation arose because the proposed balefill project would require the filling of approximately 17.6 acres of semi-aquatic property within the forested area. Section 404 of the Act prohibits the discharge of fill material into “the navigable waters” without a permit issued by the Secretary of the Army, acting through the Chief of Engineers. 33 U.S.C. § 1344(a). The term “navigable waters” is defined in the statute as “the waters of the United States, including the territorial seas.” Id. § 1362(7). Although the Act itself provides no further explanation of which waters are subject to § 404’s requirements, regulations issued by the Environmental Protection Agency (“EPA”) and the Corps define the phrase “waters of the United States” to- include “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.” 33 C.F.R. § 328.3(a)(3).
In March 1986, SWANCC contacted the Corps to find out if a particular 267-acre parcel within the proposed balefill site included “wetlands” within the meaning of the Act, such that SWANCC would have to obtain a § 404 permit in order to fill it in. After an on-site inspection, the Corps initially decided that the site did not include protected wetlands and therefore did not fall within its regulatory jurisdiction. One year later, in February 1987, SWANCC contacted the Corps to request a determination as to whether a 414-acre parcel of the site included “wetlands.” The Corps again responded in the negative.
The Corps changed its position with regard to its jurisdiction over the balefill site, however, after the Illinois Nature Preserves Commission (a state agency) informed it that a number of migratory bird species had been observed there. This new information made all the difference to the Corps, because of the so-called migratory bird rule. This rule, or interpretive convention, reflects the fact that the definition of “waters of the United States” found in 33 C.F.R. § 328.3(a)(3) has long been understood by the EPA and the Corps to include all waters, including those otherwise unrelated to interstate commerce, “which are or would be used as habitat by birds protected by Migratory Bird Treaties” or “which are or would be used as habitat by other migratory birds which cross state lines.” 51 Fed.Reg. 41,206, 41,217 (1986) (“1986 preamble”). In a letter to SWANCC dated November 16,1987, the Corps explained that its two previous determinations that the site did not fall within its jurisdiction were based on its finding that the site did not meet the definition of “wetland.” In contrast, the latest determination — that the Corps did have jurisdiction over the site — was based on a different theory entirely. Regardless of wetland status, it now appeared that the aquatic areas of the site “are or could be used as habitat by migratory birds which cross state lines.” In response to the Corps’ notification that it intended to exercise jurisdiction over the site, SWANCC submitted an application for a § 404 permit. The Corps denied that application, finding that all of the affected waters in the site were in fact used as habitat by migratory birds (and thus were not merely potential habitat). SWANCC then submitted a revised application that was also denied.
At this stage in the litigation, SWANCC has abandoned its challenge to the merits of the Corps’ decisions and has instead focused exclusively on its challenge to the migratory bird rule as a basis for the Corps’ jurisdiction. Accordingly, we accept as true the Corps’ factual findings with regard to SWANCC’s permit application, including the crucial finding that the waters of this site were a habitat for migratory birds.
II
SWANCC offers three arguments to support its position that the Corps had no authority to require it to obtain a permit: (1) Congress lacked the power to grant the Corps regulatory jurisdiction over isolated, intrastate waters based on the presence of migratory birds alone; (2) the Corps exceeded its statutory authority in interpreting the Act to confer jurisdiction as provided by the migratory bird rule; and (3) the migratory bird rule is invalid because it was not promulgated in accordance with the notice and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553.
We begin with the most ambitious of SWANCC’s arguments, which is that the migratory bird rule is unconstitutional in fight of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Prior to Lopez, it had been established that Congress’ powers under the Commerce Clause were broad enough to permit regulation of waters based on the presence of migratory birds. See, e.g., Rueth v. EPA, 13 F.3d 227, 231 (7th Cir.1993); Leslie Salt Co. v. United States (Leslie I), 896 F.2d 354, 360 (9th Cir.1990). We must decide whether Lopez now compels the opposite conclusion.
In Lopez, the Court reaffirmed the well-established principle that a federal statute based on the Commerce Clause must serve one of three purposes: (1) regulation of the channels of interstate commerce; (2) regulation or protection of the instrumen-talities of interstate commerce, or persons or things in interstate commerce; or (3) regulation of activities that “substantially affect” interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624; see also Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); United States v. Wilson, 159 F.3d 280, 285 (7th Cir.1998). The gun control law at issue in Lopez, like the migratory bird rule challenged here, could only have been sustained as an exercise of the third variety of regulatory power. The Lopez Court concluded that the statute before it, which made it a crime “knowingly ... [to] possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone” did not meet the “substantially affects” test because (1) it was a criminal statute which, by its terms, had nothing to do with interstate commerce or commercial transactions; (2) it contained no jurisdictional element to ensure that in each case the firearm in question had in fact affected interstate commerce; and (3) Congress had offered no legislative findings to support the conclusion that possessing a gun in a school zone affected interstate commerce. Lopez, 514 U.S. at 559-62, 115 S.Ct. 1624; see also Wilson, 159 F.3d at 286.
SWANCC urges us to conclude that the migratory bird rule suffers from the same defects. But such a conclusion would overlook important differences between the statute before the Court in Lopez and the one we are considering. This court has noted previously that Lopez expressly recognized, and in no way disapproved, the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce. United States v. Hicks, 106 F.3d 187, 189-90 (7th Cir.1997), citing Lopez, 514 U.S. at 561, 115 S.Ct. 1624; see also United States v. Jones, 178 F.3d 479 (7th Cir.1999); United States v. Thomas, 159 F.3d 296, 298 (7th Cir.1998).
This approach, which is most closely associated with the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), indicates the relevant legal question for our case is whether the destruction of the natural habitat of migratory birds in the aggregate “substantially affects” interstate commerce. We observed in Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7th Cir.1993), that “[throughout North America, millions of people annually spend more than a billion dollars on hunting, trapping, and observing migratory birds. Yet the cumulative loss of wetlands has reduced the populations of many species and consequently the ability of people to hunt, trap, and observe those birds.” Id. at 261. Statistics produced by the U.S. Census Bureau reveal that approximately 3.1 million Americans spent $1.3 billion to hunt migratory birds in 1996, and that about 11 percent of them traveled across state lines to do so. Fish & Wildlife Service, U.S. Dep’t of the Interior & Bureau of the Census, U.S. Dep’t of Commerce, 1996 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 25 (November 1997). Another 17.7 million people spent time observing birds in states other than their states of residence; 14.3 million of these took trips specifically for this purpose; and approximately 9.5 million traveled for the purpose of observing shorebirds, such as herons. Id. at 45. There is no need to dally on this point: we find (once again) that the destruction of migratory bird habitat and the attendant decrease in the populations of these birds “substantially affects” interstate commerce. The effect may not be observable as each isolated pond used by the birds for feeding, nesting, and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires.
SWANCC objects that the migratory bird rule cannot serve to define the Corps’ jurisdiction, because the rule excludes nothing. The United States is home to somewhere between 2.5 and 6 billion birds, two-thirds of which migrate. Virtually any body of water could serve as a temporary habitat for at least some of these birds. However, any suggestion that next the Corps will be trying to regulate the filling of every puddle that forms after a rainstorm, at least if a bird is seen splashing in it, misses the point. A “habitat” is not simply a place where a bird might alight for a few minutes, as SWANCC suggests, but rather “the place where a plant or animal species naturally lives or grows.” Webster’s Third New International Dictionary 1017 (1993). Before the Corps may assert jurisdiction under the migratory bird rule, it must first make a factual determination that a particular body of water provides a habitat for migratory birds, which it has done here.
Last, SWANCC offers a broad policy-based argument for rejecting jurisdiction under the migratory bird rule. The rule is, it claims, inconsistent with the principles of federalism that motivated the Court in Lopez, because it erodes the “distinction between what is truly national and what is truly local.” Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. But this argument works only if, as SWANCC asserts, the protection of migratory bird habitat is a matter of local concern only. Once again, that argument is refuted by the numerous international treaties and conventions designed to protect migratory birds, see, e.g., Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, U.S.-Japan, 25 U.S.T. 3331, T.I.A.S. No. 7990 (1972); Convention for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., 50 Stat. 1311, T.S. No. 912 (1936); Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., 39 Stat. 1702, T.S. No. 628 (1916), as well as the case law recognizing the “national interest of very nearly the first magnitude” in protecting such birds, North Dakota v. United States, 460 U.S. 300, 309, 103 S.Ct. 1095, 75 L.Ed.2d 77 (1983); see also Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Even less persuasive is SWANCC’s suggestion that giving a federal agency (here, the Corps) the power to override decisions by local land use and zoning boards to permit the filling of local waters conflicts with notions of state sovereignty. To the contrary, because the regulation of migratory bird habitat is a permissible exercise of Congress’ authority, the Supremacy Clause, U.S. Const. art. VI, cl. 2., squarely supports the legitimacy of giving precedence to federal law in this area.
Ill
SWANCC next contends that, even if Congress lawfully could have granted the Corps jurisdiction over isolated bodies of water based on the presence of migratory birds, it did not do so. As noted above, the Act expressly limits the Corps’ jurisdiction to “the waters of the United States.” The EPA and the Corps have defined this term to include “[a]ll other waters ... the use, degradation or destruction of which could affect interstate or foreign commerce.” They further have interpreted the phrase “could affect interstate or foreign commerce” as permitting jurisdiction based on the presence of migratory birds. It is this second level of agency interpretation that SWANCC deems excessive.
We review an agency’s interpretation of a statute it is charged with administering under the standard outlined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first question is whether the plain meaning of the text of the statute either supports or opposes the regulation. If so, the analysis ends with the court’s application of the plain meaning. Id. at 842, 104 S.Ct. 2778. But if the statute is either ambiguous or silent on the issue, the court must defer to the agency interpretation so long as it is based on a reasonable reading of the statute. Id. at 843, 104 S.Ct. 2778.
It is well established that the geographical scope of the Act reaches as many waters as the Commerce Clause allows. See, e.g., Rueth, 13 F.3d at 231; United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir.1985); United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979). Thus, if Congress possesses the power to regulate a body of water under the Act, generally this court will conclude that it has in fact done so. Accordingly, because Congress’ power under the Commerce Clause is broad enough to permit regulation of waters based on the presence of migratory birds, it is certainly reasonable for the EPA and the Corps to interpret the Act in such a manner. Accord Leslie Salt I, 896 F.2d at 360.
SWANCC believes that this conclusion is at odds with the Fourth Circuit’s decision in United States v. Wilson, 133 F.3d 251 (4th Cir.1997). Wilson involved a challenge to 33 C.F.R. § 328(a)(3), the regulation that defines “waters of the United States” to include all waters “the use, degradation or destruction of which could affect interstate or foreign commerce.” The court found the regulation to be an unreasonable interpretation of the Act based on its suspicion that Congress lacks the power to regulate waters that “could” affect interstate or foreign commerce. In our case, however, the question whether Congress may regulate waters based on their potential to affect interstate commerce is not presented, because the unchallenged facts show that the filling of the 17.6 acres would have an immediate effect on migratory birds that actually use the area as a habitat. Thus, we need not, and do not, reach the question of the Corps’ jurisdiction over areas that are only potential habitats. Moreover, we note that SWANCC has not attacked 33 C.F.R. § 328(a)(3) here. Instead, it has limited its objections to the propriety of the migratory bird rule as an interpretation of 33 C.F.R. § 328(a)(3).
SWANCC’s remaining statutory interpretation argument asks us to find the migratory bird rule unreasonable because it is designed to preserve wildlife rather than water quality. This point overlooks the fact that the Act’s stated purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). SWANCC’s suggestion that the Corps’ jurisdiction must be defined solely by reference to water quality is itself inconsistent with the Act and must be rejected.
IV
Last, SWANCC challenges the migratory bird rule on the ground that it was promulgated in violation of the notice and comment requirements of the APA. See 5 U.S.C. § 553. Our starting point here is with the fact that the APA does not require administrative agencies to follow notice and comment procedures in all situations. Section 553(b)(3)(a) specifically exempts “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” from the requirement. In order to succeed on its APA claim, then, SWANCC must convince us that the migratory bird rule is a legislative (also termed “substantive”) rule, rather than an interpretive rule or policy statement. See Metropolitan Sch. Dist. of Wayne Township v. Davila, 969 F.2d 485, 489-90 (7th Cir.1992); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1566-67 (D.C.Cir.1984).
That, in our view, it cannot do. We explained the difference between legislative and interpretive rules at some length in Hoctor v. U.S. Dept. of Agriculture, 82 F.3d 165 (7th Cir.1996), where we found that a rule requiring certain wild animal containment fences to be eight feet tall was legislative. The reason for this was straightforward: nothing in the idea of a “secure” containment could tell someone whether T% feet, 8 feet, or 8Hl feet, would be “secure” enough. The statute in question (the Animal Welfare Act, 7 U.S.C. § 2131 et seq.) did not impose a duty to build a fence of a certain height. Instead, it authorized the agency to impose a specific obligation that would implement the general statutory goals. Here, the statute itself defines the jurisdictional reach of the Act, and regulations- issued under the notice-and-comment procedures have elaborated further upon that definition. There is, following Hocto'is common-sense approach, something to interpret here: the use of the term “waters” and “navigable waters” in 33 U.S.C. §§ 1344(a) and 1362(7), and the specific examples of such waters given in 33 C.F.R. § 328.3(a)(3).
It is also noteworthy that the migratory bird “rule” first made its appearance in the Federal Register publication of the Corps’ 1986 recodification of the regulatory definition of “waters of the United States” in 33 C.F.R. § 328(a)(3), when it moved these rules from Part 323 to Part 328 of Title 33 of the Code. See 51 Fed.Reg. 41206, 41217 (1986). The preamble offered several examples of waters that came within the regulatory definition, including those used as habitat for migratory birds, as well as examples of waters that normally would not fall within the definition. This, in our view, was interpretation. Moreover, it is hard to see what would have been different if formal notice-and-comment rulemaking had been used, except perhaps the page of the Federal Register on which this statement appeared. We do not wish to discourage agencies from offering concrete examples of the ways in which their rules will apply, see Hoctor, 82 F.3d at 170, and we believe that is all that the Corps and the EPA did here.
The Corps has also argued that SWANCC’s challenge to the migratory bird rule comes too late, because SWANCC did not file suit in the district court until December 1994, more than six years after the migratory bird rule was first published. There is a general six-year statute of limitations for civil actions against the United States found in 28 U.S.C. § 2401(a), which applies to lawsuits brought pursuant to the APA. See Polanco v. United States Drug Enforcement Admin., 158 F.3d 647, 652 (2d Cir.1998); Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir.1997); see also Village of Elk Grove Village v. Evans, 997 F.2d 328, 331 (7th Cir.1993) (recognizing cases holding same, but not expressly reaching the issue). Even if the fact that the Corps did not raise this argument in the district court does not bar it now from making the argument, we doubt that a party must (or even may) bring an action under the APA before it knows that a regulation may injure it or even be applied to it. Compare United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (claim under the Federal Tort Claims Act accrues at the time plaintiff knows of both the existence and cause of his injury). We therefore do not reach the Corps’ limitations argument, since it would have no effect on the outcome in light of our resolution of SWANCC’s substantive APA challenge.
We conclude that the decision to regulate isolated waters based on their actual use as habitat by migratory birds is within Congress’ power under the Commerce Clause, and that it was reasonable for the Corps to interpret the Act as authorizing this regulation. Accordingly, we Affirm the judgment of the district court,
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2253521126760563, Costs: 0.0352112676056338
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OPINION OF THE COURT
SCIRICA, Circuit Judge.
At issue is whether the U.S. Army Corps of Engineers can deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive and at the same time, comply with statutes that protect the environment. The roots of the project trace back decades. In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next twenty years. Commencement was delayed for several reasons, but in the fall of 2009, the Corps was ready to proceed. In October 2009, New Jersey and Delaware filed suits in the District Courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel. They alleged violations of the National Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Coastal Zone Management Act (“CZMA”). Each District Court granted summary judgment to the Corps, holding no environmental statutes would be breached. We will affirm.
I.
A.
The federal government has maintained navigation in the Delaware River for over one hundred years. The initial project, “Philadelphia to the Sea,” was authorized by Congress in 1910 and ensures a navigation channel of 40-foot depth between Allegheny Avenue, Philadelphia, and a deep water point in the Delaware Bay, near Ship John Light. It requires the Corps to dredge 3.45 million cubic yards of material annually and to deposit the sediment at nearby locations, either owned or leased by the federal government. In 2009, the Corps used seven confined sites and one open-water site for disposal.
The deepening project dates to 1954, when the Senate Committee on Public Works, by resolution, requested the Corps to study “the Delaware River between Philadelphia and the sea, for the purpose of identifying the need for any modification to the existing channel dimensions and anchorage areas.” In 1970, the House Committee on Public Works also instructed the Corps to analyze commerce along the Delaware River and to identify projects that would promote development of its ports. Pursuant to these directives, the Corps made extensive studies during the 1970s and 1980s. In 1992, it published a Feasibility Report and Environmental Impact Statement (“EIS”), recommending a deepening of five feet along the “main stem” of the Delaware River, the 102-mile stretch between the mouth of the Delaware Bay and the Philadelphia and Camden harbors.
The Environmental Impact Statement predicted the deepening project would yield substantial economic benefits in the form of reduced costs to shippers. The main stem of the river hosts a concentration of heavy industry, as well as the second largest complex of oil refineries and petrochemical plants in the nation. But, as the EIS observed, “current authorized channel dimensions ... present a constraint to efficient vessel movement.” The report determined that deepening the main navigation channel by five feet would benefit oil tankers, dry bulk shippers, and other large vessels, because it would enable them to service Delaware River ports without needing to “lighter” (transfer a portion of their cargo in the lower Delaware Bay) or “light load” (travel at under-capacity). While the EIS identified potential adverse impacts to water quality, benthic organisms, and fishery resources, it concluded these would be minimal and were outweighed by the project’s benefits. Altogether, it forecast that construction and maintenance of a 5-foot deeper channel for five years would require the Corps to dredge 375 million cubic yards of material above the dredging associated with the Philadelphia to the Sea project.
In June 1992, the Corps submitted the Environmental Impact Statement to Congress. That October, Congress passed the Water Resources Development Act, authorizing the deepening project to go forward. See Water Resources Development Act of 1992, Pub. L. No. 102-580, § 101(6), 106 Stat. 4797 (“WRDA”). Congress estimated the project would cost a total of approximately $295 million, with $195 million to be borne by the federal government. Id. In December 1992, the Corps issued a Record of Decision stating the deepening project was “economically justified, in accordance with environmental statutes, and in the public interest.” Not only would “transportation cost savings ... outweigh any adverse effects,” but the project was preferable to all other alternative plans, including a “no action” alternative.
- After issuing the Record of Decision, the Corps initiated the Preconstruction, Engineering and Design (“PED”) phase of the project. It consulted federal and state agencies and outside experts, and conducted new environmental analyses. In 1997, the Corps published a Supplemental Environmental Impact Statement (“SEIS”). Its goals were first, to “provide additional information and environmental analysis to address environmental concerns raised during review of the 1992 [EIS]”; and second, to evaluate modifications to the deepening project that had been made since the EIS was published. Like the EIS, the SEIS recommended the project proceed. At the same time, it reduced its estimate of the amount of material to be dredged over 50 years — for initial project construction and future maintenance— from 375 to 321 million cubic yards. Like the EIS, the SEIS concluded the project would yield considerable economic benefits at a minimal environmental cost. On December 18,1998, the Corps issued a second Record of Decision stating it had “reviewed and evaluated documents concerning the proposed action, including additional PED phase studies,” and it concluded “[t]he public interest will best be served by implementing the improvements identified and described in the Feasibility Report and the Supplemental Environmental Impact Statement.” The Record of Decision reiterated that “[a]ll practical means to avoid or minimize adverse environmental effects have been incorporated into the recommended plan.”
For the next eleven years, progress on the deepening project stalled. One reason for the delay was that in the mid-2000s, the Delaware River Port Authority (“DRPA”) withdrew the support it had tendered in 1999, leaving the Corps without a local partner. In June 2008, the Philadelphia River Port Authority (“PRPA”) came forward and signed a partnership agreement with the Corps. The agencies agreed to share costs: 75% for the Corps, 25% for PRPA.
By late 2008, the Corps was ready to commence dredging the deeper channel. But over a decade had passed since the SEIS was published, and there were new developments. First, improved survey technology meant the deepening could be deployed more efficiently, reducing the amount of sediment. The total estimated dredging for the project over a 50-year period was reduced again, from 321 to 232 million cubic yards. Accordingly, the updated disposal plan called for using only existing, federally-owned sites — the four new disposal sites included in the SEIS were no longer necessary. Second, the construction plan now called for dredged sand from the Delaware Bay to be deposited directly onto Broadkill Beach, DE, rather than temporarily stockpiled offshore. Third, the reduction in the amount of predicted dredged material meant a wetlands restoration project at Egg Point Island, NJ, would be deferred. Finally, there were two environmental changes since 1997. An oil spill from the T/S Athos I in November 2004 had released 265,000 gallons of oil into the Delaware River, temporarily increasing the toxicity of the river’s sediments. Also, recent surveys predicted an expansion in the number and distribution of shortnose sturgeon in the Delaware River, potentially increasing the risk that rock blasting in the Marcus Hook region could cause the species.
The Corps released a public notice on December 17, 2008, announcing it was undertaking a new “environmental review.” The notice stated:
Notice is hereby given that the Philadelphia District, U.S. Army Corps of Engineers, is conducting an environmental review of all applicable, existing and new information generated subsequent to the Supplemental Environmental Impact Statement (SEIS) of 1997 prepared for the Delaware River Main Stem and Channel Project.... At present, the Philadelphia District has found no factors precluding the Project from moving forward based on previous studies. A summary of project changes and environmental changes known to date is attached. The public and all agencies are invited to comment on the attached changes, and to identify any applicable existing and new information generated subsequent to the 1997 SEIS by responding to this Public Notice. A copy of the SEIS of 1997 and other environmental studies performed since the completion of the SEIS, are among the information available on the District’s website. The environmental review referenced above will be used to update the environmental record, and to determine whether further environmental work and analyses are needed. On April 3, 2009, the Corps published an
Environmental Assessment (“EA”). The report’s central conclusion was that no additional environmental impact statement was necessary. None of the developments since 1997 — the elimination of the four new disposal sites, the plan for direct stockpiling at Broadkill Beach, the deferment of wetlands restoration at Egg Point Island, and the possible changes to the natural environment — had materially altered the project’s environmental risk profile. Thus, the EA closed with a signed declaration by the Commander of the Corps’ Philadelphia District, stating:
Based on the information contained in this EA ... 1) none of the changes to the proposed project are “substantial”; and 2) there are no new circumstances that can be considered “significant.” Therefore, I have determined that the threshold for preparation of a Supplemental Environmental Impact Statement (SEIS) ... has not been met and that changes to the project or project conditions since the 1997 SEIS will not have a significant adverse effect on the human environment.
Like the Environmental Impact Statement and Supplemental Environmental Impact Statement, the Environmental Assessment recommended the project proceed because its substantial economic benefits outweighed any possible adverse environmental effects. On April 8, 2009, the Corps transmitted the 1997 Supplemental Environmental Impact Statement and 2009 Environmental Assessment to the chairs of the Senate and House Subcommittees on Energy and Water Development in the Committees on Appropriations.
When Congress first authorized the deepening project in 1992, the Corps initiated a comprehensive process of discussion, coordination, and collaboration with New Jersey and Delaware to obtain the state authorizations mandated by various environmental statutes. Two statutes are relevant to this appeal. First, the Coastal Zone Management Act obligates the Corps to submit a “consistency determination” to any state whose “coastal zone” will be affected by one of its activities. 16 U.S.C. § 1456(c)(1)(A), (C). The consistency determination describes how the Corps will deploy the project “in a manner which is consistent to the maximum extent practicable” with the state’s program for managing coastal areas. Id. If the Corps receives a “concurrence,” it may proceed; if it does not, it can proceed over the state’s objection in limited circumstances. 15 C.F.R. §§ 930.41(a)-(d), 930.43(d). Second, the Clean Water Act requires the Corps to comply with all state laws “respecting the control and abatement of water pollution.” 33 U.S.C. § 1323(a). The Corps must obtain a state “water certification” when, on the basis of a federally-issued permit, it plans to discharge pollutants into a state’s navigable waters. 33 U.S.C. § 1341(a).
To comply with the CZMA, the Corps submitted “consistency determinations” to the Delaware Department of Natural Resources and Environmental Control (“DNREC”) and the New Jersey Department of Environmental Protection (“NJDEP”) in 1996. Delaware identified several concerns, but provided a concurrence on May 1, 1997. New Jersey signed a Memorandum of Understanding with the Corps on August 29,1997, and on the same day, provided a concurrence. Accordingly, both CZMA clearances were in place in 1997. But each state retreated. New Jersey attempted to “revoke” its CZMA concurrence in September 2002, and requested supplemental filings from the Corps in 2008 and again in 2009. Delaware issued an order requiring the Corps to submit a new consistency determination in 2009, contending “substantial project modifications” had rendered its 1997 concurrence outdated.
The Corps did not provide supplemental consistency determinations to New Jersey or Delaware. Rather, on November 9, 2009, it issued a Memorandum of Record concluding that no additional coordination was necessary for the Corps to comply with the CZMA. The Corps referred to the April 2009 EA, which had found that no substantial changes to the project had been made and no significant new information about the project’s consequences had surfaced since the 1997 SEIS. Because concurrences from each state had been in place at that point in time, and because the project’s risk profile had not changed, it was not necessary to provide supplemental consistency determinations.
On January 19, 2001, the Corps initiated coordination with Delaware to comply with the Clean Water Act; that is, it applied to the Delaware Department of Natural Resources and Environmental Control for a water quality “certification” as well as for Subaqueous Lands and Wetlands permits. See 7 DeLCode chs. 60, 66 & 72. These efforts were unsuccessful. Significantly, Delaware took no action on the Corps’ application for the next eight years. On December 30, 2008, it filed a comment in response to the public notice issued by the Corps on December 17, stating it would review any new information on the project “in the context of a new Delaware sub-aqueous lands and wetlands permit application.” The implication was that Delaware had denied, by inaction, the prior requests for Subaqueous Lands and Wetlands permits and was now requesting a new application. On July 23, 2009, eight and a half years after the Corps filed its application, Delaware made its denial of the 2001 application official by order of the Secretary of DNREC.
The record does not indicate whether the Corps applied for a water quality certification from New Jersey to comply with the Clean Water Act. But neither party disputes that to date, the Corps has not obtained such a certification from New Jersey.
Despite these roadblocks, the Corps issued a Memorandum of Record on April 30, 2009, invoking its authority to “maintain navigation” under Section 404(t) of the Clean Water Act. See 33 U.S.C. § 1344(t). This authority, the Corps contends, relieved it of any further obligation to obtain Subaqueous Lands and Wetlands permits from Delaware. The Corps drew additional authority from Section 404(r) of the CWA, which provides a special waiver for projects that are congressionally authorized. Id. § 1344(r). It contends Section 404(r) obviated the need to obtain water quality certifications from Delaware or New Jersey.
By late 2009, the Corps believed it had complied with all statutory mandates and could begin dredging the deeper channel. Under NEPA, it had published an Environmental Assessment in April 2009, concluding the project was in the public interest and that no additional environmental impact statements were necessary. Under the CZMA, it had submitted consistency determinations to New Jersey and Delaware in 1996, obtained concurrences within a year, and issued a Memorandum of Record announcing no additional CZMA coordination was necessary. Under the Clean Water Act, it had issued a separate Memorandum of Record in April 2009, invoking Section 404(t) of the Act to overcome the need for the special Delaware permits, and believed it could otherwise rely on the Section 404(r) exemption to circumvent the water quality certifications. In October 2009, the Corps entered into a contract with PRPA which authorized it to initiate the project at “Reach C,” a 12-mile stretch spanning from the Delaware Memorial Bridge to the C & D Canal. The contract did not authorize the Corps to deepen any other portion of the river until December 2010.
B.
On October 30, 2009 and November 2, 2009, the Delaware Department of Natural Resources and Environmental Control and the New Jersey Department of Environmental Protection initiated actions in the District Courts of Delaware and New Jersey to prevent the Corps from commencing dredging of the deeper channel. In the Delaware action, DNREC sued under the Clean Water Act, Clean Air Act, Coastal Zone Management Act, and the Delaware Code, requesting the court enjoin the Corps until it obtained the authorizations and concurrences from Delaware specified by those statutes. Delaware Riverkeeper Network (“Riverkeeper”) intervened as a plaintiff, and PRPA as a defendant. On January 29, 2010, the District Court granted in part and denied in part Delaware’s request. It preliminarily enjoined the project at Reaches A, B, D, and E, but allowed the Corps to commence at Reach C. The parties filed and cross-filed motions for summary judgment, and on December 7, 2010, the District Court dissolved its partial injunction and granted summary judgment to the Corps and PRPA. It held the Corps had properly invoked its authority to “maintain navigation” under Section 404(t) of the CWA, and this made all the difference. It held: “Having determined that the navigation exception ... is applicable here ... the Corps is exempt from compliance with the CWA, CZMA, and CAA, and judgment must be entered in its favor.”
In the New Jersey action, NJDEP sought relief under NEPA, the CWA, the CZMA, the Clean Air Act, the Fish & Wildlife Coordination Act, the Water Resources Development Act, and the Magnuson-Stevens Fishery Conservation and Management Act. NJDEP asked the court to enjoin the Corps until it had “comprehensively sample[d] and analyze[d] the sediment within the areas to be dredged,” issued a new SEIS, obtained a water quality certificate from New Jersey, and completed its supplemental coordination under the CZMA. Riverkeeper again intervened as a plaintiff, and PRPA again intervened as a defendant. The parties filed and cross-filed motions for summary judgment and on January 13, 2011, the court granted summary judgment in favor of the Corps and PRPA. The court held the Corps had complied with NEPA when it issued the 2009 EA, complied with the CZMA when it declined to provide a supplemental consistency determination, and was relieved of its obligations under the CWA because Congress authorized the project in 1992. Riverkeeper and New Jersey appealed both judgments under NEPA, the CZMA, and the CWA, and we consolidated their cases for review. Delaware did not file an appeal.
As this litigation unfolded, the Corps made headway on the project. After receiving court approval in January 2010, it commenced dredging at “Reach C” and completed that segment in September 2010. In November 2011, the Corps began deepening the 4-mile stretch known as “Lower Reach B,” which extends from Oldsman Creek to the Delaware Memorial Bridge. That segment is now also complete. See Delaware River Main Channel Deepening Project: Construction Status, U.S. Army Corps of Engineers Philadelphia District, http://www.nap.usace.army. mil/cenappl/drmcdp/drcs.htm (last updated Jan. 20, 2012); Jon Hurdle, New Federal Funding May Move Delaware River Channel-Deepening Project Forward, DFMNews (Feb. 20, 2012), http://www.delawarefirst.org/23188-delaware-river-channel-deepening.
II.
We review grants of summary judgment de novo. Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir.2008). Summary judgment is proper when the pleadings, the discovery, the disclosure materials on file, and any affidavits show that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Because appellants challenge the actions of a federal agency (the Corps) in its application of federal law (NEPA, the CWA, the CZMA, and corresponding regulations), our standard of review is informed by administrative law doctrines prescribing the degree of deference a reviewing court should apply to agency conduct. We elaborate further on the amount of deference due for each of the statutory challenges.
III.
New Jersey and Riverkeeper contend the Corps’ decision to proceed with the project in 2009 ran afoul of NEPA procedurally and substantively. As for procedures, appellants contend the publication of the EA was arbitrary and capricious because the Corps failed to comply with the regulations governing the preparation of NEPA studies. As for substance, appellants contend the EA fell short of the “hai’d look” demanded by NEPA on whether an SEIS was necessary. As explained below, we find all NEPA claims unavailing.
A.
Congress enacted the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (codified at 42 U.S.C. § 4321 et seq.), to further two goals: ensure federal agencies consider the environmental consequences of projects before committing resources; and facilitate agencies’ communication with the public about their environmental analyses. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is a procedural statute. Its goal is to “prohibi[t] uninformed — rather than unwise — agency action.” N.J. Dep’t of Envtl. Prot. v. U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 134 (3d Cir.2009) (internal quotation marks and citation omitted). NEPA also created the Council of Environmental Quality (“CEQ”) within the Executive Office of the President, granting it authority to issue regulations effectuating NEPA. CEQ regulations are “mandatory” for all federal agencies, carry the force of law, and are entitled to “substantial deference.” See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). In addition to CEQ regulations, agencies are bound by whatever regulations they promulgate under NEPA. E.g., 33 C.F.R. § 230 et seq. (U.S. Army Corps of Engineers’ regulations).
NEPA requires federal agencies to prepare environmental impact statements before undertaking “major [fjederal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4832(C). To comply, an agency must first decide whether a contemplated project qualifies as a “major federal action significantly affecting the quality of the human environment.” CEQ regulations instruct the agency to consider both the “context” and “intensity” of the action to determine if its environmental effects will be “significant.” 40 C.F.R. § 1508.27(a)-(b). If the project qualifies, the agency should assess whether it is of a type that “[njormally requires an environmental impact assessment” or “[njormally does not require either an environmental impact statement or environmental assessment (categorical exclusion).” Id. § 1501.4(a)(1)-(2). If the action normally requires an impact statement, the agency should prepare one. If it normally requires neither an impact statement nor an assessment, the agency can proceed with the project. In all remaining situations, the agency should “prepare an environmental assessment” for the action. Id. § 1501.4(b). An EA is a “concise public document” that “[bjriefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” Id. § 1508.9(a). If the agency concludes on the basis of the EA that no environmental impact statement is needed, it must issue a Finding of No Significant Impact (“FONSI”). Id. § 1501.4(e).
Agencies must update — or “supplement” — their environmental impact statements over time to ensure they are current. Marsh, 490 U.S. at 370-74, 109 S.Ct. 1851. CEQ regulations instruct agencies to “prepare supplements to either draft or final environmental impact statements” in two situations: (1) if “[tjhe agency makes substantial changes in the proposed action that are relevant to environmental concerns,” or (2) if “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1); see also 33 C.F.R. § 230.13(b) (requiring the Corps to supplement an EIS “whenever required as discussed in 40 CFR 1502.09(c)”). The Supreme Court has elaborated that an agency must take a “hard look” in assessing whether either of the Section 1502.9(c) scenarios is present. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 72-73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Understandably, neither NEPA nor CEQ regulations prescribes particular proceedings agencies should use in carrying out this “hard look.” In re Operation of Mo. River Sys. Litig., 516 F.3d 688, 695 (8th Cir.2008).
B.
Judicial review of agency conduct under NEPA is deferential. The sole question on review is whether the agency’s actions were arbitrary or capricious. See 5 U.S.C. § 706(2)(A). When an agency publishes an EA and concludes an EIS is not needed, courts set those determinations aside only if there is evidence they were arbitrary or capricious. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (“An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”) (citing 5 U.S.C. § 706(2)(A)); Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 180 (3d Cir.2000). Similarly, arbitrary and capricious review attaches to an agency decision not to supplement an EIS. Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851 (“We conclude that review of the narrow question ... whether the Corps’ determination that the FEISS need not be supplemented should be set aside is controlled by the ‘arbitrary and capricious’ standard of § 706(2)(A).”).
If some years pass between an agency’s completion of an EIS and its commencement of a project, a supplemental EIS may be indicated. But in Marsh, the Court made clear that judicial review of agency conduct in such situations is “narrow,” as is generally the case with arbitrary and capricious review. Marsh, 490 U.S. at 378, 109 S.Ct. 1851. An agency’s decision not to supplement an EIS “is a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. 1851. Thus, the standard is still whether the action evidences arbitrary or capricious decision-making. See Town of Winthrop v. Fed. Aviation Admin., 535 F.3d 1, 3 (1st Cir.2008) (upholding the FAA’s decision in 2007 not to supplement an EIS from 2002); Ark. Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1103-04 (8th Cir.2005) (upholding the Corps’ decision in 2004, after conducting an EA, not to supplement an EIS from 1999); Price Road Neighborhood Ass’n, Inc. v. U.S. Dep’t of Transp., 113 F.3d 1505 (9th Cir.1997) (upholding the Federal Highway Administration’s determination that a project change did not require a new EA).
C.
In our review of the Corps’ conduct, we conclude that its publication of the 2009 EA was neither arbitrary nor capricious.
1.
The Corps complied with the procedural requirements prescribed by NEPA and its corresponding regulations because it engaged in a transparent and inclusive process, soliciting the views of federal and state agencies as well as of members of the public, and published an exhaustive, 179-page Environmental Assessment that reviewed the project’s risks, responded to concerns raised, and came to the reasonable conclusion the project should proceed.
Neither CEQ nor Corps regulations detail the process an agency should follow when publishing an environmental assessment. See generally 40 C.F.R. § 1508.9 (CEQ regulations defining EAs); 33 C.F.R. § 230.10 (Corps regulations defining EAs). There are no notice requirements, pre-circulation requirements, or instructions about the public comments process. CEQ regulations only provide that agencies “shall involve ... the public, to the extent practicable, in preparing [environmental] assessments^]” 40 C.F.R. § 1501.4(b). This is different in the case of environmental impact statements, for which CEQ and Corps regulations are detailed. See Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1279 (10th Cir.2004) (“NEPA’s public involvement requirements are not as well defined when an agency prepares only an EA and not an EIS.”).
The Corps’ procedures in preparing and publishing the 2009 EA satisfied Section 1501.4(b)’s directive to “involve ... the public to the extent practicable.” On December 17, 2008, the agency published a notice stating it was undertaking an “environmental review” in order “to update the environmental record, and to determine whether further environmental work and analyses are needed.” The Corps provided a summary of changes to the project that had been made since 1997 and links to the SEIS, EIS, and reports by other federal agencies. Collectively, the notice and appended materials communicated to the public that the Corps was undertaking a new environmental study of the deepening project and that its goal was to determine whether “further environmental work,” such as a new SEIS, was needed. It directly provided the public with access to the information it would rely upon and solicited comments. The 30-day comment period was equal to the length of time mandated by CEQ regulations for comment periods for final EIS studies. 40 C.F.R. § 1506.10(b)(2). The Corps was transparent, clear, and inclusive.
After soliciting and reviewing the public comments, the Corps published a thorough, 179-page Environmental Assessment on April 3, 2009. The report addressed the substance of the most important issues raised in the comments — questions about sediment quality, water quality, air quality, biological resources, and the impacts of the Athos oil spill. Each environmental risk, the report concluded, was minimal and could be mitigated through appropriate implementation measures. The Corps also responded in great detail to a comment filed by the New Jersey Department of Environmental Protection on January 14, 2009, sending the agency a letter on April 24, 2009 that reiterated the findings of the EA and expounded on its conclusions.
Despite the Corps’ comprehensive public engagement, appellants contend it acted arbitrarily and capriciously under NEPA. They argue the Corps provided inadequate public notice; erred in declining to publish a FONSI alongside the EA; erred in not circulating a draft of the EA for public review before publication; and did not meaningfully review the comments submitted. None of these claims has merit.
Regarding public notice, appellants contend the Corps did not specify the form of its forthcoming “review,” i.e., that it would be an Environmental Assessment, and that the comment period fell during a time of year when many people are on vacation. But as explained, neither NEPA nor its corresponding regulations impose a public notice requirement for EAs. See generally 40 C.F.R. § 1508.9; 33 C.F.R. § 230.10. The CEQ regulations only direct that agencies “involve ... the public, to the extent practicable.” 40 C.F.R. § 1501.4(b). The December 17, 2008 notice satisfied this mandate by describing a forthcoming “environmental review” that would be “used to update the environmental record, and to determine whether further environmental work and analyses are needed.” Furthermore, the Corps appended a wealth of materials to its notice to make evident the information it would rely upon and to solicit feedback on that information. Courts have upheld EAs preceded by public notices with the same or with considerably less detail than that here. E.g., Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 519 (D.C.Cir.2010) (involving a public notice that did not “supplfy] any specific environmental information”); Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 952-53 (9th Cir.2008) (involving a notice that did not specify an EA was being prepared); Alliance To Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 398 F.3d 105, 108, 115 (1st Cir.2005) (involving a notice that did not mention a forthcoming EA).
Second, appellants fault the Corps for publishing the EA without issuing a Finding of No Significant Impact. But neither CEQ nor Corps regulations impose a FONSI requirement in this context — an agency deciding, on the basis of an EA, whether to issue a supplemental EIS. The regulations require FONSIs only when the agency employs an EA to decide whether to issue an initial EIS. See 40 C.F.R. § 1501.4(e) (instructing agencies to prepare “a finding of no significant impact (§ 1508.13) if the agency determines on the basis of an environmental assessment not to prepare a[n environmental impact] statement”); 33 C.F.R. § 230.11 (“A FON-SI shall be prepared for a proposed action, not categorically excluded, for which an EIS will not be prepared.”). Given that CEQ and Corps regulations authorize the use of EAs for a wide array of purposes, see 40 C.F.R. § 1501.3(b) (“Agencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.”); 33 C.F.R. § 230.10(c), their silence on FON-SIs for all but the initial EIS-determination is instructive. The Corps was not required to issue a FONSI, and its decision to refrain from doing so was not arbitrary or capricious. See In re Operation of Mo. River Sys. Litig., 516 F.3d at 695 (“[T]he Corps prepared an EA, not to help it decide whether to prepare an EIS, but rather to determine whether the change in agency action required an SEIS. As this case illustrates, it is reasonable to expect that the Corps will sometimes determine that a FONSI is not appropriate because the action being taken has a significant impact on the environment, but an SEIS is not required because the impact was sufficiently analyzed in an earlier FEIS [Final Environmental Impact Statement]. This approach is neither a misuse of the EA procedure nor a violation of NEPA.”).
Third, appellants contend the Corps’ failure to circulate a draft of the EA before final publication was procedurally invalid. But neither CEQ nor Corps regulations impose a universal requirement to circulate draft EAs before publication. The CEQ regulations instruct that a document be disseminated for public review only when it is a draft or final EIS, 40 C.F.R. § 1506.10(b), or involves a “proposed action” that (i) would normally require an EIS which the agency has decided to forgo, or (ii) is “without precedent,” id. § 1501.4(e)(2)(i), (ii). The Corps’ regulations require that EAs be circulated before publication only when they concern “feasibility, continuing authority, or special planning reports and certain planning/engineering reports.” 33 C.F.R. § 230.11. The EA for the deepening project did not fall into any of these categories. See Bering Strait Citizens, 524 F.3d at 952 (“We hold today that the circulation of a draft EA is not required in every case.... Our conclusion is consistent with the views of other circuits, which uniformly have not insisted on the circulation of a draft EA.”); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 549 (11th Cir.1996) (holding there was “no legal requirement that an Environmental Assessment be circulated publicly and, in fact, they rarely are” (emphasis omitted)). Meanwhile, although some evidence in the record suggests the Corps often released EAs for public review before publication, this was a nonbinding internal practice from which the Corps had discretion to deviate. United States v. Caceres, 440 U.S. 741, 754 n. 18, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979) (“[A]geneies are not required, at the risk of invalidation of their action, to follow all of their rules, even those properly classified as ‘internal.’ ”). It exercised that discretion reasonably, given the long history of public involvement in reviewing and commenting on the deepening project, including the recent four-week comment period, and given the EA’s central conclusion that no factor or development altered the findings of the earlier reports. E.g., Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d 1235, 1240 (2d Cir.2002) (refusing to grant a preliminary injunction based on the Corps’ decision not to circulate a draft EA because the action was not one which “normally requires” an EIS nor “without precedent” under 40 C.F.R. § 1501.4(e)(2), and so did not have a pre-circulation requirement).
Finally, appellants contend the Corps failed to meaningfully consider the public comments it received on its December 17, 2008 notice. But the 179-page Environmental Assessment comprehensively addressed the key issues raised in the comments. See supra. Furthermore, the record demonstrates over twenty years of engagement by the Corps with the public, state governments, and other federal agencies. The Corps’ activity in the 2008-2009 period was the final chapter of this engagement. On May 4, 1989, the Corps issued a notice of intent to file a Draft Environmental Impact Statement on the deepening project. It circulated a copy of that report for public comment on July 13, 1990, and released a final EIS in February 1992, incorporating the comments received. The Corps repeated this public engagement process for the SEIS in 1997. Between 1992 and 2008, it had a steady stream of communications with the EPA, New Jersey, and Delaware about the project’s compliance with the Clean Water Act and the Coastal Zone Management Act. It also engaged in rigorous coordination with the National Marine Fisheries Service (“NMFS”), conducting an Endangered Species Act consultation in 1996 and preparing a Biological Assessment for the agency in 2009. Given this twenty-plus year period of public, inter-state, and inter-agency involvement, the assertion that the Corps failed to engage the public or respond to its views lacks merit.
2.
NEPA not only requires that agencies follow certain procedures when assembling environmental reports, but also that they take a “hard look” at the environmental costs of the proposed action as compared to the contemplated benefits. See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“Congress, in enacting NEPA----required [] that the agency take a ‘hard look’ at the environmental consequences before taking a major action.”); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). The Corps provided the necessary “hard look” at the project’s costs and benefits, and at whether an additional SEIS was needed for the project, in the 2009 EA. Riverkeeper and New Jersey advance three reasons for why the agency’s review was not sufficient, none of which is convincing.
First, Riverkeeper argues the EA failed to adequately address the adverse impacts the project could cause on the shortnose sturgeon. The shortnose sturgeon was included in the federal Endangered Species list at least as far back as 1996, meaning it bore that classification at the time the SEIS and EA were published. Some agencies and organizations had expressed concern during the comments period that the analysis of the shortnose sturgeon in the 1997 SEIS was no longer sufficient. New information about the species and its use of the Delaware River had become available, such that “the proposed deepening may affect shortnose sturgeon in a manner or to an extent not considered” previously.
The EA contained no fewer than four separate sections on the shortnose sturgeon, including a comprehensive assessment of the species in an appended Essential Fish Habitat Evaluation. The report acknowledged that recent surveys showed “a significant expansion in the number and distribution of shortnose sturgeon in the Delaware River appears likely,” but it also cited a 2005 study which found that “large aggregations of sturgeon do not exist in the blasting area.” Furthermore, it explained how blasting techniques could be honed to minimize harm to the species. The Corps drew on these analyses — as well as its findings in a Biological Assessment published for NMFS earlier that year — to conclude that adverse impacts to the shortnose sturgeon would be minimal. The Corps’ conclusion was neither arbitrary nor capricious.
Riverkeeper also contends the EA did not give a hard look to the dangers confronting the Atlantic sturgeon. NMFS designated the Atlantic sturgeon as a “candidate” for the Endangered Species list in 2006, and throughout the time at issue in this litigation, it retained that classification. “Candidate” species receive no statutory protection under the Endangered Species Act, but their vulnerability makes them appropriate for consideration in a NEPA review.
The EA’s analysis of the Atlantic sturgeon was sufficient. The report contained two sections on “threatened and endangered species and other species of special concern,” each of which contained a subsection on the Atlantic sturgeon. The sturgeon’s use of the Delaware River— from spawning, to hatching, to other migratory patterns — was analyzed in detail. Furthermore,- every public comment about the vulnerability of the species that River-keeper cites in its Brief was also addressed in the EA. See Riverkeeper Br. at 85 (citing comments by NMFS, Prof. Dewayne Fox, and the Delaware River Basin Fish and Wildlife Management Cooperative). The Delaware River Basin Fish and Wildlife Management Cooperative filed a comment recommending the Corps “establish dredging and blasting windows that would result in the lowest probable impact to existing sturgeon populations of both Atlantic as well as shortnose.” The EA adopted this proposal: “All of these windows will be met during construction of the deepening project,” save for one, which was infeasible. Professor Dewayne Fox of Delaware State University advised the Corps to take into account “the large body of work ... done primarily by both DSU and the Delaware Department of Fisheries and Wildlife” about the Atlantic sturgeon. The EA devoted three pages to the studies of Professor Fox. NMFS informed the Corps it would “recommend protective measures” for the Atlantic sturgeon. The Corps committed to using “environmental windows” and “[cjonstruction techniques” to “reduce the impacts of rock blasting on fish,” and to working collaboratively with NMFS during the project design phase.
Finally, New Jersey contends the EA’s analysis of potential water contamination was deficient. In two ways, New Jersey argues, the EA lacked the necessary data for a robust analysis. First, it did not include up-to-date sediment samples from “bend-widening areas” in the Delaware River, which are necessary to obtain ‘“a worst case picture of contaminant concentrations that would potentially be in the dredged material.’ ” N.J. Reply Br. 19 (citing the SEIS). Second, New Jersey-claims the EA omitted a “modified elutriate analysis,” which was important for predicting how dredged material, stored upstream, would impact surface water quality.
Neither purported data shortcoming rises to the level of arbitrary or capricious action. The EA relied on a broad array of studies, surveys, and sediment samples to ground its analysis of the potential water contamination from the project. First, it relied on sediment samples evaluated in the SEIS, which New Jersey concedes included samples from bend-widening areas. These had shown no bioaccumulation of any significance in the river’s sediment, and no potential for the deepening to increase the water’s toxicity. Second, the EA “incorporated ... by reference” the modified elutriate analysis from the SEIS, which similarly concluded that “dredging and dredged material disposal operations would not significantly impact water quality within the Delaware River.” Third, the EA relied on two studies by the Corps in 2003 and 2005, analyzing “[a] total of 45 sediment cores” from the main channel and concluding there was negligible contamination. Finally, the EA relied on 162 sediment samples collected by the National Oceanic and Atmospheric Administration from intertidal and subtidal areas for a 2007 report. These samples showed the 2004 oil spill had left no lingering effects and “baseline conditions (i.e., no spill-associated service losses) [wejre reached in 14 months.” Altogether, this material provided the Corps a sufficient basis from which to analyze how the project would impact water contamination in the Delaware River and from which to draw well-reasoned, non-arbitrary conclusions.
IV.
Riverkeeper contends the Corps’ decision to proceed with the deepening project violated the Clean Water Act. First, River-keeper argues it violated Section 401(a), which requires recipients of federal permits who release “discharge” in navigable waters to obtain “a certification from the State in which the discharge originates or will originate.” 33 U.S.C. § 1341(a)(1). The Corps never secured water certifications from New Jersey or from Delaware for the project. Second, Riverkeeper contends the Corps’ actions ran afoul of Sections 313 and 404(t), which obligate federal agencies to comply with state environmental regulations when engaging in dredging operations. 33 U.S.C. § 1323(a); id. § 1344(t). After eight years of delay, Delaware denied the Corps two permits required by state law for users of subaqueous lands and wetlands in July 2009; nonetheless, the Corps decided to proceed. In response to Riverkeeper’s challenges, the Corps contends it is entitled to two statutory exemptions codified at Sections 404(r) and 404(t) of the CWA. For the reasons stated, we hold that both exemptions attach.
A.
The Clean Water Act (“CWA”) was enacted in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Federal Water Pollution Control Act, Pub. L. No. 92-500, § 101(a), 86 Stat. 816 (1972). Under its principal provision, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source,” see id. § 1362(12); “navigable waters” are defined as “waters of the United States, including the territorial seas,” id. § 1362(7); and “pollutant” is defined as including “dredged spoil, ... rock, sand, [and] cellar dirt,” id. § 1362(6). The Delaware River readily qualifies as a “navigable water” because it is a “relatively permanent ... continuously flowing bod[y] of water forming geographic features that are described in ordinary parlance as ... rivers,” Rapanos v. United States, 547 U.S. 715, 739, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (internal quotation marks and citation omitted); and dredging qualifies as the “discharge of a pollutant” because it results in the “addition” of “dredged spoil” to a navigable water. Under Section 404(a), however, the U.S. Army Corps of Engineers may “issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” See CWA § 404(a) (codified at 33 U.S.C. § 1344(a)). The Corps “exercises the discretion of an enlightened despot” in issuing discharge permits, Rapanos, 547 U.S. at 721, 126 S.Ct. 2208, and considers a broad range of factors set forth in its regulations, see 33 C.F.R. § 320.4. But there is one statutory obligation incumbent upon the Corps. Before issuing a permit, it must apply “guidelines developed by the Administrator [of the EPA], in conjunction with the Secretary [of the Army],” which prescribe a rigorous review of a project’s environmental costs. CWA § 404(b)(1) (codified at 33 U.S.C. § 1344(b)); 40 C.F.R. § 230.10 et seq.
The Clean Water Act requires federal agencies and holders of federally-issued discharge permits to comply with state and local environmental laws in two pertinent ways. First, under Section 401(a), the Act requires holders of U.S. Army Corps permits, issued pursuant to Section 404, to obtain “certifications” from the states in which the discharge into navigable waters will occur. CWA § 401(a) (codified at 33 U.S.C. § 1341(a)(1)) (“Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate ... that any such discharge will comply with the applicable provisions of [other sections of this title].”). The state certification “shall become a condition of any Federal license or permit subject to the provisions of this section.” 33 U.S.C. § 1341(d). Second, under Sections 313 and 404(t), the Act requires federal departments and instrumentalities to comply with state environmental laws when they engage in activities that emit pollutants into navigable waters. CWA § 313 (codified at 33 U.S.C. § 1323(a)) (“Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government ... shall be subject to, and comply with, all Federal, State, interstate, and local requirements ... respecting the control and abatement of water pollution____”); CWA § 404(t) (codified at 33 U.S.C. § 1344(t)) (“[Every federal] agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements.”).
But the Act also provides exceptions to the provisions cited, enacted as part of the Clean Water Act of 1977, Pub. L. No. 97-217, 91 Stat. 1566. As to the water certification requirement under Section 401(a), Section 404(r) creates an exemption for projects “specifically authorized” by Congress. See CWA § 404(r) (codified at 33 U.S.C. § 1344(r)) (“The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress ... is not prohibited by or otherwise subject to regulation under this section.... ”). As to the mandates to follow states’ environmental laws, codified at Sections 313 and 404(t), the final sentence of Section 404(t) provides a partial waiver. See CWA § 404(t) (codified at 33 U.S.C. § 1344(t)) (“This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.”); see also S.Rep. No. 95-370, at 68-69 (1977), 1977 U.S.C.C.A.N. 4326, 4393 (“[C]orps dredging activities are not exempt from State pollution abatement requirements.... [But this] is neither intended nor expected to result in compromising the ability of the corps to maintain navigation.”). Before Section 404(t) was added in 1977, the CWA had included a provision, still in force, that similarly preserved the Corps’ authority to “maintain navigation.” See CWA § 511(a)(2) (codified at 33 U.S.C. § 1371(a)(2)) (“This chapter shall not be construed as ... affecting or impairing the authority of the Secretary of the Army (A) to maintain navigation or (B) under the Act of March 3, 1899[.]”).
B.
The Corps asserts it was relieved of the need to obtain water certifications from New Jersey and Delaware under Section 401(a) of the CWA by virtue of the “eongressionally authorized” exception under Section 404(r). Riverkeeper disagrees, but we find the Corps’ argument convincing.
As an initial matter, we agree with the Corps that “all of the elements of section 404(r) have been satisfied” for the deepening project. Section 404(r) provides:
The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress ... is not prohibited by or otherwise subject to regulation under this section ... if information on the effects of such discharge, including consideration of the guidelines developed under subsection (b)(1) of this section, is included in an environmental impact statement for such project pursuant to the National Environmental Policy Act of 1969 [42 U.S.C.A. § 4321 et seq.] and such environmental impact statement has been submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for such construction.
33 U.S.C. § 1344(r). Accordingly, to trigger Section 404(r), there must be a federal project specifically authorized by Congress. The deepening project unquestionably qualifies, as Congress clearly authorized it in the Water Resources Development Act of 1992, Pub. L. No. 102-580, § 101(6), 106 Stat. 4797, 4802 (“[T]he following projects for water resources development and conservation and other purposes are authorized to be carried out by the Secretary.... The project for navigation, Delaware River Mainstem and Channel Deepening, Delaware, New Jersey, and Pennsylvania: Report of the Chief of Engineers, dated June 29, 1992, at a total cost of $294,931,000, with an estimated Federal cost of $195,767,000....”). Section 404(r) also requires that “information on the effects of [the project], including consideration of the guidelines developed under subsection (b)(1)” be “included in an environmental impact statement ... submitted to Congress before the actual discharge of dredged or fill material ... and prior to either authorization of such project or an appropriation of funds for such construction.” 33 U.S.C. § 1344(r). This prerequisite was met. The Corps transmitted an EIS to Congress in June 1992 that had been prepared pursuant to NEPA and that included, as Section 404(r) directs, a “consideration of the guidelines developed under subsection (b)(1).” The transmission occurred five months before Congress authorized the project or appropriated funds, see WRDA, 106 Stat. at 4797 (showing a date passage of October 31, 1992), and years before any “actual discharge” occurred.
Nonetheless, Riverkeeper contends Section 404(r) does not apply for two reasons. The first is that the 1992 EIS was incomplete because it lacked a Record of Decision. The Record of Decision was issued in December 1992, two months after the WRDA was enacted. But this is of no moment. Section 404(r) mandates that “[an] environmental impact statement ... [prepared] pursuant to the National Environmental Policy Act” be provided to Congress and that it “includ[e] consideration of the guidelines developed under subsection (b)(1)”; it never mentions a Record of Decision. The absence of a Record of Decision in the congressional submission violates no statutory command. Furthermore, the purpose of Section 404(r) is for Congress to receive sufficient information in order to make an informed judgment about whether to authorize a federal project. In cases like this, where an EIS is produced after a full-fledged notice and comment process, bears the title of “final” impact study, and is transmitted to Congress with an explicit request for a Section 404(r) exemption, that purpose has been achieved.
Second, Riverkeeper contends the SEIS invalidated whatever exemption had been attained by virtue of the EIS. Riverkeeper claims the SEIS stands as proof that by 1997, the deepening project had changed to such an extent and new information had become available to such a degree, that Congress’s 1992 statutory authorization was no longer binding. But nothing in the text of Section 404(r) suggests that once the exemption attached, it lapses. The plain language of the statute states that when Congress “specifically authorizes” a federal project, following its consideration of an EIS, the exemption is triggered. 33 U.S.C. § 1344(r). There is no requirement that the agency submit supplemental NEPA reports so Congress can reauthorize the venture. Furthermore, the SEIS’s central findings were that despite the developments between 1992 and 1997 — e.g., modifications to the project, new scientific information that became available — the conclusions in the EIS still applied. The SEIS stated: “[Refinements to the authorized plan that were recommended in the 1992 Interim Feasibility Report.... did not alter the environmental impacts that were presented in the Final Environmental Impact Statement” and the project still “complied] with the 404(b)(1) guidelines.” There was no need to solicit reauthorization from Congress because the project had not changed in a material way.
In sum, Section 404(r) of the CWA was triggered in 1992 and did not lapse by virtue of the Corps’ subsequent NEPA analyses. The Corps was relieved of the federal permitting requirement under Section 404, see 33 C.F.R. § 323.4(d) (explaining that “[fjederal projects which qualify under the criteria in section 404(r) of the CWA are exempt from section 404 permit requirements”), as well as from the water certification requirement under Section 401(a), see 33 U.S.C. § 1341(a)(1) (stating the certification mandate attaches to “applieant[s] for a Federal license or permit to conduct any activity”). The fact that the Corps attempted to work collaboratively with New Jersey and Delaware for several years does not undermine its lawful reliance on the Section 404(r) exemption.
C.
The Corps contends it was relieved of Sections 313 and 404(t) of the Clean Water Act, which required it to obtain special Delaware permits, because it was entitled to a statutory exemption codified at Section 404(t). We afford Skidmore deference to the Corps’ invocation of Section 404(t) and find its interpretation of the statute reasonable. We also find the Corps was neither arbitrary nor capricious in deciding to invoke Section 404(t).
The Delaware Subaqueous Lands Act “empower[s] the Secretary to deal with or dispose of interest in public subaqueous lands.” 7 DeLCode Ann. tit. 7, § 7201. Under that authority, DNREC promulgated regulations instructing that “[n]o ... project which may potentially impact the public interest in the use of tidal or navigable waters [or] contribute to water pollution ... shall be undertaken on public or private subaqueous lands unless approval has been obtained from the Department.” 7 Del. Admin. Code § 7504-2.7. The Delaware Wetlands Act provides that “[a]ny activity on the wetlands requires a permit from [DNREC].” 7 Del.Code Ann. tit. 7, § 6604(a). The word “activity” is defined to include dredging operations. Id. § 6603. Both permit requirements extend to the deepening project because it calls for the disposal of dredged material at three subaqueous land-sites in Delaware and for a wetlands restoration project in Delaware.
The Corps applied for subaqueous lands and wetlands permits in 2001. For eight years, Delaware stalled on its application. In light of Sections 313 and 404(t) of the CWA, which obligate federal agencies to follow states’ environmental laws, the Corps was at an impasse. Accordingly, it invoked the exemption set forth in Section 404(t) in the spring of 2009. That provision provides: “This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.” CWA § 404(t) (codified at 33 U.S.C. § 1344(D). On April 30, 2009, the Assistant Secretary of the Army for Civil Works signed a Memorandum of Record declaring the “failure to construct the 45 Project as authorized by Congress in 1992 has ... impaired the Secretary of the Army’s authority to maintain navigation .... ” The Assistant Secretary was “directing] the Corps to proceed with construction of the project.” The Memorandum of Record cited Section 404(t) of the CWA as the authoritative basis for its action.
The Corps’ invocation of Section 404(t) was entitled to Skidmore deference. In cases involving an agency’s legal interpretation of a statute, the amount of deference afforded is governed by the Chevron framework. First, a court asks “whether Congress has directly spoken to the precise question at issue.” Chevron, USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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.” Id. at 842-43, 104 S.Ct. 2778. Second, a court asks whether, if the statute is ambiguous, the agency has rendered “a permissible construction.” Id. at 843, 104 S.Ct. 2778. A court is more likely to find the agency’s interpretation permissible if there is a “complex and highly technical regulatory program,” Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 273, 282 (3d Cir.2002) (citations and quotation marks omitted), or if the agency has employed formal procedures, such as notice and comment rulemaking, see Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). If the court declines to extend Chevron deference, it may nonetheless extend a lesser degree deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
Before resorting to Skidmore deference, we observe that it is likely the phrase “maintain navigation” encompasses activities, such as the deepening project, that improve a body of water in order to keep navigation levels steady in light of changes to commercial markets, technology, and environmental conditions. While neither “maintain navigation” nor its component words are explicitly defined in the Clean Water Act, there is no evidence that Congress intended the phrase to encompass only those activities that preserve bodies of water as they existed in 1977, when the statutory language was inserted. See Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566. Arguably, such a reading would be irrational. Given that navigation evolves over time, limiting the Corps to preserving rivers as they were in 1977 could have the counter-productive effect of preventing it from “maintaining” ship traffic. The dictionary definitions also suggest the phrase reaches improvement projects. “Maintain” is defined as “to keep in an existing state (as of repair, efficiency or validity): preserve from failure or decline,” and “navigation” as “ship traffic or commerce.” See Merriam-Webster’s Collegiate Dictionary (11th ed. 2005). These are capacious definitions; preserving “ship traffic” from “failure or decline” could call for a wide range of activities, including repairs, modifications, and improvements.
Nonetheless, were we to find the statutory text ambiguous, Skidmore deference would be warranted and would support the Corps’ action. A court will afford Skidmore deference upon consideration of “the thoroughness evident in [an agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. The most important considerations are whether the agency’s interpretation “is consistent and contemporaneous with other pronouncements of the agency and whether it is reasonable given the language and purpose of the Act.” Cleary ex rel. Cleary v. Waldman, 167 F.3d 801, 808 (3d Cir.1999). The Corps’ interpretation of Section 404(t) is entitled to deference under these standards. Its reading did not contradict any of the agency’s prior statements about Section 404(t) — the Corps had only once before invoked the exception, and in a context different from but not in conflict with that here. See In re Operation of Mo. River Sys. Litig., 418 F.3d at 915 (affirming the Corps’ invocation of Section 404(t) to release water from a reservoir and support downstream navigation in the Missouri River). The interpretation also was reasonable “given the language and purpose” of the statute, because the view that “maintain navigation” extends to activities necessary to maintain current levels of ship traffic, which is what the EA forecasted the project would do by enabling shippers to employ a larger vessel fleet, see swpra note 5, is consistent with the plain meaning of “maintain” — i.e., to “preserve from failure or decline.” Finally, the canon that “[wjaivers of immunity must be construed strictly in favor of the sovereign,” see U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (internal quotation marks and citation omitted), supports the Corps’ interpretation. Allowing “maintain navigation” to encompass the deepening project would have the effect of limiting the federal government’s waiver of sovereign immunity in the first part of Section 404(t).
Riverkeeper contends Skidmore deference is improper. First, it argues that Congress intended Section 404(t)’s “maintain navigation” authority to be “linked with the Corps’ historical authorities under the Rivers and Harbors Act of 1899.... to maintain navigation by preventing the obstruction of navigable waterways.” Riverkeeper Br. at 47. In other words, Congress only intended for “maintain navigation” to protect the Corps’ mandate to do things it did in 1899 — such as removing physical blockages from rivers or preventing activities that would impede the flow of waterborne commerce. The statutory language, however, suggests the opposite. Congress did not include a reference to the Rivers and Harbors Act in the text of Section 404(t) as it had done when it codified Section 511 in 1972. Compare CWA § 404(t) (“This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.”), with CWA § 511(a)(2) (“This chapter shall not be construed as ... affecting or impairing the authority of the Secretary of the Army (A) to maintain navigation or (B) under the Act of March 3, 1899[.]”). This shows that if anything, Congress intended Section 404(t) to reach more broadly than the programs the Corps managed in 1899 and to encompass the full scope of the Corps’ activities in 1977.
Finding the Corps’ interpretation of Section 404(t) worthy of deference under Skidmore, our final step is to determine whether the agency’s invocation of the exemption was arbitrary or capricious. See 5 U.S.C. § 706(2)(A); Robert Wood Johnson Univ. Hosp., 297 F.3d at 284. It was neither. After studying commerce patterns in the Delaware River for two decades and publishing three extensive reports, in 1992, 1997, and 2009, the Corps concluded a five foot deepening project was necessary to preserve the current flow of navigation in the Delaware River. As the EA put it, this project was essential to “improve the economic efficiency of ships moving through the Delaware ports,” help shippers “more efficiently apportion operating costs,” and “allow current dry bulk and container vessels to carry more cargo as well as allow a fleet shift in the charger dry bulk market.” The Corps’ consideration of the issue was “thorough” and its determination was reasonable. See Skidmore, 323 U.S. at 140, 65 S.Ct. 161. Meanwhile, Delaware had sat on its permit application for eight years and, in December 2008, told the Corps it would need to submit an entirely new application. Given that the first phase of the project was scheduled, as of April 2009, to begin in August 2009, the Corps was warranted in invoking the exception to save the project from postponement or indefinite delay.
V.
New Jersey contends the Corps acted arbitrarily and capriciously under the Coastal Zone Management Act when it decided, as memorialized in a Memorandum of Record issued on November 9, 2009, to proceed with the project without providing supplemental consistency determinations to Delaware or New Jersey. Because “significant new information” had become available since the Corps submitted its initial CZMA determinations in 1997, New Jersey contends, supplemental determinations were required. According to New Jersey, the Corps’ conclusion to the contrary was arbitrary and capricious because it was grounded in the procedurally and substantively flawed EA.
A.
The Coastal Zone Management Act of 1972 was enacted “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations,” and to “encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone[.]” 16 U.S.C. § 1452(1), (2). States’ “management programs” must provide for “the protection of natural resources,” as well as “improved coordination between State and Federal coastal zone management agencies.” Id. § 1452(2)(A), (J). Federal agencies conducting activities “within or outside the coastal zone” are required to provide the relevant state(s) with a “determination” that the activity “shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” Id. § 1456(c)(1)(A), (C). The state(s), in turn, must either concur with or object to the federal agency’s determination. 15 C.F.R. § 930.41(a). A state “cannot unilaterally place an expiration date on its concurrence.” Id. § 930.41(d). Moreover, even if a state objects, the federal agency can proceed over the state’s objection if it “conclude[s] that its proposed action is fully consistent with the enforceable policies of the management program.” Id. § 930.43(d)(2).
The CZMA regulations require federal agencies to supplement their consistency determinations if “the proposed activity will affects any coastal use or resource substantially different than originally described.” Id. § 930.46(a). “Substantially different” effects are “reasonably foreseeable,” and thereby warrant a supplemental determination, if: (1) the agency “makes substantial changes in the proposed activity that are relevant to the manageable program enforceable policies”; or (2) there are “significant new circumstances or information relevant to the proposed activity and [its] effect on any coastal use or resources.” Id. § 930.46(a)(1), (2).
B.
The Corps’ conclusion in the Memorandum of Record that it need not provide supplemental consistency determinations to either state under the CZMA was reasonable. Federal agencies are required to submit supplemental determinations in either of two instances: if the agency makes “substantial changes in the proposed activity,” or if “significant new circumstances or information relevant to the proposed activity and [its] effect on any coastal use or resource” arise. Id. § 930.46(a)(1), (2). Relying on the EA, the Corps concluded neither situation was present. With respect to “substantial changes” to the project, the Memorandum of Record identified three alterations that had been made since 1997, when the original CZMA consistency determinations were transmitted: (i) four disposal sites identified in the SEIS had been eliminated; (ii) sand would now be deposited directly onto Broadkill Beach, rather than initially stockpiled offshore; and (iii) a planned beneficial use site at Egg Point Island was no longer needed. None of these changes were “substantial,” the Corps determined, because the 2009 EA had found that none would cause serious impacts to the environment. With respect to “significant new circumstances or information,” the Memorandum of Record noted both the oil spill of 2004 and the recent surveys showing an expansion of the short-nose sturgeon in the region. But again, relying on the EA and a 2009 Biological Assessment the agency prepared for NMFS, the Corps concluded neither development was “significant” because neither would cause adverse environmental consequences not anticipated in the SEIS. The Corps was justified in relying on these recent and thorough reports. See supra. The agency’s conclusion that 15 C.F.R. § 930.46(a) had been satisfied, and that no supplemental consistency determinations were required, was neither arbitrary nor capricious.
VI.
For over twenty years, the Corps has devoted substantial efforts to evaluating the proposed five foot deepening project for the Delaware River. It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies. Its decision in 2009 to proceed with the project was consistent with NEPA, the CWA, and the CZMA. Accordingly, we will affirm the judgments of the District Courts of New Jersey and Delaware.
. See, e.g., H.R.Rep. No. 111-278, at 50 (2009) (Conf. Rep.) (appropriating $4.8 million to the deepening project in the Energy and Water Development and Related Agencies Appropriations Act of 2010); H.R.Rep. No. 109-275, at 73 (2005) (Conf. Rep.) (approving $2.25 million to the project in the Energy and Water Development Appropriations Act of 2006). In 1999 and 2000, Congress also supported the project by extending credit to non-federal entities for costs related to design, construction, and disposal. See Water Resources Development Act of 2000, Pub. L. No. 106-541, § 306, 114 Stat. 2572 (2000) ("The project for navigation, Delaware River Main-stem and Channel Deepening ... is further modified to authorize the Secretary to credit toward the non-Federal share of the cost of the project ... the costs incurred by the non-Federal interests in providing additional capacity at dredged material disposal areas ... ”); Water Resources Development Act of 1999, Pub. L. No. 106-53, § 308, 113 Stat. 269 (1999) (same). Most recently, the U.S. House of Representatives approved $29.45 million for fiscal year 2013. See H.R.Rep. No. 112-462, at 29 (2010).
. These modifications were primarily to the project’s disposal plan. In the EIS, the Corps assumed it would deposit the dredged sediment from the project at two existing and three new disposal sites. By 1997, the Corps planned to use four, rather than three, new disposal facilities. The Corps also embraced a proposal to store dredged material at four "beneficial use” sites in Delaware and New Jersey — at Kelly Island, DE, for wetlands restoration; at Egg Point Island, NJ, also for wetlands restoration; and at Broadkill and Slaughter Beaches, DE, for beach nourishment. The sand for Broadkill Beach would first be stockpiled elsewhere.
. The bi-state board of the DRPA came to stalemate at its meeting in December 2005, when the New Jersey commissioners on the board refused to endorse the deepening project and Pennsylvania Governor Ed Rendell, Chairman of the DRPA, refused to adopt the agency's budget until the project was approved. See Geoff Mulvihill, Dredging Spat Deepens Between Two Neighbors, Associated Press, Dec. 31, 2005. For the next 18 months, the meetings of the DRPA were suspended. In May 2007, the two states finally reached a deal: DRPA would return the $38.5 million set aside for the project to Pennsylvania and New Jersey, half-and-half; DRPA would hand jurisdiction over the project to the Philadelphia River Port Authority ("PRPA”); Pennsylvania would proceed in collaboration with PRPA; and New Jersey would use its share of the returned money for local improvement projects. See Deborah Yao, Pa., N.J. Finally Agree on Delaware River Dredging Project, Associated Press, May 18, 2007.
. The Corps provided the public four weeks for comments (initially, two weeks were provided but the Corps lengthened this in response to requests for more time).
. The 2009 EA described the economic benefits of the deepening project as follows:
The NED [National Economic Development] benefits quantified include the reduced costs of transportation realized through operational efficiencies (reduced lightering and lightloading), and the use of larger more efficient vessels, both resulting from navigation improvements at the harbor. Reduced transportation costs result in reduced production and distribution costs and thereby increase the net value of the national output of goods and services.
Benefits will result from the decrease in the cost per ton for shipping commodities into or out of the Delaware River Port System. The 45 foot channel depth will improve the economic efficiency of ships moving through the Delaware River ports. No induced tonnage (i.e., commodity shifts from other ports) will take place with the proposed project deepening. The largest vessels in the port fleet, crude oil tankers, currently lighter at Big Stone Anchorage in the naturally deep water of the lower Delaware Bay. These vessels will continue to carry the same tonnage from foreign origin ports but will be able to operate more efficiently in the Delaware River with a deepened channel from reduced lightering. This will also result in a reduction in barge traffic needed to move the lightered crude oil
upriver to the refineries. Also, a deeper channel depth will allow current dry bulk and container vessels to carry more cargo as well as allow a fleet shift in the charter dry bulk market.
. DNREC did hold hearings on the Corps' application in December 2001, soliciting public comments and hiring an independent consultant to serve as a Hearing Officer. In 2003, the Hearing Officer published a report recommending that Delaware deny the application. But DNREC did not act on the recommendation for the next five years.
. Delaware’s letter did not directly mention the issue of the water quality certification.
. The reasoning for the District Court’s ruling was as follows. At a hearing in December 2009, the Corps claimed construction at Reach C was slated to begin imminently, but subsequent phases would not commence until December 2010. Meanwhile, despite its delay, DNREC had represented that it was prepared to complete its administrative review of the Corps’ application for the various state authorizations within a year. The District Court reasoned that while the Corps was likely to prevail on its claim that all federal statutes had been complied with, and so construction at Reach C should commence, there was no harm in enjoining the remainder of the project to enable DNREC to provide its decisions on the Corps' application. Given that future phases of the project were not slated to begin for a year anyway, and that DNREC claimed it would complete its review within that time, the partial injunction would facilitate federal-state coordination while not compromising the Corps' interests.
. Appellants’ causes of action arise under federal law. Accordingly, the Delaware and New Jersey District Courts had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291.
. In full, NEPA provides:
[A]ll agencies of the Federal Government shall ... 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.
42 U.S.C. § 4332(C).
. For instance, there is no requirement that the agency use an EA to determine if a supplemental EIS is needed. In Marsh, the Supreme Court upheld a decision by the Corps not to issue a supplemental EIS when the agency had used a Supplemental Information Report ("SIR”) rather than an EA to assess new information. Marsh, 490 U.S. at 385, 109 S.Ct. 1851 (holding "the Corps acted within the dictates of NEPA in concluding that supplementation was unnecessary” when its SIR found "the new information was of exaggerated importance”).
. In South Trenton Residents Against 29 v. Federal Highway Administration, 176 F.3d 658, 663 (3d Cir.1999), we ''assume[d] ... an agency's determination not to revise an Environmental Impact Statement must be 'reasonable under the circumstances.’ " (internal citations and quotation marks omitted; alteration in original). But Marsh unquestionably held that review in such contexts is for arbitrary or capricious action. Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851 (''The parties disagree ... on the standard that should be applied by a court that is asked to review the agency’s decision. Petitioners argue that the reviewing court need only decide whether the agency decision was 'arbitrary and capricious,' whereas respondents argue that the reviewing court must make its own determination of reasonableness to ascertain whether the agency action complied with the law. In determining the proper standard of review, we look to § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706.... We conclude that review of the narrow question before us whether the Corps’ determination that the FEISS need not be supplemented should be set aside is controlled by the ‘arbitrary and capricious’ standard of § 706(2)(A).’’).
. CEQ regulations mandate that agencies "publish a notice of intent in the Federal Register” at the earliest "practicable” moment regarding the preparation of an environmental impact statement, 40 C.F.R. § 1501.7; disseminate a copy of the draft or final EIS for public review before taking further action, id. § 1506.10(b)(1), (2); "[rjequest comments ton the EIS] from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected,” id. § 1503.1(a)(4); and "respond by one or more of the means listed below” to the comments received, id. § 1503.4(a). See also 33 C.F.R. §§ 230.19, App. C ¶¶ 1-2 (regulations governing draft and final EIS reports).
. We recognize that the Corps’ General Counsel, Earl Stockdale, came to a different conclusion on the necessity of a FONSI. In an internal memorandum prepared for the agency, he reasoned that "all EAs must result in either a FONSI or an EIS with no exception” and so "without preparing of a FONSI, the Corps will simply not have completed its required NEPA process.” This conclusion was incorrect. The sole regulatory provisions cited by Stockdale to support his analysis were 40 C.F.R. § 1501.4(e) and 33 C.F.R. § 230.11. These provisions do require FON-SIs, but only for the initial EIS determination. See supra.
Nonetheless, even if the FONSI requirement under Section 1501.4(e) attached, the Corps complied with it. The last page of the EA contained a signed declaration by Lieutenant Colonel Thomas Ticker, stating: "Based on the information contained in this EA and the referenced studies, I have concluded that.... the threshold for preparation of a Supplemental Environmental Impact Statement (SEIS) set forth at 40 CFR 1502.9(c) has not been met and that changes to the project or project conditions since the 1997 SEIS will not have a significant adverse effect on the human environment.” It was neither arbitrary nor capricious for the Corps to assume this signed declaration operated as a FONSI. The CEQ regulations define a FONSI as "a document by a Federal agency briefly presenting the reasons why an action ... will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.” 40 C.F.R. § 1508.13.
. The EA by definition was not a draft or final EIS, so was not covered by 40 C.F.R. § 1506.10(b). It also did not fall under either prong of 40 C.F.R. § 1501.4(e)(2) — it is not an action "which normally requires the preparation of an environmental impact statement” under § 1501.4(e)(2)(i), because Corps regulations provide an exclusive list of such actions at 33 C.F.R. § 230.6 and the project does not qualify; and it is not an action "without precedent” under § 1501.4(e)(2)(ii), because the Corps has maintained dredging operations in the Delaware River since 1910. Finally, the EA did not fall under 33 C.F.R. § 230.11. That section refers to reports produced by the Corps pursuant to specific regulatory programs, none of which apply here. See 33 C.F.R. §§ 263.10, 263.15, 263.19 (“Continuing Authorities Program”); id. § 230 App. A ("feasibility studies”); see also Procedures for Implementing the National Environmental Policy Act (NEPA), 53 Fed. Reg. 3120, 3124 (Feb. 3, 1988) (explaining that 33 C.F.R. § 230.11 requires a "30 day review of the EA” for the "types of actions” specified in the rule, none of which include dredging activities). Appellants appear to concede that none of the provisions mandating EA pre-circulation apply here. N.J. Br. at 44-46; River-keeper Br. at 79-81.
. The record does not show the Corps’ decision to proceed with the project was “predetermined,” making the EA a sham review. See Riverkeeper Reply Br. at 22; NJ Reply Br. at 15. NEPA reviews “must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000). We will invalidate projects where the "agency has impermissibly committed itself to a course of action before embarking upon a NEPA analysis.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 716 (10th Cir.2010). But there is no indication that the Corps "impermissibly committed itself” to the deepening project before completing the EA. It did not begin dredging or make an "irretrievable commitment of resources” while the environmental review was pending. Metcalf 214 F.3d at 1143. The one contract it entered into before the EA was finalized — the Project Partnership Agreement, which was signed with the Philadelphia Regional Port Authority on June 23, 2008 — expressly acknowledged that the Corps would "expeditiously construct the general navigation features ... applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies.” In other words, construction was made contingent on a successful NEPA review.
. The Biological Assessment was prepared by the Corps in January 2009. In it, the Corps had concluded that any risks to short-nose sturgeon posed by the deepening project could be "minimize[d] and in some cases eliminate[d],” because "the majority of potential impacts would be related to the blasting activities ... scheduled to take place in December and January of project Years 1 and 2.” NMFS endorsed the Corps' findings in a Biological Opinion published in July 2009. The Biological Opinion found: "[I]n its entirety, the proposed action is likely to result in direct physical effects ... to no more than 57 shortnose sturgeon.... this number represents a very small percentage of the shortnose sturgeon population in the Delaware River.... [T]he proposed deepening project will not appreciably reduce the likelihood of survival ... for this species....”
. On February 6, 2012, NMFS listed the New York Bight distinct population segment ("DPS”) of the Atlantic sturgeon as an Endangered Species. See Final Listing Rule for Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments of the Atlantic Sturgeon in the Northeast Region, 77 Fed. Reg. 5880, 5909 (Feb. 6, 2012) (to be codified at 50 C.F.R. pt. 224). The New York Bight DPS includes sturgeon in the Delaware River. Id. at 5881, 5903, 5912. Because NMFS's endangerment listing postdated the events in this litigation, it has no bearing on the quality of the EA. Nonetheless, we observe that it is unlikely the February 2012 listing would change the EA's conclusion that no additional SEIS was necessary for the project because the EA treated the Atlantic sturgeon as a species of “special concern,” given its "candidate” species listing at that time, and analyzed its vulnerability in several discussions.
. Appellants draw our attention to a recent Ninth Circuit decision in which the court invalidated a supplemental EIS for, in part, failing to "provide baseline data for many of the species, and instead plan[ning] to conduct surveys and studies as part of its post-approval mitigation measures[.]” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1083 (9th Cir.2011) (“Northern Plains ”). Northern Plains is inapposite. The report in Northern Plains was deficient because it sought to obtain baseline data, necessary for the agency’s approval of a project, from mitigation measures to be instituted after the project was underway. Id. at 1084. The agency put the cart before the horse. Here, the EA contained considerable baseline data on the Atlantic sturgeon, such as studies from 2003 through 2007, and relied on mitigation measures only to conclude the project could be deployed in a way that would avoid causing significant harm to the species.
. New Jersey claims it flagged the need for updated sediment samples from bend-widening areas and for a modified elutriate analyses in its public comment from January 14, 2009. Accordingly, it claims the EA’s failure to include such data was indefensible, as demonstrated in the recent case of Sierra Club v. Van Antwerp, 661 F.3d 1147, 1157 (D.C.Cir.2011) (holding it would have been arbitrary and capricious for the Corps to issue a FONSI that failed to address a comment raised by an expert about a threatened species, and remanding for factfinding on that issue). But New Jersey's January 14 comment had not mentioned modified elutriate analysis. And while it called for updated sediment samples from bend-widening areas, the EA relied upon reports assembled in 2003, 2005 and 2007, ail of which included updated sediment samples. See supra. The Corps' judgment that these samples were sufficient to offer the agency a complete picture of water contamination merits deference.
. When the Corps seeks to undertake a project that will release discharge, it does not go through the formality of issuing a permit to itself. Instead, it follows “all applicable substantive legal requirements” under Section 404, including an application of the Section 404(b)(1) guidelines. 33 C.F.R. § 336.1(a).
. Riverkeeper argued the Corps violated CWA § 401(a), and that CWA § 404(r) did not apply, at summary judgment in both district courts. New Jersey raises this claim for the first time on appeal. See N.J. Br. at 60. A party's failure to raise an issue in district court typically results in forfeiture of the claim. Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir.1991) (holding “[i]t is well established that failure to raise an issue in the district court constitutes a waiver of the argument” unless certain "extraordinary circumstances” exist). We need not resolve whether to consider the Section 401(a) claim as to New Jersey because we find it to lack merit, when evaluated as to Riverkeeper.
. The recent case of Board of Mississippi Levee Commissioners v. EPA, 674 F.3d 409 (5th Cir.2012) is consistent with our holding. In that case, the Fifth Circuit held that Section 404(r) of the CWA had not been triggered when a report provided to Congress lacked, among other things, a Record of Decision. The absence of a Record of Decision was one factor among several that persuaded the court to find the report had not been an agency’s "final EIS.” In addition to the lack of a Record of Decision, the agency’s transmittal letter to Congress plainly stated the report was not final. Id. at 414-15. Four months after the report was transmitted to Congress, the Chief of Engineers prepared a "final report" for the same project. Id. at 415. And because the original report sent to Congress was not in the record, the court could not determine whether it was labeled a "final” EIS. The Fifth Circuit held these factors collectively proved the document provided to Congress had not been a "final EIS” and accordingly, Section 404(r) had not been triggered. Id. at 419. Here, the EIS transmitted to Congress in June 1992 was entitled "Final Interim Feasibility Report,” was produced after a full notice and comment process, and was sent with a transmittal letter requesting the Section 404(r) exemption.
. The record reveals some confusion as to whether the wetlands permit was necessary and as to whether the Corps’ 2001 application was made pursuant to the Wetlands Act or solely the Subaqueous Lands Act. Neither party has raised this issue on appeal. We assume both were required and that the Corps applied for both.
It is also worth noting the permits mandated by the Subaqueous Lands and Wetlands Acts were not affected by the exemption codified at Section 404(r). Section 404(r) relieves projects "specially authorized” by Congress from the permitting requirements in Section 404. One of those requirements, codified at Section 401(a), is to obtain a state water certification. 33 U.S.C. § 1341(a)(1). But for a water certification to fall under Section 401(a), it must be issued by a state body operating a "permit program” that regulates "discharges into navigable waters” and that has been approved by the EPA. 33 U.S.C. § 1342(b). The Delaware Subaqueous Lands and Wetlands Acts create permit programs for the use of subaqueous lands and wetlands, neither of which is approved by the EPA under § 1342. Accordingly, the Delaware Subaqueous Lands and Wetlands Acts are "other state requirements” that do not fall under Section 404(r) and that holders of federally-issued permits are required to follow. See 33 C.F.R. § 323.4(d) ("Federal projects which qualify under the criteria contained in section 404(r) of the CWA are exempt from section 404 permit requirements, but may be subject to other State and Federal requirements.").
. We need not decide whether Chevron deference should attach. Riverkeeper contends it should not, given the informality of the agency's action. Namely, it points out that the Corps did not engage in notice and comment rulemaking when it invoked Section 404(t), but acted on the basis of a Memorandum of Record. See United States v. Mead Corp., 533 U.S. 218, 230-31, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (holding "the want of" notice and comment procedures often compels in favor of not deferring to the agency). We need not settle this debate. At the least, Skidmore deference is due, and is sufficient to support the Corps' action.
. Furthermore, the Corps had significantly broader authority in 1899 than Riverkeeper acknowledges. The Rivers and Harbors Act contains twenty-eight pages of appropriations to the Corps for conducting "improvement” projects in the nation's waterways. See Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1121, 1121-1149 ("Be it enacted ... [tjhat the following sums of money be, and are hereby, appropriated ... to be expended under the direction of the Secretary of War and the supervision of the Chief of Engineers, for the construction, completion, repair, and preservation of the public works hereinafter named: Improving Moosabec Bar, Maine: Completing improvement, eleven thousand dollars.... For improvement of the Buffalo entrance to Erie Basic and Black Rock Harbor, New York.... Improving New York Harbor, New York ... by a deep channel, two thousand feet wide and forty feet deep from the Narrows ... one million dollars ... Improving Port Chester Harbor, New York: Twenty-five thousand dollars, to be expended in enlargening the channel below and up to Town Dock to a depth of twenty feet.... Improving the outer bar, Brunswick Georgie: C.P. Goodyear, the contractor with the Government of the United States, to deepen the outer bar of Brunswick.... Improving harbor at Pensacola, Florida: ... seventy thousand dollars ... to be used toward securing a channel depth of thirty feet.... Improving harbor at Mobile Alabama: ... with the view of ultimately securing a channel twenty-three feet deep and one hundred feet wide at the bottom. ... Improving Galveston Ship Channel ... by dredging or otherwise.... Deepening the channel from Galveston Harbor to Texas City, Texas....” (emphases added)). Accordingly, even if Sections 511 or 404(t) of the CWA circumscribed the Corps' "maintain navigation” authority to its historical authorities in 1899, the latter included the execution of improvement and channel deepening projects.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.04054054054054054, Costs: 0.05405405405405406
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LIPEZ, Circuit Judge.
Following the panel’s decision in this case, see United States v. Johnson, 437 F.3d 157 (1st Cir.2006), appellants moved for rehearing en banc, noting the Supreme Court’s grant of certiorari in United States v. Rapanos, 376 F.3d 629 (6th Cir.2004). We held their petition in abeyance pending a decision in that case. Following the decision in Rapanos v. United States, 547 U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), appellants supplemented their previous petition. They request that we grant rehearing en banc to resolve the conflict between the panel decision and Rapanos, or, alternately, that we vacate the decision with prejudice on the ground that the evidence in the record supports a judgment in their favor. The government filed a response requesting that we vacate our previous decision and remand to the district court. After careful consideration, we vacate and remand for further proceedings consistent with Rapanos, as described below.
I. The Panel Decision
This case began when the United States filed a civil action alleging that defendants (now appellants), a group of cranberry farmers in Carver, Massachusetts, had discharged pollutants into federally-regulated waters without a permit in violation of § 301 and § 502 of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1311, 1362. In response, appellants contended that the United States lacked jurisdiction over the three properties in question: (1) the Cross Street site; (2) the Fosdick Street site; and (3) the Forest/Fuller Street site (collectively, the “target sites”).
In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government. The district court denied appellants’ motion for reconsideration, stating that “there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries.”
In an appeal to this court, appellants challenged the district court’s judgment that the jurisdiction of the CWA extends to the target sites. First, they asserted that their property is not covered by the Environmental Protection Agency (“EPA”) regulation promulgated to carry out the CWA. In the alternative, appellants argued that, if their property is covered by the regulation, either the regulation exceeds the authority granted by the CWA, or the CWA exceeds Congress’s authority under the Commerce Clause.
We affirmed the trial court’s judgment in a divided decision, with two members of the panel concurring in the judgment for different reasons, and one member dissenting. One member of the majority concluded that the hydrological connection between the target sites and the Weweantic River establishes a “significant nexus” between the sites and the river, sufficient to establish jurisdiction under the CWA without creating constitutional issues under the Commerce Clause. For two of the target sites, in the view of this judge, the hydrological connection depended on diffusion of water through wetlands. See 437 F.3d at 162.
The other member of the majority read the record differently to conclude that the hydrological connection was a system of tributaries, some of which happened to flow through wetlands or other bogs. See id. at 182. The concurring panelist thus concluded that it was unnecessary to decide whether the diffusion of water through wetlands was a sufficient hydrological connection to support a “significant nexus.” Id.
The dissent concluded that the United States “may not constitutionally regulate wetlands that are neither themselves navigable nor truly adjacent to navigable waters.” Id. at 187 (internal quotations and citation omitted). Moreover, even if the EPA’s assertion of jurisdiction was constitutional, the dissent would have held that the government’s attempt to assert jurisdiction over appellants’ wetlands is inconsistent with its own regulations because the system of tributaries linking the target sites to the Weweantic includes other wetlands. Because the regulations explicitly exclude wetlands adjacent to waters that are themselves wetlands, the dissent argued that the government lacked jurisdiction under its own regulations. Id. at 187.
II. Response to the Panel Decision
As noted, appellants filed a petition for rehearing en banc pursuant to Rule 35 of the Federal Rules of Appellate Procedure, arguing that the case should be reheard following the Supreme Court’s then-pending decision in Rapanos. We ordered appellants’ petition held in abeyance pending the Supreme Court’s decision in Rapanos. We further stated that appellants could file a supplemental petition for rehearing en banc within fourteen days after the decision in Rapanos was issued, and the government could then respond.
III. Rapanos v. United States
The decision in Rapanos v. United States, 547 U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), resolved two consolidated cases from the Sixth Circuit. In one case, the United States brought an enforcement action alleging that property owners and their affiliated businesses deposited fill materials into wetlands without a permit, in violation of the CWA. Id. at 2219. In the other, property owners were denied a permit to deposit fill material in a wetland approximately one mile from a lake and, after exhausting their administrative appeals, they filed suit. Id.
In both cases, the district court found that there was federal regulatory jurisdiction over the sites in question, and the Sixth Circuit affirmed. The Supreme Court then consolidated the cases and granted certiorari to decide whether these wetlands constitute “waters of the United States” under the CWA, and, if so, whether the CWA is constitutional. See id at 2220.
The Court issued a split decision construing the phrase “waters of the United States” as used in the CWA. The plurality concluded that the phrase “waters of the United States” includes only “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] ... oceans, rivers, [and] lakes.’ ” Id. at 2225. Thus, for purposes of determining federal regulatory jurisdiction, “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.” Id. at 2226 (emphasis in original). The plurality vacated the decision of the Sixth Circuit in both cases and, noting “the paucity of the record,” remanded for further proceedings. Id. at 2235.
Justice Kennedy concurred in the judgment, but rejected the plurality’s rationale. Instead, he concluded that jurisdiction extends to wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 2236. Justice Kennedy further found that wetlands “possess the requisite nexus” if “either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” Id. at 2248. Where the wetlands in question are “adjacent to navigable-in-fact waters, [the government] may rely on adjacency to establish its jurisdiction.” Id. at 2249. Where the wetlands are adjacent to nonnavigable tributaries, “[a]bsent more specific regulations ... [the government] must establish a significant nexus on a case-by-case basis.” Id. at 2249.
Justice Stevens authored a dissent joined by three other Justices. In the view of the dissenters, to the extent that the CWA includes a “significant nexus” requirement, this requirement “is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Id. at 2263-64. The dissent concluded by noting specifically that “all four Justices who have joined this opinion would uphold the Corps’ jurisdiction ... in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied.... ” Id. at 2265.
IV. Subsequent Motions
Following the Supreme Court’s decision in Rapanos, appellants filed a supplemental petition for rehearing en banc challenging the view in one of the panel opinions that a hydrological connection constitutes a jurisdictionally sufficient “significant nexus.” Appellants contend that rehearing is necessary to resolve the tension between the panel opinion and Rapanos. They argue that under either the plurality opinion or Justice Kennedy’s concurrence, a hydrological connection is insufficient to establish jurisdiction, although they also argue strenuously that the plurality’s test alone should apply. Alternatively, appellants contend that the evidence in the record is sufficient to support a finding in their favor under the standards in Rapa-nos, and urge that we vacate the decision and direct the district court to enter judgment for them.
The United States opposes the petition for en banc review and urges us instead to vacate the panel’s decision and remand the case to the district court. The government argues that additional factfinding is necessary before the legal principles articulated in Rapanos can be applied in this case. Moreover, the government asserts that on remand it should be allowed to establish CWA jurisdiction under either the Rapa-nos plurality’s test or Justice Kennedy’s test.
V. Remand to the District Court
We agree with the government that remand to the district court for application of the Rapanos standards is appropriate. The parties presented their cases in the district court without any awareness of the standards that now apply. They should now have an opportunity to develop their positions in the district court with an awareness of these standards. However, the question of what legal standard to apply is one of some complexity, and other courts have taken varying approaches to the issue. We conclude that the United States may assert jurisdiction over the target sites if it meets either Justice Kennedy’s legal standard or that of the plurality. We explain our reasoning.
A. Other Courts’ Application of Rapanos
In the months since Rapanos, four courts have applied its legal standards— two district courts and two courts of appeals.
1. Decisions of District Courts
In United States v. Evans, 2006 WL 2221629 (M.D.Fla. Aug.2, 2006), the Middle District of Florida adopted Justice Stevens’s suggestion to apply either the plurality’s or Justice Kennedy’s standard. That court cited the Supreme Court’s decision in Marks v. United States for the proposition that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Evans at *19 (citing Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). The court noted that “ ‘narrowest grounds’ is understood as the ‘less far-reaching’ common ground,” Evans at *19 (citing Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir.2001)), but found that because the plurality and Justice Kennedy articulated different standards for application on remand it was unclear which would control. Hence, the court adopted Justice Stevens’s approach. Evans at *19.
The Northern District of Texas used a sharply contrasting approach in United States v. Chevron Pipe Line Co., 437 F.Supp.2d 605 (N.D.Tex.2006), determining that because of the lack of a clear legal standard in Rapanos, it would instead rely on precedent within its own circuit. The court noted that “the Supreme Court failed to reach a consensus of a majority as to the jurisdictional boundary of the CWA.” It added that Justice Kennedy “advanced an ambiguous test — whether a ‘significant nexus’ exists to waters that are/ were/might be navigable. This test leaves no guidance on how to implement its vague, subjective centerpiece. That is, exactly what is ‘significant’ and how is a ‘nexus’ determined?” Id. at 613 (internal citation omitted). The court then concluded:
Because Justice Kennedy failed to elaborate on the ‘significant nexus’ required, this Court will look to the prior reasoning in this circuit. The Fifth Circuit, as discussed above, has interpreted ‘the waters of the United States’ narrowly under the OPA. Without any clear direction on determining a significant nexus, this Court will do exactly as Chief Justice Roberts declared — ‘feel [its] way on a case-by-case basis.’
Id. The court did not discuss Justice Stevens’s instruction.
2. Decisions of Courts of Appeals
The Ninth Circuit, the first circuit court to apply Rapanos, concluded without analysis that Justice Kennedy’s concurrence provides the controlling test. No. Cal. River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir.2006). The court stated:
Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides the controlling rule of law. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (explaining that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”).
Id. at 1029. Without further discussion, the Ninth Circuit applied Justice Kennedy’s test. The court did not acknowledge Justice Stevens’s instruction.
Most recently, in United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.2006), the Seventh Circuit also found that Justice Kennedy’s test is controlling without discussing Justice Stevens’s instruction. The court paraphrases Marks v. United States:
When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. In Rapanos, that is Justice Kennedy’s ground.
Id. at 724 (citing Marks, 430 U.S. at 193, 97 S.Ct. 990). Curiously, without explanation, the court equates the “narrowest opinion” with the one least restrictive of federal authority to regulate. It states:
The plurality Justices thought that Justice Kennedy’s ground for reversing was narrower than their own, because they concluded their extensive and in places harsh criticism of the concurrence by saying that ‘Justice Kennedy tips a wink at the agency [i.e., the Corps of Engineers], inviting it to try its same expansive reading again.’
[Justice Kennedy’s] test is narrower (so far as reining in federal authority is concerned) than the plurality’s in most cases, though not in all because Justice Kennedy also said that ‘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.’
Id. at 724, 725 (quoting Rapanos, 126 S.Ct. at 2234 n. 15 & 2246) (emphasis added). Gerke concludes by acknowledging the following anomaly: If Justice Kennedy finds federal jurisdiction over a particular site using the “significant nexus” test the four dissenters would also find jurisdiction. However, if Justice Kennedy does not find federal jurisdiction, there could be instances where both the plurality and the dissent disagree with his conclusion. Id. at 724-25. In other words, there could be a case in which Justice Kennedy
would vote against federal authority only to be outvoted 8-to-l (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapa-nos dissenters when the balancing approach of Justice Kennedy favors the landowner.
Id. However, Gerke writes off this “rare case,” concluding that “as a practical matter the Kennedy concurrence is the least common denominator.” Id.
B. Interpretation of Marks
The Marks directive that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,” Marks, 430 U.S. at 193, 97 S.Ct. 990 (internal citation omitted), has proven troublesome in application for the Supreme Court itself and for the lower courts. Therefore, the genesis of that directive and its application require scrutiny.
In Marks, the defendant raised a Due Process challenge to his obscenity conviction on the grounds that he had been punished retroactively under a definition of obscenity laid out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), when he had actually engaged in the punished conduct prior to the Miller decision. The “narrowest grounds” approach emerged when the Court examined Miller’s predecessor, Memoirs v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), to determine whether the law had provided fair warning at the time of the defendant’s conduct. Marks, 430 U.S. at 193-94, 97 S.Ct. 990. In Memoirs, a majority of the Supreme Court found that a lower court erred in finding a book obscene and thus unprotected by the First Amendment. However, three Justices felt that materials would not be protected by the First Amendment if they were deemed obscene, Memoirs, 383 U.S. at 418, 86 S.Ct. 975 (Brennan, J.), while two other Justices insisted that the First Amendment provides an absolute shield against government action aimed at suppressing obscenity. Id. at 421, 86 S.Ct. 975 (Black, J., concurring); id. at 426, 86 S.Ct. 975 (Douglas, J., concurring). Marks concluded that the opinion excluding obscene materials from First Amendment protection was the “narrowest grounds” for the judgment in Memoirs.
Relatedly, the “narrowest grounds” language of Marks is itself a quotation from a previous Supreme Court case, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Gregg discusses Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which examined the constitutionality of the death penalty as imposed under a Georgia statute. In Furman, five Justices agreed that the death penalty was unconstitutional as imposed in the case. However, two of these Justices believed that capital punishment was unconstitutional per se, while the other three Justices felt that the death penalty was unconstitutional under the conditions present in the cases before the court but did not necessarily agree that capital punishment was per se unconstitutional. Gregg concluded: “Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ” 428 U.S. at 169 n. 15, 96 S.Ct. 2909.
In sum, the cases on which Marks directly relies both involve situations in which the “narrowest ground” was also the ground least restrictive of federal jurisdiction, as the Seventh Circuit indicated in Gerke. However, this coincidence does not necessarily mean that the Supreme Court in Marks equated the “narrowest grounds” of decision in a case with fragmented decisions to the grounds least restrictive of the assertion of federal authority. Such an equation leaves unanswered the question of how one would determine which opinion is controlling in a case where the government is not a party. Moreover, given the underlying constitutional question presented by Rapanos, it seems just as plausible to conclude that the narrowest ground of decision in Rapanos is the ground most restrictive of government authority (the position of the plurality), because that ground avoids the constitutional issue of how far Congress can go in asserting jurisdiction under the Commerce Clause. See Rapanos, 126 S.Ct. at 2224 (plurality opinion). The appellants argue for that result here.
As an alternative to the Seventh Circuit’s reading of Marks, one might sensibly conclude, as one court has, that the “narrowest grounds” are simply understood as the “less far-reaching-common ground.” Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir.2001); see also Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 420-21 (1992) (quoting Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L.Rev. 756, 763 (1980)) (“One way to determine the ‘narrowest grounds’ is to look for the opinion ‘most clearly tailored to the specific fact situation before the Court and thus applicable to the fewest cases, in contrast to an opinion that takes a more absolutist position or suggests more general rules.’ ”). This reading is also consistent with Memoirs and Furman: in both cases, the opinion deemed “narrowest” was the one more closely tailored to the specific situation the Court confronted.
Even if we take this more sensible approach to Marks, however, the case still poses problems in the situation before us. As the D.C. Circuit held in an en banc opinion, “Marks is workable — one opinion can be meaningfully regarded as ‘narrower’ than another — only when one opinion is a logical subset of other, broader opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc). In other words, the “narrowest grounds” approach makes the most sense when two opinions reach the same result in a given case, but one opinion reaches that result for less sweeping reasons than the other. When applied to future cases, the less sweeping opinion would require the same outcome in a subset of the cases that the more sweeping opinion would. For example, in Furman, the Justices who concluded that capital punishment was per se unconstitutional would always strike down future death penalty sentences, but the Justices who found only that the death penalty was unconstitutional as administered in Fur-man would only strike down capital sentences in a subset of future capital cases. Similarly, in Memoirs, the absolutist view of the First Amendment held by two Justices would always require a ruling in favor of protecting speech, but the view of three other Justices that only non-obscene speech is protected would extend First Amendment protection only to a subset of such cases. Thus, the less sweeping opinion in each case represents the “narrowest grounds” for the decision.
This understanding of “narrowest grounds” as used in Marks does not translate easily to the present situation. The cases in which Justice Kennedy would limit federal jurisdiction are not a subset of the cases in which the plurality would limit jurisdiction. As Gerke points out, in cases where there is a small surface water connection to a stream or brook, the plurality’s jurisdictional test would be satisfied, but Justice Kennedy’s balancing of interests might militate against finding a significant nexus. In such a case, if Justice Kennedy’s test is the single controlling test (as advocated by the Seventh and Ninth Circuits), there would be a bizarre outcome — the court would find no federal jurisdiction even though eight Justices (the four members of the plurality and the four dissenters) would all agree that federal authority should extend to such a situation. This possibility demonstrates the shortcomings of the Marks formulation in applying Rapanos.
C. The Rapanos Dissent’s Approach
Justice Stevens foresaw the possibility that the plurality might find jurisdiction in some cases where Justice Kennedy does not. His instruction to find jurisdiction where either test is satisfied provides a simple and pragmatic way to assess what grounds would command a majority of the Court. Justice Stevens observes:
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.
Rapanos, 126 S.Ct at 2265 n. 14. Following Justice Stevens’s instruction ensures that lower courts will find jurisdiction in all cases where a majority of the Court would support such a finding. If Justice Kennedy’s test is satisfied, then at least Justice Kennedy plus the four dissenters would support jurisdiction. If the plurality’s test is satisfied, then at least the four plurality members plus the four dissenters would support jurisdiction. Other circuits have previously taken this common sense approach to fragmented opinions. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir.1992) (“In essence, what we must do is find common ground shared by five or more justices.”); United States v. Williams, 435 F.3d 1148, 1157 (9th Cir.2006) (“We need not find a legal opinion which a majority joined, but merely a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree.” (internal quotation marks and citations omitted)).
We note that one circuit court has previously reached a conclusion at odds with the position Justice Stevens now advocates. In King v. Palmer, the D.C. Circuit stated that “we do not think we are free to combine a dissent with a concurrence to form a Marks majority.” 950 F.2d at 783. King discussed Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II), in which the Supreme Court considered the availability and amount of contingency fees under federal fee-shifting statutes. In Delaware Valley II, the Court ultimately issued a plurality opinion signed by four Justices, a dissent signed by four Justices, and a concurrence by Justice O’Connor. The D.C. Circuit refused to examine the points of commonality among Justice O’Connor’s opinion and that of the dissent, relying mainly on a literal reading of Marks’s language that the holding is the position of the Justices “who concurred in the judgments on the narrowest grounds,” Marks, 430 U.S. at 193, 97 S.Ct. 990 (emphasis added), as well as the fact that the Supreme Court had not explicitly applied Marks to situations where concurring and dissenting votes would be combined. King, 950 F.2d at 783.
However, the situation in King is different from the case before us. In Delaware Valley II, Justice O’Connor and the dissenting Justices simply took different approaches to the question of how to calculate a contingency enhancement, with the result that it is not immediately obvious how them views could be combined to form a five-Justice majority. In Rapanos, Justice Stevens states that whenever either the plurality or Justice Kennedy would find jurisdiction, the Rapanos dissenters would agree. Moreover, the Third Circuit took a position opposite to that of the D.C. Circuit in interpreting Delaware Valley II, holding that “[bjecause the four dissenters would allow contingency multipliers in all cases in which Justice O’Connor would allow them, her position commands a majority of the court.” Student Pub. Interest Research Group of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d. Cir.1988). Therefore, we do not share the reservations of the D.C. Circuit about combining a dissent with a concurrence to find the ground of decision embraced by a majority of the Justices.
Moreover, Justice Stevens’s instruction seems particularly sound given that the Supreme Court itself has moved away from the Marks formula. In Nichols v. United States, the court observed that “[t]his test is more easily stated than applied,” adding, “[w]e think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” 511 U.S. 738, 745-46, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994); see also Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Nichols for the same proposition). Since Marks, several members of the Court have indicated that whenever a decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced. See Waters v. Churchill, 511 U.S. 661, 685, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (Souter, J., concurring) (analyzing the points of agreement between plurality, concurring, and dissenting opinions to identify the test that lower courts should apply); League of United Latin Am. Citizens v. Perry, — U.S. —, 126 S.Ct. 2594, 2607, 165 L.Ed.2d 609 (2006) (Kennedy, J.) (analyzing Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) to find that agreement among one concurring and four dissenting Justices establishes majority support for a legal proposition); Alexander v. Sandoval, 532 U.S. 275, 281-82, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (Scalia, J.) (noting the agreement of five Justices who joined plurality and various dissenting opinions). Thus, it is not surprising that Justice Stevens in his Rapanos dissent explicitly directs courts to examine the views of dissenting Justices to determine which propositions have the support of a majority. This approval is consistent with the direction that the Court as a whole has taken since Marks. Moreover, the fact that Justice Stevens does not even refer to Marks indicates that he found its framework inapplicable to the interpretation by the lower courts of the divergent tests laid out by the opinions in Rapanos.
VI. Conclusion
The foregoing considerations lead us to conclude that the district court should do exactly as Justice Stevens has suggested. The federal government can establish jurisdiction over the target sites if it can meet either the plurality’s or Justice Kennedy’s standard as laid out in Rapanos.
In light of these standards, the district court may conduct additional factfinding if it deems it necessary to address the jurisdictional question. The district court may also address any other issues it deems necessary in deciding that jurisdictional issue. As discussed previously, the two members of the majority each had different interpretations of the record. We urge the parties and the district court to provide a clear factual record in the context of applying the new standards.
Accordingly, we vacate our decision in United States v. Johnson, 437 F.3d 157 (1st Cir.2006), and remand for further proceedings. Each party is to bear its own costs.
So ordered.
. The regulation states that "waters of the United States" include "[w]etlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(l)-(6) of this section." 40 C.F.R. § 230.3(s)(7).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.025, Costs: 0.1625
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SELYA, Senior Circuit Judge.
Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cor-di-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions.
The Allens accuse the Town of singling them out for unfavorable treatment and thwarting their plans. The Town, with equal fervor, accuses the Allens of seeking advantages to which they are not entitled. The ill will has spread like a malignant growth and has come to envelop several of the Allens’ neighbors.
After many years of travail, the Allens elevated the feud to constitutional proportions: they condensed their grievances into a so-called “class of one” claim, alleging that the disparate treatment they had received infringed their rights under the Equal Protection Clause. See U.S. Const, amend. XIV. The Town heatedly denied these allegations. The district court sided with the Town and granted summary judgment in its favor. See Cordi-Allen v. Conlon, No. 1:05-cv-10370, 2006 WL 2033897, at *8 (D.Mass. July 19, 2006).
We are called upon to review that order. In doing so, we take the supported facts in the light most favorable to the nonmovants (here, the Allens). Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007).
The events surrounding this case are byzantine, and a full recitation would serve no useful purpose. Thus, we offer only a decurtate summary, supplemented as needed in the course of our analysis of the relevant legal issues. We urge readers who hunger.for more detailed information to consult the district court’s comprehensive opinion (which even the Allens, at oral argument before us, commended as doing “a good job of gleaning the facts”).
This controversy dates back to March of 1996, when the Allens purchased a piece of waterfront property in Truro. The parcel abuts properties owned by Brooke Newman, Sarah Landis, and the Pamet Harbor Yacht Club. Other neighbors in relatively close proximity include the Sextons and the Perrys.
The Allens’ lot is undersized. The only improvements on it as of the date of acquisition were a small 400-square-foot cottage and a short pier. The Allens aspired to build a compound. Their plans contemplated erecting a new 1,512-square-foot dwelling with an attached 1,750-square-foot garage on a solid foundation with crawl space drainage; expanding the existing cottage (originally built as a boathouse) into a 640-square-foot residence; and installing a large swimming pool with adjacent decks. To top matters off, the Allens proposed to install floats as a means of extending their existing pier.
A number of disagreements arose with respect to the Allens’ plans. These included disputes about the interpretation and application of zoning laws and environmental restrictions. The controversy soon extended to the licensing of the proposed floats.
The Allens characterize all of this as obstructive behavior. They protest that it stands in stark contrast to the accommodations lavished on other residents. Their next-door neighbor, Newman, is the poster child for the claim of unequal treatment. In addition, they insist that Landis, the Sextons, and the yacht club all have received more favorable receptions from the Town.
Frustrated by these perceived inequities, the Allens filed suit in a Massachusetts state court in February of 2005. Their complaint contained five counts. The first, third, fourth, and fifth counts are not relevant here. The sole count with which we are concerned—count 2—in-voked 42 U.S.C. § 1983 and alleged that the Town had denied the Allens equal protection of the laws.
On the basis of the equal protection claim, the defendants removed the case to the federal district court. See 28 U.S.C. §§ 1331, 1441. In due course, the Town moved for summary judgment with respect to count 2. See Fed.R.Civ.P. 56. The district court concluded that the Allens had not shown that the Town had treated them differently from similarly situated parties and entered judgment on the equal protection claim. See Cordi-Allen, 2006 WL 2033897, at *8. It then remanded the remaining counts to the state court. See id.; see also 28 U.S.C. § 1367(c).
This timely appeal ensued. We have appellate jurisdiction notwithstanding the remand. The rule is that when a district court enters a final judgment on all the federal claims then pending in a civil action and contemporaneously remands all remaining claims to a state court, immediate appellate review of that collateral order is available. See Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir.2001) (per curiam).
The applicable standard of review is familiar. We appraise a grant of summary judgment de novo. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004). We are not wed to the district court’s rationale but, rather, may affirm its order on any independent ground made manifest by the record. Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999).
To warrant affirmance of an order for summary judgment, the record must disclose no genuine issue as to any material fact and show conclusively that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). An issue is genuine if, on the evidence presented, it “may reasonably be resolved in favor of either party” at trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). By like token, a fact is material if it “possess[es] the capacity to sway the outcome of the litigation under the applicable law.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (internal quotation marks omitted). In the final analysis, then, “[t]he nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006).
In applying these tenets, we take the facts in the light most hospitable to the nonmovant and draw all reasonable inferences in that party’s favor. Galloza, 389 F.3d at 28. When doing so, however, we give no weight to conclusory allegations, unsupported conjecture, or free-wheeling invective. Id.
This is a rifle-shot appeal: the only assignment of error advanced by the Allens is that the district court blundered in concluding that they had not adduced facts sufficient to survive summary judgment on their equal protection claim against the Town. That theory runs along the line that the Allens constitute a “class of one,” impermissibly singled out for unfavorable treatment by the Town. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Such a claim is cognizable when—and only when—a “plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id. At the summary judgment stage, of course, this allegation must be backed by competent evidence.
The Allens maintain that they have offered probative evidence on all the elements that are necessary to forge such a cause of action. The district court rejected the Allens’ importunings: it concluded that while the Allens had presented a plethora of evidence concerning a number of other landowners, they had failed to show that these landowners were similarly situated to them. The main thrust of the Allens’ appeal is the claim that the district court “erred in placing [a] burden on the Allens [that] should have been placed upon the moving party” with respect to this issue. Appellants’ Br. at 20.
In evaluating this argument, we do not write on a pristine page. Although “[t]he formula for determining whether individuals or.entities are ‘similarly situated’ for equal protection purposes is not always susceptible to precise demarcation,” Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.2001), the case law makes clear that the burdens of production and persuasion must be shouldered by the party asserting the equal protection violation. Thus, “[plaintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently.” Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir.2006) (emphasis in original) (internal quotation mark omitted).
The Allens also argue that, regardless of the allocation of burdens, the district court demanded more of them than the law allows. In their view, the degree of similarity between their situation and the situations of the landowners whom they identified as comparators was, on the evidence adduced, a question of material fact that should have been left to a jury. This argument cannot withstand scrutiny.
To be sure, the ultimate determination as to whether parties are similarly situated is a fact-bound inquiry and, as such, is normally grist for the jury’s mill. But that does not mean that every case, regardless of the proof presented, is a jury case. To carry the burden of proving substantial similarity, “plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006). While the applicable standard does not require that there be an “[e]xact correlation,” Tapalian v. Tusino, 377 F.3d 1, 6 (1st Cir.2004), there must be sufficient proof on the relevant aspects of the comparison to warrant a reasonable inference of substantial similarity. Thus, the proponent of the equal protection violation must show that the parties with whom he seeks to be compared have engaged in the same activity vis-a-vis the government entity without such distinguishing or mitigating circumstances as would render the comparison inutile. See Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 751 (1st Cir.1996).
The “similarly situated” requirement must be enforced with particular rig- or in the land-use context because zoning decisions “will often, perhaps almost always, treat one landowner differently from another.” Olech, 528 U.S. at 565, 120 S.Ct. 1073 (Breyer, J., concurring). Given this template, virtually every zoning decision— in the absence of a sensible limiting principle—would be a candidate to find its way to federal court in the guise of an equal protection claim. Cf. Creative Env’ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982) (warning that “[e]very appeal by a disappointed developer from an adverse ruling by a local ... planning board necessarily involves some claim that the board exceeded, abused or ‘distorted’ its legal authority in some manner” and can be given a constitutional label) (emphasis in original). The “similarly situated” requirement furnishes the limiting principle that guards against such a devolution.
This requirement demands more than lip service. It is meant to be “a very significant burden.” Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 283 (7th Cir.2003); see Creative Env’ts, 680 F.2d at 823 (explaining that it is not enough to give land use “claims constitutional labels such as ‘due process’ or ‘equal protection’ in order to raise a substantial federal question under section 1983”). It is inadequate merely to point to nearby parcels in a vacuum and leave it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated.
Seen against this background, “a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001); see McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir.2004). That principle may apply even though, as in this case, the plaintiffs have presented copious evidence concerning a multiplicity of possible comparisons. See, e.g., Bell v. Duperrault, 367 F.3d 703, 708 (7th Cir.2004); cf. Barrington Cove, 246 F.3d at 8-9 (upholding grant of Rule 12(b)(6) motion to dismiss when plaintiff failed to establish similarity with “reasonable particularity” and the facts alleged suggested “entirely reasonable” grounds for disparate treatment).
With this framework in place, we return to the case at hand. The Allens emphasize that they are subject to the same zoning and environmental strictures as their neighbors and argue that any material discrepancy in outcomes must, a fortiori, be a result of unequal application of the law. But casting the argument in those terms oversimplifies the analysis and fails to account for the fact that “[v]arious factual traits, circumstantial nuances, and peculiarities can set entities apart, rendering them, by virtue of their differences, amenable to disparate treatment.” Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 681 (7th Cir.2005).
The burden that a class of one plaintiff must carry at the summary judgment stage is considerably heavier than a mere showing that others have applied, with more auspicious results, for the same benefit that he seeks. See Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir.2004); see also Clubside, 468 F.3d at 159 (describing a plaintiffs burden at summary judgment in a class of one case as “more stringent than that used at summary judgment in the employment discrimination context”). Were the law otherwise, the federal court would be transmogrified into a supercharged version of a local zoning board—a zoning board on steroids, as it were.
Thus, the Allens—in order to show that other parties were similarly situated to them—needed to adduce evidence sufficient to establish factual as well as regulatory similarity. Close perscrutation of the record readily indicates that they failed to fulfill this obligation. We explicate this conclusion by specific reference to the four principal instances upon which the Allens rely in their effort to show that the Town singled them out for disparate treatment.
First, the Allens lament that the town counsel informed them that, due to their undersized lot, they would be required to seek a variance or special permit as a precondition to proceeding with the construction of their planned compound. They contrast this with the Town’s issuance of a building permit to Newman for her undersized lot without first requiring a similar dispensation from the zoning board.
This comparison is inapt; the scale of the two projects was dramatically different. The Allens’ proposed improvements were much more ambitious than those undertaken by Newman, and materially different projects may be treated differently by zoning or planning boards without raising constitutional concerns. In this instance, it was not irrational for a municipality to conclude that a proposal to relocate an existing residence while expanding the footprint by 90 square feet (as Newman desired) should be treated differently than a proposal involving the construction of a brand-new 3,000-square-foot structure, the substantial expansion of an existing building, and the installation of a large pool and deck area. See Campbell v. Rainbow City, 484 F.3d 1306, 1316 n. 8 (11th Cir.2006) (noting that the degree of non-conformity with a zoning rule is a valid basis for classifying properties as not similarly situated); Barstad v. Murray County, 420 F.3d 880, 886 (8th Cir.2005) (distinguishing the expansion of an existing use from the construction of a new facility); see also Bell, 367 F.3d at 707-08 (observing that the construction of new structures may be dissimilar from the replacement of existing structures). This is especially true in a community which, like Truro, has a zoning rule that allows for the issuance of a building permit without leave from the zoning board when the building commissioner determines that a proposed change will “not increase the nature or extent of the nonconformity.” Truro Zoning Bylaw § VII.B.2.
We add a coda. In the land-use context, timing is critical and, thus, can supply an important basis for differential treatment. Since zoning bylaws, environmental standards, and licensing criteria may change over time, courts must be sensitive to the possibility that differential treatment—especially differential treatment following a time lag—may indicate a change in policy rather than an intent to discriminate. See Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002). Consequently, the most reliable comparisons are likely to be from roughly the same time frame.
There is reason to think that temporal disparities may be relevant here. Newman received her building permit in 1998, whereas the Allens were referred to the zoning board in 2002. Moreover, Landis (also the owner of an undersized lot), constructed a 750-square-foot addition to her home only after obtaining a special permit from the zoning board in 2003. This chronology weakens the inference that Newman and the Allens are fair congeners.
A second exemplar put forth by the Allens involves the Truro Conservation Commission. The Commission determined that the Allens’ property rests on a coastal dune. The Allens contrast this designation with the Town’s designation of Newman’s abutting property as being located on a coastal bank.
The difference in nomenclature is not inconsequential; the presence of a coastal dune imports stringent environmental safeguards and building restrictions. Among other things, the designation negates a landowner’s ability to build on a solid foundation rather than on pilings (a course that the Allens wished to pursue) and adversely affects the landowner’s right to install certain types of septic systems.
Once again, the Allens’ plaint is without merit. While it is true that the Town allowed Newman to proceed on the basis that her property was situated on a coastal bank and, thus, could be constructed with a crawl-space drainage system rather than on pilings, the Town’s subsequent conduct has been consistent with its treatment of the Allens. In particular, the Landis, Sexton, and Perry additions all have been required to employ pilings as opposed to solid foundations. Because the Town’s opposition to the Allens’ efforts to build on a solid foundation is in no way anomalous or inconsistent, the Allens are not part of a class of one vis-á-vis the “coastal dune” designation. By definition, a class of one is not a class of many. Cf. Campbell, 434 F.3d at 1317 (explaining that a class of one suit cannot be maintained when similar burdens have been imposed on other individuals).
As a third exemplar, the Allens offer some desultory charges that the Town has gone to a Massachusetts state court to appeal an approval that they received from the Massachusetts Department of Environmental Protection (DEP) regarding a proposed septic system. They aver that this is an instance of unequal treatment because the Town has not appealed such an approval in any other case.
This is whistling past the graveyard. The Allens do not offer a shred of evidence to support the allegation of disparate treatment; for aught that appears, there never had been a comparable case. Given this dearth of evidence, we find that the wrangling over the septic system does not reveal any arbitrary divergence from the Town’s conduct toward other similarly situated individuals. See Bell, 367 F.3d at 708 (noting that “speculation and conjecture” will not allow a class of one plaintiff to survive summary judgment).
The Allens’ final exemplar involves floats. They say that the Town refused to license floats designed to extend their pier despite having licensed such floats for the nearby yacht club. The district court rejected this argument, noting that the Allens’ request for licensure, unlike that of the yacht club, had been denied at an earlier time by the DEP and the Army Corp of Engineers. See Cordi-Allen, 2006 WL 2033897, at *8.
On appeal, the Allens have offered no developed argumentation elaborating the claim that they are similarly situated to the yacht club. We could reject their claim on this ground alone. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (holding that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”). Here, moreover, the record reflects a wholly rational explanation for the disparate treatment. Thus, the Allens plainly have not carried their burden of demonstrating that they are similarly situated to the yacht club. See Bell, 367 F.3d at 708.
Before concluding our analysis, we add a postscript. At oral argument in this court, the Allens protested that a strict interpretation of the “similarly situated” requirement—an interpretation to which we have adhered in this and earlier cases—would limit class of one land-use claims to circumstances involving attempts to build identical structures on identical parcels. This criticism is unjustified. The test, properly understood, does not demand identically. It simply requires that class of one plaintiffs demonstrate that their comparators are similar in relevant respects. See Barrington Cove, 246 F.3d at 8. The Allens have fallen well short of that mark.
We need go no further. The Olech class of one suit serves an important but relatively narrow function. It is not a vehicle for federalizing run-of-the-mine zoning, environmental, and licensing decisions. In this instance, the Allens — with their eyes wide open — purchased an undersized lot in an ecologically sensitive area. They could not reasonably have expected to have a free hand in developing the property. While the record reflects that the Town has not been particularly accommodating, the Allens have not presented probative evidence sufficient to create a genuine issue of material fact as to the existence of disparate treatment between them and other similarly situated persons. Accordingly, the district court did not err in entering summary judgment for the Town on the equal protection claim.
Affirmed. Costs shall be taxed in favor of the Town.
. The Town subsequently took the tidelands around the pier in an eminent domain proceeding. The Allens have retained an easement encompassing the pier.
. The Town insists that it is not a proper target for this claim because a municipality cannot be held liable for the acts of its agents or employees under a respondeat superior theory. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Relatedly, it argues that the Allens have failed to allege a municipal custom or policy underlying the putative equal protection violation. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 120-24, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). But the Allens have alleged a series of purportedly discriminatory acts undertaken by a number of different municipal officials, some of whom are high-ranking. Consequently, we assume, for argument’s sake, that the Town is a proper defendant.
. We need not reach any question of whether, post-Olech, a plaintiff must demonstrate malice or bad faith intent to injure when there is no discrimination based on typically impermissible categories. See Bizzarro v. Miranda, 394 F.3d 82, 88 (2d Cir.2005). For present purposes, it suffices to say that the Allens fail to satisfy the "similarly situated” requirement. See text infra.
. We note that the degree of similarity required may be relaxed somewhat if the plaintiff has presented evidence of "personal malice and 'bad faith' retaliation.” Tapalian, 377 F.3d at 7. Thus, while we do not reach whether a class of one suit may be maintained in the absence of malice, see supra note 3, evidence of malice is always relevant.
. The Allens have stoutly resisted this ultimatum; they have never applied for a variance or special permit.
. The Allens point to correspondence in which the town counsel suggested that even had the Allens proposed a less ambitious project, they would still have been required to seek special permission from the zoning board. The Allens concede, however, that they never submitted a scaled-down proposal. Consequently, we need not speculate about what might have happened if they had. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir.1994) (noting that federal courts do not deal in hypothetical questions).
. The district court found this claim to be time-barred, but proceeded to resolve it on the merits. See Cordi-Allen, 2006 WL 2033897, at *6-7. We take no view of the time bar issue, preferring instead to address the merits.
. The Allens malee much of the fact that the Sextons have been allowed to keep a preexisting solid retaining wall. We think that fact is of no moment. The relevant point of analysis is new home construction.
. In any event, the record reflects that the Town has succeeded in persuading the DEP that the approval was granted in error.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1136363636363636, Costs: 0
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FLETCHER, Circuit Judge:
Clifton Craft, Jack Ferguson, and William Wilson (“appellants”) appeal the district court’s order affirming the assessment of civil penalties by the National Oceanic and Atmospheric Administration (“NOAA”) for violations of the Marine Protection, Research, and Sanctuaries Act. NOAA assessed the penalties following a four week administrative trial, in which appellants were found to have violated NOAA regulations protecting the seabed and historic resources of the Channel Islands National Marine Sanctuary. We have jurisdiction and we affirm.
I
The Marine Protection, Research, and Sanctuaries Act, 16 U.S.C. §§ 1431-1445a, provides for the establishment of marine sanctuaries to protect important and sensitive marine areas and resources of national significance. Id. § 1431; S.Rep. No. 595, 100th Cong., 2d Sess. 1 (1988), reprinted in, 1988 U.S.C.C.AN. 4387. Pursuant to this law, NOAA designated the Channel Islands National Marine Sanctuary (“CINMS”) in 1980. The Channel Islands National Marine Sanctuary, 45 Fed.Reg. 65,198 (Oct. 2, 1980). The CINMS includes the marine waters surrounding several islands off the coast of California out to a distance of six nautical miles from the islands. 15 C.F.R. § 935.3.
To protect resources within the CINMS, NOAA has promulgated regulations which prohibit activities that might adversely affect sanctuary resources, including hydrocarbon operations, the discharge or deposit of substances, commercial vessel traffic, and the removal or damage of cultural or historical resources. 15 C.F.R. §§ 935.6 & 935.7. Activities that are not specifically prohibited are permitted. 15 C.F.R. § 935.5.
The regulations at issue in this appeal provide, in relevant part:
[T]he following activities are prohibited within the Sanctuary ...
(2) Alteration of, or construction on, the seabed. Except in connection with the laying of any pipeline as allowed by § 935.6, within 2 nautical miles of any Island, no person shall:
(i) Construct any structure other than a navigation aid, or
(ii) Drill through the seabed, or
(iii) Dredge or otherwise alter the seabed in any way, other than
(A) To anchor vessels, or
(B) To bottom trawl from a commercial fishing vessel.
15 C.F.R. § 935.7(a)(2) (emphasis in original and added). The statute authorizes civil penalties for the violation of these regulations; criminal penalties are not authorized. 16 U.S.C. § 1437 (Supp.1994).
Appellants are members of a diving club that took a trip on the boat ‘Vision” to the CINMS in October 1987. The club members participated in dives at four shipwrecks within the CINMS. Two National Park Service rangers were on board the Vision and witnessed violations of CINMS regulations by members of the diving club. Based on the rangers’ testimony and other evidence, NOAA assessed civil penalties against appellants for violations of § 935.7(a)(2) (iii).
Following a four week administrative trial, the ALJ concluded that appellants had violated § 935.7(a)(2)(3ii) and recommended assessment of the penalties sought by NOAA. The ALJ specifically found that appellants removed artifacts from the shipwrecks and “excavated” the seabed with hammers and chisels. The ALJ found that both Craft and Wilson repeatedly hammered at the seabed and that Ferguson admitted that one site looked like a minefield due to the divers’ activities. The.ALJ also found that the alteration to the seabed was sufficiently extensive that the sites could be located days after the divers left the site. NOAA adopted the ALJ’s findings and recommendations.
Appellants subsequently filed an action in district court, challenging NOAA’s authority to impose the civil penalties on the grounds that the regulation in question is unconstitutionally overbroad and vague. The district court rejected these contentions and granted the government’s motion for summary judgment. Appellants timely appealed.
Because appellants raise a legal challenge involving the construction of a federal law and its application to undisputed facts, our review is de novo. United States v. Doremus, 888 F.2d 630, 631 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 752, 112 L.Ed.2d 772 (1991).
II
Appellants first argue that the regulation is overbroad. The overbreadth doctrine requires that the enactment reach “a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” United States v. Austin, 902 F.2d 743, 744 (9th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 200, 112 L.Ed.2d 161 (1990) (internal quotations omitted); see also Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Because appellants do not claim that any constitutional or fundamental right is prohibited by the regulation in question, their overbreadth challenge must fail. See Austin, 902 F.2d at 744-45 (no overbreadth challenge under Archaeological Resources Protection Act, which prohibits excavation of archaeological resources on public lands).
III
Appellants also argue that 15 C.F.R. § 935.7(a)(2)(iii) is unconstitutionally vague as applied to their activities. Appellants do not raise a facial challenge.
“To pass constitutional muster against a vagueness attack, a statute must give a person of ordinary intelligence adequate notice of the conduct it proscribes.” United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 829 (9th Cir.1989); see also Austin, 902 F.2d at 745. Thus, a statute’s application might violate the constitutional mandate against vagueness if its terms are not sufficiently clear. 594,464 Pounds of Salmon, 871 F.2d at 829.
We do not apply this standard mechanically, however. Instead, various factors affect our analysis. The degree of vagueness tolerated by the Constitution depends in part on the nature of the enactment: “[a] statute providing for civil sanctions is reviewed for vagueness -with somewhat greater tolerance than one involving criminal penalties” because the consequences of imprecision are less severe. Id. (internal quotations omitted); see also Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94; Big Bear Super Market No. 3 v. I.N.S., 913 F.2d 754, 757 (9th Cir.1990). In addition, a scienter requirement may mitigate vagueness. Finally, “perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights,” in which case a more stringent vagueness test applies. Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193-94; Doremus, 888 F.2d at 635.
In light of these principles, we conclude that 15 C.F.R. § 935.7(a)(2)(iii) is not unconstitutionally vague as applied to appellants’ excavation activities. At the outset, we note that the regulation in question provides only for civil — and not criminal — penalties and does not inhibit the exercise of constitutionally protected conduct. Consequently, the Constitution tolerates a greater degree of vagueness in the regulation.
Even more significant, however, is our conclusion that the regulation by its terms clearly prohibits appellants’ activities. With two exceptions, the regulation prohibits “dredg[ing] or otherwise alterfing] the seabed in any way.” 15 C.F.R. § 935.-7(a)(2)(iii) (emphasis added). The word “alter” extends broadly to activities that “modify” the seabed, see Webster’s II New Riverside Universal Dictionary, and the language “in any way” reinforces our understanding that the term “alter” applies to a broad range of conduct. There can be no question but that this language prohibits the excavation activities in which appellants were engaged. E.g., Austin, 902 F.2d at 743-45 (criminal provision that prohibits “excavating], removing], damaging], or otherwise altering] or defacing] any archaeological resource located on public lands or Indian lands” not unconstitutionally vague as applied to excavation of obsidian weapons and tools); Doremus, 888 F.2d at 635-36 (criminal provision that prohibits “[d]amaging any natural feature or other property of the United States” not unconstitutionally vague as applied to chopping down live trees on Forest Service land).
Appellants argue that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” They suggest that because the term “altering” follows the terms “dredging,” “construction,” and “laying of pipeline,” it must be read to proscribe only major industrial and commercial impacts on the seabed.
This principle of statutory construction is inapplicable, however, because § 935.-7(a)(2)(iii) is not merely a general prohibition preceded by specific illustrative terms. Instead, the regulation includes two specific exceptions to the prohibition on “altering”: (1) alterations that occur when anchoring vessels; and (2) bottom trawling from a commercial fishing vessel. 15 C.F.R. § 935.-7(a)(2)(iii)(A) & (B). Moreover, contrary to appellants’ contentions, the existence of listed exceptions to the prohibition on alterations further suggests that all alterations other than those that are specifically excepted are prohibited.
Appellants also rely on NOAA’s Final Environmental Impact Statement (“FEIS”) to argue that the regulations are unconstitutionally vague. They note that the FEIS discusses § 935.7(a)(2)(iii) only in the context of dredging, an activity that has a major effect on the seabed, and argue that the FEIS, as the only prior agency interpretation of the regulation in question, is entitled to substantial deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Although appellants are correct that the FEIS discusses § 935.7(a)(2)(iii) only in the context of dredging, appellants’ argument is unavailing. As we have previously noted, the regulatory language of § 935.7(a)(2)(iii) broadly prohibits alterations “of any kind.” Even if NOAA did not originally consider whether this regulation would apply to activities such as hammering at the seabed, the regulatory language is sufficiently broad to provide fair warning to the public that such activities are prohibited. See Hoffman Estates, 456 U.S. at 498, 102 S.Ct. at 1193; Doremus, 888 F.2d at 635.
Moreover, the FEIS is not a definitive agency interpretation of the scope of the regulations in question. Instead, an FEIS is intended to be a detailed statement of the significant environmental effects of the regulation. E.g., Sierra Club v. Clark, 774 F.2d 1406, 1411 (9th Cir.1985). Its purpose is to provide the agency with sufficiently detailed information to enable it to decide whether to proceed on a project in light of potential environmental consequences and to inform the public of the potential environmental impacts of the proposed enactment. Id. Because the FEIS is not intended to provide the public with a definitive statement of all activities that might fall within the regulation’s prohibitions, its terms do not limit our construction of the regulation.
As a final matter, there can be no doubt that appellants were aware that their activities were prohibited. The ALJ found that Ferguson announced to the group of divers that the shipwrecks were located in a federal reserve and were protected. At one of the shipwrecks Ferguson announced that removing objects from the site was illegal and that an underwater alarm would alert the group if a National Park Service patrol approached. The ALJ concluded that appellants “set out with their picks, hammers ... and other wreck raiding paraphernalia, fully intending to remove objects from these wrecks in the closed area within the Sanctuary, and that is what they did.” Given these undisputed facts, appellants’ claims that they lacked fair warning that their actions were prohibited ring hollow. See United States v. Ellen, 961 F.2d 462, 467 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 217, 121 L.Ed.2d 155 (1992); United States v. Clinical Leasing Serv., 925 F.2d 120, 123 (5th Cir.), cert. denied, — U.S.-, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991).
IV
We hold that § 935.7(a)(2)(iii) is neither overbroad nor unconstitutionally vague as applied to appellants’ conduct. The order of the district court is AFFIRMED.
. Penalties were also assessed against appellants Ferguson and Wilson pursuant to 15 C.F.R. § 935.7(a)(5), which prohibits any person from "removpng] or damag[ing] any historical or cultural resource." Section 935.7(a)(5) also served as the sole basis for assessing penalties against plaintiff-appellants Michael King, Thomas Stocks, and Donald Jemigan. Appellants do not challenge the constitutionality of § 935.7(a)(5) on appeal to this court.
. Appellants also argued that they have a preexisting right to perform salvage activities in the CINMS and that the regulations impermissibly restrict their rights under admiralty law principles to engage in the underlying activities. These claims were rejected by the district court.
. Appellants’ attempts to characterize their activities as minimally harmful fanning of sediment and manual hammering are misleading. As noted above, the AU found that appellants' hammering and chiseling activities were "excavations” that resulted in identifiable scars on the seabed. These factual findings have not been challenged on appeal.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0.125
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OPINION
PER CURIAM:
In this fourth appeal to this court involving the challenged Storm King Project, a hydroelectric facility slated to be built on the west bank of the Hudson River, defendant Consolidated Edison Company of New York, Inc. (“Con Ed”) appeals from a portion of a final judgment entered in the United States District Court for the Southern District of New York, Morris E. Lasker, J. Plaintiffs (collectively “Scenic Hudson”) cross-appeal from other parts of that judgment.
In the district court, plaintiffs contended that Con Ed could not dump rock and other fill material into the Hudson River, as planned, without first obtaining a permit from the United States Army Corps of Engineers under section 404 of the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1344. They also claimed that an additional permit was required by section 10 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 403. Judge Lasker agreed with Scenic Hudson on the need for a section 404 permit but held that Con Ed was not obliged to obtain a permit under section 10. He therefore granted plaintiffs’ motion for summary judgment as to section 404, awarding them permanent injunctive and declaratory relief, and denied it as to section' 10. The judge also granted Con Ed’s motions for summary judgment dismissing the complaint and for declaratory relief as to the section 10 claim and denied it as to the section 404 claim. Both Scenic Hudson and Con Ed appeal from those portions of the judgment rejecting their respective positions. As to these issues, we affirm the judgment of the district court on the well-considered opinion of Judge Lasker. 370 F.Supp. 162 (1973).
Scenic Hudson’s cross-appeal raises one additional question not dealt with in the court’s written decision. Plaintiffs argue that the judge erred in limiting injunctive relief to the actual discharge of fill material into the River rather than enjoining construction activities of any kind. Their rationale for this claim is that commencement of excavation would exert “tremendous pressure” on the licensing agency to grant Con Ed’s application. But there is also pressure on Con Ed to proceed as far and as fast as possible in order to avoid still further cost escalation and to preserve its license against a claim that it has not begun construction within the stipulated period. Under these circumstances, we cannot say that Judge Lasker abused his discretion in confining the injunction as he did.
We therefore affirm the judgment below in all respects.
. For the prior history of this case in our court, see Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966) (“Scenic Hudson I”) and Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463 (1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972) (“Scenic Hudson II”). See also Hudson River Fishermen’s Ass’n v. FPC, 498 F.2d 827 (2d Cir. 1974).
. Plaintiffs moved to amend the judgment to expand the scope of injunctive relief. Judge Lasker denied the motion without opinion.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2272727272727273, Costs: 0.1818181818181818
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WIDENER, Circuit Judge:
These actions arise because of EPA amending its regulations to comply with our mandate in Appalachian Power Co. v. Train, 545 F.2d 1351 (4th Cir. 1976). In Appalachian Power, approximately seventy power companies sought review of the Environmental Protection Agency’s (EPA) regulations promulgated under authority of the Federal Water Pollution Control Act (Act). The power companies now challenge EPA’s amendments to parts of 40 CFR Part 423 on grounds that they do not fully comply with Appalachian Power. Part 423 sets out the best practicable technology (BPT) limitation standards for the steam electric power industry. Natural Resources Defense Council (NRDC), through its petitions, also seeks a review of certain EPA BPT regulations, not on the ground that Appalachian Power has not been complied with but on the ground that § 301(7), 33 U.S.C. § 1311(7), a 1977 amendment to the Act, prohibits EPA from modifying any of § 301, 33 U.S.C. § 1311, including BPT limitations, for toxic pollutants. It also challenges the EPA variance amendments on the ground that they did comply with Appalachian Power so far as the factors in § 301(c) are referred to in the amended regulations.
In 1972, Congress passed the Federal Water Pollution Control Act (Act) with an ultimate goal of no pollutant discharges into our nation’s waters. Toward that ultimate goal, Congress established increasingly stringent standards of pollution control. Phase I of the Act sets best practicable technology (BPT) limitations to go into effect in 1977. In 1983, best available technology (BAT) limitation standards are to go into effect. Several parts of the Act were amended in 1977 but the basic goals and strategies of the Act remain intact. EPA is given broad power under the Act so that it may insure that the phases of improvement can be achieved. In order to carry out its obligation, EPA promulgated regulations setting single number effluent limitations for various industries in order to commence the achievement of the goal of the statute. In duPont, we held that EPA had the authority to promulgate such effluent limitations which are to be considered presumptively applicable. E. I. duPont de Nemours & Co. v. Train, 541 F.2d 1018, 1028 (4th Cir. 1976), aff’d on this point 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). Through the regulations, applicable unless rebutted, EPA hopes to achieve national uniformity as the goal of no discharge of pollutants is sought. Id. at 1028.
Appalachian Power involved a review of many of EPA’s regulations promulgated to aid in the application and enforcement of the Act. Only our holding dealing with BPT variance regulations is pertinent to our decision here. Among other provisions under attack in Appalachian Power was EPA variance clause providing that a variance from the 1977 standards set out in the regulations would be granted when “the factors relating to equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from those factors considered in establishing the guidelines.” Costs were excluded from consideration by EPA’s interpretation of its own regulation. We struck down the clause because EPA’s refusal to consider costs resulted in too restrictive a view of the minimum content of the variance. Under the 1983 standards set out in the Act, for example, costs were to be a relevant factor. Following our decision in duPont, we reasoned that the Act contemplated progressively more stringent standards as the country moved closer to the goal of elimination of pollutant discharge. Therefore, the 1977 standards were not intended to be any less flexible than the 1983 standards. As a result, we remanded the regulation to EPA for the agency to come forward with a meaningful variance clause taking into consideration at least the statutory factors set out in §§ 301(c), 33 U.S.C. § 1311(c); 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B); and 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B). Appalachian Power at 1359-60.
After the Supreme Court’s decision in E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), we modified our decision in Appalachian Power to exclude the requirement of a variance for new sources, but declined to modify the opinion further. In March 1978, EPA proposed its amendment to the BPT variance provision. 43 FR 8812-13 (1978). After a comment period, this rule was made final on September 22, 1978. EPA amended 40 CFR Parts 423.12(a), 423.22(a), 423.-32(a) and 423.42 by adding the following paragraph:
In accordance with the decision in Appalachian Power, 545 F.2d 1351, 1358-60 (4th Cir. 1976), EPA’s legal interpretation appearing at 30 FR 30073 (1974) shall not apply to this paragraph. The phrase “other such factors” appearing above may include significant cost differentials and the factors listed in section 301(c) of the Act.
43 FR 43025 (Sept. 22,1978) corrected at 43 FR 44848 (Sept. 29, 1978).
In October 1978, EPA published a notice rescinding its no-cost interpretation of 1974. 43 FR 50042. In October 1978, the utilities filed this action.
The utilities challenge the EPA amendment to the BPT variance provisions, contending that the mandate of Appalachian Power has not been met by the addition of “significant cost differentials and the factors listed in section 301(c) of the Act.” Specifically, the utilities argue that Appalachian Power requires EPA to consider 304(b)(1)(B) factors including “total cost . in relation to effluent reduction benefit.”
The utilities concede that the addition of “significant cost differentials and the factors listed in section 301(c) of the Act” to the existing variance provisions on its face could fulfill the Appalachian mandate. They argue, however, that EPA has made it clear that effluent reduction benefits are not a relevant factor under the regulation. The utilities urge that EPA’s interpretation of effluent reduction benefit is much too narrow in that it considers only costs in relation to the degree of effluent reduction with no consideration of receiving water quality. Such an interpretation, they urge, is impermissible in light of Appalachian.
No variance has been applied for here. Therefore, the utilities’ only authority offered to show EPA’s application of its newly amended regulations is the February 6, 1979 recommendation of the Assistant Administrator for Water Enforcement of the EPA tentatively turning down Cincinnati Gas and Electric Company’s application for a variance for its W. C. Beckjord Station, as well as the case of In re Louisiana-Pacific Corp., 10 ERC 1841 (1977). That document, the utilities contend, shows EPA’s rejection of water quality as a factor in considering effluent reduction benefits pursuant to Appalachian. There, Cincinnati Gas’ application for a variance from ph limitations was turned down because no fundamental difference was found to justify a less stringent standard. In commenting on receiving water quality, the Office of Enforcement of the EPA included in its recommendation to the Administrator the following:
The Administrator has determined In the matters of Louisiana Pacific Corporation NPDES No. CA0005894 and Crown Simpson Pulp Company NPDES No. CA0005882 10 ERC 1841 (September 16, 1977) (“Louisiana Pacific”) that EPA is not authorized to grant a FDF variance providing relief from technology-based limitations guidelines due to the characteristics of the receiving water. The type of receiving water or the fact that the receiving water quality will not be harmed by the discharge or measurably improved by installing control equipment are not legally fundamental differences.
Recommendation on Variance Ruling FDF 78-01 at pp. 7-8.
We think the utilities’ .reliance on the recommendation in the Cincinnati Gas and Electric variance recommendation is misplaced. First and principally, the Administrator has not yet taken any action with respect to the variance. That being so, we do hot believe that, even assuming the utilities’ construction of the recommendation to be correct, the recommendation of the Office of Enforcement to the Administrator is legally binding on the Agency. While it may have considerable significance, legal as well as practical, to the parties involved, it is little if anything more than an in-house memorandum from a subordinate in the Agency recommending to the Administrator the action he should take in passing on the requested variance. Second, the language we have above quoted, which is that upon which the utilities rely, we do not believe, read in context, can be taken to say that the Administrator in no instance will consider the quality of the receiving water as a part of the evidence in a case requesting a variance. Read literally, the language simply means that the quality of receiving water of itself is not a fundamental difference upon which a variance can be granted. This is entirely consistent with that part of our ruling in Appalachian Power in which we denied the claim of Consolidated Edison that it ought to be allowed to discharge into New York harbor not subject to effluent limitations because the harbor was already so dirty the addition of its effluent would make no difference. From an examination of the papers on hand in the Cincinnati Gas and Electric Company variance No. FDF 78-01, we believe, however, that the variance was not sought solely or even principally because of the water quality of the Ohio River into which the effluent flowed. Rather, it was based principally upon cost differentials and a claim that the addition of sulphuric acid to its settling ponds to reduce their alkalinity would do more harm to the receiving water than the effluent in question in that case.
Much the same remarks apply to EPA’s decision in In re Louisiana-Pacific Corp., 10 ERC 1841 (1977). In that case the claim of the industry was that a discharge of its effluent into the ocean would do no harm apparently because the ocean waters were so vast. The Administrator denied that variance, again entirely consistent with our opinion in Appalachian Power, concluding that he could provide no “. relief from technology-based effluent limitations guidelines due solely to the characteristics of particular receiving waters. .” He stated that he could not permit exemption where the type of receiving water is the fundamental difference between the seekers of the variance and other pulp and paper mills. In his opinion, the Administrator time and again made it plain that the only thing he acted upon was a request for a variance based solely on water quality. At no place in that decision did the Administrator indicate that he did or would hold that the quality of the receiving waters was irrelevant in all instances in variance proceedings. It is true EPA does take that position in its brief in this court: “Receiving water quality simply cannot legally be considered a relevant factor in evaluating a variance request.” Brief at p. 13. But as the mere recommendation of a subordinate does not bind the Agency, neither does the mere assertion of an attorney in a brief except for the purposes of that case. Much as we disagree with the statement, there has been no application of it in the case before us, and no binding statement has been made to that effect by the Administrator. We will have to await a proper case to see if the Administrator in actual practice, or in the administration of the statute, takes the same extreme position his attorneys do in the brief in this case. No such extreme position can be read into the Louisiana-Pacific or Cincinnati Gas variance cases.
Because we believe the amendment of the variance provision will admit consideration of all of the factors required in our opinion, and there has been no concrete application denying a variance request which is under review, we decline to set aside EPA’s amended regulations as a noncompliance with our mandate.
EPA and NRDC also ask us to reconsider our holding in Appalachian Power to the effect that § 301(c) factors are applicable in consideration of variances from BPT limitations. Id. at 1359-60. This issue was dealt with again by this court in National Crushed Stone Assoc. Inc. v. EPA, 601 F.2d 111 (4th Cir. 1979), and in Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979), cert, granted-U.S.-, 100 S.Ct. 1011, 62 L.Ed.2d 750 (1980). In those cases the industries successfully sought application of Appalachian Power’s BPT variance holding outside the steam electric industry to which EPA had limited our holding in Appalachian. We declined to change our Appalachian Power variance holding in those cases, and we decline to do so here.
We should note at this point that EPA continues to argue from extreme positions which we do not believe are justified by the statute, and even are not justified by the actions of the Administrator as distinguished from the language in his brief. EPA’s principal argument in this case is shown by an example it gives that a dis-charger of a copper compound might be granted a variance if it were on a clean river but not if it were on a dirty river. The example misses the point. If the dis-charger were economically able to correct its condition of violation and if its efforts resulted in reasonable further progress toward meeting the standard, then there is no reason to necessarily exclude the issuance of a variance. But if the continued discharge, during the time it took the industry to comply, might kill all aquatic life in the river, it might easily be said that the progress was not reasonable, while, if the discharge did little or no actual harm during this period, it might just as easily be said that reasonable progress was being made. To determine whether or not progress is reasonable, we repeat, it may be appropriate to consider water quality as a factor, that is to say as an item of evidence. Its sought-for arbitrary exclusion by EPA is simply too rigid a construction of the statute, and we do not believe it is justified. To hold otherwise ultimately can only result in regulation for regulation’s sake, at which point, of course, a serious question of constitutional limitations would arise. We believe this useful statute deserves better treatment.
NRDC’s petitions request us to hold that variances from BPT limitations cannot be granted to a discharger of toxic pollutants because of a 1977 amendment to the Act, which states:
The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) [33 U.S.C. § 1317(a)(1)]
§ 301(7) of the Act, 33 U.S.C. § 1311(7).
It is the contention of NRDC that the amendments to the various regulations should have as required content a prohibition against issuing a variance from BPT limitations on account of toxic pollutants.
33 U.S.C. § 1317(a)(1) (§ 307(a)(1) of the Act) requires the Administrator to publish a list of toxic pollutants. Upon designation of a pollutant as toxic, § 307(a)(2) [33 U.S.C. § 1317(a)(2)] goes into effect, requiring the EPA to set BAT standards for those pollutants.
As now interpreted by EPA, the variance clause applies to all pollutants for which BPT limitations are set by regulations. The BPT limitations for the steam electric industry include pollutants which are on the toxic pollutant list in 40 CPR Part 129. As noted, because of § 301(7), the NRDC contends that EPA in a repromulgation of its variance regulations must in terms exclude toxics from their coverage. EPA and the utilities contend that § 301(7) was not intended to apply to BPT, but only to the specific sections of § 301 which allow an operator to be relieved of an effluent limitation. They also argue that a BPT variance is not a true variance so as to bring § 301(7) into effect. BPT variances, the argument goes, do not excuse anyone from meeting BPT limitation standards. Instead, they enable EPA to determine an individual BPT limitation for an industry procuring a variance. As a result, an operator granted a variance is still in compliance with its BPT limitation standard. Its standard is just different from others.
It is apparent that if either argument just above stated is correct that EPA is not required to exclude toxic pollutants from BPT variances. We think that § 301(7) does not apply to BPT variances.
Toxic pollutants prior to the 1977 amendments were not treated differently from other pollutants in that BAT technology was not necessarily applied, and dischargers discharging toxic pollutants were nevertheless included in those required to comply with BPT effluent limitations. While the 1977 amendments have required BAT limitations for discharges of toxic substances, they do not indicate that they are to operate retroactively so as to possibly retract any variance previously issued to an industry which just happened to be discharging toxic substances, or to obliterate the known practice of EPA in not excluding toxic substances from those pollutants for which a variance might be granted under BPT effluent limitations. Neither does the legislative history justify such a construction. See 3 U.S. Code Congressional and Administrative News, 1977, p. 4326 et seq. The interpretation of the statute by EPA is entitled to some deference. E. I. duPont de Nemours v. Train, 430 U.S. 112, 135 h. 25, 97 S.Ct. 965, 978 n. 25, 51 L.Ed.2d 204 (1977). It is also true that retroactive application of a statute is not favored. Union Pacific RR Co. v. Laramie Stockyards Co., 231 U.S. 190,199, 34 S.Ct. 101,102, 58 L.Ed. 179 (1913). In our case, § 301(7) speaks to preventing the modification of any requirement of § 301 as it applies to any specific pollutant on the toxic pollutant list. On its face, it might thus be said to apply to such parts of the statute as § 301(c) which speaks of modifying requirements for BAT limitations. Indeed, in § 301(g), 33 U.S.C. § 1311(g), also a part of the 1977 amendments, it is provided that the Administrator, with the concurrence of the State, shall modify BAT requirements with exceptions including toxic pollutants. While this may well be an indication of Congressional intent that the statute should be read as EPA reads it, that § 301(7) applies only to those sections of § 301 which in terms permit modification, in all events the best that can be said for § 301(7) is that it is not clear. That being true, we give weight to the construction the administering agency has placed upon the statute, and, when we consider that retroactivity is not favored, we are of opinion that § 301(7) does not apply so as to require the exclusion of toxic substances from BPT variance provisions.
Our ruling today is limited to the holding that BPT variance regulations need not exempt toxic pollutants. We do not consider whether or not, or how, EPA will construe § 301(c) with relation to § 301(7). That question is not before us and its consideration would be premature.
Accordingly, being of opinion that EPA’s amendments to 40 CFR §§ 423.12(a), 423.-22(a), 423.32(a), and 423.42 are sufficient to permit a compliance by the agency with our opinion and mandate, the petition of the industry to require further consideration of this matter by EPA is denied. (This petition was filed in case No. 74-2096.) The petition of the industry dealing with the same subject in case No. 78-1701 is likewise denied for the same reasons.
The petitions of NRDC are also denied for the reasons stated in this opinion. (These petitions were filed in cases Nos. 78-1878 and 78-1902.)
. 33 U.S.C. § 1251 et seq.
. Specifically amended were 40 CFR 423.12(a), 423.22(a), 423.32(a) and 423.42.
. § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A).
. § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A).
. § 423.12(a) interpreted at 39 FR 28926-27 (Aug. 2, 1974), 30073 (Aug. 13, 1974).
. § 301(c), 33 U.S.C. § 1311(c), provides:
The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.
§ 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B), provides that such regulation shall: specify factors to be taken into account in determining the control measures and practices to be applicable to point sources (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b) (1) of section 1311 of this title shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilitites involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality enviroment impact (including energy requirements), and such other factors as the Administrator deems appropriate;
§ 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B), provides:
As soon as practicable, but in no case more than one year, after a category of sources is included in a list under subparagraph (A) of this paragraph, the Administrator shall propose and publish regulations establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promulgate, within one hundred and twenty days after publication of such proposed regulations, such standards with such adjustments as he deems appropriate. The Administrator shall, from time to time, as technology and alternatives change, revise such standards following the procedure required by this subsection for promulgation of such standards. Standards of performance, or revisions thereof, shall become effective upon promulgation. In establishing or revising Federal standards of performance for new sources under this section, the Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements.
. No. 74-2096, Order of September 26, 1977.
. NRDC had filed its original petition on September 28, 1978, in the D.C. Circuit. The utilities and NRDC then filed petitions for review in this court. Upon motion, the D.C. Circuit transferred NRDC’s first petition to this court. NRDC v. EPA, No. 78-1929 (D.C.Cir. Dec. 21, 1978) .
. The Deputy Assistant Administrator for Water Enforcement, who made the recommendation in Cincinnati Gas and Electric Co., acts only as the principal adviser to the Administrator of EPA on matters of enforcement. 40 CFR § 1.31. Thus, his decision is not binding on the Administrator. In like vein, we held that a decision of the Provider Reimbursement Review Board, an in-house-board, does not bind the Secretary of HEW, who can modify or reverse that decision on his own motion. Fair-fax Hospital Ass’n, Inc. v. Califano, 585 F.2d 602 (4th Cir. 1978). See also, e. g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (NLRB rejected examiner’s findings); Environmental Defense Fund, Inc. v. EPA, 489 F.2d 1247 (D.C.Cir. 1973) (Administrator decided contrary to the conclusion of the Hearing Examiner regarding the banning of DDT); Adolph Coors Co. v. FTC, 497 F.2d 1178 (10th Cir. 1974) (FTC overruled Administrative Law Judge’s finding that Coors had not violated § 5 of the Federal Trade Commission Act); Peterson v. Gardner, 391 F.2d 208 (2d Cir. 1968), (Appeals Council can rule contra to decision of the Hearing Examiner); Alcoa Steamship Co. v. Federal Maritime Commission, 321 F.2d 756 (D.C.Cir. 1963) (Maritime Commission rejected recommendation of examiner and approved pooling agreement); Bras-well Motor Freight Lines v. USA, 275 F.Supp. 98 (W.D.Texas 1967), aff’d 389 U.S. 569, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968) (ICC rejected recommendation of its examiner).
. The utilities also rely upon EPA’s comments published with its amendment of the variance provisions in 40 CFR Part 423. 43 FR 40324 (Sept. 22, 1978), typographically corrected at 43 FR 44847 (Sept. 29, 1978). The comments no more than reflect the ruling in Louisiana-Pacifíc, supra, and are not contrary to our mandate in Appalachian Power.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.08333333333333333, Costs: 0.2
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OPINION OF THE COURT
ADAMS, Circuit Judge.
This case involves an important question regarding the interpretation of the Federal Water Pollution Control Act (FWPCA). We must determine whether the Environmental Protection Agency (EPA) may issue a permit which would allow dischargers to comply with effluent limitations at a time subsequent to July 1, 1977, the date set forth in the legislation.
I.
FWPCA encompasses a complex statutory scheme that seeks “to restore and maintain the chemical, physical and biological integrity of the nation’s waters” in order to achieve a “national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.”
Three interrelated provisions form the heart of the program and are the focus of this litigation. Section 301(b) establishes two stages of effluent limitations. The stage relevant to our present inquiry is the requirement of conformity by July 1, 1977 with “effluent limitations for point sources . which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act . . . .” Section 304(b)(1)(A), in turn, mandates the EPA to promulgate guidelines for emissions by certain industries, including the iron and steel industry, by October 18, 1973. The third provision, section 402, establishes the National Pollutant Discharge Elimination System (NPDES) permits as the primary means through which effluent limitations are to be enforced. All discharges of pollutants must be authorized by a permit issued by either the EPA or the state environmental authorities. Subsection (a)(1) of section 402 states that the permits are to be conditioned on conformity with all applicable requirements of certain other statutory provisions, including section 301. It is further provided that all permits must be issued by December 31, 1974.
Thus, the legislative structure is that general standards of pollution control are to be promulgated under sections 301 and 304, and that these standards are then to be implemented in particular cases through the use of section 402 permits.
The sequence of administrative action contemplated by Congress has never taken hold in the iron and steel industry. The section 304 guidelines for that industry were not established by October 18, 1973; indeed, none are in force today. As a result, permits have been issued to iron and steel manufacturers under a clause of section 402(a)(1) that empowers the EPA to grant permits, on an interim basis, before formal guidelines are promulgated.
II.
On December 31, 1974, the EPA issued a permit to Bethlehem, pursuant to its stopgap authority, containing effluent limitations and compliance schedules, and requiring attainment of final compliance levels by July 1, 1977. For Bethlehem to meet this deadline it would have to complete extensive construction by April 1, 1977, an accomplishment which Bethlehem has insisted is physically impossible in spite of good faith compliance efforts. The earliest date by which it could meet the prescribed levels would be July 1, 1979. Bethlehem fully pursued its administrative remedies in an attempt to obtain an extension of the compliance date. Although EPA agreed that compliance by July 1, 1977 was not feasible, it ruled at all stages that it was without power under FWPCA to grant an extension.
A significant development occurred subsequent to the filing of the petition for review in the present case that bears heavily on the resolution of this proceeding. On June 3, 1976, EPA circulated a memorandum which stated that, in certain instances, it would not undertake enforcement actions against dischargers for failure to meet the July 1, 1977 deadline. Recognizing that some industrial dischargers would be unable to conform, despite good faith efforts, the agency announced that if a discharger did not have a final permit, EPA would issue an Enforcement Compliance Schedule Letter (ECSL). The ECSL would specify a program requiring final Stage I effluent limitation levels at some time after July 1, 1977. EPA was careful to note, however, that the permit issued to recipients of an ECSL would contain the July 1, 1977 compliance date. EPA has continued to insist that it is without statutory power to alter the deadline. Rather, the EPA urges that the ECSL program is merely an exercise of its prosecutorial discretion.
In a letter commenting on the impact of the ECSL scheme on the present action, and at oral argument, EPA stated that Bethlehem, having already received a final permit, is not eligible for an ECSL. However, EPA informed us that its stipulation with Bethlehem has the same effect as an ECSL and that enforcement action was, perforce, highly unlikely.
This Court has jurisdiction pursuant to section 509(b)(1) of FWPCA, which provides for review in the courts of appeals of action by the Administrator of EPA “in issuing or denying any permit under section 402.” After scrutinizing the contentions of the parties, we have decided that the petition for review must be dismissed.
III.
As the first step in our analysis, we must explore the problem whether this case has become moot. As noted, EPA has told the Court that, because of the stipulation between the parties, it does not contemplate bringing enforcement action against Bethlehem when the projected failure to comply with the July 1, 1977 deadline comes to pass. Since the stipulation, however, does not obviate all the adverse consequences that might be visited upon Bethlehem because of its inability to conform to the deadline date, we conclude that a live case or controversy still exists.
Two considerations shape our determination. Although EPA made clear that it had no intention to bring either a civil or a criminal action against Bethlehem, it conceded that it could not foreclose that possibility in the future. A more significant factor affecting the question of mootness, however, is the provision in section 505 of FWPCA for citizen suits against dischargers which fail to comply with the terms of a permit. While a citizen must give the EPA advance notice of his intention to sue, there is no authorization to block a citizen’s suit under section 505 even though the agency believes that the suit should not go forward. Thus, the EPA-Bethlehem stipulation would not foreclose the possibility that a citizen could proceed with litigation seeking the imposition of sanctions because of Bethlehem’s inability to comply with the statutory deadline. Accordingly, this case cannot be deemed moot and we must proceed to the merits.
IV.
At the core of Bethlehem’s argument on appeal is its contention that, in' spite of the explicit provision of the July 1, 1977 deadline in the legislation, Congress could not possibly have intended to subject corporations to sanctions for failing to comply with time limits that proved to be unattainable. In such circumstances, it continues, Congress surely would intend for EPA to have the discretion to grant extensions to companies that were undertaking good faith compliance efforts.
Bethlehem has not based its assertions on the text of the statute. Instead, in support of its position, it has directed our attention to several aspects of the legislative history. It states that the Phase I compliance date in early drafts of the legislation was July 1, 1976, and that for Phase II, July 1, 1981. Congress, however, pushed “these dates forward because of the time consumed in completing Congressional action.” Bethlehem insists that this amendment manifests a Congressional concern for the need of industry to have adequate time to plan and consummate compliance activity. It further maintains that this sensitivity should be interpreted as permitting the Administrator to bend the July 1, 1977 requirement when dischargers cannot meet that date through no fault of their own.
Bethlehem also asserts that the legislative history contains many statements indicating that Congress was attentive to the social and economic ramifications of the standards to be established under 301, 302 and 304 of FWPCA. In particular, it stresses the observations of Senator Randolph, a member of the Senate-House Conference Committee:
“The Committee does not want to impose impossible goals, nor does it intend to require expenditures so excessive that they would undermine our economy. Consequently, under the proposed legislation, controls must relate the economic and social benefits to be gained with the economic and social costs to be incurred.”
The draconian consequences of EPA’s strict insistence on the July 1, 1977 deadline, Bethlehem contends, is inconsistent with Congressional awareness of the unwelcome economic impact of the overly zealous pursuit of environmental goals.
Although we are sympathetic to the plight of Bethlehem and similarly situated dischargers, examination of the terms of the statute, the legislative history of FWPCA and the case law has convinced us that July 1, 1977 was intended by Congress to be a rigid guidepost. The portions of the legislative history cited by Bethlehem speak to the economic and social consequences of the substance of guidelines established under sections 301, 302 and 304. Indeed, section 304(b)(1)(B) explicitly mandates that the Administrator is to consider social and economic costs in the context of assessing the best practicable control technology available.
There are no comparable expressions of concern with the economic consequences of the July 1, 1977 date. Instead, all discussion of this date in the legislative history indicates that Congress viewed it as an inflexible target. The most important statement on the significance of the July 1, 1977 deadline was made by Senator Muskie, the principal author of FWPCA:
This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform and that they will be final upon the issuance of a permit under section 402 of the bill.
This view was echoed by Representative Jones, a member of the Senate-House Conference Committee:
It is the intention of the managers that the July 1, 1977 requirements be met by phased compliance and that all point sources will be in full compliance no later than July 1, 1977.
The import of these statements is reinforced by a further portion of the legislative history. H.R. 11896, the House version of the bill that ultimately became FWPCA, contained a provision authorizing EPA to extend the compliance deadline in cases where there was a showing of hardship upon the discharger. The Senate bill, however, included no comparable clause. When the final version of the legislation emerged from the Conference Committee, it provided no authority for extension of the deadline for any reason whatsoever, and FWPCA as enacted also lacks such a mandate. The failure of a conference committee to include a portion of a bill proposed in one House is not a conclusive indicium of legislative intent. But here, in light of the other segments of the legislative history, it leads to the conclusion that Congress did not authorize the EPA to deviate from the July 1, 1977 deadline for attainment of Phase I compliance levels.
We are aware that our interpretation of FWPCA may work a hardship on Bethlehem, which is doing everything within its power to achieve the required levels of effluent limitation as expeditiously as possible. However, the cases in general, and in the environmental field in particular, teach that the appropriate body from which to seek relief in situations such as the present one is the Congress. Two recent decisions interpreting ecology statutes illustrate this proposition.
The Supreme Court examined a comparable problem in Union Electric Co. v. EPA, a case which arose under the Clean Air Act. In Union Electric, the Court held that the EPA may not reject a state implementation plan on the grounds of economic and technological infeasibility. The Court acknowledged that harsh consequences could ensue under such an interpretation, but stated that this was a risk that Congress had opted to take, and that it was not for the courts to upset that Congressional decision. Union Electric appears to indicate that the Supreme Court is willing to construe environmental statutes in a manner that may impose major burdens on polluters, and if the plain language of the applicable legislation so indicates, relief from such hardships must flow from Congress.
The decision in State Water Control Board v. Train, reflects an approach similar to that taken in Union Electric in the context of a factual situation closely resembling the one in this case.
Section 301(b)(1) of FWPCA requires that publicly-owned sewage treatment plants must comply with certain effluent limitations by July 1, 1977. The Act states that the federal government will provide 75% of all funding required for construction of municipal treatment facilities. For a variety of reasons much of the funding was not made available to local governments. This resulted in many publicly-owned treatment plants being unable to meet the July 1,1977 deadline. The Virginia State Water Control Board brought suit for a judgment declaring that the affected sewage treatment plants did not have to meet the compliance date. The Board urged that Congress must have intended to link compliance with the deadline to the availability of the federal funds.
Judge Mehrige’s opinion expressed sympathy for the predicament in which the municipalities had been placed by the federal government’s failure to meet its statutory responsibility. But he ruled that there was no warrant in the legislation for granting an extension of the compliance date. The proper branch of government to extricate the local governments from their difficulties, Judge Mehrige stated, was not the courts, but Congress.
Consequently, on the basis of the legislative history and the adjudicated cases, we hold that the EPA is without authority to grant an extension, in NPDES permits, of the July 1, 1977 date.
V.
Bethlehem has also asserted that if FWPCA is construed to require compliance by July 1,1977, the Act, then, deprives it of the due process of law guaranteed by the fifth amendment. It would appear, however, that the federal government’s power over interstate commerce is sufficiently broad to encompass this effort to confront the pressing problem of improving the quality of our nation’s waters.
We have examined the other contentions raised by Bethlehem and the amicus and find them to be without merit. The petition for review will therefore be dismissed.
. 33 U.S.C. §§ 1251 et seq. (Supp. III 1973).
. Id. § 1251(a). We are providing only a thumbnail sketch of FWPCA. For more complete descriptions, see American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1035-42 (3d Cir. 1975); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 695-98 (1975).
. 33 U.S.C. § 1311(b) (Supp. III 1973).
. Id. § 1314(b)(1)(A).
. Id. § 1342.
. Id. § 1342(a)(1).
. Id. § 1342(k).
. In Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975), the United States Court of Appeals for the District of Columbia Circuit ruled that EPA was under a statutory obligation to promulgate guidelines for 27 enumerated industries, including iron and steel, and ordered EPA to issue these guidelines as expeditiously as possible. Indeed, it should be noted that EPA conceded that this was its responsibility. See id. at 704. EPA did issue Phase I guidelines for the iron and steel industry. However, they were set aside by this Court in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975). To this date, EPA has not published revised Phase I guidelines.
. Section 402(a)(1) of FWPCA, 33 U.S.C. § 1342(a)(1) (Supp. III 1973) authorizes the Administrator to issue permits “prior to the taking of necessary implementing actions.” In such cases, the permits are premised upon adherence to “such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.”
. See NPDES Permit Number PA 0011177.
. See Stipulation of the Parties ¶¶ 8-10, App. at 70a-71a.
. See id. at 71a.
. These facts have been stipulated to by EPA and Bethlehem. See App. at 69a-71a.
. See 7 BNA Environmental Law Reporter 241-42. (June 11, 1976).
. 33 U.S.C. § 1369(b)(1)(F) (Supp. III 1973).
. Although the EPA granted Bethlehem a permit in this case, Bethlehem contends that one of the conditions in the permit is premised on an erroneous interpretation of FWPCA. Thus, Bethlehem seeks review of action taken in issuing a permit.
. See Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975).
. 33 U.S.C. § 1365.
. 33 U.S.C. § 1365(b) provides that no citizen’s suit may be filed unless the putative plaintiff has given the administrator at least 60 days’ notice of his intention to sue.
. In a similar vein, Republic Steel Corporation, as amicus, argues that the EPA’s failure to issue guidelines for the iron and steel industry pursuant to the statutory mandate, see note 8 supra, is another factor that should lead us to hold that July 1, 1977 is not an absolutely rigid deadline. Republic maintains that by requiring that all guidelines be promulgated by October 18, 1973, and all permits issued by December 31, 1974, Congress indicated that dischargers were to be granted a minimum amount of “lead time” for planning and executing compliance strategies. EPA’s tardiness, Republic asserts, thus entitles it to a reprieve from the July 1, 1977 deadline. It should be mentioned, however, that Bethlehem did receive its permit on December 31, 1974, the last day of the allowable period for permit issuance.
Bethlehem has also brought EPA’s delay in promulgating guidelines to our attention, urging that it buttresses its assertion that Congress wrote many unrealistic compliance dates into FWPCA. It also submits that when EPA’s action was challenged, the courts granted the agency a measure of relief. See Reply Brief at 6. We note, however, that the D.C. Circuit, in National Resources Defense Council, see note 8 supra, ruled that EPA’s failure to issue iron and steel guidelines pursuant to the Congressional timetable was improper.
. See Environmental Policy Division of the Library of Congress, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess., (Comm. Print 1973) at 237. [Hereinafter cited as Legis.Hist.]
. Id. at 1272. See also id. at 350 (remarks of Representative Blatnik); id. at 244, 352 (remarks of Representative Harsha).
. See 33 U.S.C. § 1314(b)(1)(B) (Supp. III 1973) (stating that Administrator shall consider, inter alia, “total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.”)
. See Legis.Hist. at 162.
. See id. at 231. See also id. at 1278 (remarks of Senator Bentsen).
. Section 301(b)(3) of H.R. 11896 provided:
The Administrator may extend for any point source the dates prescribed in subparagraphs (A) and (B) of paragraph (1) of this Subsection. No extension or extensions of such date shall exceed a total of two years from the date prescribed in such subparagraph. Public hearings must be held by the Administrator in connection with any such extension prior to granting such extension. No extension shall be granted unless the Administrator determines that it is not possible either physically or legally to complete the necessary construction within the statutory time limit.
Administration officials strongly supported the inclusion of such authority. Russell E. Train, then Chairman of the Council on Environmental Quality, stated that:
It is our view that a 1976 [later amended to 1977] deadline toward achieving best practicable treatment is a reasonable deadline, and the extension we suggest of 2 years is simply designed to recognize that there can be hardship cases that will exist at the termination of that period of time.
Legis.Hist. at 1175.
. See Gemsco, Inc. v. Walling, 324 U.S. 244, 264-65, 65 S.Ct. 605, 89 L.Ed. 921. But cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609, 72 S.Ct. 863, 896, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring) (“It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem ... to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.”)
. See, e. g., In re I. J. Knight Realty Corp., 501 F.2d 62, 67 (3d Cir. 1974); Mathey v. United States, 491 F.2d 481, 487 (3d Cir. 1974).
. 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).
. Id. at 265, 96 S.Ct. 2518.
. Id. at 269, 96 S.Ct. 2518. See also id. at 269, 96 S.Ct. 2518. (Powell, J., concurring).
. See also City of Santa Rosa v. EPA, 534 F.2d 150 (9th Cir. 1976), where the Ninth Circuit upheld EPA gas rationing regulations in spite of the severe economic and social displacement that would be imposed upon certain areas of California. The Court expressed serious concern about the consequences of the regulations, but stated that any ameliorative action would have to come from Congress. Id. at 155.
. 8 E.R.C. 1609 (E.D.Va.1976).
. 33 U.S.C. § 1311(b)(1) (Supp. III 1973).
. Id. § 1282.
. 8 E.R.C. at 1612, 1616, 1617.
. The final report of the National Commission on Water Quality specifically recommends that the Congress authorize extensions of the July 1, 1977 deadline in appropriate cases. Report to the Congress by the National Commission on Water Quality, March 18, 1976, at 15.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0
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PER CURIAM:
Valley Camp Coal Company appeals from a judgment of the district court imposing a fine upon a finding that the defendant, in violation of 33 U.S.C. § 407, did unlawfully “throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited . . from the shore,” refuse matter, to-wit, black coal waste matter into an unnamed tributary of the Kanawha River, from which such refuse matter was floated and washed into the Kanawha River, a navigable water of the United States.
On appeal, the appellant contends that in order for it to be guilty under the above-quoted first clause of the statute, the evidence must tend to show that the defendant company directed a discharge of the refuse matter into a tributary of the Kanawha River, and that, instead, the evidence tends to show that it only caused refuse matter to be deposited on the shore of the tributary, which waste matter was subsequently washed into the tributary by a thunderstorm and rain.
We reject the contention, and hold that a violation of the statutory offense described in the first clause of the statute is made out by proof of depositing refuse matter on the shore of a tributary of a navigable river and the subsequent washing of the same by rainfall into the tributary.
Affirmed.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.04276315789473684, Costs: 0.003289473684210526
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TIMBERS, Circuit Judge:
Appellants Lewis Stephen Work, et al. (the citizens or Work) appeal from two orders entered December 3, 1987 and March 24, 1989 in the Western District of Arkansas, Oren Harris, Senior District Judge. 720 F.Supp. 132. The first denied intervention in a government environmental enforcement action or consolidation of that action with an earlier citizens’ action. The second denied another motion for intervention in the Environmental Protection Agency (EPA) action. The citizens appeal also from final judgments entered June 19, 1989 and August 24,1989 after trial of the citizens’ action. Appellee/cross-appellant Tyson Foods, Inc. (Tyson) appeals from the final judgments. Tyson also appeals, and the citizens cross-appeal, from the denial of Tyson’s motion for reconsideration filed November 28, 1989. All appeals have been consolidated.
Work commenced the citizens’ action against Tyson and the City of Green Forest (the City or Green Forest) on March 3, 1987, asserting claims pursuant to both the Clean Water Act (the Act or CWA), 33 U.S.C. §§ 1250-1387 (1988), and common law. On September 28, 1987, the EPA commenced an action against Green Forest and the State of Arkansas pursuant to the CWA. The government enforcement action resulted in a consent decree. The citizens’ action proceeded to trial, resulting in a verdict against Tyson under the CWA; against Tyson and for the citizens on the common law claims; and for Green Forest on the citizens’ remaining claims. The court previously had granted partial summary judgment for the City, dismissing the CWA claims against it. The court assessed penalties against Tyson pursuant to the CWA, payable to the United States Treasury.
On appeal, Work sets forth a laundry list of claimed errors by the district court: (1) in denying their motion to intervene and/or denying their motion to consolidate; (2) in dismissing their claims against Green Forest under the CWA; (3) in calculating the penalties assessed against Tyson under the CWA; (4) in various evidentiary and instruction-related matters; and (5) in dismissing medical claims of ten employees, directing a verdict against Patricia Hudson, and directing a verdict to deny an award of punitive damages.
On cross-appeal, Tyson also claims that the district court erred in various other respects, including: (1) in its instruction to the jury on discharger liability; (2) in failing to grant Tyson’s motion for a directed verdict; and (3) in failing to grant Tyson’s motion to dismiss.
For the reasons set forth below, we reverse the second order of the district court denying intervention in the government enforcement action and remand for the limited purpose of assessing attorneys’ fees; we affirm the final judgment entered in the citizens’ action with respect to the CWA claims; and we affirm in part and reverse in part with respect to the common law claims.
I.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. We also summarize briefly the statutory background of the CWA.
(A)
The CWA, enacted in 1972, creates a comprehensive program “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As part of that program, § 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits all discharges of pollutants into navigable waters except those ' made in compliance with other sections of the Act, including § 402, 33 U.S.C. § 1342, which establishes the National Pollution Discharge Elimination System (NPDES).
Section 402(a) provides that the EPA shall issue NPDES permits authorizing effluent discharges in strict compliance with conditions specified in the permit. 33 U.S.C. § 1342(a). Section 402(b) allows each state to develop and administer its own permit program, provided that the program meets federal requirements. 33 U.S.C. § 1342(b). And Section 402(c) provides that the EPA shall suspend issuance of federal permits upon determining that a state has adequate authority to implement and enforce the permitting program within the state. 33 U.S.C. § 1342(c).
The Act directed the Administrator of the EPA to promulgate regulations setting limits on the pollution that can be discharged, delineated by three general types of “point sources,” id. at § 1362(14): sources that discharge pollutants directly into navigable waters (direct dischargers); publicly owned treatment works (POTWs), which engage in the treatment of industrial sewage or industrial wastewater, id. at § 1292(2); and sources that discharge their pollutants not into navigable waters but into the POTWs (indirect dischargers). National Ass’n of Metal Finishers v. EPA (NAMF), 719 F.2d 624, 633 (3d Cir.1983) (discussing statutory framework of the CWA), rev’d on other grounds sub nom. Chemical Mfrs. Ass’n v. N.R.D.C., Inc., 470 U.S. 116 (1985). “Congress recognized that the pollutants which some indirect dis-chargers release into POTWs could interfere with the operation of the POTWs, or could pass through the POTWs without adequate treatment.” Id. Section 307(b)(1) of the Act provides that:
“The Administrator shall ... publish proposed regulations establishing pretreatment standards for introduction of pollutants into [POTWs] for those pollutants which are determined not to be susceptible for treatment by such treatment works or which would interfere with the operations of such treatment works_ Pretreatment standards under this subsection ... shall be established to prevent the discharge of any pollutant through [POTWs], which pollutant interferes with, passes through or otherwise is incompatible with such works.”
33 U.S.C. § 1317(b)(1).
For POTWs, the Administrator was to set effluent limitations based on “secondary treatment,” id. at §§ 1311(b)(1)(B) and 1314(d)(1). These limitations were to be applied through the NPDES permit for each POTW. Id. at § 1342; NAMF, supra, 719 F.2d at 633.
The Act authorizes several different enforcement actions if a NPDES permit holder fails to comply with the specified permit conditions. Section 309 authorizes the United States to enforce a federal or state permit through a variety of administrative, civil, and criminal mechanisms. 33 U.S.C. § 1319. A state may take similar action, under appropriate state law, in response to a state-issued permit. Id. at § 1342(b)(7). In addition, Section 505(a)(1) of the Act permits private citizens to commence a civil action in certain situations against anyone “who is alleged to be in violation of ... an effluent standard or limitation under this chapter,” id. at § 1365(a)(1), which includes a federal or state NPDES permit or condition thereof, id. at § 1365(f). No such action, however, may be commenced under the following circumstances:
“(A) prior to the sixty days after plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.”
Id. at § 1365(b)(1)(b). The CWA specifically provides that statutory and common law rights are not restricted: “Nothing in this section shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief_” Id. at § 1365(f).
(B)
Green Forest is a small town in the Ozark Mountains of northwest Arkansas. It is located in Carroll County, which has a topography known as “karst”. Karst is permeable limestone readily penetrated by surface water. Streams frequently submerge and re-emerge. Streams having an intimate contact with the groundwater system through sinkholes or other means are called “losing streams.”
In 1953, the City constructed its POTW at its present location on Dry Creek, a losing stream. Dry Creek flows through the area where Work and the other citizens who commenced the citizens’ action live. It is into Dry Creek that the POTW discharges.
In 1959, a poultry processing plant, Franz Foods, was constructed and began discharging a growing waste load into the POTW. Franz Foods was acquired by Tyson in 1968.
In December 1968, the City sought federal funding to construct a new POTW capable of meeting secondary treatment standards. In the grant application process, the EPA approved plans and specifications for the new POTW subject to conditions, including limitations on Tyson discharges. In May 1973, the City requested an NPDES permit, as required by the CWA, to operate its new POTW and discharge into Dry Creek, indicating the POTW should be capable of secondary treatment of waste. The limitations on Tyson discharges however were not enforced. Tyson did not pretreat its waste or produce an effluent meeting the required criteria until 1985.
During the early 1970s, residents east of the City (including several of the citizens involved in this case) sued Tyson’s subsidiary, Franz Foods, for maintaining a public nuisance. That action was settled in 1976 after the City’s new POTW was completed; Franz Foods agreed not to discharge any waste that would alter Dry Creek’s existing condition visually or chemically, or that constituted a violation of any City ordinance, or county, state or federal law.
The loading on the POTW continued to grow, and the POTW failed to meet the standards of its original permit. At the trial of the citizens’ action, Tyson’s expert witness admitted that, without pretreatment, there would be no way that a waste from a poultry-processing plant like Tyson’s could comply with the POTW’s design criteria.
The City received periodic warnings from environmental agencies regarding permit violations and other problems. When the POTW permit expired on May 1, 1977, a new permit was drafted. The Arkansas State Department of Pollution Control & Ecology wrote to the Mayor, stating the need for the City to negotiate a schedule of compliance with Franz Foods. In 1978, on a single-shift operation, Tyson processed approximately 260,000 pounds of chicken per day. In 1979, Tyson processed approximately 310,000 pounds of bird per day. POTW permit violations continued.
In April 1981, the EPA issued a new NPDES permit to the City for its existing facility, requiring an effluent that met higher-quality water standards. In view of the City’s inability to meet those standards, an administrative order set interim limits and a timetable for compliance.
In May 1983, a sinkhole opened in Dry Creek. The creek’s entire flow ran directly into the ground. At this point, the POTW had a volume in excess of 1,000,000 gallons per day.
At some point in 1984, Tyson’s production changed from a cut-up operation to a deboning operation, working with larger birds; this change increased its waste. Tyson then processed approximately 750,000 pounds of chicken per day.
In August 1984, the Arkansas Department of Health advised the City that a number of wells in the immediate vicinity of the sinkhole were being affected; that public water should be made available to the affected residents; and that the City should make efforts to improve the quality of the POTW’s effluent.
Tyson completed a pretreatment facility in May 1985. Once it went on-line, the quality of the City’s POTW effluent improved dramatically, falling from levels equivalent to diluted domestic sewage to levels well below secondary treatment standards. Tyson, however, continued to be the principal load on the POTW, which in turn continued to violate its now-strict permit. In 1986 Tyson converted to a double shift operation, processing 92 birds per minute per shift; this change was made in anticipation of increasing production capacity to 140 birds per minute per shift.
(C)
On November 28, 1986, the citizens sent notice to all parties, as required by 33 U.S.C. § 1365(b)(1)(A), of their intent to sue Tyson and the City pursuant to the CWA. After the action was commenced, the EPA commenced a separate environmental enforcement action. On November 25, 1987, Work filed a motion in the EPA action seeking intervention as of right and seeking consolidation. On December 3, 1987, the court denied the motions. Work did not appeal immediately from the order denying these motions.
On January 28, 1989, after engaging in settlement negotiations, the government lodged a proposed consent decree with Green Forest. An opportunity for public comment was provided. On March 17, Work filed a second motion to intervene in the government action. On March 24, the court again denied the motion. On March 29, the court approved the proposed consent decree. On April 20, Work filed a notice of appeal from the orders denying their motions to intervene of December 3, 1987 and March 24, 1989.
The separate citizens’ action proceeded to trial. On April 12, 1989, the court entered partial summary judgment in favor of Green Forest, dismissing Work’s CWA claims. The court found that the approved consent decree between the EPA and Green Forest precluded the citizens from pursuing their CWA claims. On May 12, after a six-week trial, the jury returned a verdict against Tyson for $254,401.50 on Work’s common law claims and found Tyson guilty of 43 CWA violations. On June 16, the citizens moved for assessment of CWA penalties against Tyson. On June 19, judgment was entered in favor of the City and against Work, and in favor of Work and against Tyson for common law damages. On June 29, Tyson moved for judgment n.o.v. This was denied on August 24, at which time the court assessed $43,000 against Tyson for CWA violations. Judge Harris’ opinion assessing penalties is published at Work v. Tyson Foods, Inc., 720 F.Supp. 132 (W.D.Ark. 1989). On September 7, Tyson moved for reconsideration, for judgment n.o.v., or for a new trial. Those motions were denied on November 28.
II.
(A)
We turn first to the threshold question of our jurisdiction to entertain Work’s appeal, filed April 20, 1989, from the denial of two motions to intervene in the EPA action. Work claims that his motions for intervention should have been granted as of right. 33 U.S.C. § 1365(b)(1)(B) and Fed.R.Civ.P. 24(a)(1); see also United States v. Metropolitan St. Louis Sewer Dist., 883 F.2d 54, 56 (8th Cir.1989) (holding that the CWA conferred upon a citizens’ group intervention as of right).
It is well-settled that an order denying a motion to intervene as of right is a final appealable order. Brotherhood of R.R. Trainmen v. Baltimore & O. R.R., 331 U.S. 519, 524 (1947); Corby Recreation, Inc. v. General Elec. Co., 581 F.2d 175, 176 n. 1 (8th Cir.1978); Sellers v. United States, 709 F.2d 1469, 1471 (11th Cir.1983).
A notice of appeal from such an order must be filed within sixty days. Fed.R. App.P. 4(a)(1). In the instant case, the notice of appeal from the denial of the first motion to intervene was not until after nearly sixteen months. Since an appellate court lacks jurisdiction over an untimely appeal, United States v. Metropolitan Dist. Comm’n, 865 F.2d 2, 4 (1st Cir.1989), we lack jurisdiction over the December 3, 1987 order denying intervention.
The appeal from the second order presents a closer question. On its face, the appeal was filed timely: the order was entered March 24, 1989 and the appeal was filed April 20. Relying largely on Hodgson v. United Mine Workers, 473 F.2d 118 (D.C.Cir.1972), however, appellees claim that the second motion “was merely a back door attempt to revive the trial court’s earlier order so as to start the time for appeal running anew.”
In Hodgson, the district court denied the appellant’s first motion to intervene as of right on March 10, 1972. On June 20, the district court denied appellant’s second motion to intervene. The appellant timely appealed the denial of the second motion. 473 F.2d at 122-23. On appeal, the court held that “the question of jurisdiction must be resolved by ascertaining whether the June 20 order ... was merely a reinstatement of the court’s March 10 ruling or whether it constituted a new determination by the District Court reached under circumstances materially changed from those existing in March.” Id. at 125. The court went on to say that “[i]f the later order was only an attempt to revive the earlier order, it did not start the time for appeal all over again.” Id. Ultimately, the court held that there were “changed circumstances” such that “the June 20 order ... constituted a fresh evaluation of the intervention application, well within the discretionary power of the District Court to make, and amenable to review on the merits by this court.” Id. at 126-27.
Here, too, we find that the context in which the citizens sought intervention on March 17, 1989 was different from the context in which intervention and consolidation had been sought on November 25, 1987. By March 17, 1989, there was a proposed consent decree between the EPA and the City. In their second motion, the citizens made specific reference to the proposed settlement and articulated their specific objections to the consent decree as well as their concern (which was later confirmed) that it would be the basis for defendants’ moving for dismissal of the citizens’ action on the ground of collateral estoppel. Although the citizens had expressed concerns about possible settlement sixteen months earlier, the settlement possibility, in 1987, was merely inchoate. Consistent with Hodgson, we hold that the existence of the proposed consent decree resulted in a change in circumstances that made a renewed motion for intervention legitimate.
(B)
Since we find it appropriate to exercise jurisdiction over the appeal from the March 24, 1989 order, we hold that the court erred in denying the citizens leave to intervene, since the CWA expressly provides for intervention as of right. Metropolitan St. Louis Sewer Dist, supra, 883 F.2d at 56. Since we find, however, that the district court’s denial of the motion, for the most part, was harmless error, we reverse and remand on that issue only for the limited purpose of permitting the citizens group to seek attorneys’ fees.
Although Judge Harris denied Work’s formal intervention order, the citizens, de facto, were permitted to participate. As Judge Harris stated in his order, the citizens had the opportunity, of which they took advantage, to file their objections to the consent decree during the available public comment period. There is little else that they could have done had they formally intervened. United States v. Ketchikan Pulp Co., 430 F.Supp. 83, 85 (D. Alaska 1977) (holding that “once intervenors have been given the opportunity to object to the decree they have had an appropriate day in court and a judgment on consent may be entered”). In that case, a consent decree under the CWA was entered over objections of environmental groups.
In denying the citizens’ motion to intervene, Judge Harris relied explicitly on our decision in DuBois v. Thomas, 820 F.2d 943 (8th Cir.1987). There we held that the district court was without subject matter jurisdiction to entertain a citizens’ action commenced to compel the EPA to take investigatory and enforcement action, duties which we held were discretionary rather than mandatory. Although Judge Harris’ reliance on DuBois in denying the citizens’ intervention motion was somewhat misplaced, as a practical matter, DuBois supports our holding that the error here was largely harmless. That is so because commencing an enforcement action against Green Forest in the first instance was a discretionary rather than mandatory duty. Hence, ultimately settling the action also was within the EPA’s discretion. Had the citizens intervened, they still would not have been able to compel a consent decree on their own terms. As we said in DuBois, the CWA “was not intended to enable citizens to commandeer the federal enforcement machinery.” Id. at 949.
The citizens assert, however, that the denial of the intervention motion robbed them of their right to seek attorneys’ fees. They point out that the citizens’ suit predated the EPA action, and that their efforts were instrumental in spurring the EPA into finally taking action against the City. This has some force. We agree that the citizens should be permitted to seek their fees.
Accordingly, while we will not second-guess the terms of the consent decree itself, we reverse the denial of intervention insofar as it precluded the citizens from seeking their fees, and we remand the case on this issue for the district court to determine the proper amount of such fees.
III.
We turn next to the citizens’ appeal from the district court’s denial of their motion to consolidate. Work asserts that, since there was little or no difference between the issues presented in both actions, their motion to consolidate should have been granted.
Although Work failed to designate that the citizens were appealing from the denial of the motion to consolidate as well as the denial of the motion to intervene, that omission was not prejudicial to appellees. Notices of appeal are to be liberally construed. Fed.R.App.P. 3(c); McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 659 (8th Cir.1982). We have jurisdiction to review the court’s denial of consolidation on the merits.
Pursuant to Fed.R.Civ.P. 42(a), a district court “may order” consolidation. The order denying Work’s motion to consolidate should not be disturbed unless it is determined that the court clearly abused its discretion. Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir.1978); Gentry v. Smith, 487 F.2d 571, 581 (5th Cir.1973); 9 Wright & Miller, Federal Practice and Procedure § 2383 (1971); see also Chicago, Rock Island & Pacific R.R. v. Williams, 245 F.2d 397, 404 (8th Cir.), cert. denied, 355 U.S. 855 (1957) (discussing court’s discretion pursuant to Rule 42(b)). The record here supports the district court’s denial of the motion to consolidate. The citizens sought punitive damages, compensatory damages for personal injuries, and relief for many common law tort claims. These claims were not relevant to the EPA action. Moreover, the citizens’ claims were to be tried before a jury, while the EPA action was to be tried before the court.
We hold that, in denying Work’s motion to consolidate, the court properly exercised its discretion in the interests of expedition and economy.
IV.
We turn now to the CWA claims raised by both Work and Tyson.
(A)
First, the citizens assert error in that they never had a chance to present their CWA claims against Green Forest. The district court found that the citizens were precluded, by the doctrines of res judicata and collateral estoppel, from pursuing their CWA claims. We agree that res judicata barred these claims.
The doctrine of res judicata was articulated in Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.1983), in which we explained that
“The doctrine of res judicata bars a later suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies.... [B]oth [collateral estoppel and res judicata] are applied only when the party against whom the earlier decision is being asserted had a ‘full and fair opportunity' to litigate the issue in question.”
Work concedes that the CWA claims made in the citizens’ suit were the same as those made by the EPA. He argues, however, that, since the citizens were not involved in the action that resulted in the consent decree, they should not have been precluded from pursuing their CWA claims independently. We disagree.
The citizens’ action provision of the CWA casts the citizen in the role of a private attorney general. Atlantic States Legal Found, v. Tyson Foods, Inc., 897 F.2d 1128, 1131 n. 5 (11th Cir.1990). As the Supreme Court stated in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987), however, the CWA was intended to be enforced primarily by the government:
“The bar on citizen suits when governmental enforcement action is underway suggests that the citizen suit is meant to supplement rather than supplant governmental action. The legislative history of the Act reinforces this view of the role of the citizen suit. The Senate Report noted that ‘[t]he Committee intends the great volume of enforcement actions to be brought by the State,’ and that citizen suits are proper only ‘if the Federal, State, and local agencies fail to exercise their enforcement responsibility.’ ”
(quoting S.Rep. No. 92-414, p. 64 (1971), reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973)). In Gwaltney the Court held that citizen suits could not be brought for wholly past violations of the Act, stating that permitting such suits “could undermine the supplementary role envisioned for the citizen suit.” Id. at 60; see also DuBois, supra, 820 F.2d at 949 (the CWA allows citizens to supplement government enforcement power).
In this case, we are faced squarely with the question whether citizens’ claims brought prior to a government action are properly dismissed when a consent decree is entered in a later-filed EPA action. Recognizing the preeminent role that government actions must play in the CWA enforcement scheme, we hold that they are.
The preclusive effect of a consent decree on a private enforcement action was addressed by the court in United States v. Olin Corp., 606 F.Supp. 1301 (N.D.Ala.1985). There, the State of Alabama and the United States sought injunctive relief to require the Olin Corporation to eliminate DDT from, and restore the environment in, the vicinity of Redstone Arsenal. As part of the resolution of the case, Olin, the United States, and Alabama entered into a consent decree.
The court stated that “once a state represents all of its citizens in a parens patriae suit, a consent decree or final judgment entered in such a suit is conclusive upon those citizens and is binding upon their rights.” Id. at 1304. The court held that the question whether the citzens’ suit was barred by res judicata turned on whether the prior litigation was a parens patriae suit. “In a proper parens patriae suit, the state or federal government is deemed to represent all of its citizens_ Traditionally, parens patriae lawsuits involved a government suing to enjoin alleged nuisances caused by water or air pollution.” Id. at 1305. The court held that the plaintiffs’ suit for injunctive relief was barred by res judicata because the same relief had been sought in the action brought by Alabama and the United States in a parens patriae capacity. Id. at 1308; see also Student Pub. Interest Group, Inc. v. Georgia-Pacific Corp., 615 F.Supp. 1419, 1432 (D.N.J.1985) (“The consent judgment which resolved the previous lawsuit against defendant forecloses subsequent litigation as to all claims adjudicated therein.”).
In this case, the citizens place great emphasis on the fact that their action was commenced prior to the EPA enforcement action; they suggest that because the CWA expressly provides that citizens cannot commence an action before giving the EPA sixty days notice, 33 U.S.C. § 1365(b)(1)(A), the failure of the EPA to commence an enforcement action within that time frame means that “the subsequent filing of an enforcement action by the Government could not supplant the citizen enforcement action already pending.” We recognize that there may be some cases in which it would be appropriate to let a citizens’ action go forward in the wake of a subsequently-filed government enforcement action. In view of the consent decree in the instant case negotiated by the EPA and Green Forest, however, this is not such a case.
Some lower courts in other circuits have reached a result contrary to the one we reach today. E.g., Atlantic States Legal Found., Inc. v. Koch Refining Co., 681 F.Supp. 609, 614 (D.Minn.1988) (holding that district court had “no discretion” to dismiss a properly filed citizen suit when a government enforcement action was later brought covering the same claims); Sierra Club v. Coca-Cola Corp., 673 F.Supp. 1555 (M.D.Fla.1987) (consent decree entered into by the EPA and the defendant did not require dismissal of the Sierra Club action for the same CWA violations when the Sierra Club, a third party in the case, did not consent). In view of the preeminent role that must be afforded the EPA in enforcing CWA violations — a role contemplated by the legislative history and recognized by the Supreme Court in Gwalt-ney — we hold that it was proper for the district court to dismiss Work’s CWA claims against Green Forest after the latter had entered into a consent decree with the EPA. The EPA is charged with enforcing the CWA on behalf of all citizens. Since citizens suing under the CWA are cast in the role of private attorneys general, as a practical matter there was little left to be done after the EPA stepped in and negotiated a consent decree. See our discussion under Part 11(B), supra. Fines recoverable pursuant to the CWA are payable to the United States Treasury and would not have been recovered directly by the aggrieved citizens had their action continued. While the citizens might have preferred more stringent terms than those worked out by the EPA, such citizens are no more aggrieved than citizens who are precluded from commencing an action in the first instance because of pending agency action.
Although the issue was not framed in terms óf res judicata or collateral estoppel, the comments of the Southern District of New York in Hudson River Fishermen’s Ass’n v. County of Westchester, 686 F.Supp. 1044 (S.D.N.Y.1988) are instructive. Responding to “HudFish’s” argument that dismissal of its citizens’ action would leave the group without a remedy, the court stated:
“We are particularly unimpressed with this latter argument. The thrust of the CWA is to provide society with a remedy against polluters in the interest of protecting the environment. Section 101 of the CWA, 33 U.S.C. § 1251(a). If the Government’s action achieves that end, the fact that HudFish or any other private attorney general is barred from duplicating that effort should hardly seem surprising or harsh. The Government, of course, as representative of society as a whole, usually is in the best position to vindicate societal rights and interests. In those instances where, for whatever reasons, the Government fails or declines to take action, the CWA allows citizens acting as private attorneys general to fill the void. That does not mean, however, that HudFish is ipso facto entitled to its own, ‘personalized’ remedy in this or any other CWA case.”
Id. at 1052.
It should be borne in mind that the citizens in this case were permitted to prosecute their CWA claims against Tyson, as well as their common law claims against both Tyson and the City. It was only the CWA claims that the district court found to be barred by res judicata and collateral estoppel.
We hold that that ruling was proper.
(B)
Tyson’s claim that the court erred in refusing to dismiss claims against it based on res judicata, however, need not detain us long. In essence, Tyson asserts that the EPA’s decision not to commence an action against it is binding upon the citizens. This novel proposition flies in the face of the clear language of the citizens’ action provision of the CWA, as well as the legislative history, which make clear that agency inaction is precisely the circumstance in which private action is appropriate. Student Pub. Interest Research Group, supra, 615 F.Supp. at 1427 (“Defendant’s interpretation of the Act would render citizen suits impossible when they are required most: instances where an agency encourages a polluter to believe its unlawful behavior will go unpunished.”).
(C)
We next address Tyson’s argument that its motion to dismiss should have been granted because of the lack of regulatory definitions of “interference” and “pass-through.” See our discussion of the statutory framework of the CWA, under part 1(A), supra.
The CWA regulations provide that “[a] User may not introduce into a POTW any pollutant(s) which cause Pass Through or Interference.” 40 C.F.R. § 403.5 (1989). Tyson relies on the holding in NAMF, supra, 719 F.2d at 640-41, rev’d on other grounds sub nom. Chemical Mfrs. Ass’n v. N.R.D.C., Inc., supra, 470 U.S. 116, to support its contention. Tyson misreads the holding in NAMF. As we have pointed out, NAMF merely held “that liability could not be imposed on industrial users without proof of causation.” Arkansas Poultry Fed’n v. EPA, 852 F.2d 324, 328 (8th Cir.1988). The NAMF court rejected a definition of “interference” that would have created liability for causing or “significantly eontributpng]” to a violation of an NPDES permit, 719 F.2d at 639, holding that:
“We conclude that given the language and purpose of the Act, an indirect dis-charger cannot be liable under the prohibited discharge standard unless it is a cause of the POTW’s permit violation or sludge problem. If the definition of ‘interference’ required that an indirect discharger be both ‘the cause of and ‘significantly contribute to ’ the POTW’s permit violation, it would be consistent with that causation requirement. As written, however, the definition fails to require such causation, and thus violates the clear meaning of the Act.”
Id. at 641 (emphasis added).
While the NAMF court rejected the then-existing regulatory definitions of “interference” and “pass-through,” 719 F.2d at 641, the regulatory prohibitions, as Work points out, remained intact. We agree with the citizens that the CWA’s prohibitions against “interference” and “pass-through” are not unconstitutionally vague, but adequately apprised Tyson that it was not to cause the City to violate its NPDES permit.
We hold that the district court properly denied Tyson’s motion to dismiss.
(D)
We next address Tyson’s claim that the district court erred in denying its motion for a directed verdict pursuant to Gwaltney, supra, which held that citizens’ actions are not permitted for wholly past violations of the CWA. 484 U.S. at 59. Tyson points out that it constructed an advanced pretreatment facility at substantial expense, which went on-line in 1985, subsequent to which Tyson claims it “never exceeded the agreed local limits designed for optimum operation of the POTW.”
The citizens assert that violations of the City’s permits continued after 1985. Work asserts further that Tyson’s reliance on the affirmative defense of compliance with local limits does not get Tyson off the hook. CWA regulations provide for an affirmative defense for compliance with a local limit if that limit was designed to prevent pass through and/or interference, 40 C.F.R. § 403.5(a)(2)(ii)(A) (1989), and if the POTW user “did not know or have reason to know that its Discharge, alone or in connection with discharges from other sources, would cause Pass Through or Interference”. Id. at § 403.5(a)(2)(i). We agree with Work that Tyson has not established these conditions.
Gwaltney makes clear that the citizens' suit provision “confers jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation_” 484 U.S. at 64. Judge Harris, in this case, explicitly found that “[a] review of the plaintiff’s second amended complaint makes it indelibly clear that the plaintiffs have made good-faith allegations of ongoing violations by Tyson.” Work, supra, 720 F.Supp. at 137. The judge found, moreover, that there was “substantial evidence adduced at trial establishing a reasonable likelihood of a recurrence of intermittent violations before and since November 1985 when Tyson’s new treatment facility began operat-ing_” Id. at 138. Our review of the record discloses no reason for disturbing Judge Harris’ finding in this regard.
We hold that the district court properly denied Tyson’s motion for a directed verdict.
(E)
Tyson also claims that the court erred in instructing the jury on discharger liability under the CWA. True, two of the instructions given by Judge Harris — those relating to direct discharger liability and liability applicable to NPDES permit holders — were wholly irrelevant to this case. Tyson is an indirect discharger and thus could not be liable pursuant to those theories.
We hold, however, that this error was cured when Judge Harris subsequently gave the jury the proper instruction on indirect discharger liability. The judge stated:
“Also, if you find by a preponderance of the evidence that Tyson Foods, Inc. has violated the Clean Water Act by causing the City of Green Forest, Arkansas, to violate a provision of its Clean Water permit, you must determine the number of occasions on which Tyson has violated the Clean Water Act.
In order to make this determination, you must determine how many violations by the City of its Clean Water Act permit were caused by Tyson Foods, Inc.”
The evidence adduced all related to Tyson’s role as an indirect discharger. The jury’s verdict was consistent with the instructions given by the judge with respect to indirect discharger liability. In EEOC v. Atlantic Community School Dist., 879 F.2d 434, 437 (8th Cir.1989), we explained that “[jjury instructions are subject to the ‘harmless error’ rule requiring a determination of whether the error affected the ‘substantial rights of the parties.’ ” (citations omitted).
We hold that in this case the judge’s error in giving superfluous instructions relevant only to direct dischargers and permit holders was harmless, in light of his correct instruction on indirect discharger liability.
(F)
This brings us to Work’s claim that the district court erred in assessing $43,000 in penalties against Tyson for CWA violations. The jury found Tyson guilty of 43 separate violations. The court assessed penalties in the amount of $1,000 per violation. Work, supra, 720 F.Supp. at 139.
Work claims that the district court erred in declining the citizens’ request to instruct the jury that a violation of a thirty-day average effluent limitation constitutes thirty separate daily violations of the Act. Atlantic States Legal Found., supra, 897 F.2d at 1139. We agree with the majority of the courts that have addressed the issue that violation of a monthly average effluent should be counted as thirty separate violations. Id. at 1139. We find, however, that the district court’s failure specifically to articulate this rule in its jury instructions in this case was harmless error.
In Atlantic Community School District, supra, we held that the district court’s failure to give a proposed instruction did not affect the relevant party’s “substantial rights”:
“Because EEOC’s theory of the case was apparent to the jury throughout the trial, and because the instructions given neither failed to guide the jury on the central issue of age discrimination nor inhibited the jury in making such a finding, error in failing to give the proposed instruction, if error there were, would have been harmless. In sum the jury could have, but simply chose not to, agree with EEOC’s theory of the ease.”
879 F.2d at 437 (citation omitted).
In this case, too, the jury could have agreed with Work that Tyson was guilty of many more than 43 violations of the CWA. The court simply instructed the jury that it was required to “determine how many violations by the City of its Clean Water Act permit were caused by Tyson Foods, Inc.” Work’s expert testified at trial that there were 720 violations “assuming that a violation of the 30-day average permit for administrative order requirement is tantamount to 30 separate daily violations.... ” As Tyson points out, however, there also was evidence from which the jury could have concluded that the problems with the POTW were primarily the fault of the City rather than Tyson. Furthermore, the jury had before it reports of discharges calculated on a daily, weekly, and monthly basis.
In the district court’s opinion, where, inter alia, it assessed penalties against Tyson, the court stated that it “construe[d] the decisions of the jury to be that there were violations on 1^3 separate days." Work, supra, 720 F.Supp. at 138 (emphasis added). Earlier in that opinion, the court stated that it had heard and had the benefit of the entire record in the case. Id. at 137. The opinion indicates, moreover, that the court considered the law applicable to the assessment of penalties. For example, in the section addressing Gwaltney, the court referred to the Fourth Circuit’s holding that each violation of monthly averages for discharge of pollutants amounts to a violation for each day of the month. Id. at 135.
We find no reason to disturb the court’s construction of the jury award; nor do we find that its failure to use Work’s proffered jury instruction was anything other than harmless error, if indeed it was error at all. The jury was made aware, through counsel’s questions, that it could find more than 700 violations of the CWA if it so chose. Although we would be more comfortable with the jury instructions if the court had clearly articulated the rule with respect to monthly average permit violations, its failure to do so was at most harmless error.
Work argues further, however, that the court erred in assessing only a $1,000 fine per violation. We disagree. We hold that the assessment was within the proper exercise of the court’s discretion.
Work relies almost exclusively on the Eleventh Circuit’s decision in Atlantic States, supra, for the proposition that the district court erred in failing to assess higher penalties. In Atlantic States, the court of appeals held that the district court abused its discretion in levying no penalty whatsoever against the defendant after violations of the CWA had been established. The court stated that “[w]hile the amount of penalty to be levied is discretionary with the district court, its determination, based solely on the good faith efforts of [the defendant] to comply with the law, that no penalty was appropriate was and would be an abuse of discretion.” 897 F.2d at 1142. The court remanded the ease to the district court with the direction that, if it chose not to impose the maximum penalty under the Act, it “reduce the fine in accordance with the factors spelled out in section 1319(d), clearly indicating the weight it gives to each of the factors in the statute and the factual findings that support its conclusions.” Id. at 1142 (emphasis added). In the instant case, unlike in Atlantic States, the court did impose a penalty after considering, in substance, the matters contemplated by 33 U.S.C. § 1319(d).
Section 1319(d) provides that violators shall be subject to a maximum penalty of $10,000 for violations before February 4, 1987 and $25,000 for violations thereafter. It also provides that:
“In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and any such other matters as justice may require.”
33 U.S.C. § 1319(d).
In its opinion addressing penalties, the district court here explicitly considered “the extent of violations as well as the number of violations through the years”; “[ajbility to pay and litigation considerations”; and “the policy by EPA in arriving at just and reasonable penalties under the statute.” Work, supra, 720 F.Supp. at 138-39. The court also stated that:
“Defendant Tyson has strongly contended that a new facility of the defendant was undertaken and is now in place, operating to alleviate the previous violations at a cost in excess of a million dollars. The defendants insist that the flow of wastewater from its plant through the facility of Green Forest would prove [sic] and has already without question alleviated the previous violations.”
Id. at 138.
The district court, in its opinion, relied on the old version of § 1319(d), which was in effect at the time the citizens’ action was commenced. 720 F.Supp. at 135. At the time the court assessed penalties, that section had been amended to provide for higher penalties and to provide specific factors, set forth above, for district courts to consider when assessing penalties. While not referring to the new § 1319(d), however, in essence the court considered precisely those factors Congress found appropriate —i.e., defendant’s conduct, good faith, and financial situation.
We hold that the court’s failure precisely to invoke the talismanic language of the new § 1319(d) does not rise to the level of reversible error. We affirm the court’s assessment of CWA penalties.
We have considered the parties’ other claimed errors with respect to the CWA, and we find them to be without merit.
V.
We turn next to Work’s claimed errors with respect to various evidentiary rulings made by the district court, relevant to both the CWA and common law claims. Work claims that the court erred in applying a “statute of limitations” to the evidence that it permitted to be introduced in Work’s case against Tyson. The statute of limitations for CWA violations is five years. The court excluded evidence predating that period. Work also claims error in that the court excluded evidence of a settlement in prior litigation reached between Franz Foods (Tyson’s subsidiary) and some of the citizens in the instant case.
Work points out that the evidence of prior violations was relevant to such issues as Tyson’s knowledge and culpability, even if Tyson could not be held liable for violations pre-dating the statute of limitations period. Furthermore, he points out that, pursuant to Fed.R.Evid. 408, a settlement can be introduced in evidence for purposes other than to show liability.
Work is right that there is no rule that automatically excludes evidence pre-dating a statute of limitations period. In this case, it may have been error for the court automatically to exclude considerable evidence that was relevant to Tyson’s culpability. Most of the evidence that Work complains should have been admitted, however, was relevant primarily for determining punitive damages. As stated below, we are remanding the case for the purpose of deciding the issue of punitive damages. To the extent the evidence was not admitted where it might have had some tangential relevance to other claims, however, we hold that the error was harmless, particularly since the evidence would have been largely cumulative with respect to many of Work’s claims for relief. As for the admissibility of such evidence, we have made it clear that “[e]ven with a clear showing of abuse, the error must have affected the substantial rights of the parties to warrant reversal of the district court.” Hogan v. American Tel. & Tel. Co., 812 F.2d 409, 410 (8th Cir.1987). Any such error in the instant case did not rise to that level.
With respect to the exclusion of the settlement agreement, suffice it to refer to “our rule that the trial court’s ruling on the admissibility of evidence will not be disturbed absent a clear and prejudicial abuse of discretion.” Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30 (1983). The exclusion of the settlement agreement was well within the court’s discretion.
VI.
This brings us to Work’s claimed errors with respect to the trial of the common law claims.
(A)
Turning first to the directed verdict against an award of punitive damages, a review of the record makes clear that the court was under a misapprehension of the law with respect to the relevant Arkansas law. The court stated that:
“Punitive damages is a harsh rule of law.
You've got the intent of intentional injury, and I don’t think there’s any testimony in any of this record at all that would serious [sic] contend that Green Forest or Tyson in their own mind and heart were going to do this intentionally just to punish. If you can show me any testimony otherwise, I probably could be persuaded.”
The judge’s view that a directed verdict was appropriate because Tyson did not “intentionally” pollute “just to punish” was error as a matter of Arkansas law.
We recently summarized Arkansas law on punitive damages and explained that the issue had been properly submitted to the jury in a case involving exposure to chemicals:
“For punitive damages to be awarded under Arkansas law, the plaintiffs must show malice, either express or inferred. Inferred malice requires that the defendant knew or should have known of the potential harm, but proceeded anyway with conscious indifference to the possibility of injury. Witnesses testified at trial that Dow knew of the dangers of DBCP as early as 1961, and yet did nothing. Open cans of DBCP were dumped in open waste pits, and the smell of the chemical was repeatedly detected in the plant. Dow took no precautions to protect its employees. This evidence was sufficient to justify submitting the punitive damages issue to the jury.”
Loudermill v. Dow Chemical Co., 863 F.2d 566, 571 (8th Cir.1988). Under Arkansas law, knowledge and indifference are enough for punitive damages. The Arkansas Supreme Court expressly has held that a deliberate intent to injure is not required. National By-Products v. Searcy House Moving Co., 292 Ark. 491, 494, 731 S.W.2d 194, 195-6 (1987).
In this ease, the fact that Tyson may not have intended to “punish” the citizens is not dispositive of the punitive damages issue. There was evidence from which the jury could have inferred that Tyson knew the risk involved in drinking water because of its chicken operations, and yet Tyson acted for years with indifference to that risk.
We hold that the court erred in directing a verdict against an award of punitive damages and we remand the case for determination of that issue. In re-trying that issue, the court should consider carefully the admissibility of evidence predating the applicable statute of limitations period and should exclude evidence only if its prejudicial value outweighs its probative value. Fed.R.Evid. 403.
(B)
We next address the citizens’ contention that the court erred in directing a verdict against Patricia Hudson and against the medical claims of ten citizens. We hold that the court erred in this respect.
Hudson’s claim was for alleged damage to real property. Counsel for Tyson asserted that “the credible testimony in the record is that she received fair market value [for her property] without regard to any alleged pollution.” Hudson, however, had testified at trial that water pollution had devalued her land by $69,000—the difference between what she and her husband paid for the property and what they ultimately sold it for. In arguing against Tyson’s motion for a directed verdict, counsel for the citizens pointed out that there was evidence on both sides, and that the question of property damage should be left for the jury. The court, however, ruled that “on the question of credibility, I will grant the motion.”
The court clearly usurped the jury’s role in ruling on Tyson’s motion. We have made it clear that, in ruling on a motion for a directed verdict, the court should consider only evidence favoring the non-moving party. Dace v. ACF Indus., 722 F.2d 374, 376 (8th Cir.1983). Granting such motions is appropriate only where the evidence is such that, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict. Mulholland v. Schneider Service Co., 661 F.2d 708, 711 (8th Cir.1981). In the instant case, the court explicitly considered credibility in granting Tyson’s motion. Indeed, credibility was the very basis for his ruling.
In view of this clear error, which prejudiced Hudson, we are compelled to reverse and remand to the district court for reconsideration of Hudson’s claim.
Similarly, we hold that it was error for the court to have directed a verdict to deny the medical claims of ten of the citizens. The citizens testified as to medical complaints and also adduced the evidence of a medical doctor. The defendants presented no rebuttal evidence. The court, however, ruled: “The Court thinks there’s just not enough testimony in this record to justify a jury taking the time to determine whether or not they’re entitled to damage because they had the stomach ache and diarrhea. Who doesn’t have it occasionally?”
We hold that the court usurped the jury’s function. The medical claims should have been submitted to the jury. We remand with instructions that the court do so.
(C)
We turn next to Work’s claims of error with respect to the court’s instructions on inverse condemnation and property damage. The citizens claim that the court erred in instructing the jury that the plaintiffs had the burden of proving “that the City of Green Forest knew by its discharge of wastewater into Dry Creek it was taking the property.... ” According to Work, “[i]t is sufficient that the City took some action which had the effect of taking the property. The City’s intent or knowledge is not determinative.” We agree.
The citizens rely on the Arkansas Supreme Court’s recent decision in Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990), for the proposition that intent or knowledge is irrelevant to the issue of taking. The City relies on the same case for the proposition that knowledge or intent is essential.
Robinson involved a claim for inverse taking where the plaintiffs’ home had been flooded intermittently with effluent from the city’s sewer system over a nine-year period. There was no question that the city was aware of the problem. The Arkansas Supreme Court was presented with the question whether “instances of negligence, with respect to which the city has immunity from suit, may, if sustained a long time, amount to inverse condemnation.” Id. at 227-28, 783 S.W.2d at 54. The court held that the sustained negligence did constitute an inverse taking. Id. at 228, 783 S.W.2d at 54.
The evidence in this case indicates that the City allowed excessive levels of effluent to enter Dry Creek for decades. The Robinson court explicitly stated that negligence, sustained over a long period of time, can be the basis of an inverse condemnation claim. The facts of Robinson do not indicate that the City in that case ever intended to take the property. Green Forest’s reliance on the statement in Robinson that a municipality is liable when “its actions are shown to be intentional,” id. at 232, 783 S.W.2d at 56, is misplaced. That statement does not mean that the City must have intended to take the property. Such an interpretation would contradict the holding of the case. That passage simply requires that the City intended its action, not the results of its action. The Robinson case controls our decision and requires that the citizens be allowed a new trial on their damage claims for inverse condemnation.
On remand, the district court is instructed to correct other errors, pointed out by the citizens and discussed below, with respect to its instructions on inverse condemnation and property damage (which errors, standing alone, might not have compelled reversal were it not for the fatal error with respect to the issue of intent).
The court erred in stating that the citizens had to show “that the taking of property occurred on or after March 3, 1984.” Although it was proper for the court to apply a three-year statute of limitations to the taking claims, the Arkansas Supreme Court has made clear that the limitations period begins to run only “ ‘at the time when it becomes obvious that a permanent injury has been suffered.’ ” City of Springdale v. Weathers, 241 Ark. 772, 774, 410 S.W.2d 754, 756 (1967) (citation omitted). The court’s instruction here did not make this clear.
We also find that it was error for the court to have instructed the jury that it was to consider “enhancement of the property, if any, to the value of such plaintiff’s land which resulted from the extension of the city water to such property.” The citizens are correct that it was proper for the jury to have considered only any enhancement that was the direct result of a taking, e.g., McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488 (1964). The extension of city water here was not such an enhancement. This error should be corrected with regard to plaintiffs’ claims against Tyson as well as the City.
VII.
To summarize:
We hold that we are without jurisdiction to consider the denial of Work’s first motion to intervene, but that we do have jurisdiction to consider the denial of the second intervention motion. Since the court erred in denying that second motion, we remand for consideration of attorneys’ fees. We hold that the court properly exercised its discretion in denying Work’s motion to consolidate. We hold further that the court properly dismissed the CWA claims against the City based on res judicata.
With respect to both parties’ claimed errors relating to the trial of the CWA claims against Tyson, we affirm the judgment of the district court in its entirety, finding no prejudicial errors.
With respect to the trial of the common law claims against Tyson, we substantially affirm but reverse and remand in part. We hold that the court erred in directing verdicts against Patricia Hudson, against the medical claims of ten citizens, and against the citizens on their punitive damages claims. On remand, the court is instructed to submit these claims to the jury. Specifically with respect to the punitive damages claim, the court is further instructed to make rulings on the admissibility of evidence consistent with Fed.R.Evid. 403.
With respect to the trial of the common law claims of inverse condemnation against the City, we reverse and remand based on the court’s erroneous instruction on the issue of intent. On remand, the court is further instructed to correct other errors with respect to its instructions.
We have considered the parties’ other claims of error, and find them to be without merit.
Affirmed in part, reversed in part, and remanded.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05172413793103448, Costs: 0.04310344827586207
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McKAY, Circuit Judge.
The City of Albuquerque [Albuquerque] filed a complaint challenging the U.S. Environmental Protection Agency’s [EPA] approval of the Pueblo of Isleta’s [Isleta Pueblo] water quality standards on numerous grounds. After denying Albuquerque a temporary restraining order and a preliminary injunction, the district court denied its motion for summary judgment while granting the Defendant EPA’s motion for summary judgment. City of Albuquerque v. Browner, 865 F.Supp. 733 (D.N.M.1993). Albuquerque now appeals the district court’s judgment.
I. Background
In 1987, Congress amended the Clean Water Act to authorize the Defendant EPA to treat Indian tribes as states under certain circumstances for purposes of the Clean Water Act. Through the amendment Congress merged two of the four critical elements necessary for tribal sovereignty — water rights and government jurisdiction — by granting tribes jurisdiction to regulate their water resources in the same manner as states. Congress’s authorization for the EPA to treat Indian tribes as states preserves the right of tribes to govern their water resources within the comprehensive statutory framework of the Clean Water Act. This case involves the first challenge to water quality standards adopted by an Indian tribe under the Clean Water Act amendment.
The Rio Grande River flows south through New Mexico before turning southeast to form the border between Texas and Mexico. Plaintiff City of Albuquerque operates a waste treatment facility which dumps into the river approximately five miles north of the Isleta Pueblo Indian Reservation. The EPA recognized Isleta Pueblo as a state for purposes of the Clean Water Act on October 12, 1992. The Isleta Pueblo adopted water quality standards for Rio Grande water flowing through the tribal reservation, which were approved by the EPA on December 24, 1992. The Isleta Pueblo’s water quality standards are more stringent than the State of New Mexico’s standards.
The Albuquerque waste treatment facility discharges into the Rio Grande under a National Pollution Discharge Elimination System [NPDES] permit issued by the EPA The EPA sets permit discharge limits for waste treatment facilities so they meet state water quality standards. Albuquerque filed this action as the EPA was in the process of revising Albuquerque’s NPDES permit to meet the Isleta Pueblo’s water quality standards.
In its complaint, Albuquerque challenged the EPA’s approval of Isleta Pueblo’s water quality standards on numerous grounds. The district court denied Albuquerque’s request for a temporary restraining order and a preliminary injunction. Then, the district court denied Plaintiffs motion for summary judgment while granting the Defendant EPA’s motion for summary judgment.
Albuquerque now appeals the district court’s judgment. On April 15, 1994, Albuquerque, the EPA, the State of New Mexico, and Isleta Pueblo agreed to a new four-year NPDES permit for Albuquerque pursuant to a stipulation and agreement. The stipulation and agreement does not mention the claims in this suit, and the EPA’s regulations and the Isleta Pueblo’s revised water quality standards are in effect. During the briefing stage of this appeal, Albuquerque filed a motion requesting an order vacating the district court’s judgment due to mootness and remand with instructions to dismiss its complaint without prejudice.
Albuquerque has raised seven issues on appeal: (1) whether the district court’s opinion and order should be vacated because the case is mooted by an agreement negotiated by the parties; (2) whether the EPA reasonably interpreted § 1377 of the Clean Water Act as providing the Isleta Pueblo’s authority to adopt water quality standards that are more stringent than required by the statute, and whether the Isleta Pueblo standards can be applied by the EPA to upstream permit users; (3) whether the EPA complied with the Administrative Procedure Act’s notice and comment requirements in approving the Isleta Pueblo’s standards under the Clean Water Act; (4) whether the EPA’s approval of the Isleta Pueblo’s standards was supported by a rational basis; (5) whether the EPA’s adoption of regulations providing for mediation or arbitration to resolve disputes over unreasonable consequences of a tribe’s water quality standards is a reasonable interpretation of § 1377(e) of the Clean Water Act; (6) whether the EPA’s approval of the Isleta Pueblo’s ceremonial use designation offends the Establishment Clause of the First Amendment; and (7) whether the Isle-ta Pueblo’s standards approved by the EPA are so vague as to deprive Albuquerque of due process.
Summary judgment is proper if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Albuquerque’s challenge of the EPA’s decision is not premised on disputed facts; rather, it asserts that the EPA was not entitled to judgment as a matter of law. We review the district court’s summary judgment de novo, using the standards that were applicable in the district court. Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir.1995); Lewis v. Babbitt, 998 F.2d 880, 881 (10th Cir.1993).
II. Mootness
As a preliminary issue, Albuquerque has filed a motion to vacate the district court’s opinion and order and to remand this action to the district court with instructions to dismiss their complaint without prejudice. As a basis for this motion, Albuquerque asserts that the case is mooted by a negotiated agreement whereby Albuquerque, the EPA, the State of New Mexico, and the Isleta Pueblo have each agreed to a new four-year NPDES permit for the Albuquerque waste facility. Thus, Albuquerque asserts that under United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), we should vacate the judgment and dismiss the complaint without prejudice.
We deny Albuquerque’s motion because the ease is not moot. “The burden of demonstrating mootness ‘is a heavy one.’” Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). Under the mootness doctrine, “ ‘a case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). The settlement agreement, which fails to even mention this case, does not resolve this suit. Under the settlement, the EPA has not withdrawn its approval of the Isleta Pueblo standards or changed its regulations. A “live” controversy still exists here because the parties still disagree about whether the EPA’s approval of the Isleta Pueblo standards is lawful under the Clean Water Act and the U.S. Constitution and whether the EPA’s regulations are consistent with the Act.
Parties lack a legally cognizable interest in the outcome of a case if “(1) it can be said with assurance that ‘there is no reasonable expectation ... ’ that the alleged violation will recur, ... and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). The parties in this case have retained a legally cognizable interest because the Isleta Pueblo water quality standards and the EPA’s regulations challenged in Albuquerque’s suit are still in force. The stipulation and agreement settled issues concerning only the EPA’s issuance of Albuquerque’s NPDES permit. In this case, Albuquerque is challenging the EPA’s regulations and the Agency’s approval of water quality standards under the Clean Water Act, not the issuance of an NPDES permit. Under the circumstances, there is no reasonable expectation that the alleged violation will not recur, and the settlement agreement has not completely and irrevocably eradicated the effects of the alleged violation. See FDIC v. Jennings, 816 F.2d 1488, 1491 (10th Cir.1987) (settlement that does not resolve all issues does not moot action). Thus, this action is not mooted because the stipulation and agreement is not a final settlement of all claims brought in the City’s suit.
Even if this action were moot, we would not grant vacatur because Plaintiffs motion appears to be merely an attempt to expunge the district court’s adverse decision, giving the City the option to relitigate this action at some later date. The Supreme Court recently explained that mootness by reason of settlement does not justify vacatur of a federal civil judgment under review absent exceptional, equitable circumstances. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, — U.S. -, -, -, 115 S.Ct. 386, 392, 393, 130 L.Ed.2d 233 (1994). In some cases where a case becomes moot on appeal through happenstance, it is proper for the appellate court to vacate the judgment of the district court. Munsingwear, 340 U.S. at 39, 71 S.Ct. at 106. Happenstance does not include eases resolved by actions attributable to the parties, such as a negotiated settlement. U.S. Bancorp Mortgage, — U.S. at -, 115 S.Ct. at 391-92; Oklahoma Radio Assocs. v. FDIC, 3 F.3d 1436, 1439 (10th Cir.1993). The mootness alleged by Albuquerque is not happenstance; rather, it results from the Plaintiffs voluntary settlement of issues related to the EPA’s issuance of the NPDES permit.
Also, we will not apply the Munsingwear rule where “the losing party, fearful of having its loss confirmed by the appellate court, abandons the appeal and then moves to have the trial court’s judgment vacated as moot, thus ‘retiring to lick its wounds, fully intending to come out fighting again.’ ” Harris v. Board of Governors of the Federal Reserve Sys., 938 F.2d 720, 724 (7th Cir.1991) (quoting Commodity Futures Trading Comm’n v. Board of Trade, 701 F.2d 653, 656 (7th Cir.1983)). Albuquerque was not required to pursue this appeal. If Plaintiff desired to end this case in good faith, it could have filed at any time a motion for voluntary dismissal. Plaintiffs motivations in filing the motion are highly suspect; dismissing this suit as moot and vacating the judgment could result in unfairness to the Defendant by exposing the Agency to the possibility of renewed actions by the Plaintiff.
We deny Plaintiffs motion to dismiss this suit and to vacate the district court’s judgment because we do not find the case moot; and even if the case were moot, vacatur could result in an unfair result for the Defendant.
III. Tribal Sovereignty Under the Clean Water Act
Albuquerque acknowledges that the 1987 amendment to the Clean Water Act authorizes the EPA to treat tribes as states. Act of Feb. 4, 1987, Pub.L. No. 100-4, tit. V, § 506, 101 Stat. 76 (codified as amended at 33 U.S.C. § 1377). Albuquerque contends, however, that 33 U.S.C. § 1377 does not allow tribes to establish water quality standards more stringent than federal standards and does not permit tribal standards to be enforced beyond tribal reservation boundaries.
In Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), the Supreme Court established a two-step approach to judicial review of agency interpretations of acts of Congress. First, the reviewing court must determine whether there is a clear and unambiguous congressional intent concerning the precise question at issue. If congressional intent is clear and unambiguous, then that intent is the law and must be given effect. A reviewing court proceeds to the second step “if the statute is silent or ambiguous with respect to the specific issue.” Id. at 843, 104 S.Ct. at 2782. Then, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. The EPA, however, is entitled to considerable deference in its interpretation of the Clean Water Act because it is charged with administering the Act. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782-83; see also Arkansas v. Oklahoma, 503 U.S. 91, 112, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239 (1992) (criticizing this Court for failing to afford the EPA’s interpretation of the Clean Water Act “an appropriate level of deference”).
In regard to the first question at issue, we reach the second step of Chevron because congressional intent is unclear and ambiguous. Under Albuquerque’s interpretation of § 1377, tribes could devise water quality standards which are neither more nor less stringent than federal standards. Albuquerque’s statutory construction is based on a negative implication inferred from Congress’s failure to incorporate all provisions of the Clean Water Act in § 1377(e). We find that Congress’s intent is unclear and ambiguous in regard to § 1377(e) but that the EPA’s construction of the 1987 amendment to the Clean Water Act is reasonable and permissible.
Congress’s objective in the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” through the elimination of pollutant discharge into those waters. 33 U.S.C. § 1251(a). Through the Act, Congress designed a comprehensive regulatory scheme that recognized and preserved a primary role for the states in eliminating pollution from our waterways. 33 U.S.C. § 1251(b). The power of states under the Act is underlined by their ability to force the development of technology by setting stringent water quality standards that the EPA can enforce against upstream polluters. See 33 U.S.C. §§ 1311(k), 1341, 1342, 1370; Arkansas, 503 U.S. at 106, 112 S.Ct. at 1056-57 (holding that the EPA’s requirement that NPDES dischargers must comply with downstream States’ water quality standards was a reasonable exercise of the agency’s statutory discretion pursuant to §§ 1341,1342). In the Clean Water Act, Congress provided the EPA “substantial statutory discretion.” Arkansas, 503 U.S. at 107, 112 S.Ct. at 1057. Pursuant to the 1987 amendment of the Clean Water Act, the EPA can treat Indian tribes as states under the Act, provided that the tribes meet certain criteria listed in 33 U.S.C. § 1377(e) and 40 C.F.R. § 131.8(a). The 1987 amendment further provides:
(a) Policy
Nothing in this section shall be construed to affect the application of section 1251(g) of this title, and all of the provisions of this section shall be carried out in accordance with the provisions of such section 1251(g) of this title. Indian tribes shall be treated as States for purposes of such section 1251(g) of this title.
(e) Treatment as States
The Administrator is authorized to treat an Indian tribe as a State for purposes of subchapter II of this chapter and sections 1254, 1256, 1313, 1315, 1318, 1319, 1324, 1329, 1341, 1342, and 1344 of this title to the degree necessary to carry out the objectives of this section,....
33 U.S.C. § 1377(a), (e).
In its letter approving the Isleta Pueblo’s standards, the EPA cites 33 U.S.C. § 1370 as the basis for Isleta Pueblo’s authority to set water quality standards that are more stringent than those recommended by the EPA under the Clean Water Act. Albuquerque argues that tribes cannot adopt discharge limits more stringent than those of the EPA because § 1377 does not make reference to § 1370. Section 1370 prohibits states from imposing standards which are less stringent than those imposed by the federal government, while acknowledging states’ inherent right to impose standards or limits that are more stringent than those imposed by the federal government. 33 U.S.C. § 1370. Congress’s intent in excluding § 1370 from § 1377(e) is unclear and ambiguous. We decline to read § 1377 as incorporating § 1370 because it was not explicitly included in § 1377(e), as other sections are.
The EPA, however, also construes § 1370 as a savings clause that merely recognizes powers already held by the states. 56 Fed.Reg. 64,886 (1991). Thus, Congress’s failure to incorporate § 1370 into § 1377 does not prevent Indian tribes from exercising their inherent sovereign power to impose standards or limits that are more stringent than those imposed by the federal government. Indian tribes have residual sovereign powers that already guarantee the powers enumerated in § 1370, absent an express statutory elimination of those powers. In Arkansas, the Court explained that § 1370 “only concerns state authority and does not constrain the EPA’s authority,” 503 U.S. at 107, 112 S.Ct. at 1057 (emphasis in original); likewise, we do not view § 1370 as implicitly constraining tribes’ sovereign authority. We conclude that the EPA’s construction of the 1987 amendment to the Clean Water Act— that tribes may establish water quality standards that are more stringent than those imposed by the federal government — is permissible because it is in accord with powers inherent in Indian tribal sovereignty.
In the second question at issue, Albuquerque argues that § 1377 does not expressly permit Indian tribes to enforce effluent limitations or standards under § 1311 to upstream point source dischargers outside of tribal boundaries. Albuquerque misconstrues the Clean Water Act by selectively reading isolated sections; the Clean Water Act is a comprehensive regulatory scheme, and it must be read as such. The express incorporation in § 1377(e) of §§ 1341 and 1342 gives the EPA the authority to issue NPDES permits in compliance with a tribe’s water quality standards. Section 1341 authorizes states to establish NPDES programs with the EPA, and § 1342 authorizes the EPA to issue NPDES permits in compliance with downstream state’s water quality standards. See Arkansas, 503 U.S. at 102, 107, 112 S.Ct. at 1054-55, 1057 (construing §§ 1341 and 1342 as giving the EPA authority to require an upstream NPDES dischar-ger to comply with downstream state water quality standards). Under the statutory and regulatory scheme, tribes are not applying or enforcing their water quality standards beyond reservation boundaries. Instead, it is the EPA which is exercising its own authority in issuing NPDES permits in compliance with downstream state and tribal water quality standards. In regard to this question, therefore, the 1987 amendment to the Clean Water Act clearly and unambiguously provides tribes the authority to establish NPDES programs in conjunction with the EPA. Under §§ 1311, 1341, 1342 and 1377, the EPA has the authority to require upstream NPDES dischargers, such as Albuquerque, to comply with downstream tribal standards.
IV. APA’s Notice and Comment Requirements Under the Clean Water Act’s Regulatory Scheme
Albuquerque next claims that the EPA failed to comply with the procedural requirements of the Administrative Procedure Act [APA] in approving the Isleta Pueblo’s water quality standards. 5 U.S.C. §§ 551-559, 701-706. Under the APA, we review agency action de novo to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review is a narrow one, and we are not empowered to substitute our judgment for that of the EPA. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971).
Albuquerque asserts that the EPA was engaged in informal rulemaking when it approved the Isleta Pueblo’s standards, and, therefore, it claims that the EPA violated § 553 of the APA by failing to include a statement of basis and purpose for its action approving the Pueblo standards and by failing to provide for public notice and comment. See 5 U.S.C. § 553. Albuquerque urges us to set aside the EPA’s approval of the Isleta Pueblo standards because of the EPA’s failure to comply with procedures mandated by law. See 5 U.S.C. § 706(2)(D).
The intent of Congress expressed in the Clean Water Act, however, was to require states or tribes to provide for public participation in the adoption of water quality standards. Section 1313(e)(1) provides:
The Governor of a State or the State water pollution control agency of such State shall from time to time (but at least once each three year period ... ) hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards. Results of such review shall be made available to the Administrator.
33 U.S.C. § 1313(c)(1). Under the water quality standards provisions of the Clean Water Act, it is the states and tribes which conduct rulemaking proceedings. This is in accord with Congress’s intent to preserve a primary role for the states and tribes in eliminating water pollution. The results of state and tribal rulemaking proceedings are then presented to the EPA for approval. The Fourth Circuit has explained the EPA’s limited role in reviewing water quality standards proposed by states, stating:
EPA sits in a reviewing capacity of the state-implemented standards, with approval and rejection powers only....
[SJtates have the primary role, under § 303 of the CWA (33 U.S.C. § 1313), in establishing water quality standards. EPA’s sole function, in this respect, is to review those standards for approval.
Natural Resources Defense Council v. EPA, 16 F.3d 1395, 1399, 1401 (4th Cir.1993) (emphasis in original) (citation omitted). Congress clearly intended the EPA to have a limited, non-rulemaking role in the establishment of water quality standards by states and tribes, and, consequently, no statement of basis or purpose for its actions was necessary.
Additionally, Congress provided the EPA sixty days for approval and ninety days for disapproval of water quality standards proposed by states and tribes. 33 U.S.C. § 1313(c)(3). Congress could not reasonably expect the EPA to conduct APA notice and comment rulemaking proceedings within sixty or ninety days. Thus, the time restriction for the EPA’s review of state and tribal water quality standards supports our conclusion that Congress intended the EPA to have a very limited role and did not intend EPA to engage in informal rulemaking.
More important, however, public participation in the establishment of water quality standards occurs when states and tribes review or revise water quality standards. See 33 U.S.C. § 1313(e)(1) (requiring states to hold public hearings when reviewing or revising water quality standards). All comments submitted to a state or tribe during the comment period become part of the administrative record and are reviewed by the EPA in determining whether to approve the state’s or tribe’s proposed standards. Consequently, the purpose of public notice and comment under the APA is satisfied under the Clean Water Act without requiring the EPA to receive additional comments. The State of New Mexico has commented on the effectiveness of Congress’s approach in the Clean Water Act and the potentially negative impact of Albuquerque’s proposed approach:
The Clean Water Act’s approach, therefore, is to place the primary responsibility on states to adopt and implement their own water quality standards provided only that they cannot be less stringent than the Act requires. Nothing in the Act evidences any intent that EPA involve itself in the details or substance of the process, except only to make sure that the states have complied with the Act. Nor does the Act indicate any intent that EPA duplicate the hearing, notice, and comment process conducted by the State. To the contrary, the short time periods given to EPA imply the opposite, since full notice and comment procedures generally take many months. Indeed, the State of New Mexico’s most recent triennial review, with its notice, comment, and hearing process, took more than a year to be completed.
Not only would the expansive EPA review of the tribal water quality standards sought by the City duplicate the lengthy process already undertaken by the tribe itself in adopting the standards, it is doubly unnecessary because of the notice, comment, and hearing process entailed in issuance of NPDES permits. As it was, there was full opportunity for notice, comment and hearing both for adoption of the Isleta standards (conducted by the Pueblo) and for issuance of the City’s NPDES permit (conducted by EPA). To require yet another detailed notice, comment and hearing process by EPA would be to inject more bureaucracy, delay and expense into an already lengthy process that allows ample opportunity for public input.
Brief of Amici Curiae New Mexico Environment Department and State of New Mexico ex rel. Tom Udall, at 10-11. We conclude that the notice and comment requirements of the APA are satisfied by the Clean Water Act’s procedural scheme and that the EPA has reasonably implemented the Act’s procedural requirements.
In this case, the Isleta Pueblo gave public notice and provided for a comment period in establishing its proposed water quality standards. On June 8-11, 1991, the Isleta Pueblo published a notice of a public hearing on its proposed standards in the Albuquerque Journal, as required by 33 U.S.C. § 1313(c)(1). The Isleta Pueblo also mailed notice of the hearing to potentially interested parties, including the City of Albuquerque. The Isleta Pueblo held a public hearing on August 7, 1991. Later, an additional opportunity for notice, comment, and hearing was provided by the EPA in issuing Albuquerque’s NPDES permit. Thus, a full and fair opportunity for public notice, comment, and hearing was provided in this case in accordance with the APA and the Clean Water Act.
Y. The Rational Basis of the EPA’s Approval of Isleta Pueblo’s Standards
Albuquerque also claims that the EPA’s approval of the Isleta Pueblo standards was unsupported by a rational basis on the record and was therefore arbitrary and capricious. Albuquerque argues that the EPA was required to reject the Isleta Pueblo’s water quality standards unless the EPA had established its own record based on a sound scientific rationale for each particular provision.
The EPA, however, reviews proposed water quality standards only to determine whether they are stringent enough to comply with the EPA’s recommended standards and criteria. If the proposed standards are more stringent than necessary to comply with the Clean Water Act’s requirements, the EPA may approve the standards without reviewing the scientific support for the standards. Whether the more stringent standard is attainable is a matter for the EPA to consider in its discretion; sections 1341 and 1342 of the Clean Water Act permit the EPA and states to force technological advancement to attain higher water quality. See United States Steel Corp. v. Train, 556 F.2d 822, 838 (7th Cir.1977); Homestake Mining Co. v. EPA, 477 F.Supp. 1279, 1283 (D.S.D.1979). The EPA’s letter approving the Isleta Pueblo standards explains that it is approving the standards, despite their departure from the EPA’s guidelines, based on the Tribe’s authority to adopt standards more stringent than the minimum requirements of the Clean Water Act.
The EPA considered Isleta Pueblo’s rationale for each of the standards challenged by Albuquerque, and the tribe’s record contains detailed responses to all of the criticisms expressed by the EPA and Albuquerque. The record contains a detañed explanation of the Isleta Pueblo’s scientific, technical, and policy reasons for choosing to establish more stringent standards. For example, the Isleta Pueblo stated that stringent standards are justified because of prevailing drought conditions and the need to protect sensitive subpopulations. The EPA concluded that the standards were consistent with the Clean Water Act’s requirements and should therefore be approved. The arbitrary and capricious review standard is very deferential; “an agency ruling is ‘arbitrary and capricious if the agency has ... entirely faded to consider an important aspect of the problem.’” Arkansas, 503 U.S. at 113, 112 S.Ct. at 1060 (citation omitted). Albuquerque has not shown that the EPA faded to consider an important aspect of the Isleta Pueblo’s water quality standards.
AdditionaUy, the essence of Albuquerque’s complaint is with the policy choice of Congress and the EPA to afford states and tribes the ability to force the development of technology through more stringent water-quality standards. “It is not our role ... to decide which policy choice is the better one, for it is clear that Congress has entrusted such decisions to the Environmental Protection Agency.” Arkansas, 503 U.S. at 114, 112 S.Ct. at 1061.
In its next claim, Albuquerque argues that the Isleta Pueblo criteria approved by the EPA are not stringent enough to protect the Tribe’s designated use standard described as primary contact ceremonial use. The Tribe describes primary contact ceremonial use as involving the “immersion and intentional or incidental ingestion of water.” Albuquerque argues that this requires the river water quality to meet the standards of the Safe Drinking Water Act, 42 U.S.C. § 300f, and the Isleta Pueblo’s water quality criteria approved by the EPA fail to protect water used under the ceremonial use standard.
As the district court stated:
This argument seems far-fetched. The primary contact ceremonial use appears to resemble a físhable/swimmable standard, which assumes the ingestion of some water, more than it resembles a safe drinking water standard, which assumes the ingestion of a volume of water daily.
Albuquerque, 865 F.Supp. at 740. The federal drinking water standards apply only to a “public water system,” which is defined as a system supplying piped water for human consumption serving at least twenty-five persons or having at least fifteen service connections. 42 U.S.C. § 300f(4). The Isleta Pueblo’s ceremonial use standard does not convert the Rio Grande River into a public water system. The EPA considered and approved this aspect of the Isleta Pueblo water quality standards. We decline to second-guess the EPA’s technical determination, which is entitled to substantial deference, that the Isleta Pueblo’s water quality criteria adequately protect its ceremonial designated use standard.
VI. The EPA’s Dispute Resolution Process
The 1987 amendment directs the EPA Administrator to establish “a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing water quality standards that may be set by states and Indian tribes located on common bodies of water.” 33 U.S.C. § 1377(e). In response to this directive, the EPA adopted regulations providing for mediation or arbitration to resolve disputes over unreasonable consequences of tribal water quality standards. See 40 C.F.R. 131.7. In developing the regulations, the EPA considered whether, in addition to the state and the tribe, affected parties should be involved in the resolution process, and determined that such parties could be invited to participate. The EPA regulations, however, permit only states and tribes to initiate the resolution process because they are the entities authorized to revise or modify the water quality standards in dispute.
Albuquerque argues that the EPA’s dispute resolution mechanism fails to meet the statutory requirement because it deprives interested third parties from initiating the process and because its reliance on mediation and non-binding arbitration is inadequate to resolve such disputes. Section 1377(e) does not specify how or by whom the dispute resolution mechanism shall be initiated. Rather, § 1377(e) is worded to give the EPA Administrator broad discretion in establishing the dispute resolution process. The EPA’s decision to use mediation and non-binding arbitration is consistent with the Clean Water Act’s requirement that the EPA encourage cooperative activities by the states. 33 U.S.C. § 1253(a). The need for a dispute resolution mechanism to resolve unreasonable consequences stems from the possibility that two sovereigns — a state and a tribe — may impose different water quality standards on a common body of water. It is reasonable, therefore, to allow only those two sovereigns to initiate the dispute resolution process to resolve their differences rather than to include affected permittees such as Albuquerque. As successfully occurred through the negotiated settlement in this case, the dispute resolution mechanism allows the state and tribe to invite third parties to participate. Courts reviewing an agency action should afford “the EPA’s interpretation of the governing law an appropriate level of deference.” Arkansas, 503 U.S. at 112, 112 S.Ct. at 1060 (citing Chevron, 467 U.S. at 842-44, 104 S.Ct. at 2781-83). The EPA’s establishment of a dispute resolution mechanism that relies on tribal and state cooperation to address unreasonable consequences was a reasonable interpretation of § 1377(e) and is entitled to deference.
VII. The Tribe’s Ceremonial Usage and the Establishment Clause
Albuquerque next claims that the EPA’s approval of the Pueblo’s ceremonial use designation offends the Establishment Clause of the First Amendment. The First Amendment provides in relevant part: “Congress shall make no law respecting an establishment of religion_” U.S. Const. amend. I. Government action does not violate the Establishment Clause if “[t]he challenged governmental action has a secular purpose, does not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion.” Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 395, 118 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971)).
The EPA approved Isleta Pueblo’s promulgation of “Primary Contact Ceremonial Use” as a designated use of the Rio Grande River within the boundaries of the Indian reservation. The tribe defines “Primary Contact Ceremonial Use” as “the use of a stream, reach, lake, or impoundment for religious or traditional purposes by members of the PUEBLO OF ISLETA; such use involves immersion and intentional or incidental ingestion of water.” Appellant’s App. at 1254. Albuquerque argues that the EPA’s approval of this standard violates all three aspects of the Establishment Clause under Lemon.
First, Albuquerque argues that the reason for the designated use is explicitly sectarian. The secular purpose requirement does not mean that a law’s purpose must be unrelated to religion because that would require “ ‘that the government show a callous indifference to religious groups,’ ... and the Establishment Clause has never been so interpreted.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 2868, 97 L.Ed.2d 273 (1987) (citation omitted). The EPA’s approval of the primary contact ceremonial use designation serves a clear secular purpose: promotion of the goals of the Clean Water Act. The EPA’s purpose in approving the designated use is unrelated to the Isleta Pueblo’s religious reason for establishing it. The Isleta Pueblo’s designation of a ceremonial use does not invalidate the EPA’s overall secular goal.
Second, Albuquerque claims that the EPA’s action has a primary effect of advancing religion. We disagree. The EPA is not advancing religion through its own actions, and it is not promoting the Isleta Pueblo’s religion. The primary effect of the EPA’s action is to advance the goals of the Clean Water Act.
Third, Albuquerque asserts the designated use results in excessive governmental entanglement with religion because the Pueblo and the EPA must inquire on an ongoing basis whether the standards adequately protect religious uses of the river water. This argument is meritless. “There is no genuine nexus between” the EPA’s approval of the ceremonial use standard “and establishment of religion,” Walz v. Tax Commission of City of New York, 397 U.S. 664, 675, 90 S.Ct. 1409, 1415, 25 L.Ed.2d 697 (1970), and the EPA’s approval of the standard provides only an incidental benefit to religion. See Lamb’s Chapel, 508 U.S. at 395, 113 S.Ct. at 2148. The EPA’s approval of the ceremonial use standard does not require any governmental involvement in the Isleta Pueblo’s religious practices. Excessive governmental entanglement will not result when the EPA incorporates the Isleta Pueblo’s water quality standards in issuing future NPDES permits.
The district court correctly rejected Albuquerque’s Establishment Clause claim.
VIII. Isleta Pueblo’s Standards and Vagueness
Albuquerque asserts that the Isleta Pueblo’s standards were so vague as to deprive Albuquerque of due process. We will not declare a regulation unconstitutionally vague if it puts the regulated party on notice as to what conduct is required. See Komjathy v. National Transp. Safety Bd., 832 F.2d 1294, 1297 (D.C.Cir.1987), cert. denied, 486 U.S. 1057, 108 S.Ct. 2825, 100 L.Ed.2d 926 (1988); Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1387 (D.C.Cir.1985). There is a strong presumption that regulations are not unconstitutionally vague if the regulated party has the means of obtaining clarification either by making inquiry or through an administrative process. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982).
Albuquerque complains that the Isleta Pueblo standards use unconstitutionally vague narrative terms, such as objectionable ... floating materials,’ ‘[contaminants [which] ... impart unpalatable flavor to fish,’ ‘nutrients [which] produce objectionable algal densities,’ ‘waters [which are] ... virtually free of pathogens,’ and ‘turbidity [which] causes an unaesthetic and substantial visible contrast.’” Appellant’s Br. at 48-49 (alterations, emphasis, and omissions in original). Albuquerque appears to misunderstand the process established by the EPA under the Clean Water Act. The EPA regulations allow water quality standards, such as the Isleta Pueblo standards, to be narrative descriptions. 40 C.F.R. § 131.11 (1995). These standards, however, do not require any particular conduct by Albuquerque; instead, Albuquerque is on notice that its revised NPDES permit may contain the specific standards which must be satisfied. Plaintiffs claim of vagueness is without merit because an administrative procedure is in place through which it will have notice of the specific enforceable standards that it must meet.
IX. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of Plaintiffs motion for summary judgment and its granting of Defendant’s motion for summary judgment.
AFFIRMED.
. Clean Water Act, Pub.L. No. 92-500, 86 Stat. 896 (Oct. 18, 1972), as amended by Act of Feb. 4, 1987, Pub.L. No. 100^1, tit. V, § 506, 101 Stat. 76 (codified at 33 U.S.C. §§ 1251 — 1387).
. The other two critical elements to tribal sovereignty are land and mineral rights.
.See Amicus Curiae Br. of the New Mexico Municipal League in Support of Appellant City of Albuquerque, Ex. B at CRS-8, CRS-11 (Memo from Library of Congress, Congressional Research Service, American Law Division, to Senate Select Committee on Indian Affairs, regarding the Extent of Tribal Jurisdiction under Section 518 of the Clean Water Act (Feb. 21, 1991)).
.The Clean Water Act provides two measures of water quality. One measure is an "effluent limitations guideline.” Effluent limitations guidelines are uniform, technology-based standards promulgated by the EPA, which restrict the quantities, rates and concentrations of specified substances discharged from point sources. See 33 U.S.C. §§ 1311, 1314. The other measure of water quality is a “water quality standard.” Unlike the technology-based effluent limitations guidelines, water quality standards are not based on pollution control technologies, but express the desired condition or use of a particular waterway. Water quality standards supplement technology-based effluent limitations guidelines “so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.” EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 2025 n. 12, 48 L.Ed.2d 578 (1976). In this case, the water quality standards of the Isleta Pueblo are at issue.
There are three elements of water quality standards under the Clean Water Act: (1) one or more designated "uses” of each waterway (e.g., public water supply, recreation, or agriculture) consistent with the goals of the Act as articulated in 33 U.S.C. § 1251; (2) "criteria” expressed in numerical concentration levels or narrative statements specifying the amount of various pollutants that may be present in the water and still protect the designate uses; and (3) an anti-degradation provision. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131 (1995).
. The EPA provides states with substantial guidance in drafting water quality standards. States must adopt criteria that protect the designated uses. 40 C.F.R. § 131.11 (1995). The Clean Water Act requires the EPA to develop criteria for water quality that reflect the latest scientific knowledge, and to provide those criteria to the states as guidance. 33 U.S.C. § 1314(a). States can draw upon the EPA’s recommended water quality criteria or use other criteria for which they have sound scientific support. See 40 C.F.R. § 131.11 (1995).
Prior to adopting or revising any water quality standard, the state must provide notice and an opportunity for a public hearing. 40 C.F.R. § 131.10(e) (1995). The criteria may be based on EPA guidance, EPA guidance modified to reflect conditions at the site, or on other scientifically defensible methods. Id. After adoption, the states must submit the water quality standards to the EPA for review and approval. 33 U.S.C. § 1313(c)(2). The EPA reviews the state's water quality standards to ensure that they are consistent with the Act’s requirements. Id. at § 1313(c)(3).
. Albuquerque's suit names only the EPA as a defendant. The Isleta Pueblo is amicus curiae in support of the EPA in the suit.
. The approval of water quality standards and the issuance of an NPDES permit are two different administrative actions. The issuance of an NPDES permit under the Clean Water Act is subject to direct review by the court of appeals. 33 U.S.C. § 1369(b)(1)(F). The approval of water qualily standards is initially reviewed by the district courts under the Administrative Procedure Act. See, e.g., Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 518 (2d Cir.1976).
. To qualify as a state under the Act, an Indian tribe must submit an application to the EPA which includes: a statement that the tribe is recognized by the Secretary of the Interior; a descriptive statement demonstrating that the tribal governing body is currently cariying out substantial government functions over a defined area; a description of the tribe's authority to regulate water quality over certain waters; a description of the tribe’s capability to administer an effective water quality standards program; and any additional documentation which the Administrator deems necessary to support a tribal application. 40 C.F.R. § 131.8 (1995).
Upon receipt of the application, the Regional Administrator will notify appropriate government entities of the tribe's application and the basis of the tribe’s authority to regulate water quality. The Administrator provides a thirty-day period to receive comments on the tribe's assertion of authority. If comments challenge the tribe's authority, the Regional Administrator, after consulting with the Secretary of the Interior, shall determine whether the tribe meets the requirements of 40 C.F.R. § 131.8(a)(3) (1995). Once recognized as a state for purposes of the Act, a tribe may submit proposed water quality standards to EPA.
. Section 1251(g) generally preserves the authority of states to regulate water within their jurisdiction. Together, §§ 1377 and 1251(g) preserve the authority of Indian tribes — acting as states— to regulate water within their jurisdiction.
. Appellant's App. at 966 (Letter from the EPA to the Pueblo of Isleta (Dec. 24, 1992)).
. Section 1370 provides:
Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect trader this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.
33 U.S.C. § 1370.
.See, e.g., United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). For example, Indian tribes could use their water rights, which are an element of tribal sovereignty, to assert an action against upstream polluters or to recover damages for groundwater contamination. See Comment, Indian Reserved Water Rights Doctrine and the Groundwater Question, 19 Am. Indian L.Rev. 403, 441 n. 297 (1994).
. While § 1377 incorporates § 1342, § 1342 incorporates § 1311 and thereby provides the EPA the authority to issue NPDES permits to upstream point source dischargers which are in compliance with downstream state's and tribe’s water quality standards.
. Although, Indian tribes could have inherent jurisdiction over non-Indian conduct or non-Indian resources if there is "some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana v. United States, 450 U.S. 544, 566, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981) (citations omitted).
.In contrast, Congress requires the EPA to conduct notice and comment rulemaking procedures when it promulgates federal water quality standards. 33 U.S.C. § 1313(c)(4). Section 1313 makes a clear distinction between the procedures required for approval of state standards and rulemaking to promulgate federal standards.
. Albuquerque has repeatedly complained that the Isleta Pueblo standards are unattainable, totally irrational, and would place excessive economic burdens on the City. These complaints are belied by the NPDES permit settlement which applies the Isleta Pueblo standards to Albuquerque. Presumably, Albuquerque would not have agreed to the NPDES permit settlement if the water quality standards placed impossible demands on it.
. Appellant’s App. at 966 (Letter from the EPA to the Pueblo of Isleta (Dec. 24, 1992)). See our discussion of the Tribe's authority to adopt standards more stringent than the minimum required by the Clean Water Act, infra Part III.
. In Lamb's Chapel the Court notes that the continued validity of Lemon has come into question, but it "has not been overruled.” 508 U.S. at 395 n. 7, 113 S.Ct. at 2148 n. 7.
. It is noteworthy that the ceremonial use encompasses water used for either religious or traditional purposes.
. If anything, the agency’s approval furthers the free exercise of religion, consistent with the policy expressed in the American Indian Religious Freedom Act. See 42 U.S.C. § 1996 (Supp.1994) (“[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, ... including but not limited to ... the freedom to worship through ceremonials and traditional rites.”).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1230769230769231, Costs: 0.04615384615384616
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SEYMOUR, Chief Judge.
Appellants Peter Maier, the Intermountain Water Alliance, the Atlantic States Legal Foundation, the Utah Wilderness Association, and Kay Henry petitioned the Environmental Protection Agency (EPA) to initiate rulemaking under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Mr. Maier contended that recent developments in municipal wastewater technology have rendered the EPA’s regulations for secondary treatment inadequate, and therefore the EPA must promulgate new standards. The EPA denied the petition, and Mr. Maier appealed to this court. We affirm.
I.
A.
We start with an overview of the relevant statutory scheme. The CWA aims “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by reducing and eventually eliminating the discharge of pollutants. 33 U.S.C. § 1251(a), (a)(1). “[T]he basic structure of the [CWA] ... translates Congress’ broad goal of eliminating ‘the discharge of pollutants into the navigable waters’ into specific requirements that must be met by individual point sources.” EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 69, 101 S.Ct. 295, 300, 66 L.Ed.2d 268 (1980) (quoting 33 U.S.C. § 1251(a)(1)) (citations omitted). A “point source” is defined as “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The CWA prohibits the discharge of any pollutant from a point source unless that discharge complies with the CWA’s requirements. 33 U.S.C. § 1311(a). Compliance can be achieved by obtaining a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to 33 U.S.C. § 1342, which establishes technology-based controls and ensures compliance with state or federal water quality standards. 33 U.S.C. § 1311(b)(1)(C). These permits generally contain quantitative limits on the amounts of specified pollutants that may be discharged. See generally Oklahoma v. EPA, 908 F.2d 595, 597-98 (10th Cir.1990), rev’d on other grounds sub nom., Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
The CWA mandates varying standards of technology-based treatment as the minimum requirement for different categories of point sources. 33 U.S.C. §§ 1311, 1314. Under section 1311, “effluent limitations for point sources, other than publicly owned treatment works [POTWs] ... require the application of the best practicable control technology currently available as defined by the Administrator.” Id. § 1311(b)(1)(A). By contrast, the same section requires “for publicly owned treatment works ... effluent limitations based upon secondary treatment.” Id. § 1811(b)(1)(B). The EPA may supplement the minimum requirements by using individual permits to impose “any more stringent limitation ... necessary to meet water quality standards.” Id. § 1311(b)(1)(C). When Congress first enacted these provisions, it intended to phase in a requirement that publicly owned treatment works utilize “best practicable waste treatment technology,” a stricter standard than secondary treatment. 33 U.S.C. § 1311(b)(2)(B) (1973); see also S.Rep. No. 92-414, at 43 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3709 (“Publicly-owned treatment systems must meet the secondary treatment requirement of Phase I and, in Phase II, the mandate requires the best practicable treatment____”). In 1981, however, Congress repealed this general requirement and limited the stricter standard to federally-funded POTWs. Municipal Wastewater Treatment Construction Grant Amendments of 1981, Pub.L. No. 97-117, § 21(b), 95 Stat. 1623,1632 (1981).
B.
Secondary treatment, which is the basic requirement for all POTWs, is principally concerned with removing biological pollutants which affect the oxygen content of wastewater. Healthy waters contain dissolved oxygen upon which flora and fauna rely, but biological pollutants “demand” and consume this oxygen. The rate at which dissolved oxygen is consumed is measured by a parameter called “biochemical oxygen demand” (BOD). BOD actually measures the effect of two components of oxygen depletion which, with proper testing, can be disaggregated: CBOD and NOD. The EPA’s regulations for standard secondary treatment have always focused on BOD, and in particular on control of CBOD.
Initially, the EPA required testing for BOD by a standard five-day test of overall BOD levels, the so-called BOD5 test. See rec. at 121-22. But the EPA became concerned that the BOD5 test produced erroneous indications of effluent quality. Secondary treatment with existing technology under some operating conditions could lead to increased nitrification (NOD), and inflated BODb values, despite producing effluent of better quality than facilities with lower BOD5. Id.; Secondary Treatment Information, 48 Fed.Reg. 52,272, 52,275-6. In a 1984 rulemaking, the EPA addressed the problem by revising its regulations to allow the permitting authority to require facilities to employ a more specific measure of CBOD rather than the general test for BOD. See Secondary Treatment Regulation, 49 Fed.Reg. 36,986, 36,988-90, 36,998-99 (1984) (to be codified at 40 C.F.R. pt. 133). In effect, EPA recognized that NOD can constitute a significant component of BOD levels, but concluded that measuring NOD in some cases might distort rather than enhance accurate assessment of effluent quality-
During this rulemaking, commenting parties, including Mr. Maier, suggested that secondary treatment standards ought to directly address NOD or ultimate BOD. See id. at 36,999; rec. at 297. The EPA concluded, however, that NOD levels were quite variable and were therefore inappropriate as a criterion for generally-applicable standards. The EPA maintained that NOD would be better dealt with on a ease-by-ease basis in NPDES permitting. Secondary Treatment Regulation, 49 Fed.Reg. at 36,999; rec. at 297-98. The EPA therefore characterized NOD controls as a form of “advance treatment” to be imposed by permit where necessary. The EPA also noted that total impact on dissolved oxygen level (ultimate BOD) is to be considered in the NPDES permitting process. Secondary Treatment Regulation, 49 Fed.Reg. at 36,999. The EPA’s 1984 rule-making was not appealed to the federal courts. Thus, current regulations for secondary treatment do not establish standards for NOD, although an individual facility’s NPDES permit may well impose requirements for NOD.
In 1993, Mr. Maier filed a petition requesting the EPA to initiate rulemaking to set parameters for NOD and ultimate BOD as part of its secondary treatment regulations. Mr. Maier argued that the existing regulations, setting parameters only for CBOD and BOD5, were inadequate because new secondary treatment technology made it feasible and cost-effective to control both CBOD and NOD. The EPA did not controvert that controlling NOD was now feasible and cost-effective for some (but not all) POTWs, but emphasized that the impact of NOD is highly variable and dependent upon such factors as temperature and rate of flow of the receiving water body. In the EPA’s view, this variability continues to justify its regulatory decision to control CBOD with a generally-applieable regulation, but to control NOD on a ease-by-case basis through the permitting process. Consequently, the EPA denied Mr. Maier’s petition. Mr. Maier filed the instant petition for review in this Court pursuant to 33 U.S.C. § 1369(b)(1).
II.
We first determine whether we have jurisdiction. Although both parties agree that we have jurisdiction, “no action of the parties can confer subject-matter jurisdiction upon a federal court.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982). We have an independent duty to examine our own jurisdiction. Lopez v. Behles, 14 F.3d 1497, 1499 (10th Cir.), cert. denied, 513 U.S. 818, 115 S.Ct. 77, 130 L.Ed.2d 31 (1994).
The CWA establishes a bifurcated system of judicial review. Section 1365 “confers jurisdiction on the federal district courts, not courts of appeal, to review any action ‘where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.’’’ Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir.1984) (quoting 33 U.S.C. § 1365(a)(2)). Section 1369 of the CWA provides that “[rjeview of the Administrator’s action ... (E) in approving or promulgating any effluent limitation or other limitation under section 1311,1812, or 1316 of this title ... may be had by any interested person in the Circuit Court of Appeals of the United States.” 33 U.S.C. § 1369(b)(1). The jurisdictional grant in section 1369 is exclusive. American Petroleum Inst. v. Train, 526 F.2d 1343, 1344 (10th Cir.1975). We must determine whether the EPA’s denial of Maier’s petition to institute rulemaking constitutes an “action ... in approving or promulgating any effluent limitation or other limitation,” and thus falls within the ambit of section 1369(b)(1).
The District of Columbia Circuit dealt with a similar problem in Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C.Cir.1975), which interpreted jurisdictional provisions of the Clean Air Act (CAA) in the context of the EPA’s refusal to revise previously promulgated standards for certain power plants. As in the CWA, the CAA contained one section permitting citizen suits to be brought in federal district court, id. at 657-58 n. 4 (citing CAA § 304, 42 U.S.C.A. § 1857h-2(a) & (b) (1970)), and another granting jurisdiction to the courts of appeal to “review of action of the Administrator in promulgating” standards of performance, id. at 657 n. 3 (quoting CAA § 307(b), 42 U.S.C.A. § 1857h-5(b) (1975 pocket part)). The petitioners in Oljato Chapter argued that an EPA standard had been rendered obsolete by changes in technology, and that the Administrator’s failure to revise the rule “constituted a failure to perform a nondiscretionary duty, thereby conferring District Court jurisdiction.” Id. at 658. The court rejected petitioners’ attempts to distinguish “between judicial review of an original rule and review of a subsequent refusal to modify or reverse that rule,” noting that
[wjhile we have no difficulty in making the suggested distinction, we conclude that Congress intended all review related to the continuing validity of standards of performance to be included within the exclusive scope of [the section providing for appellate review]; that this action is premised upon the Administrator’s refusal to revise the standard is of no jurisdictional import.
Id. at 659-60. Oljato Chapter relied both on the CAA’s legislative history, and on the fact that
[s]ince a revision by the Administrator is the ultimate goal of a new information appeal, it makes little sense to suggest that this court is stripped of its ... jurisdiction whenever a party attempts to avoid litigation by first asking the Administrator voluntarily to make the same revision a successful ... petition would require.
Id. at 660.
As was the case in Oljato Chapter, the legislative history of the CWA speaks directly to the case at hand:
The Committee recognizes that it would not be in the public interest to measure for all time the adequacy of a promulgation of any standard requirement or regulation by the information available at the time of such promulgation. In the area of protection of public health and environmental quality, it is clear that new information will be developed and that such information may dictate a revision or modification of any promulgated standard, requirement, or regulation established under the act. The judicial review section, therefore, provides that any person may challenge any requirement after the date of promulgation whenever it is alleged that significant new information has become available.
S.Rep. No. 92-414, at 85 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3751. Congress plainly intended that the Administrator’s refusal to institute rulemaking in the face of new information could be reviewed directly in a circuit court.
Section 1369’s language about an Administrator’s “action ... in approving or promulgating any ... limitation” arguably does not apply to the Administrator’s refusal to promulgate a rule in the first instance. We agree with the court in Oljato Chapter, however, that a challenge to the refusal to revise a rule in the face of new information is more akin to a challenge to the existing rule than a challenge to the refusal to promulgate a new rule. Because Mr. Maier is essentially challenging the sufficiency of the EPA’s secondary treatment regulation, we have no difficulty construing this as a challenge to an “action in approving or promulgating” under section 1369. Where petitioners’ challenge is to the substance of a regulation that the agency has already promulgated, exclusive jurisdiction in the court of appeals may not be evaded merely by styling the claim as one for failure to revise. Cf. David P. Currie, Air Pollution-. Federal Law and Analysis § 9.10, at 9-31 (1981) (“In short, allegations that the Administrator has failed to take action required by statute should not be permitted to circumvent the plain statutory command that judicial review of decisions respecting implementation plans and other regulations is to be in the courts of appeals____”). “Absent a far clearer expression of congressional intent, we are unwilling to read the CWA as creating such a seemingly irrational bifurcated system.” Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196-97, 100 S.Ct. 1093, 1095, 63 L.Ed.2d 312 (1980) (rejecting attempt to distinguish challenge to EPA veto of a state permit from a challenge to EPA issuance of a permit).
Moreover, if the EPA had responded to Mr. Maier’s petition by promulgating a revised rule, exclusive jurisdiction for review would lie in the Court of Appeals. The fact that the EPA declined to act does not deprive us of jurisdiction, for we have exclusive jurisdiction over “petitions to compel final agency action which would only be reviewable in the United States Courts of Appeal.” See Environmental Defense Fund v. NRC, 902 F.2d 785, 786 (10th Cir.1990). This rule ensures that an appellate court will review the Administrator’s decision whether the ultimate challenge is to a failure to revise or to a decision to revise. Because exclusive jurisdiction to review the substance of regulations finally promulgated by the EPA lies with the Courts of Appeals, we have jurisdiction to compel revisory rulemaking unless the agency’s failure falls within that class of nondiscretionary duties for which jurisdiction has been granted to the district court.
This is not a ease which could have been brought in district court as a citizen’s suit under section 1365. Such a suit may lie only for failure to perform a nondiscretionary duty. 33 U.S.C. § 1365. The instant case is unlike others in which circuit courts have declined to find section 1369 jurisdiction in the face of the EPA’s refusal to promulgate regulations at all, or its failure to do so by a date certain set by law. For example, in Trustees for Alaska the Ninth Circuit considered a claim that the EPA had totally failed to promulgate specific regulations for the placer mining industry notwithstanding a requirement from Congress to do so, and was instead setting effluent limitations in individual NPDES permits. Trustees for Alaska, 749 F.2d at 558. The court determined that this claim was “framed in terms of the EPA’s failure to comply with a nondiscretionary duty to promulgate industry-wide rules,” id, and was therefore required to be brought in district court under section 1365, id. at 558-59. See also Armco, Inc. v. EPA, 869 F.2d 975, 981-82 (6th Cir.1989) (disclaiming jurisdiction where EPA had refused to perform nondiscretionary responsibility to propose comprehensive sludge management regulations); Pennsylvania Dep’t of Envtl. Resources v. EPA, 618 F.2d 991, 995 (3d Cir.1980) (declining section 1369 jurisdiction over suits to compel EPA to perform nondiscretionary duty to promulgate new source performance standards applicable to post-mining discharges). In these cases, the EPA had failed to issue the disputed regulations at all. In the instant case, the EPA has both issued and revised its regulations, but Mr. Maier contends it has abused its discretion by declining to initiate rulemaking again in light of new information. Both parties agree that the timing of any revision is discretionary. Mr. Maier does not contend the EPA has failed to comply with a nondiscretionary duty, and thus a district court could not exercise jurisdiction over his claim under section 1365. We therefore hold that we have jurisdiction over the instant case under section 1369.
III.
A.
We review an agency’s refusal to initiate revisory rulemaking to determine if the agency’s refusal was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Oklahoma v. EPA, 908 F.2d 595, 598 (10th Cir.1990), rev’d on other grounds sub nom. Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Although our inquiry into the basis of the agency’s action will be searching and careful, our review is ultimately a narrow one. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). Review under the “arbitrary and capricious” standard “encompasses a range of levels of deference to the agency.” American Horse Protection Ass’n v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987) (AHPA) (citing WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981)); accord Brown v. Secretary of Health and Human Servs., 46 F.3d 102, 110 (1st Cir.1995). In determining the appropriate level of deference, we heed the nature and context of the challenged agency action or inaction.
Substantial prudential concerns counsel particularly broad deference in the context of review of an agency refusal to initiate rulemaking. The D.C. Circuit has repeatedly observed that, within the range of deference embodied in the “arbitrary and capricious” standard, refusals to initiate rulemaking are at the high end. See, e.g., Capital Network Sys., Inc. v. FCC, 3 F.3d 1526, 1530 (D.C.Cir.1993) (quoting AHPA 812 F.2d at 4-5; citing Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C.Cir.1992)). Courts are ill-equipped and poorly situated to address important reasons for agency inaction, such as the decision that a “problem is not sufficiently important to justify the allocation of significant scarce resources given the nature of the many other problems the agency is attempting to address.” 1 Kenneth C. Davis & Richard J. Pierce, Administrative Law Treatise § 6.9, at 280 (3d ed. 1994). “A court rarely has enough information to second guess agency decisions premised on this type of reasoning.” Id.; see also Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1046 (D.C.Cir.1979) (“An agency’s discretionary decision not to regulate a given activity is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution____”); AHPA 812 F.2d at 4-5 (according heightened deference to refusal to initiate rule-making).
Nonetheless, we will not blindly uphold agency refusals to initiate rulemaking in the face of new information. “[Cjhanges in factual and legal circumstances may impose upon the agency an obligation to reconsider a settled policy or explain its failure to do so.” Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.1992). For example, “a refusal to initiate a rulemaking naturally sets off a special alert when a petition has sought a radical modification of a rule on the basis of a radical change in its factual premises.” AHPA 812 F.2d at 5. Thus, the D.C. Circuit has held “that an agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject (either to promulgate or not to promulgate specific rules) has been removed.” WWHT, 656 F.2d at 819 (describing Getter v. FCC, 610 F.2d 973 (D.C.Cir.1979)).
An agency determination may also be vulnerable to challenge if it rests on an insufficient legal predicate. Where the agency’s refusal to initiate rulemaking implicates questions of statutory interpretation, we use the familiar Chevron test. When we review an agency’s interpretation of a statute it administers, we ask 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, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). But “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 843, 104 S.Ct. at 2782. If Congress has explicitly or implicitly delegated authority to an agency, “legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. at 2782. “This deference is a product both of an awareness of the practical expertise which an agency normally develops, and of a willingness to accord some measure of flexibility to such an agency as it encounters new and unforeseen problems over time.” International Bhd. of Teamsters v. Daniel 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979).
B.
Mr. Maier asserts here that the existence of new technology mandates revision of the regulations governing publicly owned treatment works. The EPA does not controvert that NOD can now be controlled effectively. The central question on appeal is whether such control must be accomplished through the EPA’s generally-applicable standards for secondary treatment, or whether the EPA may continue to address the problem on a case-by-case basis through the permit process.
Mr. Maier argues that the EPA’s refusal to initiate rulemaking is arbitrary and capricious because the development of the new technology has removed both the legal and factual predicate of the EPA’s decision not to set parameters for NOD. Mr. Maier asserts that because the CWA is a “technology-forcing” statute, the development of cost-effective new technology must be incorporated into the EPA’s generally-applieable secondary treatment regulations. Alternatively, he argues that even if the statute gives the EPA discretion to address NOD levels by permit, its decision to do so in this instance is not supported by the evidence before the agency or is based on the consideration of impermissible factors. Athough there is substantial overlap between these arguments, we consider them in turn.
Under Chevron’s first step, we ask “whether Congress has directly spoken to the precise question at issue.” 467 U.S. at 842, 104 S.Ct. at 2781. Section 1311 of the CWA specifies:
(a) Except as in compliance with this [and other] sections ... the discharge of any pollutant by any person shall be unlawful.
(b) In order to carry out the objective of this chapter there shall be achieved—
(1)(B) for publicly owned treatment works ..., effluent limitations based upon secondary treatment as defined by the Administrator pursuant to section 1314(d)(1) of this title____
33 U.S.C. § 1311 (emphasis added). In turn, section 1314(d) provides that “[t]he Administrator ... shall publish within sixty days after October 18, 1972 (and from time to time thereafter) information, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, on the degree of effluent reduction attainable through the application of secondary treatment.” Id. § 1314(d)(1). Aside from sections 1311 and 1314, the CWA does not further delimit “secondary treatment,” or specifically constrain the Administrator in promulgating generally-applieable effluent limitations for POTWs.
Congress has not directly spoken to the precise question of whether the EPA has discretion to conclude that reductions in NOD are not required to be achieved by generally-applieable effluent limitations, but may instead be imposed by permit. The statute plainly delegates to the EPA authority to define secondary treatment, and to promulgate generally-applieable regulations based on its definition. We must therefore determine whether the EPA’s secondary treatment regulations are a “permissible construction” of the CWA Mr. Maier posits that the statutory definition of “secondary treatment” must include technology to reduce NOD and nutrients if such technology is available and cost-effective. He argues that the EPA’s decision to control NOD by permit is not a legitimate policy choice because the CWA requires the EPA to promulgate generally-applicable effluent limitations for every pollutant that can be controlled with “secondary treatment.” We disagree and conclude that the EPA’s secondary treatment regulations are a permissible exercise of its authority under sections 1311 and 1314.
As an initial matter, we must reject Mr. Maier’s claim that § 1314(d)(1) requires the Administrator to publish secondary treatment regulations for any pollutant that can be controlled via secondary treatment. That provision plainly mandates only that the EPA issue scientific information “from time to time.” Compare 33 U.S.C. § 1314(d)(1) (“The Administrator ... shall publish ... from time to time ... information ... on the degree of effluent reduction attainable through the application of secondary treatment.”), with id. § 1314(b) (“the Administrator shall ... publish ... regulations.”). While it is true that where reductions in NOD are “attainable through the application of secondary treatment,” id. § 1314(d)(1), the EPA may have a present duty under § 1314(d)(1) to publish information pertaining to those reductions, cf. Oljato, 515 F.2d at 662, the EPA is not required under that same provision to issue regulations limiting NOD discharges from POTWs. Mr. Maier has not advanced a duty-to-publish claim in the instant case, and we therefore do not consider this question further.
As a matter of statutory delegation and practical necessity, the EPA exercises its expertise to determine if a given technology ought to form the basis of the standard “secondary treatment” defined under section 1314(d)(1). The phrase “secondary treatment” has an independent meaning apart from its statutory context. “Conventional or secondary treatment of municipal waste includes biological processes, primarily decomposition, with or without chemical disinfectants, to remove organic wastes.” City of Sarasota, 813 F.2d at 1108 n. 7. The phrase distinguishes one stage in a variegated treatment system:
There are three levels of wastewater treatment. Primary treatment refers to a physical sedimentation process for removing settleable solids. Secondary treatment refers to a physical/biological process for removing solids and pollutants characterized by biological oxygen demand and pH. Tertiary treatment involves processes which remove other pollutants such as non-biodegradable toxics.
Natural Resources Defense Council, Inc. v. EPA 790 F.2d at 293 n. 2; see also California v. EPA 689 F.2d 217, 218 (D.C.Cir.1982) (distinguishing secondary treatment, advance secondary treatment, and advance waste treatment). Although these descriptions suggest that NOD and nutrients fall within a general understanding of secondary treatment, they also demonstrate “secondary treatment” has a broad connotation.
The legislative history of the CWA also offers little guidance to the statutory definition of “secondary treatment” with respect to NOD. The EPA argues Congress intended that “secondary treatment” concern “organic” oxygen depletion, i.e., CBOD, but not NOD and nutrients. However, it is far from clear from the legislative history that this distinction was ever considered. As noted in the House Report, “[secondary treatment as considered in the context of a publicly owned treatment works is generally concerned with suspended solids and biologically degradable, oxygen demanding materials (BOD).” H. Rep. No. 92-911, at 101 (1972). It appears more likely that when the CWA was enacted, treatment for NOD simply was not technologically feasible. See, e.g., Secondary Treatment Regulation, 49 Fed.Reg. 36,986, 36,988 (1984) (to be codified at 40 C.F.R. pt. 133) (“Secondary treatment requirements are based on controlling the oxygen demand due to the carbonaceous component of the organic material in the effluent because secondary treatment facilities can effectively remove carbonaceous organic material ... but may not consistently remove ammonia.”); Secondary Treatment Information, 48 Fed.Reg. 52,-272, 52,273 (1983) (“‘[NJutrients ... were not specified for inclusion, because secondary treatment, under normal conditions, does not effectively or consistently remove them.’”) (citation omitted). Congress did not speak to the problem confronting us because for practical purposes it did not yet exist.
Given the broad category of treatment processes and technology encompassed by “secondary treatment,” and statutory delegation to the Administrator to define secondary treatment, we do not find it impermissible for the EPA to refuse to extend its definition of standard secondary treatment to include controls on NOD. The EPA has consistently classified NOD reduction as a form of “advanced treatment” that will be required by permit if necessary to protect water quality. See, e.g., Secondary Treatment Information, 48 Fed.Reg. 52,272, 52,275 (1983) (proposed Nov. 16, 1983) (describing nitrification processes as “beyond secondary” treatment). We do not agree with Mr. Maier or the dissent that technological feasibility is the only criterion the EPA may use to determine which of the universe of secondary treatment technologies ought to be considered standard. Here, the agency’s choice is supported by its reasoned consideration of other factors that lie within its expertise in administering the statute.
Section 1311(b)(1)(B), in conjunction with section 1314(d)(1), provides for the promulgation of generally-applicable effluent limitations for POTWs. Section 1311(b)(1)(B) gives the EPA authority to determine the stringency and scope of generally-applicable effluent limitations that are based on secondary treatment. Thus, even if reductions of NOD and nutrients potentially fall within the definition of “secondary treatment,” the EPA must determine if it should promulgate generally-applicable effluent limitations for these specific pollutants. The statute requires that generally-applicable effluent limitations for POTWs be “based upon secondary treatment.” 33 U.S.C. § 1311(b)(1)(B) (emphasis added). Contrary to Mr. Maier’s assertion, the statute does not on its face require that the generally-applicable effluent limitations address all pollutants that might be reduced by secondary treatment. When we apply the deference due an administrative agency which Chevron mandates, “[t]he permissive nature of the statute implies broad agency discretion in selecting the appropriate manner of regulation.” Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1221 (D.C.Cir.1983). EPA’s position that the statute allows the agency to impose limits for NOD on a case-by-case basis through the permitting process is a reasonable and permissible reading of the statute, to which we must defer.
The EPA’s exercise of its discretion under sections 1311 and 1314 is not in these circumstances arbitrary, capricious, or manifestly contrary to the statute. The EPA has made the uncontroverted claim that the effect of NOD is highly variable and site-specific, and thus not appropriate to a general regulation applicable to every POTW. Here, the EPA and the States approved to administer the NPDES permit program routinely impose NOD and nutrient limitations on POTWs on a case-by-case basis by permit. We are not faced with a situation in which the EPA has chosen to ignore a pollutant or category of pollutants for which effluent reductions are attainable by secondary treatment. The EPA has not substituted control by permit for control by generally-applicable effluent limitation without a reasoned explanation for its choice of method. Contrary to the dissent’s suggestion, the EPA has not sought, nor do we approve, “general discretion to define secondary treatment to cover only those pollutants that are — in the view of the Administrator — more appropriately regulated via generally-applicable regulations rather than ease-by-case quality-based limits.” Dissent at 1049. The EPA’s discretion is not unbridled.
This brings us to Mr. Maier’s second argument, which is that the EPA’s refusal to include parameters for NOD and ultimate BOD in its secondary treatment regulations in this instance was nonetheless arbitrary and capricious because the refusal was not supported by the evidence and was based on a consideration of impermissible factors. The Supreme Court has stated
an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has 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. Ass’n v. State Farm, Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). The Court’s statement is equally applicable to an agency’s basis for declining to make a rule.
The EPA does not dispute that one factual predicate of the existing regulations has changed — the feasibility and cost-effectiveness of technology to control NOD. See WWHT, 656 F.2d at 819 (“[A]n agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject ... has been removed.”). Mr. Maier argues that technological feasibility is the only criterion the EPA may use to determine which secondary treatment controls ought to be generally applicable, and which may be imposed on a case-by-case basis. We disagree. The agency’s decision to control NOD and nutrients by permit is supported by two other factual predicates that lie within its expertise in administering the statute: first, the impact of NOD and nutrients on water quality is highly variable with the characteristics of the receiving body of water; second, control of NOD by permit adequately protects water quality where necessary. Mr. Maier does not dispute these factual premises. Instead, he argues that the first is a legally impermissible consideration, and he explicitly eschews a challenge to the second.
Mr. Maier observes Congress intended the effluent limitations in the CWA to be technology-based, not based on assessments of water quality. In general, we agree. See EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204-05, 96 S.Ct. 2022, 2024-25, 48 L.Ed.2d 578 (1976). However, effluent limitations for POTWs must be “based upon” secondary treatment technology, not eo-extensive with it. We do not agree with Mr. Maier that it is impermissible for the EPA to consider effects on water quality in determining whether reductions attainable by new secondary treatment technology ought to be uniformly imposed on all POTWs. The purpose of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters....” 33 U.S.C. § 1251(a). The EPA relies on statutory language authorizing the EPA to use the permitting process to impose “more stringent limitation[s]” on POTWs where necessary to protect water quality. 33 U.S.C. § 1311(b)(1)(C). We need not deter- ■ mine if section 1311(b)(1)(C) directly authorizes the use of permitting as an alternative to, as opposed to a supplement for, generally-applicable effluent limitations. The fact that Congress has, in this closely related statutory section, provided for quality-based permitting as a gap-filling measure gives strong support to the EPA’s exercise of delegated authority to fill the gap where it has concluded that NOD should not be part of standard secondary treatment. The fact that secondary treatment controls are technology-based does not preclude the EPA from deciding that certain technologically-attainable standards are necessary and appropriate only for some POTWs. We should not order the agency to develop generally-applicable parameters based on the use of new technology, even if cost-effective, in the face of the agency’s reasoned judgment that the use of such technology is irrelevant to the attainment of water quality standards in many circumstances.
Contrary to the suggestion of the dissent, we do not approve the EPA’s regulations based on the agency’s naked “policy preference for quality-based controls rather than generally applicable limitations.” Dissent at 1048. The EPA has articulated its uncontroverted view that NOD is highly variable with the conditions of the receiving body of water. Consequently, NOD is particularly unsuited for a generally applicable regulation, and is appropriately dealt with — and is being dealt with — by permit. We agree with the dissent that the Clean Water Act amendments created a statutory regime in which technology-based standards are the primary mechanism of controlling discharge of pollutants. It is a far stretch from this presumption to the conclusion that the EPA may not exercise its authority in filling the gaps to conclude that certain pollutants, due to their peculiar characteristics, need not be controlled by across-the-board standards. Contrary to the dissent’s inference, we do not hold that the EPA may choose a permit-based approach over a technology-based standard merely based on the agency’s “policy preference.”
The dissent gives lip service to the notion of deference to the agency, but the deference it would give is cramped indeed. The dissent asserts that to satisfy Chevron, “the implementing agency must point to some language in the statute to justify its policy conclusion — here, that the POTW regulatory regime can legitimately depart from the core public policy of the Clean Water Act.” Dissent at 1048-49. This turns the Chevron test on its head: the dissent, rather than deferring to the agency’s gap-filling unless “manifestly contrary to the statute,” imposes on the agency the burden of proving that its gap-filling is manifestly authorized by the statute — in which case it would be unnecessary to invoke the Chevron framework in the first instance. We are faced with a paradigmatic situation calling for deference to the agency: where the statute allows the agency to exercise discretion, we should defer to the agency’s use of its expertise in striking a careful balance between the broad statutory purposes and the unique problems posed by specific pollutants and technologies. The EPA has offered a reasoned basis for its belief that this balance is to apply a technology-based standard to some, rather than all, POTWs.
Mr. Maier argues that, even if the EPA is right about the costs of retrofitting existing POTWs, new facilities can be designed to treat NOD at no greater expense and the EPA should so require. Even if this is true, we are not persuaded the EPA’s failure to so act is arbitrary or capricious. The EPA maintains that NOD is adequately addressed on a plant-by-plant basis. Mr. Maier has failed to demonstrate that stricter standards in individual permits are not effective in promoting the building of these newer, more effective designs. Moreover, this argument ignores the real costs of administering environmental laws. Promulgating revised regulations necessitates a substantial commitment of limited agency resources. We have “little ability to determine the resources available to the agency or to determine whether the other problems to which the agency has chosen to devote its scarce resources are more or less important than the problem raised in the petition.” 1 Davis & Pierce, Administrative Law Treatise § 6.9, at 280.
On the record in this ease, we cannot hold that the EPA’s interpretation of the CWA is arbitrary or capricious, or that its rejection of rulemaking in this instance is arbitrary or capricious. Since the EPA first promulgated regulations under Section 1311, it has never required that all oxygen-depleting pollutants be removed by means of generally-applicable secondary treatment controls. These regulations do not stand alone; rather, they set a national floor for the performance of secondary treatment systems. Primary and tertiary treatments complement their function, and individual permits for treatment facilities can have stricter standards. EPA makes a reasoned argument that where NOD is a problem, it may be addressed in the terms of a POTWs permit, and points out that 53% of major secondary treatment facilities across the country now have such requirements. Ree. at 123. Mr. Maier would have to provide impressive evidence that the EPA has acted irrationally. He has not done so. Without a more convincing showing that the nation’s municipal water treatment system is broken, we will not order the EPA to fix it.
AFFIRMED.
. The Utah Wilderness Association was dismissed from this appeal. For simplicity’s sake, we shall refer only to Mr. Maier as petitioner.
. Secondary treatment generally refers to a process of physical and biological treatment of wastewater to remove pollutants which deplete the water's oxygen content and increase its acidity. See generally City of Sarasota v. EPA, 813 F.2d 1106, 1108 n. 7 (11th Cir.1987); Natural Resources Defense Council, Inc. v. EPA, 790 F.2d 289, 293 n. 2 (3d Cir.1986).
. Carbonaceous biochemical oxygen demand (CBOD) quantifies "the amount of oxygen consumed by various microorganisms in metabolizing organic (carbon) matter in the wastewater,” while nitrogenous biochemical oxygen demand (NOD) measures “the oxygen consumed by other types of bacteria ... in converting ammonia to nitrite and then to nitrate, a process known as nitrification.” Secondary Treatment Information, 48 Fed.Reg. 52,272, 52,274 (1983) (proposed Nov. 16, 1983). NOD can also be referred to as NBOD, as Mr. Maier does.
“Nutrients" are related to NOD, and refer to materials upon which certain bacteria feed. Oxygen is consumed when these bacteria respire, or when they die and other organisms use oxygen to consume them.
. Controlling CBOD has been the main goal of secondary municipal wastewater treatment both because CBOD is usually a much greater problem than NOD and because the development of technology to effectively address high levels of NOD has lagged behind that used to reduce CBOD. Secondary Treatment Information, 48 Fed.Reg. 52,272, 52,275 (1983) (proposed Nov. 16, 1983).
More than a decade ago, scientific commentators speculated as to whether NOD was meant to be controlled as a component of BOD. See rec. at 43 (“Although significant nitrification can occur in the BOD5 test for secondary effluents, much debate centers on whether the 30-mg/L BOD5 standard, as defined by EPA, was intended to include only carbonaceous oxidation, or also any nitrogenous oxidation that might be exerted in the BOD5 test.”).
. Standard secondary treatment did not include controls on NOD.
. CBOD levels tend to rise sharply and then plateau, while NOD levels increase at a slower rate. As a result, early testing for BOD (e.g., after five days) will accurately assess CBOD but will fail to measure the levels to which NOD will eventually rise. This rise in NOD would be captured by the measurement of ultimate BOD. This disparity has apparently been recognized for several decades, see rec. at 21, 51, but Mr. Maier suggests it was ignored when EPA promulgated regulations under the CWA, see id. at 8; see also id. at 244.
. Section 1369 codifies Section 509 of the Feder- of 1972. al Water Pollution Control Act (Clean Water Act)
.We note that two courts have eschewed jurisdiction under section 1369; however, neither case involved the continuing validity of a rule in the face of new information. In Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 656 (7th Cir.1986), the remedy sought was "not to rescind or modify” as a result of new information, but rather "to conduct a new, follow-on rulemaking proceeding ... distinct from that which [was] under review.” Likewise, in Natural Resources Defense Council, Inc. v. Train, 519 F.2d 287, 291 (D.C.Cir.1975), review was sought for "the omission of certain substances” and ”[u]nless a substance is listed no standard or prohibition reviewable under section [1369] will ever be promulgated.” We also note that review was not possible because neither case had a complete administrative record. Bethlehem Steel, 782 F.2d at 655-56 (review "will require the compilation of a new administrative record”); Natural Resources Defense Council, Inc. v. Train, 519 F.2d at 291 ("[T]he Administrator had not filed the entire administrative record with the court.").
. Although the statutory scheme in Environmental Defense Fund v. NRC did not contain a bifurcated system of judicial review, that fact is irrelevant. The CWA confers jurisdiction on the district courts only for the failure to perform non-discretionaiy duties. Where the alleged duty is discretionary, as here, the courts of appeals have jurisdiction.
. Prudential concerns are not to the contrary, for “[u]nlike other actions in which the district court serves the important functions of developing a complete record and ‘defining and focusing the issues,' in many appeals of administrative actions, the agency already has fulfilled those functions and there is no practical reason to submit the issues to two-tiered judicial review.” 2 Steven Alan Childress & Martha S. Davis, Federal Standards of Review § 14.03, at 14-19 (2d ed. 1992) (citation omitted).
. We note the dicta in Oljato Chapter that a duly under the CAA to revise regulations “from time to time” is discretionary was rendered obsolete by statutory revision imposing a mandatory duty to review regulations every five years. See Environmental Defense Fund v. Thomas, 870 F.2d 892, 896-97 (2d Cir.1989).
. As the court in Oljato Chapter noted, the limited jurisdiction granted to the district court would be rendered boundless if an abuse of discretion were considered to be a "failure to perform a nondiscretionary act.” 515 F.2d at 662 (emphasis added).
.In Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985), the Supreme Court decided that agency refusals to take specific enforcement actions are presumptively unreviewable under the APA. However, the Court expressly did not address the level of deference due when the agency refuses to initiate rulemaking. Id. at 825 n. 2, 105 S.Ct. at 1652 n. 2. The D.C. Circuit has held that the Chaney presumption does not apply to refusals to initiate rulemaking. AHPA, 812 F.2d at 4-5. See also Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U.ChiL.Rev. 653, 680-83 (1985). The EPA agrees that its refusal to initiate rulemaking is reviewable.
. In his initial appellate brief, Mr. Maier also argued that the EPA must amend its regulations to replace testing for oxygen depletion after five days (BOD5) with testing for ultimate oxygen depletion. In his reply brief, Mr. Maier concedes that this argument cannot stand alone and is founded on his argument about the need to set general parameters for NOD.
. The dissent claims the EPA is foreclosed from exercising its discretion to exclude NOD from its definition of secondary treatment because the agency has used secondary treatment regulations to control BOD, of which NOD is a component. As our discussion in part I.B makes clear, however, BOD parameters have historically been set by the agency as a rough proxy for CBOD. At the time that the BOD limitations were first promulgated, control of the NOD component was not technologically feasible. As the dissent constantly reminds us, secondary treatment is technology-based. The BOD parameter was thus targeted at CBOD, for which reductions were technologically attainable, and not at NOD, for which reductions were not technologically attainable. By the time of the EPA’s 1984 rulemaking, a nitrification-inhibited test was developed which allowed for the isolation of the CBOD component. The EPA promulgated regulations approving the use of the CBOD test in lieu of the general BOD test. The EPA has never set discrete limitations on the NOD component.
. On its face, the CWA gives the EPA less discretion in setting effluent limitations on point sources other than POTWs. See 33 U.S.C. § 1311(b)(2)(A) (stating that for certain identified toxic pollutants “there shall be achieved ... effluent limitations ... which shall require the application of the best available technology economically achievable.”).
. The dissent suggests that our analysis of section 1311 substitutes our own construction of the statute for that advanced by the agency. In so doing, the dissent fails to distinguish between the source of agency discretion, which we must determine in the first instance under Chevron, and the basis for the agency’s exercise of its discretion, for which the dissent correctly observes we may not supply our own rationale. Moreover, we may not avoid construing the statute to the extent necessary to determine that the agency’s regulations are not "manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.
. In his Reply Brief, Mr. Maier appends material pertaining to the effectiveness of the permitting process in protecting water quality from NOD. We decline to consider this material as it was not presented in the petition to the EPA for consideration by the agency.
. The dissent asserts that the "more stringent” permits described in section 1311(b)(1)(C) may only come into play where a generally-applicable regulation is not technologically feasible, or as a supplement when the generally-applicable regulation is inadequate to protect water quality.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1195652173913044, Costs: 0.0108695652173913
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WIDENER, Circuit Judge:
This case comes to us on appeal from summary judgment granted in favor of the defendant, United States Environmental Protection Agency (EPA). While we agree with much of the district court’s opinion, we are of opinion that judicial review of the merits of EPA’s objections is premature, so we vacate the judgment of the district court and remand with instructions to dismiss the case for lack of subject matter jurisdiction.
The plaintiff in this action, Champion International Corporation (Champion), has operated a pulp and paper mill in Canton, North Carolina since 1907. The mill is located in Haywood County, North Carolina, on the Pigeon River, twenty six miles upstream from the Tennessee-North Carolina border. The Pigeon River is classified as suitable for trout fishing from its source to the Canton mill. From that point to the river’s mouth near Newport, Tennessee, the river is classified as Class C, secondary recreation and fish propagation.
The Canton mill diverts 46.4 million gallons per day from the Pigeon River for its pulp and paper production and returns 45 million gallons per day. The average flow of the Pigeon River at Canton is 48 million gallons per day. Thus the Canton mill diverts substantially the entire flow of the Pigeon River, particularly during low flow periods. Because of dissolved solids resulting from the manufacturing process, the Pigeon River has a brown murky appearance below the Canton mill to the Tennessee border and beyond. From the state line, the Pigeon River flows northwesterly until it joins the French Broad River at a point approximately five miles north of Newport, Tennessee. Directly adjacent to the Tennessee border, the land along the Pigeon River is primarily scenic wooded and recreational areas.
Until 1981, the Canton Mill operated under a National Pollutant Discharge Elimination System (NPDES) permit issued by the State of North Carolina. This permit was originally issued in 1977. On June 30, 1981, the permit expired. No action was taken concerning the permit until 1983. Champion continued to operate the mill under the guidelines of the expired permit.
In January of 1983, Tennessee informed North Carolina that it felt Champion to be in violation of Tennessee water quality standards with respect to uses designated for the Tennessee portion of the Pigeon River. Tennessee requested that any reis-suance or modification of the expired permit incorporate its water quality concerns. Tennessee developed a model permit that would satisfy the Tennessee water quality standards and submitted it to North Carolina. In May of 1983, Tennessee requested that North Carolina adopt the model permit and renewed this request in June 1983. Tennessee requested EPA assistance the following month. In September 1983, representatives of Tennessee, North Carolina and the EPA met in order to develop a solution that would meet all guidelines while remaining feasible for Champion.
The major area of concern on Tennessee’s part, and the only permit requirement at issue in this case, is the amount of color removal necessary for Champion to comply with the Clean Water Act, taking into account Tennessee’s legitimate concerns. To that end, each entity conducted a modeling analysis to determine the amount of color removal necessary in order for Champion’s discharge to be within limits. At the time the administrative proceeding commenced, Tennessee and North Carolina both had narrative color standards. While the permit application was pending, North Carolina amended its standard to include a limitation which included aesthetic considerations, effective January 1, 1985.
A public hearing was held on January 29, 1985, at Tennessee’s request, in order to hear objections to North Carolina’s draft permit. The two primary objections were, first, that North Carolina did not hold Champion to an absolute standard of 75% color removal but had qualified the standard by linking it to technical and economic feasibility. Second, irrespective of technical feasibility, the 75% removal requirement would not guarantee that water quality standards would be met during the low flow periods on the Pigeon River. In February of 1985, the EPA submitted similar objections to North Carolina.
As noted, North Carolina, effective January 1, 1985, during the pendency of the administrative proceeding, amended its water quality standards to include an aesthetic criterion for color. Despite this change, North Carolina did not substantially alter the draft permit nor did it respond directly to the objections of either Tennessee or the EPA. North Carolina instead issued a final permit on May 14, 1985 substantially identical to the draft permit.
On July 18, 1985, EPA notified North Carolina that the May 14th permit would he considered to be a proposed permit as defined in the regulations. This was done because North Carolina had not complied with either the Memorandum of Agreement (MOA) or the EPA regulations in that it had not provided EPA with a proposed final permit prior to issuance. On August 6. 1985, the EPA formally objected to the May 14th permit on the grounds that it:
1) Did not assure compliance with water quality color standards under 33 U.S.C. § 1311(b)(1)(C), and did not, with certain qualifications, insure a 50 color count standard 26 miles downstream;
2) Did not unequivocally require Champion to comply with color standards; and
3) Was not an adequate response to Tennessee’s objections to the permit for the reasons stated just above.
North Carolina did not modify its May 14th permit. North Carolina’s only response was a letter stating that it felt the permit complied with all guidelines and that Tennessee’s proposed quantitative col- or limit, for various reasons, should not be accepted. Neither North Carolina nor Champion requested a public hearing on EPA’s objections. On November 13, 1985, EPA informed Champion that it had assumed permitting authority.
Champion brought this action on January 17,1986, seeking declaratory and injunctive relief. The gravamen of its complaint was that the EPA’s objections to the May 14th permit were invalid and that the EPA was without power to assume permitting authority. It complained of EPA’s “failure to approve ... [the North Carolina] wastewater discharge permit for Champion’s Canton ... mill_” On March 20, 1986, the State of North Carolina intervened in the action, substantially adopting the position of Champion. The district court granted summary judgment in favor of EPA. 648 F.Supp. 1390. Champion brought this appeal. The State of North Carolina has not appealed and apparently has acquiesced in the EPA’s assumption of permit granting authority in the instance of the permit in question.
The goals of the Clean Water Act are achieved primarily through the National Pollutant Discharge Elimination System (NPDES), a nationwide system of issuing permits to individuals and entities that discharge pollutants into United States waters. Discharge of pollutants into waters of the United States is prohibited absent compliance with the Clean Water Act. 33 U.S.C. § 1311(a). NPDES permits may be issued by either the EPA or a State that has been granted permitting authority. 33 U.S.C. § 1342. Once a State has gained approval as a permitting authority by the EPA, it is the initial and primary issuer for its geographical jurisdiction, and the EPA exercises oversight authority. 33 U.S.C. § 1342(c). North Carolina gained issuing authority for NPDES permits in 1975.
The EPA’s oversight powers were significantly altered by the 1977 amendments to the Clean Water Act. Prior to that time, the EPA could effectively veto a state permit, but could not then issue its own permit. This EPA veto was considered final administrative action subject to judicial review. Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980). As amended in 1977, 33 U.S.C. § 1342(d) now allows the EPA to take jurisdiction and issue a permit in the event of an impasse between a State and the EPA Administrator.
33 U.S.C. § 1342(d)(2) provides two separate grounds for the EPA to object to a state permit. Under 33 U.S.C. § 1342(d)(2)(A), the EPA Administrator may object in the instance of an unresolved interstate dispute. 33 U.S.C. § 1342(d)(2)(B) allows the Administrator to object to a permit which is outside the requirements of the Clean Water Act.
The mechanics of the EPA’s oversight of North Carolina’s permit granting program are contained in the Memorandum of Agreement (MOA) entered into by the State and the EPA. The EPA may object to a state permit for any of the reasons delineated in 40 C.F.R. Part 123.44(c)(l)-(7). If the State does not either resubmit the permit in response to the EPA’s objections or request a public hearing within 90 days, issuing authority passes automatically to the EPA. 40 C.F.R. 123.44(h)(1).
We must first address the issue of whether the district court should have entertained this suit at all or should have summarily dismissed the same for want of subject matter jurisdiction. We are of opinion the district court had subject matter jurisdiction to entertain the suit under Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), to the extent that it properly inquired whether the EPA had exceeded its delegated authority. When that question was ascertained favorably to EPA, the district court should have gone no further and should have dismissed for want of subject matter jurisdiction to consider the merits of the various objections EPA made to the North Carolina permit. Leedom v. Kyne requires that a federal court ascertain whether an administrative agency is acting within its authority and if the decision is that the agency is within its authority, the court is then required to dismiss the case for want of subject matter jurisdiction when the subject matter is one entrusted to the agency or in which review of the administrative decision has been specifically prescribed by Congress.
We think that the district court correctly decided that EPA was within its authority in assuming the permit granting authority under 33 U.S.C. § 1342(d), and we further think that Congress has prescribed review in a court of appeals rather than the district court. We also are of opinion that the objections EPA made to the North Carolina permit were within statutory and regulatory limits, so that, upon its ascertainment that EPA was acting within its authority, the district court should have then dismissed the complaint for want of subject matter jurisdiction. Our reasoning follows.
The first question to be answered is whether this is the type of case where an agency has clearly exceeded its delegated powers thus creating an immediate right of judicial review in the district court. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). We recognize that a determination of lack of jurisdiction precludes us from determining the merits of the case. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). The nature of the type of inquiry authorized by Leedom v. Kyne is such that a cursory review of the merits, however, is necessary to determine if the EPA is acting clearly beyond the boundaries of its authority. The facts of this case do not support a conclusion that the EPA has so exceeded its powers.
The statute at issue authorizes the EPA to assume issuing jurisdiction in the situation where an impasse has been reached between the EPA and the state authority. The Senate Report indicates the intent of Congress is consistent with EPA’s action here
EPA has been much too hesitant to take any actions where States have approved permit programs. The result might well be the creation of “pollution havens” in some of those States which have approved permit programs. This result is exactly what the 1972 amendments were designed to avoid. Lack of a strong EPA oversight of State programs is neither fair to industry nor to States that are vigorously pursuing the act’s requirements. The committee is concerned that the Agency is not conducting a vigorous overview of State programs to assure uniformity and consistency of permit requirements and of the enforcement of violations of permit conditions. S.Rep. No. 370, 95th Cong., 2d Sess. 73, reprinted in 1977 U.S.Code Cong. & Admin.News 4326, 4398.
The even more authoritative Conference Report addressed this as well.
There have been occasions under the existing law where the Administrator has objected to the issuance of a State permit, the State has refused to issue a revised permit, and in the absence of effluent limitations for a source specified in a permit, the Administrator has initiated enforcement action against the source seeking particular effluent reductions. This may also have occurred in other cases where a valid permit is not in effect. After the date of enactment of this provision the Administrator is expected to use the authority given by this amendment to issue a permit after objecting to a State-issued permit. Thus any litigation over the degree of effluent reduction required for a source should take place in the context of judicial review of the permit, rather than in the context of an enforcement action.
The conferees modified this provision of the Senate bill to establish a procedure for an appeal of an EPA veto of a State permit and to authorize EPA to issue a permit in the event of an impasse. This provision in no way authorizes the Administrator to issue a permit less stringent than required by any State effluent limitations or water quality standards. That authority is specifically preserved in Section 510 of the Act and is not affected by this amendment. Judicial review arising out of this provision would be in the same manner as judicial review of any EPA issued 402 permit. H.R.Conf.Rep. No. 830, 95th Cong., 2d Sess. 73, reprinted in 1977 U.S.Code Cong. & Admin.News 4424, 4472.
When we compare the facts of this case to the legislative history of the statute, we see that the EPA has done exactly what Congress intended it to do. The State of North Carolina drafted a permit. Both the State of Tennessee and the EPA objected. North Carolina did not respond to the EPA objections. Neither North Carolina nor Champion requested a public hearing on the validity of the EPA objections. North Carolina did not submit a revised permit in response to the EPA objections. This is in terms the type of impasse that Congress envisioned, and is the setting in which Congress intended that the EPA assume issuing jurisdiction. North Carolina simply failed to exercise its option of appealing the EPA veto by way of a public hearing; neither did it submit a revised permit.
Finally, we find support for the conclusion that the EPA has acted properly in International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). That case dealt with the preemptive effect of the Clean Water Act on common law nuisance actions. The Court noted that the only alternative for an affected downstream State is to “... apply to the EPA Administrator, who has the discretion to disapprove the permit if he concludes that the permit will have an undue impact on interstate waters.” Id. at-, 107 S.Ct. at 811. (emphasis supplied).
Again, that is what has happened here. Tennessee complained and the EPA gave heed to the complaint. We need proceed no further in analyzing the merits of Champion’s claims, for we are of opinion that EPA’s act in assuming the permit issuing authority was consistent with statute and regulation, and the objections it made to the North Carolina permit do not seem to be out of bounds. Even if EPA may ultimately be shown incorrect in its objections to North Carolina’s proposed permit (and we do not intimate that they are), its acts are not so clearly outside its authority to subject them to immediate judicial review in the district court.
The next question is whether Congress has provided for judicial review of the objections made by the EPA to the North Carolina permit prior to final action by the EPA. We think it has not. In the ordinary case, agency action is reviewable in the district courts under 28 U.S.C. § 1331 unless review has been limited by statute. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). The EPA’s position is that since it has only assumed issuing authority over Champion’s permit and has not made any final determination either to issue or to deny a permit, jurisdiction in this case has been specifically limited by statute. EPA also contends that review is precluded by the related judicial doctrines of exhaustion of administrative remedies, ripeness and finality. Because we believe Congress has prescribed a method of judicial review under 33 U.S.C. § 1369(b) in the context pressed here, we do not directly address the other questions.
The EPA assumed permitting authority under 33 U.S.C. § 1342(d)(4) which states that:
In any case where, after December 27, 1977, the Administrator, pursuant to paragraph (2) of this subsection, objects to the issuance of a permit, on request of the State, a public hearing shall be held by the Administrator on such objection. If the State does not resubmit such permit revised to meet such objection within 30 days after completion of the hearing, or, if no hearing is requested within 90 days after the date of such objection, the Administrator may issue the permit pursuant to subsection (a) of this section for such source in accordance with the guidelines and requirements of this chapter.
The legislative history concerning the 1977 amendments is clear with respect to judicial review of the EPA’s decision to assume issuing jurisdiction.
It is intended that this process be utilized to insure the rapid issuance of an effective, valid permit. The Administrator’s action in objecting to a permit would generally not be subject to judicial review since it will always be followed by further administrative action. The final issuance of a permit by EPA would be subject to judicial review pursuant to section 509(b)(1)(F). Senate Debate (Dec. 15, 1977), reprinted in “A Legislative History of the Clean Water Act of 1970,” vol. 3 at 470 (emphasis supplied).
This statement was made by Senator Muskie during the Senate debate on the 1977 amendments to the Clean Water Act. As Senator Muskie was the manager of the conference bill in the Senate, his comments have been given significant weight by this court in construing the Clean Water Act in Chesapeake Bay Foundation v. Gwaltney of Smithfield, 791 F.2d 304, 311 n. 13 (4th Cir.1986), vacated, — U.S. -, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).
Review of the administrator’s action is had directly in the appropriate court of appeals under 33 U.S.C. § 1369(b). Prior to the 1977 amendments of the Clean Water Act, the EPA administrator’s action in objecting to North Carolina’s proposed permit would have constituted a final agency action reviewable by the court of appeals under § 1369(b)(1)(F). Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980). Prior to 1977, however, the EPA was not empowered to issue its own permit in the instance where a State did not satisfy the EPA’s objection. And the Court in Crown Simpson expressly recognized that the 1977 amendments might have impact upon the jurisdictional question. 445 U.S. at 194 n. 2, 100 S.Ct. at 1093 n. 2. Since the EPA clearly intends to continue the administrative process and ultimately issue or deny a permit to Champion, its objection and assumption of issuing authority are not final actions subject to judicial review under the doctrine of administrative finality discussed in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
The effect of the two sections of the Act, 33 U.S.C. §§ 1342(d)(4) and 1369(b), is to place Champion out of court for either of two reasons. If the action of the EPA was reviewable under § 1369(b), Champion brought its action in the wrong court. If the action of the EPA was not so reviewable and the EPA had yet to act, then Champion has brought its action prematurely. The only alternative left to Champion is to argue, as it does, that the action of the EPA was so outside its statutory authority that the district court was justified in interrupting agency action.
Champion argues that even if Senator Muskie’s statement is correct, it does not mean that the assumption of issuing authority will never be immediately reviewable under any set of circumstances. For support, Champion relies primarily upon Central Hudson Gas & Elec. Corp. v. United States EPA, 587 F.2d 549 (2d Cir.1978). As that case dealt directly with the issue of whether a State or the EPA had issuing authority for a discharge permit, it may appear, at least facially, to bear on the question at hand.
The facts of Central Hudson, however, demonstrate that, as applicable here, it decided no more than that EPA was not acting outside its authority in retaining jurisdiction over the issuing authority for certain permits. In that case, the EPA was in the process of issuing discharge permits to the plaintiffs. In the interim period between the original application to EPA and final issuance of a permit, the EPA approved the status of the New York State Department of Environmental Conservation as an issuing authority for discharge permits. The Clean Water Act provided that once a state program received state approval, the EPA must cease issuing permits. See 33 U.S.C. § 1342(c)(1). The EPA had interpreted this section to mean that no new applications would be accepted by the EPA, but that it could complete any pending applications. Thus the very narrow question presented to the court of appeals was whether applications pending with the EPA at the time approval was given to the New York State Department of Environmental Conservation must be turned over to the jurisdiction of the state agency. The court first found that this was not agency action described in § 1369(b)(1) and thus was not subject to the exclusive jurisdiction of the court of appeals. Thus, the court decided the case was properly brought in the district court. The court went on to hold that prompt and efficient accomplishment of the Clean Water Act’s objectives would not be accomplished by transferring permitting authority to the State where the process was nearing completion in the EPA, and that EPA had properly retained jurisdiction.
So, beyond the question of whether a state authority or the EPA had permit issuing jurisdiction, Central Hudson bears little resemblance to the instant case and indeed supports our decision here.
Champion also cites Ford Motor Co. v. United States EPA, 567 F.2d 661 (6th Cir.1977), and State of Washington v. United States EPA, 573 F.2d 583 (9th Cir.1978), as standing for the proposition that the EPA cannot lawfully object to a state permit unless that permit be clearly outside the guidelines of the Clean Water Act. From this, Champion would infer that an EPA objection to an action of a state permitting authority not clearly outside EPA guidelines is EPA action outside delegated authority. These cases held that EPA vetoes not based on any guideline or regulation were clearly wrong, but in no way purport to hold that the EPA can only object in a situation where the proposed permit is clearly outside the guidelines of the Act. While not establishing the rule of law that Champion seeks, those cases do highlight the issue of whether the district court or court of appeals should initially review vetoes by the EPA of state permits. In similar circumstances involving EPA vetoes based not upon promulgated guidelines but merely on agency determinations, the two circuits reached different conclusions. The Ninth Circuit, in State of Washington, found the district court to be the proper forum, while the Sixth Circuit, in Ford Motor Co., found jurisdiction in the court of appeals under 33 U.S.C. § 1369(b)(1)(F). The Supreme Court’s decision in Crown Simpson, its express approval therein of Ford Motor Co., 445 U.S. at 197 n. 9, 100 S.Ct. at 1095 n. 9, and its reversal of the court of appeals in Crown Simpson which had depended on State of Washington, all create substantial doubt as to any continuing validity of State of Washington. See also Republic Steel Corp. v. Costle, 581 F.2d 1228, 1230 n. 1 (6th Cir.1978), cert. denied, 440 U.S. 909 (1979), also approved in Crown Simpson, 445 U.S. at 197 n. 9, 100 S.Ct. at 1095 n. 9. Also, Champion’s interpretation would discount the Congressional intent behind the 1977 amendments that the EPA exercise a more rigorous oversight of state issued permits. If EPA objections can be made only when the state permit is clearly in violation of the Act, then EPA’s discretion would be circumscribed too markedly to be consistent with the 1977 amendments.
Additionally, and of greater consequence, the Conference Report we have referred to above, which, of course, is the most authoritative indication of Congressional intent, contemplates a fact situation very nearly the same as that existing here, namely, EPA’s objections to a state issued permit which were not resolved resulting in EPA assuming the permit issuing authority. In such a case, we note the Conference Report provides that “Judicial review arising out of this provision would be in the same manner as judicial review of any EPA issued 402 permit.” 1977 U.S.Code Cong. & Admin.News 4326 at p. 4398.
As we have demonstrated above, the objections EPA made to the state issued permit were within the regulations concerning the same and were actions of the administrator subject to judicial review in a court of appeals under § 1369(b)(1), if those actions were allowed to proceed to their logical completion, i.e., EPA either granting or denying a permit. The actions of EPA, however, at this stage of the NPDES proceeding are not now subject to judicial review. EPA has neither granted nor denied a permit, so such action is not yet reviewable under § 1369(b)(1). The nature of EPA's objections are well within the contemplation of those it is entitled to make under applicable regulations. 40 C.F.R. § 123.44(c). Whatever may be the result should EPA make an objection completely without its delegated authority, so as to subject that action to present judicial review under Leedom v. Kyne, supra, we have no occasion to consider, for such objections have not been made here.
We conclude that the district court properly retained jurisdiction of the case in order to ascertain whether or not EPA acted within its delegated authority. Lee-dora v. Kyne, supra. Having ascertained that EPA was so acting, however, it should then have dismissed the case for want of subject matter jurisdiction. See Associated Builders, etc. v. Irving, 610 F.2d 1221 (4th Cir.1979). The merits of EPA’s objections to the state issued permit may thus be considered on judicial review after EPA either grants or denies a permit, and a review of such EPA action is taken under § 1369(b)(1).
While we agree with the tenor of much of the district court’s opinion and its action in retaining, for the moment, jurisdiction in the case, so far as the district court addressed the merits of EPA’s objections, it was without authority so to do. Those are matters for the court of appeals under § 1369(b)(1).
The judgment of the district court will be vacated and the case remanded for dismissal for want of subject matter jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS
. The 1979 study conducted by the North Carolina Department of Natural Resources and Community Development lists six minor and two major discharges into the Pigeon River. The study acknowledges, however, that the vast majority of effluent in the Pigeon River can be attributed to Champion. At no point does Champion contest this fact. There are few records of the condition of the Pigeon River prior to the opening of the Champion Mill. Some older residents have been interviewed by defendant-intervenor Pigeon River Action Group. These interviews indicate that the river immediately below Canton was probably of trout stream quality as well prior to 1907.
. Tennessee also brought a civil action against Champion seeking injunctive relief under state statutory and common law nuisance theories. That action was ultimately dismissed on the grounds of the preemptive effect of the Clean Water Act. State v. Champion Intern. Corp., 709 S.W.2d 569 (Tenn.1986). Tennessee has expressed concern with the Pigeon River pollution problem since 1945.
. The concern with color not only reflects aesthetic considerations, the excess color prevents normal development of the aquatic life in the river.
. Tennessee determined that 80% color removal was necessary; the EPA calculated an 89% figure; while North Carolina’s standard resulted in a 35% figure.
. A narrative standard means a standard without quantitative limits. Tennessee guidelines also provide for the discretionary assignment of quantitative limitations in order to meet the narrative standards. Tenn.Code Ann. § 69-3-108(e); Tenn.Gen.Reg. 1200-4-1.-05(4)(d). Tennessee has assigned such quantitative limits in permits for which it was the issuing authority. The Bowater Souther Paper Co. permit, issued May 1, 1984, is one example.
. The standard for North Carolina reads: Oils: deleterious substances: colored or other wastes; only such amounts as will not render the waters injurious to public health, secondary recreation or to aquatic life and wildlife or adversely affect the palatability of fish, aesthetic quality or impair the waters for only designated uses: North Carolina Rule T15: 002B.021 1(b)(3)(F).
. A Memorandum of Agreement (MOA) is an agreement between the EPA and a State as to the administration of the NPDES permit program. See 40 C.F.R. § 123.24.
. We recognize that Tennessee may not impose its standards on North Carolina. It may complain, however, to the EPA, as was done here. International Paper Company, infra, 479 U.S. at -, 107 S.Ct. at 810-811.
. The State of Tennessee, Pigeon River Action Group (PRAG) and the Legal Environmental Assistance Foundation (LEAF) also intervened as party defendants. PRAG is a citizen conservation group. LEAF is a public interest legal and technical support group.
. EPA objected to the jurisdiction of the court in a motion to dismiss and pursues that objection here.
. The situation is thus the opposite of, but remarkably similar to, the rule of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), which is to the effect that if a cause of action and jurisdiction of the court depend on the same facts, a case should either be tried or dismissed on the merits rather than for want of subject matter jurisdiction. Here, the courts have authority to inquire whether or not the administrative agency is acting within its delegated authority, and if the agency is so acting, then the court should proceed no further and dismiss for want of subject matter jurisdiction rather than consider the merits.
. The procedure for appeal of the EPA objections to a state permit referred to by the Conference Report is the request for public hearing to contest the objections. As noted, neither North Carolina nor Champion availed itself of this opportunity.
. Notably, the Supreme Court, in vacating our decision in Gwaltney, went to some length to reconcile its decision with Sen. Muskie’s comments rather than merely according them the lesser weight given floor debates. — U.S. at -, 108 S.Ct. at 384.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.0576923076923077, Costs: 0.01923076923076923
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PER CURIAM:
William Fairhurst appeals the district court’s grant of summary judgment in favor of Jeff Hagener, director of the Montana Department of Fish, Wildlife and Parks (“Department”). We hold that a pesticide applied to a river pursuant to an intentional scheme aimed at eliminating pestilent fish species is not a “pollutant” for the purposes of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387, and thus not subject to the Act’s permit requirements. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court.
I. BACKGROUND
Hagener initiated a ten year program known as the Cherry Creek Native Fish Introduction Project (“Cherry Creek Project”), in which the Department sought to re-introduce a threatened fish species called the westslope cutthroat trout. Because this species was threatened in part by competition with other non-native trout species, Hagener’s program included a plan to remove the non-native fish. The Department would apply the pesticide an-timycin into the water for short periods of time over the course of several years and afterwards reintroduce the westslope cutthroat. As the Department began executing the project, it performed at least one application of antimycin to Cherry Creek.
Fairhurst sued Hagener under the citizen suit provision of the CWA. Fairhurst claimed that in order to legally disperse pesticide into United States waters, Ha-gener was required by the CWA to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit, which Ha-gener had not secured before applying the antimycin. The parties stipulated that the Department applied the antimycin in accordance with the requirements of the label approved by the Environmental Protection Agency (“EPA”) pursuant to the Federal Insecticide, Fungicide, and Roden-ticide Act (“FIFRA”), 7 U.S.C. §§ 136-136(y). The parties further stipulated that the Cherry Creek Project “went according to the plan which included application of Antimycin directly to the waters of the U.S. ... Consequently, the species killed were rainbow and Yellowstone cutthroat trout.” Fairhurst sued for an injunction proscribing all future unpermitted applications of the antimycin.
Fairhurst and Hagener each moved for summary judgment. The district court granted Hagener’s motion and denied Fairhurst’s on March 24, 2004. Fairhurst timely appeals here.
II. STATUTORY FRAMEWORK
The Clean Water Act requires that a government agency obtain a NPDES permit before discharging any pollutant from any point source into navigable waters of the United States. 33 U.S.C. § 1323(a). The NPDES permit system “allows a polluter who obtains a permit to discharge a specified amount of the pollutant.” Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 530 (9th Cir.2001) (citing 33 U.S.C. § 1342). “Absent the required permit, such discharge is unlawful.” League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1183 (9th Cir.2002). The NPDES program allows the EPA to “issue permits on a case-by-case basis, taking into account local environmental conditions.” Headwaters, 243 F.3d at 530 (citing Am. Mining Cong. v. United States Envtl. Prot. Agency, 965 F.2d 759, 762 n. 3 (9th Cir.1992)). Further, Congress has given “the Governor of each State desiring to administer its own permit program” permission to do so, provided that the EPA Administrator approves the Governor’s program. 33 U.S.C. § 1342(b). When the state permit program is in force, the federal permit program is suspended. See 33 U.S.C. § 1342(c).
The CWA defines the term “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source other than a vessel or other floating craft.” 33 U.S.C. § 1362(12). “Pollutant,” in turn, means
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).
III. DISCUSSION
The parties have stipulated that “Cherry Lake and Cherry Creek and its tributaries are all navigable waters or waters of the United States for purposes [of] the ... Clean Water Act.” Moreover, the parties do not dispute that the discharge of anti-mycin was an “addition” from a “point source.” Nor do they dispute that Hagener did not seek or obtain a NPDES permit from the Federal or State NPDES program. The crux of the parties’ disagreement is whether the antimycin as applied to Cherry Creek should be characterized as “chemical waste,” and thus whether it falls under the CWA’s definition of “pollutant” in 33 U.S.C. § 1362(6), rendering its unpermitted application illegal under the Act. Hagener also argues that if the anti-mycin is a “pollutant,” its use in accordance with its FIFRA label eliminates the requirement that he also obtain a NPDES permit.
A. “Chemical Waste”
We consider whether a pesticide applied directly and intentionally to United States waters for the purpose of eliminating pests is a “chemical waste” for the purposes of 33 U.S.C. § 1362(6), when such application is carried out in accordance with an EPA-approved FIFRA label, and when the pesticide performs as intended. We review issues of statutory interpretation de novo. Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162, 1165 (9th Cir.1998).
In Headiuaters, 243 F.3d at 526, we were presented with a similar question. In that case we considered whether the herbicide Magnacide H, applied to irrigation canals “for a beneficial purpose, the clearing of weeds,” was a “chemical waste” for the purposes of 33 U.S.C. § 1362(6). Id. at 532. We noted that acrolein, the active ingredient in Magnacide H, is “a toxic chemical that is lethal to fish ... which takes at least several days to break down into a nontoxic state.” Id. We also noted in passing that “it would seem absurd to conclude that a toxic chemical directly poured into water is not a pollutant,” id. at 532-33, although we declined to decide the question whether the intentionally applied and properly functioning portions of acrolein were “chemical wastes.” Answering this question was unnecessary because “the residual acrolein left in the water after its application qualifies as a chemical waste product and thus as a ‘pollutant’ under the CWA.” Id. at 533 (emphasis added). We therefore found that the CWA required an entity desiring to dispense a chemical that leaves residue into the waters to obtain a NPDES permit for discharge, even when the chemical bears a FIFRA label.
Unlike Headwaters, this case squarely presents the issue whether pesticide intentionally applied directly into the water in accordance with all applicable requirements of FIFRA should be characterized as “chemical waste.” Here the parties do not assert that there was residual chemical left in the water after the antimycin had performed its intended purpose. On the contrary, as the district court noted, “it is unchallenged that following application, the antimycin dissipated rapidly” and left no residue. Fairhurst again conceded as much at oral argument.
Because the factual scenario presented here differs from Headwaters ’, and there is no other controlling circuit law on the meaning of the term “chemical waste,” we next look to the plain meaning of the statutory term. In Northern Plains Resource Council v. Fidelity Exploration & Development Co., 325 F.3d 1155 (9th Cir.2003), we defined “waste” as “any useless or worthless byproduct of a process or the like; refuse or excess material.” Id. at 1161(citing Am. Heritage Dictionary 672 (1979)). Merriam-Webster’s definition is in the same vein: “damaged, defective, or superfluous material produced by a manufacturing process.” See Merriam-Webster online, www.merriam-webster.com. Because the parties stipulated that the an-timycin was applied and functioned as intended, it was not “damaged” or “defective.” Moreover, the parties do not claim that any portion of the pesticide applied to the water was “superfluous material” or “refuse or excess material.” A plain meaning analysis of the phrase “chemical waste” thus suggests that a pesticide that is intentionally applied to the water and leaves no excess portions after performing its intended purpose is not a “chemical waste.”
This analysis accords with the EPA’s construction of the CWA’s definition of “chemical waste” in the context of intentionally applied pesticides. In July, 2003 the EPA issued a memorandum entitled “Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA” (“Interim Statement”) to address this issue. Available at http://www.epa.gov/npdes/pubs/pesti-cide_interim_guidance.pdf. The Interim Statement asserts that the “EPA has evaluated whether pesticides applied consistent with FIFRA fall within any of the terms in section 506(2) [defining the term ‘pollutant’], in particular whether they are ‘chemical wastes’ or ‘biological materials.’ EPA has concluded that they do not fall within either term.” Id.
The EPA’s Interim Statement is entitled to some deference. In Resource Investments, Inc., 151 F.3d at 1165, this court held that “an agency’s construction of a statute it is charged with enforcing is normally entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.” See also League of Wilderness Defenders, 309 F.3d at 1189(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), for the proposition that the discretion the courts should afford to an agency interpretation of a statute “will depend on the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”).
The Interim Statement arrives at its conclusion by first analyzing the plain meaning of the term “waste,” and finding that “[p]esticides applied consistent with FIFRA are not such wastes; on the contrary, they are EPA-evaluated products designed, purchased and applied to perform their intended purpose of controlling target organisms in the environment.” The Statement then asserts that its interpretation comports with the intent of Congress by pointing out that the interpretation' — which entails that pesticides are “pollutants” in some circumstances and not in others — tracks the understanding of the primary sponsor of the CWA, who stated that “[s]ometimes a particular kind of matter is a pollutant in one circumstance, and not in another.” Id. (quoting Senate Debate on S. 2770, 117 Cong. Rec. 38,838 (daily ed. Nov. 2, 1971) (Statement of Senator Muskie)). Finally, the Statement notes that pesticides are not “waste,” for CWA purposes, only when they are applied in a manner consistent with an EPA-approved FIFRA label. Id.
We find the EPA interpretation as articulated in the Interim Statement “reasonable and not in conflict with the expressed intent of Congress.” Res. Invs., Inc., 151 F.3d at 1165. The interpretation also accords with the plain meaning of the term “chemical waste.” Moreover, the EPA interpretation does not conflict with Headwaters, as in that case the “chemical waste” for which a NPDES permit was required was not a pesticide serving a beneficial purpose and intentionally applied to the water, but was a chemical that remained in the water after the Magna-cide H performed its intended, beneficial function. Therefore, we conclude that pesticides that are applied to water for a beneficial purpose and in compliance with FIFRA, and that produce no residue or unintended effects, are not “chemical wastes,” and thus are not “pollutants” regulated by the CWA. Because intentionally applied and properly performing pesticides are not “pollutants,” a potential dis-charger is not required to secure a NPDES permit for such pesticides before discharge.
The parties stipulated that the antimy-cin was applied intentionally and in a manner that comported with the EPA-approved FIFRA label. Moreover, the parties do not claim that the antimycin had any unintended effects, or that any residue from the antimycin remained after the pesticide performed its intended function. Thus, we hold that the CWA did not require Hagener to secure a NPDES permit.
B. FIFRA
Because we have held that the antimycin applied to the Cherry Creek drainage during the Cherry Creek Project is not a chemical waste, and thus not a pollutant for the purposes of the CWA, we do not address Hagener’s argument that he was not required to obtain a permit because he was in compliance with the requirements of FIFRA. We do note, however, that this argument is explicitly foreclosed by Heackuaters. See Headwaters, 243 F.3d at 531-32.
The district court expended considerable effort attempting to “give effect to each” of the two statutes in question here, the CWA and FIFRA, citing Headwaters ’ statement that “[t]he CWA and FIFRA have different, although complementary, purposes.” Headwaters, 243 F.3d at 531. However, Headwaters explicitly held that “registration and labeling ... under FI-FRA does not preclude the need for a permit under the CWA.” Id. at 532. On the contrary, Headwaters noted that “[e]ven [a] cursory review of the statutes reveals that a FIFRA label and a NPDES permit serve different purposes”:
FIFRA establishes a nationally uniform labeling system to regulate pesticide use, but does not establish a system for granting permits for individual applications of herbicides. The CWA establishes national effluent standards to regulate the discharge of all pollutants into the waters of the United States, but also establishes a permit program that allows, under certain circumstances, individual discharges. FIFRA’s labels are the same nationwide, and so the statute does not and cannot consider local environmental conditions. By contrast, the NPDES program under the CWA does just that.... The NPDES permit requirement under the CWA thus provides the local monitoring that FIFRA does not.
Id. at 531.
As Headwaters explained, FIFRA is a labeling statute that informs the user of a pesticide how to safely use it. FIFRA regulates solely through its registration requirement, and its prohibition against the sale, distribution, and professional use of unregistered pesticides. 7 U.S.C. §§ 136a(a), 136j(a)(1). The statutory scheme puts the onus on manufacturers and distributors to draft and secure approval of the FIFRA label before placing their products on the market. There is no statutory enforcement mechanism governing usage of FIFRA products according to the label. The CWA, by contrast, regulates the amount and type of pollutants dispersed into the waters of the United States. The NPDES requirement allows the EPA to consider “local environmental conditions,” and issue permits for “individual discharges.” Headwaters, 243 F.3d at 531. Headwaters accordingly held that a person who disperses a “pollutant” as defined by 33 U.S.C. § 1362(6) must secure a NPDES permit, regardless of whether or not the pollutant is dispersed according to instructions on the FIFRA label. Headwaters is not disturbed by our holding today; here we address dispersal of a pesticide that is not a chemical waste and thus not a pollutant.
IV. CONCLUSION
A chemical pesticide applied intentionally, in accordance with a FIFRA label, and with no residue or unintended effect is not “waste” and thus not a “pollutant” for the purposes of the Clean Water Act. Because Hagener’s application of antimycin to Cherry Creek was intentional, FIFRA-compliant, and without residue or unintended effect, the discharged chemical was not a “pollutant” and Hagener was not required to obtain a NPDES permit.
AFFIRMED.
. In February 2005, the EPA issued an "Interpretive Statement and Notice of Proposed Rulemaking on the Application of Pesticides to Waters of the United States in Compliance with FIFRA” ("Interpretive Statement”). 70 Fed.3d Reg. 5093 (Feb. 1, 2005). While the Interpretive Statement has now superceded the Interim Statement, the Interpretive Statement mirrors the language and analysis of the Interim Statement, which was in effect at the time the dispute arose and the district court considered the case.
. Senator Muskie also stated that "defining or applying these definitions to particular kinds of pollutants ... is an administrative decision to be made by tire Administrator.” Id.
. Nor do we address Hagener’s contention that his pesticide dispersal is exempted from the NPDES permit requirement because the department “applied for and received a short-term exemption from water quality standards from the Montana Department of Environmental Quality (DEQ).”
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1515151515151515, Costs: 0
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OPINION
GRABER, Circuit Judge:
The Federal Water Pollution Control Act, or Clean Water Act (“the Act”), 33 U.S.C. § 1365(a)(1), allows a citizen to sue to enforce the Act’s prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (“NPDES”) permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; George Scott, Sr.; George Scott, Jr.; and George W. Scott, Sr., Revocable Inter Vivos Trust, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.
The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiffs claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court “to require compliance” with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action comparable to one under the Act. We therefore reverse the judgment of the district court and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants own and operate three scrap metal recycling facilities in Butte County, California. The facilities receive scrap metal, salvage vehicles, and process other waste for recycling and disposal.
Defendants’ facilities are subject to the requirements and conditions contained in California’s Industrial Activities Storm Water General Permit (“the Permit”), an NPDES general permit issued by the California State Water Resources Control Board (“the Board”) pursuant to its authority under the Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13370-13389. A violation of the Permit is a violation of the Act, because the Act prohibits the discharge of any pollutant into the waters of the United States, except in compliance with an applicable NPDES permit. 33 U.S.C. §§ 1311(a), 1342(a)(1), (b) & (p).
In 2007, the California Department of Toxic Substances Control (“the Department”) initiated an investigation of Defendants’ facilities after discovering that concrete and construction debris had been dumped in wetlands on some of Defendants’ land. The Department extended the investigation to Defendants’ three recycling facilities and found high levels of hazardous contamination. The Department ordered Defendants to “characterize” the extent of contamination, but Defendants did not comply.
In 2007 and 2008, the Butte County district attorney filed civil and criminal actions against Defendants, alleging numerous violations of state environmental and occupational safety laws. The civil complaint alleged that Defendants were liable under various state laws for “unlawfully storing], transporting,] and disposing] of hazardous waste.” Specifically, the state asserted claims under California’s Health and Safety Code, sections 25189.5 and 25189.6 (improper handling and disposal of hazardous waste); Business and Professions Code, sections 17203, 17204, 17206(b) (engaging in unfair business practices); and Pish and Game Code, section 5650(f) (depositing substances that are deleterious to fish, plant, or bird life into state waters). In two criminal actions, the state charged Defendants with violations of the Health and Safety Code, 25189.5(a) (disposing of hazardous waste without a permit), 25189.6(a) (reckless handling of hazardous waste), 25503.5(a) (failing to submit a hazardous material release response plan after notice), 25507 (failing to report immediately a release of hazardous substances), 25509(a) (failing to inventory hazardous substances), sections 42400(a) (violating air quality rules), 42400.1(a) (negligently emitting air contaminants), 42400.2(a) (knowingly emitting air contaminants); Vehicle Code, section 11500 (acting as an automobile dismantler without a license or in violation of site requirements); Labor Code, section 6428 (violating hazardous substances removal protective standards in a workplace); Penal Code, sections 166 (criminal contempt), 373a (failing to abate a nuisance after notice), and 374.8 (depositing hazardous substances onto a road, street, highway, or into waters of the state); and Code of Regulations, title 22, section 66262.34(f) (failing to label hazardous waste containers).
In October 2008, Defendants entered into a plea agreement that resolved both the civil and the criminal proceedings. The agreement provided that Defendants would pay fines and serve a term of probation. Among other things, the agreement required Defendants to abide by three remedial action consent orders that the Department had issued during the previous month. Among other requirements, the consent orders required Defendants to clean up hazardous substances detected at the three facilities and to reduce potential human exposure to those substances. The plea agreement allowed Defendant Chico Scrap Metal to continue operating the facilities during the probation term so as to generate revenue to pay for the cleanups.
In January 2010, the Federal Environmental Protection Agency (“EPA”) inspected Defendants’ three facilities and found that the sites’ storm water management systems failed to comply with the Permit. In March, Plaintiff sent Defendants, as well as state and federal agencies, notice of its intent to sue Defendants under the Act for violations of the Permit. The notices alleged ongoing violations of the storm water permit at Defendants’ three facilities. Neither state nor federal officials commenced any enforcement proceedings under the Act after receiving the notices.
In May 2010, Plaintiff filed this action. The complaint alleges violations of provisions of the Permit that (1) prohibit discharges of polluted storm water, (2) require preparation of a “Storm Water Pollution Prevention Plan,” (3) require the use of certain pollution control technologies for storm water discharges, and (4) require implementation of a storm water monitoring and reporting program.
In June 2010, the California Water Quality Control Board issued notices to Defendants that they were in violation of the Permit, citing the January 2010 inspections. The notices requested that Defendants submit a report describing how the violations were being addressed.
■ Defendants then moved to dismiss this action, arguing that Plaintiffs claims were barred by one of the Act’s “diligent prosecution” bars, 33 U.S.C. § 1319(g)(6)(A)(ii). The district court ordered supplemental briefing on whether a different “diligent prosecution” bar, § 1365(b)(1)(B), also applied. The court ultimately ruled that § 1365(b)(1)(B) barred Plaintiffs citizen suit, without reaching the potential application of § 1319(g)(6)(A)(ii), and dismissed the action.
Plaintiff timely appeals.
DISCUSSION
The Act allows citizens to enforce its standards. 33 U.S.C. § 1365(a)(1). But any of four statutory bars may prohibit a citizen suit if the state or federal government is pursuing enforcement actions with respect to the same alleged violations. 33 U.S.C. §§ 1319(g)(6)(A)®-(iii), 1365(b)(1)(B). Defendants argue that two of those statutory bars, §§ 1365(b)(1)(B) and 1319(g)(6)(A)(ii), apply here. For the reasons that follow, we disagree.
A. Section 1365(b)(1)(B)
The first “diligent prosecution” bar at issue is contained within the same statutory section that authorizes citizen suits to enforce the Act, § 1365, which provides, in relevant part:
(a) Except as provided in subsection (b) of , this section and [33 U.S.C. § 1319(g)(6)], any citizen may commence a civil action on his own behalf—
(1)against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this [Act] or (B) an order issued by the [EPA] or a State with respect to such a standard or limitation....
(b) No [citizen suit under § 1365(a)(1)] may be commenced—
(1)....
(B) if [a state or federal authority] has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order....
Our prior decisions clarify two points with respect to the interpretation of § 1365(b)(1)(B). First, we have held that only an action that is “in a court” triggers the statutory bar; administrative proceedings do not. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987). Second, we have construed the phrase “has commenced and is diligently prosecuting,” as it appears in § 1319(g)(6)(A)(ii), though not as it appears in § 1365(b)(1)(B). In the former context, we have held that the phrase requires an inquiry as to whether the government was diligently prosecuting its action at the time when the citizen filed his or her complaint. Knee Deep Cattle Co. v. Bindana lnv. Co., 94 F.3d 514, 516 (9th Cir,1996); Citizens for a Better. Env’t-Cal. v. . Union Oil Co. of Cal., 83 F.3d 1111, 1118 (9th Cir.1996). We now extend that construction to the identical statutory phrase, as it appears in § 1365(b)(1)(B). See Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 578 (9th Cir. 2008) (en banc) (“When Congress uses the same text in the same statute, we presume that it intended the same meaning.”).
But we have not previously considered what kinds of enforcement actions .constitute ones “to require compliance” for purposes of the § 1365(b)(1)(B) bar. Our analysis begins with the text of § 1365. BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). In subsection (a), the statute authorizes a citizen suit against a defendant “who is alleged to be in violation of (A) an effluent standard or limitation under [the Act] or (B) an order issued ... with respect to such a standard or limitation.” 33 U.S.C. § 1365(a)(1). Then, in subsection (b), the statutory bar refers to government enforcement actions “to require compliance with the standard, limitation, or order.” Id. § 1365(b)(1)(B) (emphasis added). Subsection (b)’s reference to “the” clean-water standard makes clear that it must be the same standard, limitation, or order that is the subject of the citizen suit under.subsection (a).
Defendants argue that, to trigger the § 1365(b)(1)(B) bar, it is sufficient that the government action be comparable to the one brought under the Act. That view is at odds with the statute. Although the § 1319(g)(6)(A)(ii) bar applies when a state is diligently prosecuting “an action under a State law comparable to [certain actions under the Act],” § 1365(b)(1)(B) contains no reference to comparable state laws. “ ‘[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.’ ” United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir.2008) (alteration in original) (quoting 2A Sutherland, Statutory Construction § 46.6 (6th ed.2006)). Because Congress omitted any reference to “comparable” state standards in § 1365, and because § 1365(b)(1)(B) specifically refers to an action “to require compliance with the standard, limitation, or order” that is the subject of the citizen suit, we hold that its bar applies only if the government’s action seeks to do exactly that.
Our conclusion follows not only from the statute’s text, but also from consideration of the odd consequences that would result from reading § 1365(b)(1)(B) to bar citizen enforcement of an NPDES permit when a state enforces its other environmental laws. The Act’s “diligent prosecution” bars do not apply when a government seeks enforcement in court of other federal environmental laws, such as the Clean Air Act, 42 U.S.C. §§ 7401-7671q, or the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k. See 33 U.S.C. § 1365(a)(1), (b)(1)(B) (limiting statutory bar to enforcement to require compliance with a “standard, limitation, or order” of the Clean Water Act). According to Defendants’ interpretation, though, a state’s enforcement of state environmental laws that mirror those federal ones (for example, California’s Air Resources Act or Hazardous Waste Control Law) might preclude citizen enforcement of the Clean Water Act, merely because the enforcement action was somehow “comparable” to the citizen suit. Nothing in the statute suggests that Congress intended that incongruous result, which would give state enforcement greater preclusive effect than parallel federal enforcement of analogous laws.
In this action, Plaintiff alleges that Defendants have violated four conditions of the Permit. We therefore must determine whether the government’s enforcement action sought compliance with the same Clean Water Act standard: that is, the requirement that Defendants’ storm water discharges comply with the Permit. But to answer that question, we must -first decide how to determine what the state’s previous action sought to do. In this case, we look to the records from those proceedings: .the pleadings, the parties’ briefing, the plea agreement, and the court’s probation'order and judgment. Those documents, all of which predated the filing of this action, show that California has never sought judicial enforcement of the Permit—or, for that matter, of any standard under the Clean Water Act.
The pleadings and briefs in the 2007 and 2008 actions show that the state- sought relief for alleged violations of California’s air quality laws, Cal. Health .& Safety Code §§ 39000-44474; its hazardous waste handling, treatment, and disposal laws, id. §§ 25100-25258.2, 25500-25546.5; its occupational licensing requirements for vehicle dismantlers, Cal. Veh.Code §§ 11500-11541; its occupational safety and health laws, Cal. Lab.Code §§ 6300-6719; provisions of its penal code prohibiting contempt of court, general nuisance, and improper waste disposal,Cal.Penal Code §§ 166, 373a, 374.8; its unfair business practices laws, Cal. Bus. & Prof.Code §§ 17000-17101; and its wildlife conservation laws, Cal. Fish. & Game Code §§ 5650-5656. None of those criminal offenses or civil causes of action relates to the Clean Water Act, and none of the government’s allegations asserted that Defendants discharged or managed storm water in violation of the Permit.
The plea agreement and probation order that concluded the proceedings in state court confirm that compliance with the Clean Water Act was not a subject of those actions. The plea agreement purported to settle only the state’s claims that were asserted in the complaints, as amended, which it described as allegations of “dumping of hazardous industrial waste,” “endangering the health of employees,” and “various hazardous material, waste, and air quality violations.” The agreement provided that the state would dismiss some counts and that Defendants would plead no contest to the counts that were not dismissed. The agreement contains no reference to storm water discharges, and none of the counts alleged violations of the Clean Water Act, either as originally stated or as amended.
The scope of the probation order is likewise limited to the government’s allegations, as amended. The order lists the fines and fees that correspond to each state-law violation to which Defendants pleaded no contest; none of those penalties is listed as arising from violations of the Clean Water Act. Although the probation order contains a general requirement that Defendants “[o]bey all laws,” that boilerplate provision merely requires that Defendants abide by the law as a condition of probation. It did not transform the action into one to enforce the Clean Water Act.
Defendants argue that the 2007 and 2008 actions nonetheless trigger the § 1365(b)(1)(B) bar to citizen enforcement because their probation conditions include the requirement that they comply with the .2008 consent orders issued by the Department of Toxic Substances Control. Under the consent orders, Defendants agreed to “maintain drainage control” at their facilities that meets, at a minimum, “the Waste Discharge Requirements for Discharges of Storm Water Associated with Industrial Activities as adopted by the California State Water Quality Control Board.” Defendants assert that the state’s 2007 and 2008 enforcement actions thereby had the effect of requiring compliance with the Permit and the Clean Water Act.
The 2008 consent orders themselves do not trigger § 1365(b)(l)(B)’s bar because they are not the result of any action in a court. The orders were issued by the Department, pursuant to its authority to issue remedial action orders in response to releases of hazardous substances that present an “imminent or substantial endangerment” to public health, Cal. Health & Safety Code §§ 25358.3(a), 25355.5(a). Because the orders resulted from administrative action, not a judicial proceeding, they do not trigger § 1365(b)(1)(B), which applies only if the government has undertaken an action “in a court” to enforce the Clean Water Act. Sierra Club, 834 F.2d at 1525.
Moreover, the state court considered the Permit requirements mentioned in the 2008 consent orders only to the extent that it made compliance with them a condition of Defendants’ probation. Like the “obey all laws” provision, that condition merely requires Defendants to abide by legal obligations other than those that the parties litigated before the court. It does not transform the 2007 and 2008 actions into ones to require compliance with the Clean Water Act.
We need not, and do not, decide whether a different result would obtain had the court conditioned Defendants’ probation on compliance with orders that did seek to enforce the Clean Water Act—such as one issued by the Board under its NPDES enforcement authority. Here, the 2008 consent orders expressly intend to mitigate human risks of on-site exposure through skin contact, inhalation of fumes, and ingestion of dust. They do not refer to effluent limitations or to the discharge of pollution into navigable waters, which is the concern of the Clean Water Act, see 33 U.S.C. §§ 1311, 1362(12) (prohibiting discharges of pollutants into navigable waters). Indeed, the record shows affirmatively that the 2008 orders did not enforce, or seek to enforce, the Act. According to the declaration of, Leona Winner, a scientist from the Department, other state regulatory agencies have primary authority to enforce the Act and the Department did not study surfacé water quality or issue the 2008 consent' orders to address discharges into surface waters. In context, the orders’ isolated reference to the Permit does not constitute “diligent prosecution” of the Clean Water Act. See Friends of Milwaukee’s Rivers, 382 F;3d at 759 (holding that the term “diligent prosecution” requires that-the government action is both “capable of requiring compliance” with the Act and “calculated to do so” (internal quotation-marks omitted)). Thus, even if a plea agreement or probation condition that requires compliance with an administrative order may, in some cases, constitute action in court to enforce the Act, that plainly is not true here.
In sum, because the 2007 and 2008 proceedings aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action.
B. Section 1319(g)(6)(A)(ii)
The second statutory bar at issue, § 1319(g)(6)(A)(ii), provides that “any violation ... with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a [citizen suit] civil penalty action.” As previously noted, whether a state’s enforcement action meets the statute’s requirements is assessed as of the time the citizen-suit complaint is filed. Knee Deep, 94 F.3d at 516.
Defendants argue that § 1319(g)(6)(A)(ii) bars this action because they have been prosecuted under California statutes that provide for penalties, see, e.g., Cal. Health & Safety Code § 25189, and because violation of the 2008 consent orders will render them liable for administrative penalties, see, e.g., id. §§ 25359.2, 25359.3. We hold that neither the state’s actions in court nor the Department’s consent orders trigger § 1319(g)(6)(A)(ii).
Section 1319(g)(6)(A)(ii) does not apply on account of the state’s actions in court, which resulted in criminal penalties and probation, because those civil and criminal actions were not administrative proceedings. The statutory bar applies only when a state has pursued an action that is “comparable to this subsection.” Subsection 1319(g) sets forth the standards and procedures by which the EPA may assess administrative penalties only; the Act’s criminal and civil penalties and enforcement procedures are set forth in subsections 1319(a)-(d). Thus, the state’s successful prosecution of the 2007 and 2008 actions in court, and the court’s assessment of criminal fines in those actions, do not trigger the statutory bar even, if the state laws under which the penalties were assessed were “comparable” to the Clean Water Act in a general sense.
Nor do the 2008 consent orders trigger § 1319(g)(6)(A)’s bar to citizen enforcement. We have held that a state administrative action must seek and assess administrative penalties to trigger the § 1319(g)(6)(A) bar. Knee Deep, 94 F.3d at 516 (“[F]or § 1319(g)(6)(A) to apply, the comparable state law must contain penalty provisions and a penalty must actually have been assessed under the state law.” (citing Citizens for a Better Env’t-California v. UNOCAL, 83 F.3d 1111, 1115 (9th Cir.1996))); cf. Wash. Pub. Interest Research Grp. v. Pendleton Woolen Mills, 11 F.3d 883, 885-87 (9th Cir.1993) (holding that an administrative compliance order issued by the EPA did not trigger the § 1319(g)(6)(A)(i) bar, which applies if the EPA has commenced federal administrative penalty proceedings under § 1319(g)). In other words, “the comparable state law must contain penalty provisions and a penalty must actually have been assessed under the state law.” Knee Deep, 94 F.3d at 516. Although the 2008 consent orders notify Defendants that they “may be liable for penalties” in the future if they fail to comply with the terms of those orders, see Cal. Health & Safety Code § 25359.2 (providing that the failure to comply with a remedial action order may result in administrative penalties), the state did not actually assess any penalties in the orders themselves. Thus, even if the cited provision of the Health and Safety Code might be “comparable” to § 1319(g) for these purposes, Defendants’ potential liability under the consent orders does not trigger the bar of § 1319(g)(6)(A)(ii).
Because California has commenced no administrative penalty proceeding that is comparable to a proceeding by the EPA under § 1319(g), the statutory bar of § 1319(g)(6)(A)(ii) does not apply to Plaintiffs claims.
CONCLUSION
Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiffs citizen suit to enforce California’s storm water general permit.
REVERSED and REMANDED.
. We express no view on the merits of any of Plaintiff's claims.
. The- Board has authority to issue NPDES permits under the Porter-Cologne Act because the Clean Water Act allows states, after obtaining federal approval, to implement NPDES through state law and administrative actions. 33 U.S.C. § 1342(b); see also Cal. Water Code § 13370(c) (providing that the state act "authorize[s] the state to implement the provisions of [the federal Act]”); 40 C.F.R. § 122.28(a) (authorizing the use of general permits in lieu of individualized NPDES permits).
. We review de novo the district court's order of dismissal. NRDC, Inc. v. S. Coast Air Quality Mgmt. Dist., 651 F.3d 1066, 1070 (9th Cir.2011). We also review de novo questions of law, including the interpretation of a statute. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.), cert, denied, —■ U.S. -, 133 S.Ct. 256, 184 L.Ed.2d 137 (2012).
. Other courts, construing § 1365(b)(1)(B), have reached the same conclusion. See Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 754-55 (7th Cir.2004) (holding that "the clear and unambiguous language of § 1365(b)(1)(B) and its uniform interpretation by the courts” require the conclusion that the statute did not bar a citizen suit that was filed several hours before a government enforcement action); Chesapeake Bay Found, v. Am. Recovery Co., 769 F.2d 207, 208 (4th Cir.1985) (per curiam) ("[T]he verb tenses used in subsection (b)(1)(B) and the scheme of the statute demonstrate that the bar was not intended to apply unless the government files suit first (and is diligently prosecuting such suit).”); Long Island Soundkeeper Fund, Inc. v. N.Y.C. Dep’t of Envtl. Prot., 27 F.Supp.2d 380, 383 (E.D.N.Y.1998) ("The language of this statute 'clearly contemplates action prior to the filing of a citizen suit.’ ” (quoting Conn. Fund for Env’tv. Job Plating Co., 623 F.Supp. 207, 215 (D.Conn.1985))).
. We note that- this case does not involve a government action to enforce a state law or regulation that, like California's Porter-Cologne Act, itself implements the standards and limitations of the Clean Water Act. See Cmty. Ass'n for Restoration of Env’t v. Henry Bosma Dairy, 305 F.3d 943, 956 (9th Cir.2002) (noting that the Act creates citizen standing "to enforce permit conditions based on both EPA-promulgated effluent limitations and state-established standards” (internal quotation marks omitted)). In such a case, the state-law action could be one to require compliance with the Clean Water Act.
. We consider those documents to be relevant in this case. We do not decide, though, whether it is necessary to review all the same kinds of documents in every case or whether a subset of documents from the state court record may suffice to determine the nature of the state enforcement action in another case.
. Consider, by way of analogy, a defendant who is convicted of possession of cocaine and placed on probation. Suppose further that the court includes, as a condition of probation, a requirement that the defendant abide by the terms of a previously entered restraining order. -The inclusion of such a condition does not turn the present proceeding into one that 'is designed ..to enforce the restraining order, as distinct from one that is designed to enforce the drug laws.
. As explained with respect to the § 1365(b)(1)(B) statutory bar, those laws include California's hazardous waste laws, occupational safety laws, and air quality laws. Those laws are not substantially comparable to the Clean Water Act’s effluent limitations and water-quality standards.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.06, Costs: 0
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HATCHETT, Circuit Judge:
We took this ease in banc to determine whether Florida Statute 320.02(9) violates the Supremacy Clause and the Commerce Clause of the United States Constitution. Finding the statute unconstitutional, we affirm in part and reverse in part.
FACTS
On April 30, 1985, Myra Holladay Sims imported from Europe an automobile popularly known as a “gray market” automobile. Gray market automobiles are imported automobiles which do not comply with United States emissions and safety standards. The Florida Import and Compliance Association (FICA) is a trade association whose members directly participate in importing and altering gray market automobiles.
Two federal statutes govern the importation of foreign manufactured automobiles into the United States. The Clean Air Act (42 U.S.C. § 7522), and the Safety Act (15 U.S.C. § 1397), bar the importation of motor vehicles which do not comply with the applicable federal emissions and safety standards. Specifically, the Clean Air Act prohibits
the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, except as provided by regulation of the Administrator), the importation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed [by this statute].
42 U.S.C. § 7522(a)(1). Also, section 7522(b)(2) provides:
[t]he Secretary of the Treasury and the Administrator [of the Environmental Protection Agency (EPA) ] may, by joint regulation provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate customer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part.
Similarly, the Safety Act provides that “[n]o person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle [unless it is in conformity with applicable federal motor vehicle safety standards].” 15 U.S.C. § 1897(a)(1)(A). In addition, that statute provides:
[T]he Secretary of the Treasury and the Secretary [of the National Highway Transportation Safety Administration, Department of Transportation (DOT)] may, by ... regulations, provide for authorizing the importation of such motor vehicle or item of motor vehicle equipment into the United States upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or item of motor vehicle equipment will be brought into conformity with any applicable federal motor vehicle safety standard prescribed under this subchapter, or will be exported or abandoned to the United States.
15 U.S.C. § 1397(b)(3).
Despite general prohibitions against importing nonconforming motor vehicles into the United States, Congress, under the above provisions, authorized the importation of gray market vehicles upon the furnishing of a bond or other means of assuring that the importers and their customers do not circumvent the federal environmental safety laws. The EPA, the DOT, and the Treasury Department promulgated regulations governing such importation. See generally 19 C.F.R. §§ 12.73, 12.80; 40 C.F.R. Part 85, Subpart P and 49 C.F.R. Part 571. Under these regulations, the authorities conditionally admit gray market vehicles into the United States for the limited purpose of enabling the importer to comply with federal emissions and safety laws. The importer must post an entry bond with the United States Customs Service (Customs) for an amount equal to the value of the vehicle plus the customs duty. See Automobile Importers Compliance Association, Handbook of Vehicle Importation, 21 (1984). In addition, the importer must sign a statement indicating that the motor vehicle “is not covered by a certificate of conformity with federal motor vehicle emission standards but will be brought into conformity with such standards.” 19 C.F.R. § 12.73(b)(5)(x) (1986). Finally, the importer must declare that the vehicle “was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into conformity.” 19 C.F.R. § 12.80(b)(l)(iii). The entry bond assists in enforcing the importer’s obligation to comply with federal emission requirements and safety standards because Customs will not release the bond until it receives assurance from the EPA and the DOT that the importer has complied with the standards. See 19 C.F. R. §§ 12.73c and 12.80e.
When Sims’s automobile arrived in Jacksonville, Florida, she complied with the applicable federal regulations governing the importation of gray market vehicles, which included posting a bond in the requisite amount. The EPA exempted Sims from conforming her vehicle to the applicable federal emission standards and sent her a letter releasing the EPA obligation on the bond. In complying with the Safety Act and the DOT regulations, Sims completed the requirements under 19 C.F.R. § 12.80(b)(l)(iii).
In 1984, the Florida legislature passed the following statute concerning motor vehicle titling and registration:
Before a motor vehicle which has not been manufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compliance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle.
Act approved June 11, 1984, ch. 84-155, § 3, 1984 Fla. Laws 457, 458 (codified as amended at Fla.Stat. § 320.02(9) (1985)). This provision prevents a gray market vehicle owner from acquiring title and vehicle registration in Florida until the owner has obtained the required documentation from the federal government.
Subsequent to the passage of Fla.Stat. § 320.02(9), Sims unsuccessfully sought to title and register her automobile at the Florida Department of Highway Safety and Motor Vehicles (DMV). The DMV refused to title and register Sims’s vehicle because she did not produce release letters from the DOT and Customs certifying compliance with federal standards. Sims had not received a bond release letter from the DOT because the DOT had an excessive number of forms for review.
PROCEDURAL HISTORY
Following refusal to title and register the vehicle, Sims and the FICA filed suit in United States District Court for the Northern District of Florida alleging that the state’s enforcement of section 320.02(9) violated the Supremacy and Commerce clauses of the United States Constitution: (1) the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards, and (2) enforcement of section 320.02(9) impermissibly burdens foreign and interstate commerce. The district court concluded that the Clean Air Act and Safety Act preempt the state’s authority to enforce section 320.02(9) and that enforcement of the statute would violate the commerce clause. The district court declared section 320.02(9) unconstitutional and enjoined its enforcement. The state brings this appeal from the district court’s ruling.
DISCUSSION
We first discuss those issues the parties presented to the district court, upon which the district court ruled, and the state of Florida initially appealed: the constitutionality of Florida Statute 320.02(9) under the Supremacy and Commerce clauses of the United States Constitution.
I. Supremacy Clause
Sims and the FICA successfully challenged the constitutionality of Fla.Stat. § 320.02(9) in the district court. The district court held that the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards. Federal preemption of state law is derived from the Supremacy Clause of article VI, clause 2, of the United States Constitution, which reads:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The Supreme Court stated the three ways in which federal law may preempt state law:
Federal law may preempt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. [Citation omitted.] Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. [Citations omitted.] Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law.
Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984).
We “acknowledge^] the well established principle that the touchstone of preemption analysis is congressional intent_” Howard v. Uniroyal, Inc., 719 F.2d 1552, 1555 (11th Cir.1983). Additionally, we have noted that “[t]he intent of Congress to pre-empt a state law may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Howard, 719 F.2d at 1556 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
A. The Clean Air Act
The Clean Air Act contains the following preemptive provision regarding state enforcement of federal emission standards:
No state or any political subdivision thereof shall adopt of attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to [the vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
42 U.S.C. § 7543(a). The express language in section 7543(a) indicates Congress’s intent to exclusively regulate the control of new motor vehicle emissions prior to their initial sale. See Michigan Canners, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399.
The state contends that Fla.Stat. § 320.02(9) simply ensures that new motor vehicles coming onto Florida’s highways comply with the Clean Air Act; it does not establish new or conflicting emission standards. Although the state may base its contention on proper and wholesome intentions, nevertheless, Congress specifically stated that “[n]o state ... shall adopt or attempt to enforce any [federal or state] standard relating to the control of emissions from new motor vehicles” prior to the initial sale. 42 U.S.C. § 7543(a) (emphasis added). Thus, we agree with the district court’s ruling and hold that “[enforcement of the Clean Air Act before [the] first sale [of new motor vehicles] is the sole and exclusive prerogative of the federal government.”
B. The Safety Act
The Safety Act likewise contains a preemptive provision which reads in part:
Whenever a federal motor vehicle safety standard established under this subchap-ter is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard.
15 U.S.C. § 1392(d). Unlike the preemptive provision contained in the Clean Air Act, this section precludes states from enforcement of safety standards only when such standards differ from federal standards.
The district court held that prior to a motor vehicle’s first sale, “[t]he states are absolutely barred from acting in any manner whatsoever in” enforcing federal safety standards and that “the role of the states in enforcing the federal laws and regulations is confined solely to the period after the first sale of an automobile.” We disagree with the district court.
The Safety Act does not expressly preclude states from requiring proof of compliance with federal safety standards before obtaining title and registration for gray market automobiles. The United States Supreme Court stated that “[tjhe question whether the regulation of an entire field has been reserved by the federal government is, essentially, a question of ascertaining the intent underlying the federal scheme.” Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 714, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 722 (1985). Congress enacted the Motor Vehicle Safety Act to establish uniform federal safety standards. See H.R. 1776, 89th Cong., 2d Sess. 17 (1966). The Safety Act as originally enacted, restricted federal enforcement of safety standards to the initial sale of new vehicles and permitted state enforcement of safety standards identical to corresponding federal standards after the first sale of new vehicles. S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 2709, 2720.
Also, the District Court for the Middle District of Pennsylvania held that the federal laws preempted state safety standards identical to federal standards because Congress intended to preclude states from pre-sale enforcement of federal safety standards. Truck Safety Equipment Institute v. Kane, 466 F.Supp. 1242 (M.D.Pa.1979). The court in Kane, however, noted that the standards derived under the Pennsylvania system required independent testing and the payment of fees to cover the cost of such testing. Kane, 466 F.Supp. at 1245-46. Unlike the Pennsylvania regulations examined in Kane, section 320.02(9) does not impose requirements on a gray market vehicle importer beyond those imposed by the applicable federal standards.
In 1982, the National Highway Traffic Safety Administration (NHTSA) issued an opinion interpreting the extent to which the Safety Act preempted state enforcement of federal safety standards. Federal Motor Vehicle Safety Standards: Interpretation Regarding Preemption and Presale State Enforcement of Safety Standards, 47 Fed. Reg. 884 (Advisory Letter) (1982). In its interpretation, the NHTSA stated:
[I]t is the position of the NHTSA that any state requirement which necessitates that manufacturers pay fees in order to obtain approval under a state standard identical to an FMVSS [Federal Motor Vehicle Safety Standard], and any imposition of requirements for approval which has the effect of prescribing the sale of equipment certified under the Act to a standard such as FMVSS 218 would be preempted by operation of the Act and of the agency’s action in adopting the federal standard in question.
47 Fed. Reg. at 885.
Recently, the Fifth Circuit examined a Texas statute similar in language to Fla. Stat. § 320.02(9) and stated:
H.B. 1805 places no burden on the manufacturer, which was clearly the concern behind the interpretation. H.B. 1805 does not involve the payment of any fees, nor does it have the effect of prescribing the sale of federally certified equipment. Indeed, H.B. 1805 does not require any certification except federal certification by federal authorities. As best we can tell, the original pre-1982 amendment provision was enacted to assure uniformity of standards for manufacturers so vehicles and equipment meeting the federal standards could be sold freely in any state. See remarks of Senator Magnu-son (one of the NHTSA’s sponsors), 112 Cong.Rec. S14230 (daily ed. June 14, 1966) (remarks of Senator Magnuson). The Texas statute. H.B. 1805, does not impair this objective since it creates no independent state standard or certification of the automobiles.
Direct Automobile Imports Association, Inc. v. Townsley, 804 F.2d 1408, 1414 (5th Cir.1986). The same rationale applies to Fla. Stat. § 320.02(9). Section 320.02(9) does not impose additional requirements or burdens on the manufacturer or importer, nor does it require the payment of additional fees. Further, section 320.02(9) does not prescribe the sale of federally certified equipment or impair Congress’s objective of establishing uniform federal safety standards to permit the free marketability of vehicles in all states.
In 1982, Congress added the following sentence to section 1392(d): “Nothing in this section shall be construed as preventing any state from enforcing any safety standard which is identical to a federal safety standard.” 15 U.S.C. § 1392(d) (1982). The Senate issued a report on the amendment which reads in part:
The committee intends that states are not preempted from enforcing safety-standards identical to federal standards which they have adopted. States may not require [state] certification or approval of motor vehicles or motor vehicle equipment. However, state enforcement may be carried out according to applicable state laws. States may undertake independent testing, and also may require manufacturers to submit adequate test data concurrent with the first sale or thereafter. [Emphasis added.]
S. Rep. No. 505, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S. Code Cong. & Admin. News 3169, 3174.
The District Court for the Northern District of Georgia addressed the constitutionality of Georgia statutes O.C.G.A. §§ 40-2-25.1, 40-3-29.1, and 16-9-110 (1985) in light of 15 U.S.C. § 1392(d) (1982). Georgia Automobile Importers Compliance Association, Inc. v. Bowers, 639 F.Supp. 352 (N.D.Ga.1986). In reviewing the legislative history of section 1392(d), the district court noted several statements made on the floor of the House of Representatives on the bill’s passage which indicated congressional intent. Representative Wirth stated that “[a] recent court case and NHTSA opinion have changed the scope of traditional state enforcement.” 128 Cong. Rec. H3438 (daily ed. June 14, 1982) (remarks of Rep. Wirth). Representative Moorhead considered the amendment to affirmatively declare states as having a role in enforcing federal safety standards. See 128 Cong. Rec. H3439 (daily ed. June 14, 1982) (remarks of Rep. Moorhead). In addition, Representative Dingell stated that under the amended section 1392(d) “states may undertake independent testing of vehicles or equipment and may require manufacturers to submit adequate data concurrently with the first sale within a state, or thereafter.” 128 Cong. Rec. H3440 (daily ed. June 14, 1982) (remarks of Rep. Din-gell).
We agree with the Fifth Circuit’s conclusion in Townsley that “the legislative history shows an intent to preempt state presale enforcement of federal standards where the sale of federally certified equipment is impaired by an independent state compliance system.” Townsley, 804 F.2d at 1415. Fla. Stat. § 320.02(9) does not impair the enforcement of federal safety standards or frustrate Congress’s intent of establishing uniform standards for vehicle manufacturers; consequently, we hold that the Safety Act, as amended, does not preempt Fla. Stat. § 320.02(9) (1985).
II. Commerce Clause
Although we hold that the Safety Act does not preempt the Florida Statute, we earlier held that the federal government solely and exclusively may enforce the Clean Air Act before a vehicle’s first sale. Consequently, the Clean Air Act preempts Florida Statute 320.02(9), rendering this Florida statute unconstitutional. In light of this holding on the preemption issue, we need not decide the statute’s constitutionality under the Commerce Clause.
III. Jurisdictional Issues
We now turn to the jurisdictional issues of standing, mootness, and sovereign immunity.
A. Standing
The state of Florida contends that Sims and the FICA lack standing to challenge the constitutionality of Fla.Stat. § 320.02(9) because they failed to show (1) a judicially cognizable injury traceable to the statute’s enforcement, and (2) a likelihood of redress if we declare the statute unconstitutional. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). To satisfy the standing requirement, a plaintiff must allege a personal injury fairly traceable to the challenged conduct and a likelihood that the requested relief will redress such injury. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
The Supreme Court requires the courts to “accept as true all material allegations of the complaint, and ... construe the complaint in favor of the complaining party.” Warth, 422 U.S. at 501, 95 S.Ct. at 2206; see Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In satisfying the initial article III standing requirement—an allegation of “a distinct and palpable injury,” Sims and the FICA allege that the state’s enforcement of section 320.02(9) unlawfully prevents titling and registering gray market vehicles in Florida. See Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Assuming, as we must, the truth of these allegations, the state’s unlawful refusal to issue titles and registrations to owners of gray market vehicles constitutes a distinct and palpable personal injury to Sims and the FICA.
Sims and the FICA make additional assertions sufficient to establish the second standing requirement—the requested relief’s likelihood of redress. Absent section 320.02(9), Florida would title and register Sim’s and other owners gray market vehicles.
The state’s standing contention has no merit. We must determine standing at the time a plaintiff files suit. Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332, 100 S.Ct. 1166, 1170, 63 L.Ed.2d 427, 435 (1980). At the time Sims filed this lawsuit, Sims owned the vehicle that Florida refused to title. The state relied on the statute for its refusal. Who suffers a greater injury than the owner to whom the state denies title and registration? Likewise, Sims prayed that the district court declare the statute unconstitutional and enjoin its future enforcement. The district court provided this relief.
As to the FICA’s standing, we must determine its members’ involvement in importing and marketing gray market automobiles. According to the complaint, FICA members include
persons and Florida business entities who support improving opportunities for commerce with foreign nations in the importation, use and sale in the United States of foreign-manufactured automobiles that are converted in this country to comply with emission and safety standards of the Cleán Air Act and the Vehicle Safety Act. Plaintiff FICA’s members include importers of automobiles for their personal use as well as importers for sale, or dealers; brokers of import transactions; owners and operators of automotive conversion and compliance facilities, equipped to comply with safety standards established pursuant to the Vehicle Safety Act; and owners and operators of specialized automotive testing laboratories, equipped to comply or verify compliance with emission standards established pursuant to the Clean Air Act.
If owners, importers for personal use, importers for sale, dealers, brokers, automotive conversion mechanics, and compliance testing laboratories involved in the gray market vehicle business do not have standing to challenge the statute, then no individual or entity would have the requisite standing.
B. Mootness
The mootness issue need not cause delay. We have ruled that Sims and the FICA have standing to bring this suit. Mootness and standing are related doctrines. Where a party challenges standing, the court inquires whether the plaintiff is entitled to relief. Where mootness is at issue, the court determines whether judicial activity remains necessary. Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 2205 n. 10, 45 L.Ed.2d 343 (1975). Mootness demands that the plaintiff’s personal interest in the lawsuit (standing) continue to the lawsuit’s end.
This case undoubtedly is not moot as to the FICA. The FICA presently has the same personal interest and stake in the lawsuit as it did on the date of filing. The FICA’s members continue importing, converting, testing, and selling gray market vehicles. The Florida statute still delays the effective conduct of FICA members’ businesses.
The state failed to make the only possible mootness argument regarding Sims. Sims received the bond release letter on September 18, 1985, after the district court trial which held the statute unconstitutional. One could argue that Sims’s case became moot when she received the documents pri- or to the state’s appeal. Because we decide the statute’s constitutionality in this opinion, this argument simply asserts that a gray market vehicle owner could never attack the Florida statute; the state could deliver the documents at any time, even after trial, resulting in the lawsuit’s dismissal. The court would never determine the statute’s constitutionality in a gray market vehicle owner’s lawsuit because of litigation’s inherent length and delays.
Although such an argument is legally and logically specious, we need not rely on its specious nature. The Supreme Court established the doctrine of “capable of repetition yet evading review” for application to mootness issues. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). This doctrine allows federal jurisdiction to continue where seemingly no continuing controversy exists. The Supreme Court held that mootness does not apply in these “exceptional circumstances” if a plaintiff can demonstrate that the alleged injury is capable of repetition, but time constraints or other circumstances preclude the court’s review. DeFunis, 416 U.S. at 318-19, 94 S.Ct. at 1706-07. Sims’s injury is capable of repetition. The record shows that individuals import thousands of gray market vehicles into the United States each year. All of these vehicle owners who seek title and registration in Florida will suffer the same injuries as Sims, and similarly find themselves unable to attack the statute because the state ultimately, even after trial, delivers the documents. Consequently, effective review of an owner’s claim would never occur if we hold that delivery of the documents at any time, even after trial renders the owner’s claim moot.
This action is not moot.
C. Immunity
Sims and the FICA filed suit in the district court naming as defendants the State of Florida, the Department of Highway Safety and Motor Vehicles, and the Attorney General. Sims and the FICA then filed an uncontested motion to dismiss the Attorney General as a defendant. The parties never named as a defendant the Director of the Division of Motor Vehicles, Florida Department of Highway Safety and Motor Vehicles. Thus, the State of Florida and one of its agencies—the Department of Highway Safety and Motor Vehicles remain the only defendants in this action. “It is clear ... that in the absence of consent a suit in which the state or one of its agencies or departments is named as the defendant is prescribed by the eleventh amendment.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984).
The state of Florida failed to plead sovereign immunity under the eleventh amendment as a defense to this constitutional challenge. The state never mentioned the eleventh amendment, not even at trial. In addition, the state did not initially raise the issue on appeal, but only raised sovereign immunity after this court requested that the parties brief the issue.
Sims and the FICA contend that this court unwarrantedly raised the eleventh amendment defense. They rely on the Supreme Court’s statement: “[W]e have never held that [the eleventh amendment defense] is jurisdictional in the sense that it must be raised and decided by this court on its own motion.” Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172, 187 n. 19 (1982).
In response to the state's late and compelled sovereign immunity defense, Sims and the FICA moved this court to add the Director of the Division of Motor Vehicles as a defendant. We grant this motion, even though we would remand the sovereign immunity issue to the district court in other circumstances. In this case, however, in light of the state’s initial waiver of the defense, the state’s reluctance to urge the issue before the in banc court, and the lack of prejudice to the state and its officials, the district court would clearly abuse its discretion if it denied the motion to formally add as a defendant the Director of the Division of Motor Vehicles for the State of Florida.
CONCLUSION
In summary, we affirm the district court’s ruling that Fla. Stat. § 320.02(9) violates the Clean Air Act, 42 U.S.C. § 7522 because Congress has exclusively reserved to the federal government the enforcement of federal emission standards. We reverse the district court’s ruling that Fla. Stat. § 320.02(9) violates the Safety Act. Accordingly, we affirm in part and reverse in part.
AFFIRMED in part and REVERSED in part.
. By our rules, we vacated the panel opinion, 832 F.2d 1558, at 840 F.2d 778 (11th Cir.1988).
. Sims purchased the used 1976 Mercedes Benz 450 SEL from Ulrich Kieserwalter of Bonn, West Germany.
. The Clean Air Act does not define “new car” as it relates to gray market automobiles by considering whether the automobile has previously been sold prior to its importation into the United States:
(3) Except with respect to vehicles or engines imported or offered for importation, the term 'new motor vehicle’ means a motor vehicle the equitable or legal title to which has never been transferred to an ultimate purchaser; and the term ‘new motor vehicle engine’ means an engine in a new motor vehicle or a motor vehicle engine the equitable or legal title to which has never been transferred to the ultimate purchaser; and with respect to imported vehicles or engines, such terms mean a motor vehicle and engine, respectively, manufactured after the effective date of a regulation issued under section 7521 of this title which is applicable to such vehicle or engine (or which would be applicable to such vehicle or engine had it been manufactured for importation into the United States).
42 U.S.C. § 7550(3) (emphasis added).
.Title 19 C.F.R. § 12.80(b)(l)(iii) reads:
(b) Requirements for entry and release.
(1) [E]ach vehicle ... offered for introduction into the Customs territory of the United States shall be denied entry unless the importer or consignee files with the entry a declaration, in duplicate, which declares or affirms one of the following:
(iii) The vehicle or equipment item was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into conformity. Within 120 days after entry, or within a period not to exceed 180 days after entry, if additional time is granted by the Administration, National Highway Traffic Safety Administration ("Administrator, NHTSA”), the importer or consignee will submit a true and complete statement to the Administrator, NHTSA, identifying the manufacturer, contractor, or other person who has brought the vehicle or equipment item into conformity, describing the exact nature and extent of the work performed, and certifying that the vehicle or equipment item has been brought into conformity, and that the vehicle or equipment item will not be sold or offered for sale until the Administrator, NHTSA, issues an approval letter to the district director stating that the vehicle or equipment item described in the declaration has been brought into conformity with all applicable safety standards.
19 C.F.R. § 12.80(b)(l)(iii).
. The importer of a vehicle, more than five years old and imported for personal use and not for resale, is entitled to a once-in-a-lifetime exemption from the Clean Air Act’s emission standards. The EPA automatically grants the exemption, but the importer is still required to comply with the requirements of the Safety Act and the DOT. In addition, the laws prohibit the importer from selling the vehicle for two years after importation. See generally United States EPA, Automotive Imports — Fact Sheet 76 (1983).
. In July, 1985, the DOT had 14,000 compliance forms for review.
. The parties did not present the jurisdictional issues which we later address to the district court, but the panel (Judges Tjoflat, Hatchett, and Eaton) raised them at oral argument. The parties briefed and argued these jurisdictional issues before the in banc court.
. The district court additionally noted that section 7543(d) of the Clean Air Act further indicates Congress’s intent to exclusively enforce federal emission standards relating to new automobiles before their initial sale because the statute specifically allows the state to regulate automobile use and operation subsequent to the initial sale. Title 42 U.S.C. § 7543(d) reads: "Nothing in this part shall preclude or deny to any state or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles.” [Emphasis added.]
. Texas statute, H.B. 1805 provides:
Before a motor vehicle not manufactured for sale or distribution in the United States may be registered and titled in Texas, the applicant shall furnish to the designated agent: (1) a bond release letter, with all attachments, issued by the United States Department of Transportation acknowledging receipt of a statement of compliance submitted by the importer of the vehicle and that the statement meets the safety requirements of 19 C.F.R. 12.80(e); and (2) a bond release letter, with all attachments, issued by the United States Environmental Protection Agency stating that the vehicle has been tested and shown to be in conformity with federal emission requirements; and (3) a receipt of certificate issued by the United States Department of Treasury showing that any and all gas guzzler taxes due on the vehicle under the provisions of Pub.L. No. 95-618, Title II, Section 201(a) (16 U.S.C. A. 4064) have been fully paid; or (4) proof satisfactory to the agent that the vehicle was not brought into the United States from outside the country. [Emphasis added.]
. Section 40-2-25.1 provides that:
(a) No application shall be accepted and no certificate of registration shall be issued to any motor vehicle which was not manufactured to comply with federal emission and safety standards applicable to new motor vehicles as required by ... the ‘Clean Air Act,’ ... and as required by ... the ‘National Traffic and Motor Safety Act,’ ... unless and until the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency have certified that the motor vehicle complies with such applicable federal standards and unless all documents required by the Department of Revenue for processing an application for a certificate of registration or title are printed and filled out in the English language or are accompanied by an English translation.
O.C.G.A. § 40-2-25.1(a) (1985).
. Section 40-3-29.1 states that:
[N]o application shall be accepted and no certificate of title shall be issued to any motor vehicle which was not manufactured to comply with federal emission and safety standards applicable to new motor vehicles as required by ... the ‘Clean Air Act’ ... and as required by the ‘National Traffic and Motor Safety Act,’ ... unless and until the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency have certified that the motor vehicle complies with such applicable federal standards and unless all documents required by the Department of Revenue for processing an application for a certificate of registration or title are printed and filled out in the English language or are accompanied by an English translation.
O.C.G.A. § 40-3-29.1 (1985).
.Section 16-9-110 provides that:
(a) It shall be unlawful for any person, firm, or corporation knowingly to sell, transfer, or otherwise convey any motor vehicle which was not manufactured to comply with federal emission and safety standards applicable to new motor vehicles as required by ... the ‘Clean Air Act,’ ... and the ‘National Traffic and Motor Safety Act,' ... unless and until the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency have certified that the motor vehicle complies with such applicable federal standards.
O.C.G.A. § 16-9-110(a) (Supp.1985).
. The commerce clause of the United States Constitution reads in part as follows: “The Congress shall have the power to regulate commerce with foreign nations, and among the several states_” U.S.Const. art. I, § 8, cl. 3. To determine whether Fla.Stat. § 320.02(9) is viola-tive of the commerce clause, we would be called upon to (1) determine exactly what interest the Florida statute purports to protect, (2) determine whether the statute burdens commerce, and if so, to what extent, and (3) balance the weight and nature of the interests protected by the statute against the extent to which it imposes a burden on commerce. See generally Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981). Nothing would be gained by applying the balancing tests required for commerce clause review on an unconstitutional statute.
. The parties did not present these issues to the district court. The panel could have immediately remanded the case to the district court directing it to consider these issues after presentations by the parties. The panel required supplemental briefs and ruled on the issues without remand.
. Before the panel and this in banc court, the parties agreed that the case is not moot. Because the panel raised the issue, we discuss it.
. The State of Florida’s Attorney General has represented the state’s interest in the lawsuit throughout the litigation. Consequently, the lack of a state official’s name in the style of the case has not prejudiced the state officials. We also note that the district court has granted injunctive relief.
All other pending motions are denied.
. Judge Clark did not participate in the decision of this case.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.02597402597402598, Costs: 0.02597402597402598
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OPINION OF THE COURT
ALITO, Circuit Judge:
The Southwestern Pennsylvania Growth Alliance (“SWPGA”) has petitioned for review of a final rule of the Environmental Protection Agency (“EPA”), 61 Fed.Reg. 19,-193 (May 1, 1996). In this rule, the EPA denied the Commonwealth of Pennsylvania’s request that the EPA redesignate the Pittsburgh-Beaver Valley nonattainment area (the “Area”) to attainment status for ozone, pursuant to the Clean Air Act, 42 U.S.C. § 7407(d)(3). An intervenor, Advanced Manufacturing Network, contends that the EPA’s final rule is invalid because the EPA did not comply with the Regulatory Flexibility Act, 5 U.S.C. §§ 601-12. Although we are sympathetic to the view expressed by many within the Area that this rule threatens serious economic harm, we recognize that our role as a reviewing court is strictly limited. We conclude that under the applicable legal standards, we are constrained to deny the petition for review.
I.
A. Congress enacted the Clean Air Act to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1). To achieve this purpose, the Act authorizes the EPA to identify air pollutants that are sufficiently dangerous to warrant federal regulation. See 42 U.S.C. § 7408(a). For each pollutant that the EPA identifies, the Act authorizes the EPA to promulgate a national ambient air quality standard (NAAQS), which is the maximum allowable concentration of the pollutant in the ambient air. See 42 U.S.C. § 7409(a).
One pollutant for which the EPA has promulgated a NAAQS is ozone, whose chemical precursors are emitted by industrial and transportation sources. See 40 C.F.R. § 50.9(a) (1996). The EPA measures ozone levels at -monitoring sites located throughout the country. When a monitoring site measures that a given day’s “maximum hourly average ozone concentration” has exceeded the NAAQS, an “exceedance” has occurred. See 40 C.F.R. § 50, App. H (1996). If a monitoring site registers more than an average of one exceedance per year, over a three-year period, that site is in noneomplianee with the NAAQS. Id.
The Clean Air Act’s 1990 amendments provide that the EPA designate areas of the country as either “attainment” areas, “nonattainment” areas, or “unclassifiable” areas for particular pollutants, depending on whether an area has complied with the NAAQS for that pollutant. See 42 U.S.C. 7407(d). If one monitoring site within an area is in noncompliance with a NAAQS, then the entire area is designated a nonattainment area for that pollutant. See 40 C.F.R. Pt. 50.9(a); 40 C.F.R. Pt. 50, App. H (1996). Nonattainment areas are further classified as “marginal,” “moderate,” “serious,” “severe,” or “extreme” nonattainment areas, according to the extent to which the area’s monitor readings exceed the NAAQS. See 42 U.S.C. § 7511(a). The Clean Air Act assigns to the states the responsibility for assuring air quality within each state. See 42 U.S.C. § 7407(a). The Act provides that within three years of the EPA’s promulgation of a NAAQS for a pollutant, each state must submit to the EPA a state implementation plan (“SIP”) specifying measures that will attain, maintain, and enforce the NAAQS. See 42 U.S.C. § 7410(a). All SIPs must meet the substantive requirements enumerated at 42 U.S.C. § 7410(a)(2). Once the EPA finds that a SIP complies with the Act, the EPA will approve the SIP. See 42 U.S.C. § 7410(k). When the EPA has designated an area within a state as a nonattainment area for a particular pollutant, that state must modify its SIP to include increasingly strict pollution controls delineated in the Act, depending on the area’s nonattainment classification. See 42 U.S.C. § 7511(a).
The Act specifies the procedures through which the EPA may redesignate an area from nonattainment to attainment. The process begins when the governor of a state submits a request for redesignation. See 42 U.S.C. § 7407(d)(3)(D). Then, “[w]ithin 18 months of receipt of a complete State redesignation submittal, the [EPA] Administrator shall approve or deny such redesignation.” Id. Under 42 U.S.C. § 7407(d)(3)(E), the EPA Administrator “may not promulgate a redesignation of a nonattainment area ... to attainment unless” the following five criteria are met:
(i) the Administrator determines that the area has attained the national ambient air quality standard;
(ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title;
(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and
(v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter.
Id. Thus, in order for the EPA to redesignate an area from nonattainment to attainment, the EPA must find that all five of these criteria have been satisfied.
B. In 1990, the EPA classified the Pittsburgh-Beaver Valley Area (the “Area”) as a moderate nonattainment area for ozone. See 56 Fed.Reg. 56,694, 56,820 (Nov. 6,1991). The EPA based this designation on ozone exceedances during the three-year period from 1987 to 1989. See id. In November 1993, the Pennsylvania Department of Environmental Resources submitted to the EPA a request to redesignate the Area to attainment status for ozone. The redesignation request pointed out that the Area had attained the NAAQS for ozone during the three-year period from 1991-1993, with only two exceedances in 1991, zero exceedances in 1992, and one exceedance in 1993. See 61 Fed.Reg. 19,193, 19,195 (May 1, 1996). Pennsylvania’s request acknowledged that its SIP had not yet been fully approved by the EPA, but stated that the state expected to receive full EPA approval shortly. The request also included a maintenance plan, under which Pennsylvania demonstrated how it planned to maintain the NAAQS in the area until the year 2004.
In July 1995, the EPA published a final notice of determination that the Area was in attainment of the NAAQS for ozone. See 60 Fed.Reg. 37,015 (July 19, 1995). Later in the summer of 1995, however, ozone monitors in the Area recorded 16 exceedances over a seven-day period. Two of these monitors recorded more than three exceedances each. After confirming these data, the EPA revoked its earlier determination that the Area had attained the NAAQS for ozone. See 61 Fed.Reg. 28,061 (June 4,1996).
The EPA also published a notice of proposed rulemaking stating its intention to disapprove Pennsylvania’s redesignation request and maintenance plan. See 61 Fed. Reg. 4,598 (Feb. 7, 1996). The EPA expressed various reasons for proposing disapproval. One of the EPA’s reasons was that the 1995 summer ozone exceedances indicated that the Area had not attained the NAAQS. The EPA also reasoned that these exceedances indicated that the underlying basis for Pennsylvania’s maintenance plan was no longer valid. See id. After public comment, the EPA promulgated a final rule disapproving Pennsylvania’s redesignation request and maintenance plan. See 61 Fed. Reg. 19,193 (May 1,1996).
C. The petitioner in this case is the Southwestern Pennsylvania Growth Alliance, which is an organization of major manufacturers and local governments in the Pittsburgh-Beaver Valley Area. SWPGA contests the EPA’s denial of Pennsylvania’s request to redesignate the Area to attainment status. As previously explained, 42 U.S.C. § 7407(d)(3)(E) lists five requirements that must be satisfied in order for the EPA to redesignate a nonattainment area to attainment status. Since the EPA’s final rule stated that none of these five criteria had been satisfied, the petitioner, if it is to prevail, must demonstrate that the EPA erred in its determinations as to all five of § 7407(d)(3)(E)’s criteria.
The petitioner thus faces an exacting burden. Under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), this court must uphold the EPA’s action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In applying this standard, our “only task is to determine whether [the EPA] considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983). The EPA’s disapproval of Pennsylvania’s redesignation request “would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider”. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
II.
SWPGA first argues that the EPA erred when it determined that the Area did not attain the NAAQS for ozone. In so arguing, SWPGA contends that the EPA had no basis for concluding that the first of 42 U.S.C. § 7407(d)(3)(E)’s five requirements was not satisfied. We hold, however, that it was proper for the EPA to determine that the Area did not attain the NAAQS for ozone.
A. The petitioner contends that the EPA acted contrary to the language of the Clean Air Act when it took into consideration the ozone exceedances that were recorded in the summer of 1995. The petitioner points to language in the Act stating that “[w]ithin 18 months of receipt of a complete State redesignation submittal, the Administrator shall approve or deny such redesignation.” 42 U.S.C. § 7407(d)(3)(D) (emphasis added). The petitioner argues that the use of the word “shall” in this provision imposes upon the EPA a mandatory duty to act on a state’s redesignation request within 18 months of submission. According to the petitioner, the EPA violated this mandatory duty when it took into consideration the 1995 ozone exceedance data, because these data did not exist during the 18-month period. The petitioner concludes that without these improperly considered data, there was no valid reason for the EPA to deny redesignation.
We agree with the EPA that the petitioner may not raise this argument on appeal because this argument was not raised during the rulemaking process. “Generally, federal appellate courts do not consider issues that have not been passed on by the agency ... whose action is being reviewed.” New Jersey v. Hufstedler, 724 F.2d 34, 36 n. 1 (3d Cir.1983), rev’d on other grounds, 470 U.S. 632, 105 S.Ct. 1555, 84 L.Ed.2d 572 (1985).
The petitioner points to the following passage from the record as evidence that Pennsylvania raised this argument in its comments to the EPA’s proposed rule disapproving redesignation:
Pennsylvania believes that the Pittsburgh ozone nonattainment area should have been redesignated by EPA to attainment. The Commonwealth submitted the request in 1993, and EPA had ample opportunity and justification.
For the six year period from 1989 through 1994 the national ambient air quality standard for ozone was achieved. During this time eight ozone monitors operated for the full six years and one additional monitor operated two years at one site and the four subsequent years at' a nearby site. Six of these monitors had no exceedances during this period and the remaining monitors stayed under the standard. Thus for the four consecutive three-year periods from 1989 through 1994, the Pittsburgh area attained and maintained the ambient standard.
Comments on Proposed Disapproval of Request to Redesignate Pittsburgh Ozone Non-attainment Area, J.A. at 550. Pennsylvania further commented that “the Pittsburgh area [had not] been redesignated in a timely manner.” Id. at 551.
We hold that these comments are insufficient to preserve petitioner’s intricate statutory interpretation argument. These comments admittedly demonstrate that Pennsylvania, during the rulemaking process, broached the question whether the EPA had acted in a timely manner. Yet the comments include neither a reference to a statutory provision imposing a specific time limit, nor an explicit argument that the existence of such a time limit precluded the EPA from considering the 1995 ex-ceedances. The petitioner thus raises its statutory interpretation argument for the first time on appeal.
We recognize that “our practice has been to hear issues not raised in earlier proceedings when special circumstances warrant an exception to the general rule.” Hufstedler, 12A F.2d at 36 n. 1 (considering the retroactivity of amendments to a federal education act, even though the retroactivity argument was not raised in the lower court, because it was “an issue of national importance” that was “singularly within the competence of appellate courts” and “not predicated on complex factual determinations”); see also Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.1983). Although a variety of circumstances have prompted appellate courts to apply this exception,“[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). In this case, we find it inappropriate to consider this new issue. Although appellate courts are certainly capable of addressing questions of statutory interpretation that were not raised during an agency’s rulemaking process, it is far more efficient for courts to face such questions only after they have been considered by the agency that Congress has charged with the primary responsibility for enforcing the complex statute in question.
In the instant case, both the EPA and Pennsylvania’s Department of Environmental Resources possess special expertise regarding the workings of the Clean Air Act. Pennsylvania was thus fully capable of explicitly raising the argument that 42 U.S.C. § 7407(d)(3)(D) requires the EPA to act on a redesignation request within 18 months. Had Pennsylvania made such an explicit argument, the EPA would have then applied its singular expertise on the Act’s mechanics and made a ruling that would inform the deliberations of this court on appeal. If this court were to consider the petitioner’s argument without the benefit of the EPA’s expert input, we would undermine a fundamental principle of our system of judicial review of administrative decisions.
The harm that would come to the petitioner as a result of this outcome is not so great as to warrant disregarding these concerns. See, e.g., North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir.), cert. denied, — U.S.-, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996) (an appellate court should invoke its discretion to review a purely legal issue not raised below when “a miscarriage of justice would result from [the court’s] failure to consider it).” For these reasons, we hold that the petitioner may not raise for the first time in this proceeding its argument that 42 U.S.C. § 7407(d)(3)(D) required the EPA to act on Pennsylvania’s redesignation request within 18 months.
Moreover, even if we were to reach the merits of the petitioner’s argument, we would hold that 42 U.S.C. § 7407(d)(3)(D) did not preclude the EPA from considering the summer 1995 exceedance data. The language of the provision that enumerates the redesignation criteria tends to support this result. Under 42 U.S.C. § 7407(d)(3)(E)®, the EPA Administrator “may not” promulgate a redesignation of a nonattainment area unless, among other things, “the Administrator determines that the area has attained the national ambient air quality standard.” The use of the term “has attained” instead of “attained” may be interpreted as suggesting that the attainment must continue until the date of the redesignation.
In any event, even if we assume for present purposes that the language of 42 U.S.C. § 7407(d)(3)(E) is ambiguous as to whether the EPA may disregard data arising after the expiration of the 18-month period, we must defer to the EPA’s interpretation of this provision under the rule of Chevron, U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron instructs reviewing courts that if Congress has not “directly spoken to the precise question at issue ... the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 842-43, 104 S.Ct. at 2782. The EPA has published numerous legislative rules that have interpreted 42 U.S.C. § 7407(d)(3)(E) as obliging the EPA to deny a redesignation request if the EPA knows that the area is not in present attainment of the NAAQS. Because the EPA’s interpretation is a reasonable construction of the statute, we defer to the EPA’s interpretation. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782-83 (when Congress has implicitly delegated to an agency the authority to “elucidate a specific provision of the statute by regulation,” a reviewing court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency”).
The petitioners contend that § 7407(d)(3)(D) prohibits the EPA from considering any data acquired more than 18 months after the submission of Pennsylvania’s redesignation request. They assert— correctly, in our view — that the use of the word “shall” in § 7407(d)(3)(D) imposes upon the EPA a mandatory duty to act on a state’s redesignation request within 18 months. The petitioner’s argument fails, however, because § 7407(d)(3)(D)’s use of the word “shall” does not conclusively indicate that Congress, as embodied in these formal rules, intended to prohibit the EPA from taking action after the expiration of the statutorily specified time period.
The Supreme Court faced a similar question of statutory interpretation in Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986). At issue in Brock was a provision of the Comprehensive Employment and Training Act (“CETA”) stating 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. See id. at 254-55, 106 S.Ct. at 1836-37. The Department of Labor disallowed almost $500,000 of CETA expenditures by a county, after an investigation revealed that those funds had not been used in accordance with the CETA program. The county argued that the Secretary of Labor could not recover the misused funds because the Secretary did not issue his final determination of misuse until more than 120 days after the Department received the initial complaint.
The Supreme Court thus faced the question whether the use of the word “shall” in the CETA statute prohibited the Secretary from recovering misused funds after the expiration of the 120-day period. A unanimous Court concluded that “the mere use of the word ‘shall’ ” was not enough to demonstrate that Congress intended to prohibit the Secretary from acting after 120 days. Id. at 262, 106 S.Ct. at 1840. In so deciding, the Court stated that it “would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action.” Id. at 260,106 S.Ct. at 1839. The Court instead concluded that “the normal indicia of congressional intent” should determine whether an agency may act after the expiration of a statutory deadline. See id. at 262 n. 9, 106 S.Ct. at 1840 n. 9.
Here, the petitioner has not brought to our attention anything in the Clean Air Act itself (other than the use of the word “shall” in 42 U.S.C. § 7407(d)(3)(D)), or anything in the Act’s legislative history that shows that Congress intended for the EPA to lose its power to consider data brought to its attention after the expiration of the 18-month deadline. To the contrary, two important aspects of the Clean Air Act strongly suggest that Congress did not intend for the EPA to lose its power to act after 18 months. The first is the Act’s failure to specify a consequence for noncompliance with the 18-month deadline. As the Supreme Court has observed, “if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.” United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 114 S.Ct. 492, 506, 126 L.Ed.2d 490 (1993).
Second, the Clean Air Act affords a less drastic remedy than that urged by the petitioner. In Brock, the Supreme Court stated that when “there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.” Brock, 476 U.S. at 260, 106 S.Ct. at 1839. The Brock court’s conclusion that there existed a less drastic remedy in that case provides guidance for our present inquiry. Noting that “nothing in CETA appears to bar an action to enforce the 120-day deadline,” the Brock court concluded that anyone within the statute’s zone of interests could have brought an action to force the Secretary of Labor to act within the statutory deadline. Id. at 260 n. 7, 106 S.Ct. at 1839 n. 7. Thus, 120 days after the original complaint, the defendant in Brock could have brought an action to force the Department of Labor to drop its investigation, provided that the defendant could achieve standing by successfully arguing that Congress enacted the 120-day limit in order “to protect grant recipients from lengthy delays in audits.” Id.
Similarly, in the present case, either the petitioner or the Commonwealth of Pennsylvania could have brought an action to enforce the 18-month deadline in 42 U.S.C. § 7407(d)(3)(D). The petitioner has not called to our attention any provision of the Clean Air Act that would have precluded such an action. Had the petitioner brought such an action, the result would have been far less drastic than that which the petitioner now urges, which is the redesignation of an area that is not in attainment of the NAAQS.
After oral argument, the parties have called to our attention certain new facts that must be considered. First, in 1995 the EPA issued a direct final notice redesignating LaFourche Parish, Louisiana, as an attainment area. After the publication of this notice, but prior to its effective date, a monitor recorded a violation of the NAAQS for ozone in the LaFourche Parish area. Although the EPA was aware of this exceedance, the EPA did not withdraw the notice, and the LaFourche Parish area was redesignated as an attainment area for ozone on the notice’s effective date. The petitioner argues that this redesignation demonstrates that the EPA is not precluded from redesignating an area that experiences an exceedance while a redesignation request is pending.
The EPA’s redesignation of the LaFourche Parish area in no way undermines the analysis set forth in this opinion. As discussed above, we accept the view that the EPA may not redesignate an area if the EPA knows that the area is not meeting the NAAQS. The EPA’s redesignation of the LaFourche Parish redesignation was thus not proper. However, the fact that the EPA apparently acted contrary to law in a prior case did not permit, much less require, the EPA to disregard the law in the instant case. See Kokechik Fishermen’s Assoc, v. Secretary of Commerce, 839 F.2d 795, 802-03 (D.C.Cir.1988) (“[p]ast administrative practice that is inconsistent with the purpose of an act of Congress cannot provide an exception”).
The same analysis applies to the second incident that the parties have brought to our attention. In at least one ease, the EPA has excluded exceedance data from its evaluation of a redesignation request because the data came from monitors that were not part of the State or Local Air Monitoring Stations network (“SLAMS”) required by 40 C.F.R. § 58 (1996). The petitioner contends that such incidents undermine the proposition that EPA is required to deny a redesignation request when it possesses knowledge that the NAAQS is not being attained. Assuming arguendo that the EPA’s exclusion of non-SLAMS exceedance data violates the EPA’s duty not to redesignate an area that fails to attain the NAAQS, the EPA’s prior disregard of this duty did not relieve the EPA of its obligation to act correctly in other cases.
B. The petitioner further attacks the EPA’s conclusion that the Area did not attain the NAAQS by arguing that the EPA failed to take into account data demonstrating that much of the offending ozone originated outside the Area. The petitioner contends that ozone readings from border monitors demonstrate that much of the ozone contributing to the exceedances during the summer of 1995 originated in neighboring states and was transported into the Area by wind. In its final rule denying re-designation, the EPA included the following analysis of the interstate ozone transport question:
Pennsylvania has made no demonstration that the ozone problem in the Pittsburgh area is caused by transport from upwind sources. An adequate technical demonstration, including emissions data and a modeling analysis, must be provided to support any claim of transport-dominated nonattainment.
Although ozone levels recorded at monitors near the West Virginia/Ohio/Pennsylvania border seem to correlate with the levels recorded further east in the nonattainment area, this data is not sufficient to demonstrate that the Pittsburgh area’s ozone problem is due to transport. During the summer of 1995, on the days when monitors in the Pittsburgh area (“downwind” monitors in Allegheny and Westmoreland Counties) recorded exceedances of the ozone standard, ozone levels at the monitors on the western border of the Pittsburgh area (the “upwind” monitors in Beaver and Washington Counties, Pennsylvania) recorded increased levels of ozone. However, these “upwind” monitors did not record any exceedances of the ozone standard. In other words, “downwind” monitors in the Pittsburgh area always recorded higher ozone levels than the monitors at the western border. This demonstrates the Pittsburgh area is causing its own exceedances by generating ozone in the area....
... [E]ven if the violations in Pittsburgh could be attributed to transport, EPA would not have the authority to redesignate Pittsburgh to attainment. [42 U.S.C. § 7407(d)(1)(A)(ii) ] defines an attainment area as an area “that meets” the national ambient air quality standard and [§ 7407(d)(3)(E) ] prohibits EPA from re-designating an area to attainment unless EPA determines that the area is attaining the standard. As an area that is experiencing violations of the ozone standard is not attaining the standard, EPA is not authorized by the Clean Air Act to redesignate such an area to attainment.
61 Fed.Reg. 19,193,19,194 (May 1,1996).
The petitioner contends that the EPA “failed to adequately analyze and consider the role transported ozone and ozone precursors played in the Area’s 1995 exceedances.” Pet’r. Br. at 28. Although the petitioner does not seem to argue that these exceedances were caused solely by transported ozone, the petitioner maintains that such ozone plainly contributed to the 1995 exceedances. See id. The petitioner states that “[t]here is nothing in the record upon which the EPA bases its assumption that exceedances are attributable solely to sources within the border when high ozone levels are being transported into the Area.” Id. at 29.
In response, the EPA argues that the Clean Air Act and its implementing regulations “require that EPA determine whether or not an area has met the NAAQS and satisfied the first criterion for redesignation without regard to why the NAAQS and the criterion many not have been met.” Resp’t. Br. at 30. In essence, then, the EPA maintains that the origin of the ozone that caused the 1995 exceedances was legally irrelevant. See 61 Fed.Reg. at 19,193 19,194 (the EPA’s final rule denying Pennsylvania’s request to redesignate the Area). The EPA goes on, however, to defend its scientific analysis of the role of transported ozone in the Area.
In evaluating the EPA’s interpretation of the Clean Air Act, we must apply the familiar Chevron analysis to which we previously referred. Under this analysis, if “Congress has directly spoken to the precise question at issue ... the court ... must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S. at 842-43, 104 S.Ct. at 2781. If, however, the “precise question at issue” is one about which Congress has been either “silent or ambiguous,” then a reviewing court must defer to the agency’s statutory interpretation if it is “based on a permissible construction of the statute” Id. at 843,104 S.Ct. at 2782.
Here, the EPA contends that the Clean Air Act itself prohibited allowances for ozone transported from outside the Area. The EPA relies in part on 42 U.S.C. § 7407(d)(l)(A)(ii), which provides that an attainment area is one that “meets” the NAAQS, and 42 U.S.C. § 7407(d)(3)(E)(i), which prohibits the EPA from redesignating an area to attainment unless the EPA determines that the area “has attained” the NAAQS. These provisions are certainly consistent with and lend some support to the EPA’s interpretation.
Somewhat stronger support for the EPA’s argument is furnished by other provisions of the Act. The first of these is 42 U.S.C. § 7511a(h), which establishes “rural transport areas.” These are areas that do not attain the NAAQS for ozone, despite not producing any significant amount of ozone themselves. Congress addressed the problem that ozone transport causes rural transport areas by exempting such areas from certain pollution control requirements, provided that the areas make certain submissions to the EPA. Although such areas can enjoy relaxed control requirements, they must remain in nonattainment status, because they have not attained the NAAQS for ozone.
Congress also addressed the problem of ozone transport in 42 U.S.C. § 7511(a)(4), which describes certain circumstances under which the EPA may adjust a nonattainment area’s classification (e.g., from “severe” to “serious”). Under this provision, if a nonattainment area meets criteria making it eligible for adjustment of its classification, there are several factors that the EPA may consider when making the adjustment. One of these factors is “the level of pollution transport between the area and other affected areas, including both intrastate and interstate transport.” Id. Thus, under this provision, the EPA may consider pollutant transport when adjusting a nonattainment area’s classification, but pollution transport does not affect the area’s designation as a nonattainment area.
Athough these provisions provide significant support for the EPA’s interpretation, we need not, and do not, go so far as to hold that the Clean Air Act dictates that interpretation. For present purposes, it is enough to hold that even if the Act would permit a different interpretation, the EPA’s interpretation is plainly a reasonable one to which, under Chevron, we must defer. Accordingly, we accept the EPA’s position that the origin of the ozone that caused the exceedances at issue is legally irrelevant.
After oral argument, the EPA brought to our attention certain administrative actions that must be addressed in connection with this analysis. First, the EPA pointed out that it has issued a “Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events.” See Letter from Lois J. Schiffer, Assistant Attorney General, Environment and Natural Resources Division, to the Court at 3 (May 8, 1997), referring to U.S. Environmental Protection Agency, Office of Air and Radiation, Office of Air Quality Planning and Standards, Monitoring and Data Analysis Division, Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events, EPA450/4-86-007 (July 1986). This Guideline permits the exclusion from consideration, for various regulatory purposes, of data affected by certain exceptional events. The only exceptional event that applies to ozone data is a “stratospheric ozone intrusion.” This is a phenomenon that occurs when a parcel of air from the stratosphere suddenly falls to ground level, as occasionally happens during severe thunderstorms. See id., referring to the Guideline at 4.1.2. Second, the EPA has noted that in considering certain other redesignation requests, it has excluded ozone data as having been influenced by forest fires. See id.
The petitioner contends that it is inconsistent for the EPA to exclude ozone data that is influenced by stratospheric ozone intrusions or forest fires, but not to exclude ozone data that is influenced by interstate ozone transport. This inconsistency, the petitioner contends, undermines the argument that the Clean Air Act prohibits the EPA from redesignating an area that is not in attainment, even in cases when the nonattainment is attributable to ozone that has been transported from outside the area.
The petitioner’s argument, however, does not disturb our conclusion that the EPA’s interpretation of the Act as precluding allowances for transported ozone, even if not statutorily compelled, is nevertheless reasonable. The EPA’s view that allowances are permissible in eases of stratospheric ozone intrusions and forest fires is not at issue here, and does not prove that the EPA’s position concerning transported ozone is unreasonable.
C. In light of our deference to the EPA’s interpretation of the Act as precluding allowances for transported ozone, the petitioner’s attack on the EPA’s scientific evaluation of the role of transported ozone is beside the point. Yet even if it were not, we would see no ground for disturbing that analysis. A reviewing court “must generally be at its most deferential” when reviewing factual determinations within an agency’s area of special expertise. New York v. E.P.A., 852 F.2d 574, 580 (D.C.Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). It is not the role of a reviewing court to “second-guess the scientific judgments of the EPA.” American Mining Congress v. E.P.A., 907 F.2d 1179, 1187 (D.C.Cir.1990). Rather, we must “review the record to ascertain that the agency has made a reasoned decision based on reasonable extrapolations from some reliable evidence, to ensure that the agency has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal quotations and citations omitted).
If we were to review the EPA’s final rale under this standard, we would conclude that the EPA considered the relevant data and articulated a satisfactory explanation for its findings. In its response to comments concerning the interstate transport of ozone, the EPA considered the correlation between border ozone readings and the ozone levels in the Area, but concluded that the data from the border was insufficient to demonstrate that ozone transport “caused” the exceedances in the Area. See 61 Fed.Reg. at 19,-194. The EPA supported its conclusion by noting that the ozone levels were higher within the Area (where the exceedances were registered) than at the border (where no exceedances were detected), demonstrating that the Area was “causing its own exceedances by generating ozone in the [A]rea.” Id. Contrary to the petitioner’s suggestion, we do not interpret the EPA’s explanation to mean that it found that transported ozone did not contribute to the 1995 exceedances. Rather, the EPA found only that the exceedances were not “caused by” or “due to” transported ozone. 61 Fed.Reg. at 19,194. Since the EPA considered the relevant data and articulated a rational connection between these data and its conclusion, we cannot disturb the EPA’s factual determinations.
D. We thus conclude that the EPA did not act arbitrarily or capriciously, did not abuse its discretion, and did not act contrary to law when it determined that the Pittsburgh-Beaver Valley area was not attaining the national ambient air quality standard for ozone. Since 42 U.S.C. § 7407(d)(E)(i) prohibits the EPA from redesignating an area that is not in attainment of the NAAQS, the EPA correctly denied Pennsylvania’s request for redesignation. We thus do not need to consider the petitioner’s arguments that the EPA erred in determining that § 7407(d)(E)’s four other criteria were also not met, since § 7407(d)(E) provides that nonfulfillment of any one of its five criteria will prohibit the EPA from redesignating a nonattainment area to attainment status.
III.
We next consider the contention of the intervenor, Advanced Manufacturing Network (“AMN”), that the EPA’s final rule denying Pennsylvania’s redesignation request was invalid because the EPA did not comply with the Regulatory Flexibility Act, 5 U.S.C. §§ 601-12. We conclude that the intervenor may not raise its RFA argument in this proceeding because this argument was not adequately presented to the EPA during the rulemaking process. In the alternative, we hold that the intervenor’s RFA argument lacks merit, because the EPA’s final rule is sufficient to satisfy the requirements of the RFA.
A. The Regulatory Flexibility Act requires administrative agencies to give public consideration to the impact that a proposed regulation will have on small entities, including small businesses, small not-for-profit enterprises, and small local governments. See 5 U.S.C. § 601(3)-(6). Under the RFA, at two points during the rulemaking process, an agency must prepare a regulatory flexibility analysis, which is an assessment of the proposed rule’s effects on small entities. First, whenever an agency is required by law to publish a proposed rule, the agency must prepare an initial regulatory flexibility analysis. See 5 U.S.C. 603(a). Second, whenever an agency promulgates a final rule after having been required to publish a proposed rule, the agency must prepare a final regulatory flexibility analysis. See 5 U.S.C. 604(a). The RFA exempts an agency from the requirement to publish the two regulatory flexibility analyses if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b).
In its final rule disapproving Pennsylvania’s request for redesignation, the EPA made the following certification statement, which summarized a similar statement in the proposed rule:
As described in the [notice of proposed rulemaking], EPA has determined that the disapproval of the redesignation request will not affect a substantial number of small entities. EPA’s denial of the Commonwealth’s redesignation request under [42 U.S.C. § 7407(d)(3)(E) ] does not affect any existing requirements applicable to small entities nor does it impose new requirements. The area retains its current designation status and will continue to be subject to the same statutory requirements. To the extent that the area must adopt regulations, based on its nonattainment status, EPA will review the effect of those actions on small entities at the time the Commonwealth submits those regulations.
61 Fed.Reg. 19,193,19,197.
The intervenor argues that this statement is not sufficient to satisfy the requirements of the RFA. Specifically, the intervenor contends that this statement is conclusory because it mentions neither the number of small entities that the EPA believes the rule will affect, nor the number of small entities that the EPA believes to be “substantial.” The intervenor argues that the EPA erred in concluding that the rule would not affect a substantial number of small entities. In the intervenor’s view, the rule will affect small entities because the retention of the Area’s nonattainment status will soon require the EPA to reclassify the Area from moderate nonattainment status to serious nonattainment status, thereby subjecting small entities within the Area to heightened pollution control requirements.
B. We must consider whether we have jurisdiction to hear the intervenor’s RFA argument. The intervenor asserts that we have jurisdiction over the RFA claim pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), which amended the RFA to provide, inter alia, for judicial review of agency action under the RFA. See Pub.L. No. 104-121, § 242, 110 Stat. 857, 865-66 (1996) (codified as amended at 5 U.S.C. § 611) (“For any rule subject to this chapter, a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of [the RFA]”). The EPA retorts that the SBREFA amendments do not provide jurisdiction over the intervenor’s RFA claim, because the EPA published its final rule before the effective date of the SBREFA amendments. Thus, in order to determine whether we have jurisdiction over the intervenor’s RFA claim, we must determine whether the SBREFA amendment allowing judicial review of RFA claims applies to legislative rules that were promulgated before the effective date of the SBREFA amendments.
The Supreme Court analyzed the question of the temporal reach of new statutes in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Lindh v. Murphy, — U.S.-, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In Landgraf, the Court provided the following guidance to lower courts considering the temporal reach of new federal statutes:
When a ease implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption [against retroactive applicability] teaches that it does not govern absent clear congressional intent favoring such a result.
Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505.
In Lindh, the Supreme Court explained that this language from Landgraf does not mean that there exist only two possible means of determining questions of temporal reach, namely, an “express command” or the Landgraf default rule. See Lindh at--
•-, 117 S.Ct. at 2062-64. Instead, this language reaffirms the traditional rule that courts will not apply statutes having retroactive effect unless Congress expressly indicated that it intended for such application. This clear statement rule has no bearing on other inquiries related to questions of temporal reach, including “determining whether a statute’s terms would produce a retroactive effect” and “determining a statute’s temporal reach generally.” Id. To such inquiries “our normal rules of construction apply.” Id.
Following Landgraf and Lindh, we consider whether the SBREFA amendments indicate the temporal reach of the amendment concerning judicial review. The only portion of the SBREFA amendments that mentions applicability to past EPA action is the following:
This subtitle shall become effective on the expiration of 90 days after the date of enactment of this subtitle, except that such amendments shall not apply to interpretative rules for which a notice of proposed rulemaking was published prior to the date of enactment.
Pub.L. No. 104-121, § 245, 110 Stat. 857, 868 (1996).
The intervenor argues that since this provision expressly provides that the amendments do not apply to interpretive rules that were promulgated before the effective date, the amendments must apply to legislative rules that were promulgated before the effective date, such as the legislative rule denying redesignation of the Area. This negative inference, drawn from application of the statutory interpretation canon expressio unis est exclusio alterius, is very convincing. See Lindh, at---, 117 S.Ct. 2059, 2063-65
This conclusion is bolstered by the fact that the SBREFA amendment concerning judicial review does not retroactively alter substantive rights, duties or liabilities. In its discussion of retroactive applicability, Landgraf distinguishes between two categories of intervening statutes. The first category consists of statutes that “attach[ ] new legal consequences to events completed before [the statutes’] enactment.” Landgraf, 511 U.S. at 270, 114 S.Ct. at 1499. Such statutes “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280, 114 S.Ct. at 1505. To such statutes, the courts apply a “deeply rooted” “presumption against statutory retroactivity,” because “considerations of fairness dictate that individuals should have an opportunity to know what the law is and conform their conduct accordingly.” Id. at 265, 273, 265, 114 S.Ct. at 1497,1501, 1497.
The second category of intervening statutes consists of statutes that “authorizef ] or affect[ ] the propriety of prospective relief.” Id. at 273, 114 S.Ct. at 1501. Application of such a statute to events that took place before the statute’s enactment “is unquestionably proper” because no substantive rights are retroactively affected. Id. Courts have thus “regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred.” Id. at 274,114 S.Ct. at 1501.
We hold that the amendment entitling small entities to judicial review of agency compliance with the RFA falls within Landgraf’a second category. This is because the amendment does not retroactively alter any substantive rights or duties, since the SBREFA amendment allowing judicial review did not change the substantive RFA requirements that applied to the EPA’s promulgation of the final rule denying re-designation. SBREFA’s judicial review amendment instead prospectively changed the jurisdiction of the federal courts to allow judicial review of an agency’s compliance with the RFA. We must apply such a statute to a rule promulgated before the statute’s enactment. As indicated above, we hold that the text of the SBREFA amendments support this conclusion.
We note that the United States District Court for the District of Maine reached the opposite conclusion in Associated Fisheries v. Daley, 954 F.Supp. 383 (D.Maine 1997). The court in that case held that the SBREFA amendment concerning judicial review did not apply to a rule promulgated before the SBREFA amendments. In so ruling, the Associated Fisheries court observed that, in addition to the provision concerning judicial review, the SBREFA amendments also contained provisions imposing new substantive requirements upon an agency that undertakes a regulatory flexibility analysis under the RFA. Since such substantive requirements cannot be applied to rules promulgated before the amendments, the court concluded that it “would be anomalous to apply the judicial review portion of the [SBREFA] amendments to past agency actions but at the same time not apply the substance of those amendments, unless Congress expressly stated that was its intent.” Id. at 387.
We disagree with the Associated Fisheries court’s conclusion that the SBREFA’s judicial review provision and substantive provisions must be treated uniformly for purposes of applicability to past agency actions. The Supreme Court in Landgraf addressed this precise question when it held that § 102 of the Civil Rights Act of 1991 should govern cases arising before its enactment, even though other provisions of that Act imposed new substantive requirements. The Landgraf Court reasoned as follows:
[T]here is no special reason to think that all the diverse provisions of the Act must be treated uniformly for [purposes of applicability to past conduct]. To the contrary, we understand [the statute’s] instruction that the provisions are to “take effect upon enactment” to mean that courts should evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending eases and preenactment conduct.
Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505.
We conclude that it is proper to apply the SBREFA’s judicial review amendment to past agency action, even assuming that it would be inappropriate to apply the SBREFA’s substantive amendments to past agency action. For these reasons, we conclude that we have jurisdiction over the intervenor’s RFA claim, pursuant to the SBREFA’s judicial review amendment.
C. EPA contends that the intervenor may not raise its RFA argument because the petitioner, SWPGA, did not raise this argument in its own brief. It is a general rule that an intervenor may argue only the issues raised by the principal parties and may not enlarge those issues. See Vinson v. Washington Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 735, 88 L.Ed. 883 (1944); Synovus Fin. Corp. v. Board of Governors, 952 F.2d 426, 433 (D.C.Cir.1991). The intervenor contends that the petitioner sufficiently raised the RFA issue in its brief through the following incorporation by reference:
Petitioner incorporates by reference the statement of issues raised by Intervenor with regard to whether EPA erred in certifying under the Regulatory Flexibility Act that its disapproval of the Commonwealth of Pennsylvania’s request for redesignation would have no effect on small entities.
Petitioner’s Br. at 2 n.3.
The EPA argues that such an incorporation by reference is insufficient to satisfy the rule that a principal party must raise an issue in its brief before an intervenor may argue it. In support of this argument, the EPA points to Time Warner v. FCC, 56 F.3d 151,202 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 911, 133 L.Ed.2d 842 (1996). The court in Time Warner was presented with an intervenor’s claim that certain FCC orders did not comply with the RFA and the Small Business Act (“SBA”). The only mention of the RFA and SBA arguments in the brief of the Time Warner petitioners was “a short two-sentence footnote.” Id. This footnote “neither explained] nor developed] the statutory challenges, noting only that the intervenors’ brief [would] discuss this issue.” Id. (internal quotation omitted). The Time Warner court concluded that such a “terse reference in a complex regulatory case is insufficient to raise an issue unrelated to petitioners’ other challenges and not discussed elsewhere in their briefs or even mentioned in their petition for review.” Id.
We agree with the EPA that under Time Warner intervenor AMN could not raise its RFA argument because petitioner SWPGA’s incorporation by reference did not sufficiently broach the issue. However, we decline to follow Time Warner on this point. In its analysis of this issue, the Time Warner court relied on Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.), and Railway Labor Executives’ Ass’n v. United States R.R. Retirement Board, 749 F.2d 856, 859 (D.C.Cir.1984). See id. We believe that the Time Wa-raer court misapplied these precedents when it concluded that an intervenor may not raise an argument that a principal party mentions only in an incorporation by reference.
The court in Carducci reviewed a federal employee’s claims that he was unlawfully reassigned to a position of lower rank. In his complaint, the disgruntled employee asserted, inter alia, that his employing agency violated his Fifth Amendment right to due process when it reassigned him. The district court’s opinion, which dismissed the employee’s complaint, did not discuss his due process claim. In his appellate brief, the employee expressed his due process argument only through a single assertion that an official who reviewed the reassignment “reified] on information not contained in the grievance file or record when he issued his final decision on the grievance.” Carducci, 714 F.2d at 176.
On appeal, the District of Columbia Circuit did not address the employee’s due process claims because the employee had “made no attempt to address the issue.” Id. at 177. The court stated that it would not resolve the complex legal issues that the employee’s claim presented “on the basis of briefing and argument by counsel which literally consisted of no more than the assertion of violation of due process rights, with no discussion of case law supporting that proposition or of the statutory text and legislative history relevant” to the legal questions involved. Id. The court so ruled because consideration of complicated legal questions without proper briefing by the parties would ultimately deprive the courts of the assistance of counsel that our adversarial system assumes. Id.
We endorse the Carducci court’s conclusion that appellate courts generally should not address legal issues that the parties have not developed through proper briefing. However, the situation in Carducci differs dramatically from that in both Time Warner and the instant ease, in which a party has adopted by reference an argument that is thoroughly developed in an intervenor’s brief. As then-judge Scalia explained in the Court of Appeals’ decision in Carducci, deciding legal issues without proper briefing can result in bad decisions. No similar danger is presented, however, when a petitioner incorporates by reference an argument that is fully developed in an intervenor’s brief. We thus disagree with Time Warner on this point, and we hold that when a principal party adopts by reference an argument that an intervenor fully briefs, the intervenor may argue the question just as if the principal party had fully briefed the issue itself.
We find further support for our conclusion in the fact that this practice does not differ substantively from the practice of an appellant’s (or appellee’s) adopting by reference part of the brief of a coappellant (or coappellee), which is expressly permitted under Fed. R.App. P. 28(i). Applying this analysis to the instant ease, we conclude that intervenor AMN is not precluded from raising its RFA argument by the fact that petitioner SWPGA adopted the intervenor’s RFA argument by reference, rather than fully developing the argument in its own brief.
D. Although we have jurisdiction over the intervenor’s RFA claim, and although the parties have properly briefed the question, we hold that the intervenor may not raise this issue in this proceeding because it was never presented to the EPA during the rulemaking process. “Generally, federal appellate courts do not consider issues that have not been passed on by the agency ... whose action is being reviewed.” Hufstedler, 724 F.2d at 36 n. 1.
The intervenor has not identified any section of the record in which the EPA was presented with an argument that mentions the applicability of the RFA to the EPA’s rulemaking. The only section of the record that the intervenor has identified as relevant to its RFA argument is a discussion of the circumstances that will result in a “bump up” of an area’s nonattainment classification. See Intervenor’s Reply Br. at 8, citing J.A. at 298. The intervenor argues that this discussion is relevant to its argument that retention of the Area’s nonattainment status will affect small entities by subjecting them to enhanced pollution control requirements when the EPA subsequently “bumps up” the Area’s nonattainment classification. This argument is flawed, however, because the section of the record to which the intervenor points discusses the nonattainment classification of the Reading area, not the Pittsburgh-Beaver Valley area. See id. Since the intervenor has brought to our attention no other portion of the record relevant to its RFA argument, we conclude that the intervenor may not raise this argument before this Court because this argument was never presented to the EPA during the rulemaking process.
E. We hold in the alternative that the EPA’s certification statement satisfies the requirements of the RFA. The EPA’s statement complies fully with 5 U.S.C. § 605(b), which sets out certain circumstances under which the requirement of a regulatory flexibility analysis does not apply. Under § 605(b), an agency may avoid preparing a regulatory flexibility analysis if the agency publishes in the Federal Register a certification that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. § 605(b). Along with this certification, the agency must also publish a “statement providing the factual basis for such certification.” Id. The intervenor contends that the EPA violated this provision because the EPA’s statement did not sufficiently explain the agency’s reasons for the certification. According to the intervenor, the statement is deficient because it mentions neither the number of small entities that the EPA believes the rule will affect, nor the number of small entities that the EPA believes to be “substantial.”
We hold that the EPA’s statement is sufficient to satisfy the requirements of § 605(b). Directly applicable to this inquiry is Colorado State Banking Bd. v. Resolution Trust Corp., 926 F.2d 931 (10th Cir.1991). In that case, the Resolution Trust Corporation (“RTC”) adopted a rule that would allow banks to operate acquired insolvent thrifts as bank branches, notwithstanding Colorado and New Mexico laws that prohibited such operation. These two states contended that the RTC’s adoption of the rule did not satisfy the § 605(b) criteria for exemption from the obligation to undertake a regulatory flexibility analysis. In promulgating the rule, the RTC published the following certification statement:
The basis for the RTC’s certification is its determination that the rule will not impose compliance requirements on depository institutions of any size. It imposed no performance standards, no fees, no reporting or recordkeeping criteria, nor any other type of restriction or requirement with which depository institutions must comply. Thus, it does not have the type of economic impact addressed by the EPA.
Id. at 948.
The Tenth Circuit held that the RTC’s brief statement “presented] a valid basis for certification” because it addressed the RFA’s concern for “the high cost to small entities of compliance with uniform regulations.” Id., quoting Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342 (D.C.Cir.1985). Similarly, the EPA’s statement in the instant case, which closely resembles the RTC’s statement in Colorado State Banking Board, adequately addressed this concern by noting that the denial of redesignation“does not affect any existing requirements applicable to small entities nor does it impose new requirements.” 61 Fed.Reg. 19,193,19,197.
We also find no merit in the intervenor’s contention that the EPA erred when it concluded that the final rule would not affect the requirements applicable to small entities. The intervenor argues that the EPA’s disapproval of Pennsylvania’s redesignation request will soon result in a “bump up” of the Area’s nonattainment classification from “moderate” to “severe.” This will happen, the intervenor posits, because 42 U.S.C. § 7511(b)(2)(A) provides that an area that fails to attain the NAAQS by the applicable attainment date “shall be reclassified by operation of law” to the next higher classification. Since reclassification to “severe” status will impose stricter pollution control requirements upon small entities in the Area, the intervenor contends that the EPA erred when it certified that the denial of redesignation would not alter the requirements applicable to small entities in the Area.
Although the intervenor accurately describes the operation of § 7511(b)(2)(A), its argument is flawed because the more stringent pollution controls will result from the rulemaking process that will accompany the reclassification under § 7511(b)(2)(A), not the rulemaking process through which the EPA denied the redesignation request. When the time comes for § 7511(b)(2)(A) to reclassify the Area by operation of law, the EPA will provide notice and an opportunity for the public to comment, which will include the opportunity to comment on the requirements of the RFA. The EPA made this observation in its certification statement, when it said that “to the extent that the area must adopt regulations, based on its nonattainment status, EPA will review the effect of those actions on small entities at the time the Commonwealth submits those regulations.” For this reason, we conclude that the EPA correctly determined that small entities would not be affected by the' particular rulemaking at issue in this case, namely, the EPA’s denial of Pennsylvania’s request to redesignate the Area.
IV.
For the reasons discussed above, we deny the petition for review of the EPA’s final rule denying Pennsylvania’s request to redesignate the Pittsburgh-Beaver Valley area from nonattainment to attainment status.
. The Pittsburgh-Beaver Valley Area comprises Allegheny County, Armstrong County, Beaver County, Butler County, Fayette County, Washington County and Westmoreland County.
. Pennsylvania’s Department of Environmental Resources subsequently submitted two revisions to this maintenance plan. First, in January 1995, the Department submitted a revision acknowledging that the original submission was incomplete, because it relied upon measures that had not been fully adopted. The Department submitted the second revision in May 1995. This revision acknowledged that the original submission had relied upon an automobile inspection and maintenance program that Pennsylvania had suspended, as well as a contingency measure for the use of reformulated gasoline, which Pennsylvania had also suspended.
. See, e.g., 61 Fed.Reg. 19,193, 19,197 (1996) (the final rule denying Pennsylvania’s request to re-designate the Area, in which the EPA ”note[d] that it has not and may not (in light of section 107(d)(l)(A)(i) and 107(d)(3)(E)) approve a redesignation request for an area that is violating the ozone standard”); 61 Fed.Reg. 4,598, 4,599 (1996) (the proposed rule denying Pennsylvania’s request to redesignate the Area, in which the EPA concluded that “the Pittsburgh area no longer meets [§ 7407(d)(3)(E)’s] first criteria for redesignation” in light of the summer 1995 exceedances); 59 Fed.Reg. 37,190, 37,195 (1994) (a proposed rule redesignating the Detroit-Ann Arbor area to attainment status, in which the EPA warns that if "data shows violations of the ozone NAAQS before the final USEPA action on this redesignation, the USEPA proposes that it disapprove the redesignation request”); 59 Fed. Reg. 22,757 (1994) (a final rule in which the EPA denied redesignation of the Richmond, Virginia area because that area did "not meet the statutory criteria for redesignation to attainment found in section 107(d)(3)(E) of the CAA,” even though the area’s only ozone exceedance was registered after the EPA published a rule proposing approval of the redesignation request).
. Such an enforcement action would have been available pursuant to the Administrative Procedure Act, 5 U.S.C. # 8E8E #701-706, which entitles any person "adversely affected or aggrieved by agency action” to judicial review, § 702, unless the relevant statute precludes judicial review or "agency action is committed to agency discretion by law,” § 701(a). In such an enforcement action, a court would have authority to "compel agency action unlawfully withheld or unreasonably delayed.” § 706(1).
. We find no merit to the petitioner’s contention that it was inconsistent for the EPA to create de minimis exceptions to § 7407(d)(E)’s criteria in some other cases but not in the instant case. An area's failure to attain a NAAQS is the most fundamental criterion in its designation as a non-attainment area. This is demonstrated by § 7407(d)(l)(A)(i), which defines a "nonattainment” area as "any area that does not meet [the NAAQS] for the pollutant”. The Area’s failure to meet the NAAQS for ozone is thus a far cry from the types of trivialities that warrant the creation of a de minimis exception.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.02659574468085106, Costs: 0.02127659574468085
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CARNES, Circuit Judge:
In this case the Sierra Club and the Alabama Environmental Council, two environmental groups, sued the Tennessee Valley Authority under the Clean Air Act, 42 U.S.C. §§ 7401 et seq., claiming that TVA’s plant in Colbert County, Alabama violated the 20% opacity limitation, Ala. Admin. Code r. 335-3-4-.01(l)(a), which is part of Alabama’s state implementation plan (SIP) approved by the Environmental Protection Agency. The complaint alleged that there were more than 8,900 violations during the five-year period from 1997 to 2002, and it sought declaratory and injunc-tive relief, as well as the imposition of civil penalties.
The district court granted summary judgment to TVA for two reasons. One of those reasons applies to all of the alleged violations; the other one applies only to the alleged violations occurring before May 20, 1999. The reason with broader application is that all of the alleged violations at the Colbert Plant are within the forgiveness zone of the Alabama Department of Environmental Management (ADEM)’s so-called “2% de minimis rule.” That rule was initially just a practice, but has since been formally adopted as a regulation, Ala. Admin. Code r. 335-3-4-.01(4); it has not, however, ever been part of Alabama’s SIP.
The second reason the court gave for granting summary judgment to TVA was based on the court’s belief that data generated by the Colbert plant’s continuous opacity monitoring system (“COMS”), which is all the evidence there is, cannot be used to establish opacity violations that occurred before May 20, 1999, the date ADEM adopted its “credible evidence rule,” Ala. Admin. Code r. 335-3-1-13(2). The district court also concluded that even if opacity violations at the plant were established, which would entitle the plaintiff groups to injunctive and declaratory relief, sovereign immunity principles would bar the assessment of civil penalties.
This is the appeal of the two plaintiff groups, which we will be referring to collectively as “the Sierra Club,” except where the context requires separate reference. The Sierra Club challenges the district court’s two bases for the finding that it had failed to prove any violations, and the additional ruling that even if it had succeeded, civil penalties should not be assessed against TVA.
We disagree with the district court’s basis for denying any relief, because we agree with the Sierra Club that ADEM’s use of the 2% de minimis rule throughout the period in question was an illegal, unilateral modification of the Alabama SIP. It was not, as urged by TVA and the State of Alabama (appearing here as an amicus curiae), simply an interpretation of Alabama’s credible evidence rule which is part of its SIP. However, we agree with the district court that the Sierra Club has not established any violations of the opacity requirement before May 20, 1999, because all it has is COMS data, and that data cannot be used to show violations before Alabama adopted its credible evidence rule on that date. We also agree with the district court that sovereign immunity principles bar the assessment of civil penalties against TVA in a Clean Air Act citizens suit such as this one.
After we set out the facts and applicable law in some detail and explain our reasoning in more depth, we will affirm the grant of summary judgment in favor of TVA with respect to the alleged violations occurring before May 20, 1999, but we will reverse the grant of summary judgment with respect to violations occurring on or after May 20, 1999. We will also affirm the grant of summary judgment to TVA insofar as it disallows civil penalties.
I.
TVA operates eleven coal-fired electric power plants that generate electricity for customers in seven states. One of them is the Colbert plant which is located about ten miles west of Tuscumbia, Alabama, on the Tennessee River in the northwest corner of Alabama.
The Colbert plant has five generator units. To generate electricity, pulverized coal is burned in the furnace of a unit producing heat that is used to convert water into steam. The steam is transformed into rotational energy, which in turn is converted by a generator into electricity to be distributed throughout the TVA power grid. The coal combustion process also releases by-products that become air pollutants if they are not captured. The plant’s pollution prevention equipment does capture a significant amount of the pollutants (as much as 99.9% of some of them), but the remainder is released into the atmosphere through two tall smokestacks. The amount of air pollution is substantial in absolute terms: in 1999, for example, the Colbert plant emitted more than 90,000 tons of air pollutants.
At the time this lawsuit was filed, the Colbert plant was operating under permits ADEM had issued in March 1998. One of the requirements of the Colbert plant’s air permits is that TVA install, maintain, and operate a continuous opacity monitoring system (“COMS”) in each of the plant’s smokestacks. See Ala. Admin. Code r. 335-3-12-.02(3). As its name indicates, COMS is a device that monitors continuously the opacity of a plume of smoke.
Opacity is one of the most basic emission limitations imposed on sources of particulate air pollution such as the Colbert plant’s two smokestacks. The term “opacity” refers to the extent to which a plume of smoke “reduce[s] the transmission of light and obscure[s] the view of the background.” Ala. Admin. Code r. 335-3-1-.02(l)(tt). For example, a plume with 20% opacity blocks 20% of light passing through it; no light passes through a plume with 100% opacity. Opacity is not a pollutant, but instead is a measure of the light-blocking property of a plant’s emissions, which is important in the Clean Air Act regulatory scheme as an indicator of the amount of visible particulate pollution being discharged by a source.
COMS measures opacity by projecting a beam of light across the interior diameter of a smokestack to a mirror mounted on the opposite side of the smokestack wall and measuring how much of the light is reflected back. COMS then records the amount of light that was absorbed or scattered on the trip. It is undisputed that at all relevant times each of the Colbert plant COMS has functioned properly, accurately measuring opacity.
II.
As required by Section 110 of the Clean Air Act, 42 U.S.C. § 7410, the State of Alabama maintains a state implementation plan (SIP) to enforce national ambient air quality standards developed by EPA. Id. § 7410(a)(1). Aabama’s SIP is codified at 40 C.F.R. § 52.69. It incorporates by reference certain provisions of ADEM’s Air Pollution Control Program regulations set out at Aa. Admin. Code r. 335-3-1 et seq., see 40 C.F.R. § 52.69. Some provisions, however, have not been approved by EPA and therefore are not part of the Aabama SIP. Three provisions of the ADEM regulations are at issue in this case: (1) the 20% opacity limitation, Aa. Admin. Code r. 335 — 3—4—.01(1)—(2); (2) the 2% de minimis rule, Aa. Admin. Code r. 335-3-4-01(4); and (3) the credible evidence rule, Aa. Admin. Code r. 335-3-1-13(2).
A
The first provision, Aabama’s opacity limitation, is incorporated into its SIP and provides as follows: “[N]o person shall discharge into the atmosphere from any source of emission, particulate of an opacity greater than that designated as twenty percent (20%) opacity, as determined by a six (6) minute average.” Aa. Admin. Code r. 335-3-4-.01(l)(a) (“Visible Emissions Restrictions for Stationary Sources”). The opacity provision contains four exceptions to the 20% limitation: (1) an exception that allows any source to emit a plume with opacity of up to 40% for one six-minute period per hour; (2) a source-specific exception for “startup, shutdown, load change, and rate change or other short, intermittent periods upon terms approved by the Director [of ADEM] and made a part of [the source’s] permit”; (3) an exception that allows the Director of ADEM to adjust the opacity limitation for a source that discharges a pollutant for which there is no ambient air quality standard; and (4) a domestic source exception. Id. r. 335-3-4-.01(l)(b)-(e). As required by its air permits, TVA submits quarterly excess emissions reports that indicate the total number of six-minute periods during which plume opacity data generated by each of its COMS showed that opacity exceeded 20%. See also id. r. 335-3-l-.04(2)(d).
Aabama’s opacity regulation also provides that “[c]ompliance with opacity standards ... shall be determined by conducting observations in accordance with Reference Method 9 .... ” Mr. 335-3-4 — .01(2). Reference Method 9 relies on a state-certified observer visually gauging the opacity of a plume of smoke as it leaves a smokestack. 40 C.F.R. Pt. 60, App. A-4, Method 9. The method provides the minimum qualifications for certification of observers and outlines procedures that they should follow in the field. Id. Method 9 §§ 2-3. Under Method 9, opacity observations are conducted only periodically; in a year a typical source is tested under Method 9 on not more than fifteen days and as infrequently as on one day. Another drawback of Method 9 is that observations generally may be performed only during daylight.
Conspicuously absent from both Ala. Admin. Code r. 335-3-4^.01(2) and Method 9 is authorization to measure opacity using COMS. More about that later.
B.
The second provision of the ADEM regulations at issue in this case is the so-called “2% de minimis rule.” It provides a safe harbor from the 20% opacity limitation if “[djuring each calendar quarter, ... the non-exempt excess emissions periods do not exceed 2.0 percent of the source operating hours for which the opacity standard is applicable and for which the COMS is indicating valid data.” Ala. Admin. Code r. 335~3-4-.01(4); see also id. r. 335-3-4-.01(3). In other words, under this rule TVA’s emissions, as measured by COMS, may exceed the 20% opacity limitation for up to two percent of the operating hours of the plant in each quarter, measured in six-minute intervals and excluding times during which an exception applies.
The 2% de minimis rule was not officially adopted as part of the ADEM regulations until October 2003, more than one year after the Sierra Club filed this lawsuit. Before formally adopting the rule in October 2003 and submitting it to EPA as a SIP revision, ADEM followed the rule in practice. It is the rule as an ADEM “practice” — instead of the later, formal embodiment of it as a regulation — that is at issue in this case. The rule is not — and has never been — a part of the Alabama SIP, because EPA has never approved it.
C.
The third provision of the ADEM regulations at issue is Alabama’s credible evidence rule, which became effective May 20, 1999. That rule provides in pertinent part: “Notwithstanding any other provision in [the ADEM regulations], any credible evidence or information relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed, can be used to establish whether or a not an owner or operator has violated or is in violation of any rule or standard in this Division.” Ala. Admin. Code r. 335 — 3—1—.13(2). The EPA mandated that each state adopt its own credible evidence rule in part “to clarify that the inclusion in a state implementation plan (SIP) of enforceable test methods for SIP emissions limits does not preclude enforcement based on other credible evidence or information .... ” Credible Evidence Revisions, 62 Fed.Reg. 8314, 8316 (Feb. 24, 1997) (to be codified at 40 C.F.R. pts. 51, 52, 60, and 61) (discussing revision to 40 C.F.R. § 51.212(c), which requires each SIP to include provisions for enforceable test methods for determining compliance with emission limits).
As we discuss just below, the district court found and the parties agree that the credible evidence rule authorizes using COMS data to establish opacity violations on or after its effective date, May 20, 1999.
III.
On September 16, 2002, the Sierra Club sued TVA in the Northern District of Alabama, alleging 8,933 violations of Alabama’s 20% opacity limitation at the Colbert plant from the beginning of the third quarter of 1997 through the end of the second quarter of 2002. The Sierra Club calculated the number of violations using the Colbert plant’s COMS data submitted to ADEM in TVA’s quarterly excess emissions reports for the plant. The Sierra Club sought: a declaration that TVA had violated the Clean Air Act, its air permit, and the Alabama SIP; a preliminary and a permanent injunction against the violations; a civil penalty of $27,500 per day for each of TVA’s violations; and an assessment of attorney’s fees and litigation costs.
In January 2003 TVA moved for partial summary judgment on the Sierra Club’s claims for civil penalties. The district court granted that motion on sovereign immunity grounds, citing U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (holding that the United States had not waived sovereign immunity from liability for civil fines arising from past violations of the Clean Water Act or the Resource Conservation and Recovery Act).
In August 2003, the Sierra Club and TVA filed cross-motions for summary judgment on the remaining claims for declaratory and injunctive relief. At the hearing on those motions, TVA conceded that the COMS data shows that during the relevant five-year time period the Colbert plant exceeded 20% opacity 8,933 times.
Nonetheless, the district court granted summary judgment in favor of TVA. The court held that COMS data could not be used to prove violations of the 20% opacity limitation prior to the effective date of ADEM’s credible evidence rule on May 20, 1999. Because the COMS data is the only evidence of violations at the Colbert plant and the Sierra Club has no Reference Method 9 data, the district court concluded that TVA was entitled to judgment as a matter of law on the Sierra Club’s claims for declaratory and injunctive relief arising from the pre-May 20,1999 violations.
With respect to violations occurring after the credible evidence rule became effective on May 20, 1999, the district court concluded that COMS data may be “properly considered.” Addressing the alleged violations occurring on or after that effective date, the district court first determined that ADEM had consistently employed the 2% de minimis rule in determining whether COMS data showed violations of the 20% opacity limitation even before the rule was formally adopted in 2003. The court observed that “[tjhere is no evidence that ADEM ever told TVA that the COMs data showed a violation, despite exceedances above 20% on numerous occasions.” Additionally, the court noted that when ADEM proposed the 2% de minimis rule for adoption as part of the regulations, it stated that the rule “‘would serve to codify the practices that [ADEM] has been and is currently utilizing regarding COMS data.’ ”
The district court apparently construed ADEM’s unofficial practice of using the 2% de minimis rule before its incorporation into the regulations in October 2003 to be an interpretation of the credible evidence rule. The court explained that it must defer to ADEM’s interpretation of the ADEM regulations if reasonable. The court then determined that using COMS data instead of periodic Method 9 observations to determine opacity violations would increase the stringency of the 20% opacity limitation. Although it did not explicitly state its rationale, the court apparently found that ADEM’s use of the 2% de minimis rule was reasonable in light of what it considered to be the increased stringency of the opacity limitation when COMS data, instead of Method 9, was used to measure violations. Applying the 2% de minimis rule, the district court found that the Colbert plant’s COMS data did not show any violations of the 20% opacity limitation on or after May 20, 1999. So, it granted summary judgment to TVA on that part of the case, also.
IV.
In the district court TVA sought dismissal of the lawsuit on grounds that the two plaintiff groups lacked standing. The district court did not address the issue, and TVA has not renewed its standing arguments on appeal. That does not take the issue off the table, however, because “we are obliged to consider questions of standing regardless of whether the parties have raised them.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). We decide standing issues de novo. Id.
The basics are familiar. An individual plaintiff has standing under the Constitution’s case-or-controversy limitation, Art. Ill, § 2, where “(1) [the plaintiff] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The two plaintiff groups in this case are the Sierra Club and the Alabama Environmental Council. An association “has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 181, 120 S.Ct. at 704. Standing has to exist for each category of relief sought, not only for declaratory and injunctive relief, but also for civil penalties. Id. at 184, 120 S.Ct. at 706.
The first requirement of associational standing is that at least one member meets the three requirements of individual standing. In an environmental case, an individual plaintiff may show the first of those requirements, injury in fact, by attesting that he uses, or would use more frequently, an area affected by the alleged violations and that his aesthetic or recreational interests in the area have been harmed. See id. at 183-84, 120 S.Ct. at 705-06; see also Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1004 n. 11 (11th Cir.2004); Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1242-43 (11th Cir.2003). Members of the Sierra Club and the Alabama Environmental Council have done that in this case.
For example, Dusty D. Famed, an Alabama Environmental Council member, stated in an affidavit that he regularly saw plumes of smoke from the Colbert plant as he drove across a bridge over the Tennessee River to get to high school from 1997 to 2001. Famed also attested that he finds it “frightening” to breathe air polluted by the Colbert plant; that vistas in the area around the plant have been harmed by its emissions; and that he refrains from boating and hunting in areas near the Colbert plant because of its emissions. Ralph Lamar Marshall, a member of both the Sierra Club and the Alabama Environmental Council, testified in a deposition that he engages in kayaking, fishing, and swimming on or in the Tennessee River near the Colbert plant, and that his enjoyment of those activities has been impaired by emissions from the plant.
The second and third requirements of individual standing are also met in this case. Because Famed and Marshall attested that their experiences in the natural areas around the Colbert plant are negatively affected by the Colbert plant’s emissions, their respective injuries are traceable to the alleged violations. The primary remedy sought by the plaintiffs, an injunction against violations of Alabama’s 20% opacity limitation, will lessen Farned’s and Marshall’s injuries. Civil penalties, even though paid to the Treasury, have “a deterrent effect.” Laidlaw Envtl. Servs., 528 U.S. at 187, 120 S.Ct. at 707. In that way, as coercive fines aimed at ongoing conduct, civil penalties would redress injuries to Famed and Marshall from violations at the TVA plant “by abating current violations and preventing future ones ....” See id., 528 U.S. at 187, 120 S.Ct. at 707.
Having determined that the individual members have standing to sue in their own right, we turn to the second and third requirements of associational standing: whether the interests at stake are germane to the plaintiff organizations’ purposes, and whether the claim or relief requested requires the participation of their individual members in the lawsuit. Obtaining an order that requires TVA’s Colbert plant to comply with the opacity regulation furthers the organizations’ stated purposes. For example, one of Alabama Environmental Council’s primary purposes is “to ... aid in the preservation of areas in the State of Alabama which are of scenic, ecological, biological, historical, or recreational importance.” The Sierra Club’s articles of incorporation set forth as among its purposes: “to practice and promote the responsible use of the earth’s ecosystems and resources” and “to use all lawful means to carry out these objectives.”
Lastly, there is no reason why the claim or relief requested by the Sierra Club or the Alabama Environmental Council requires the participation of Famed, Marshall, or any other member of either association. See Nat’l Parks Conservation Ass’n, 324 F.3d at 1244 (holding that the third prong of associational standing test was met where individual members did not need to be made parties to the suit “in order to advance the [association’s Fifth Amendment] equal protection claim or to fashion the sort of prospective injunctive relief sought by appellants”).
Having satisfied ourselves that the two plaintiff groups have standing, we proceed to a discussion of the merits.
V.
We review de novo the district court’s grant of summary judgment to TVA. Gilmour v. Am. Nat’l Red Cross, 385 F.3d 1318, 1321 (11th Cir.2004). Summary judgment is proper only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1279 (11th Cir. 2003). All material facts being undisputed in this case, everything comes down to issues of law. While it is generally true that we review a district court’s denial of injunctive relief only for abuse of discretion, that rule means nothing where, as here, injunctive relief was denied solely because summary judgment was granted. See Teper v. Miller, 82 F.3d 989, 993 (11th Cir.1996). Because the grant of summary judgment is not a discretionary act, all review in this case is de novo.
VI.
We begin with the question of whether ADEM’s 2% de minimis rule, followed as a practice at all times relevant to this lawsuit, applies to excuse the violations alleged in the complaint. If it does, the lawsuit is over. Although the COMS data show thousands of instances where the Colbert plant’s emissions exceeded 20% opacity during the relevant period, none of those instances are violations if the 2% de minimis rule applied. We have already discussed the specifics of that rule and the parameters of the safe harbor it provides for pollutant discharges. See Part II. B, above. We need not reiterate the technical details because both sides agree that if the 2% de minimis rule is valid, there are no violations; if it is not, there are plenty.
To be valid and applicable in determining violations of the opacity limitation contained in Alabama’s SIP, the 2% de minimis rule must itself be authorized or permitted by the SIP. Here is why.
Subject to several exceptions not applicable here, Clean Air Act § 110(i), entitled “Modification of Requirements Prohibited,” provides that: “no order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator.” 42 U.S.C. § 7410(f); see also Duquesne Light Co. v. EPA, 698 F.2d 456, 468 n. 12 (D.C.Cir.1983) (citing that provision and stating that “[wjith certain enumerated exceptions, states do not have the power to take any action modifying any requirement of their SIPs, without approval from EPA”). This section of the Clean Air Act prevents a state from unilaterally modifying any requirement contained in a SIP, including Alabama’s 20% opacity limitation. See 42 U.S.C. § 7602(k) (defining “emission limitation” or “emission standard” as a “requirement”).
If a state wants to add, delete, or otherwise modify any SIP provision, it must submit the proposed change to EPA for approval. See 40 C.F.R. § 52.1384 (explaining “the requirement of section 110(f) that the SIP can be modified only through the SIP revision process”). The EPA, in turn, may “not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress ..., or any other applicable requirement [of the Clean Air Act].” 42 U.S.C. § 7410(i); see also id. § 7410(a)(2)(H), (k).
ADEM’s 2% de minimis rule is tantamount to an unapproved modification of the opacity limitation contained in the Alabama SIP, because application of the rule changes what would otherwise be violations of that limitation into non-violations. There are a number of examples (according to the Sierra Club, 8,938) of that in the record in this case. The 20% opacity limitation in the SIP provides that “no person shall discharge into the atmosphere from any source of emission, particulate of an opacity greater than that designated as twenty percent (20%) opacity, as determined by a six (6) minute average.” Ala. Admin. Code r. 335-3-4-.01(l)(a). The 2% de minimis rule provides that, the 20% opacity limitation contained in the SIP notwithstanding, any person may discharge from a COMS-monitored source emissions in excess of that limitation for as many as two percent of the source’s operating hours in each quarter.
The 2% de minimis rule effectively revises the opacity limitation contained in the SIP' — a revision by any other name is still a revision — and an unapproved revision of any part of a SIP is invalid under § 110(i) of the Clean Air Act. See Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 92, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975) (“[A] polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Agency.”); United States v. Ford Motor Co., 814 F.2d 1099, 1103 (6th Cir. 1987) (holding that “invalidation of a SIP on technical grounds by a state court ... cannot be given effect, because ... revisions and variances of properly promulgated SIPs require EPA approval”); 40 C.F.R. § 51.105 (“Revisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by [EPA] in accordance with this part.”).
TVA does not seriously dispute this reasoning, if the 2% de minimis rule does amount to a revision of the SIP; instead, it focuses its argument on the “if’ premise. TVA contends, and the district court concluded, that ADEM’s use of the 2% de minimis rule is simply ADEM’s interpretation of the credible evidence rule. The credible evidence rule, which is contained in the SIP, provides that any credible evidence may be used to establish a violation of a pollution limitation, including the opacity limitation. Ala. Admin. Code r. 335-3-1-13(2).
Before the credible evidence rule was added to Alabama’s SIP, the opacity provision in the SIP stated that the only authorized method for determining opacity violations was by use of Reference Method 9, Ala. Admin. Code r. 335-3-4-.01(2), which, as we have discussed, depends on readings performed only a few times a year by observers in the field. See Part II. A, above. This is how a former ADEM deputy director described the Method 9 enforcement situation:
Because compliance with the opacity standard using Method 9 readings is determined for most sources during 1-15 days/year, a typical source would be subjected to 2-30 hours of compliance determinations per year using Method 9. This represents less than 0.5% of the available operating hours. If plant variability and malfunctions causing elevated opacity occur at a source 3% of the time, the chances of such events coinciding with a Method 9 observation are remote.
(Affidavit of Richard E. Grusnick in support of TVA’s motion for summary judgment.) The credible evidence rule, added to Alabama’s SIP at EPA’s insistence, changed the situation entirely, because it allowed use of COMS data to determine opacity violations. Instead of enforcement being based on less than one-half of one percent of a source’s operation, and only that occurring during daylight hours, enforcement is now based upon all emissions.
TVA,- joined by its friend the State of Alabama, contends that increasing the effectiveness of enforcement increases the stringency of any standard that is being enforced. Under this view, ADEM’s use of the 2% de minimis rule is necessary to offset the increased effectiveness of COMS in discovering violations of the 20% opacity limitation. The gist of TVA’s argument is that a 2% safe harbor from the opacity limitation is needed to loosen the tighter pinch of the opacity limitation when enforced through the relentlessly effective COMS method in lieu of the hit-and-miss (mostly miss) enforcement possible with Method 9. It’s a brassy argument.
TVA points to nothing in the record that gives the slightest support for the notion that ADEM in proposing the 20% opacity limitation, or EPA in approving it, counted on industries getting away with more pollution than stated in the limitation because of ineffective enforcement. Nor is there anything in the record to indicate that when EPA insisted on, and then approved as an amendment to Alabama’s SIP, the credible evidence rule, EPA intended to implicitly modify downward the 20% opacity limitation. To the contrary, EPA is adamant that the credible evidence rule should not be interpreted or applied to alter the emission standard being enforced. In explaining why, EPA uses this helpful metaphor: “[A]llowing the use of radar guns or increasing the number of police checking for speeding may raise the chance that a speeder will be detected, but this does not alter the legal stringency of a posted speed limit.” Credible Evidence Revisions, 62 Fed.Reg. at 8326.
Similarly, - although using COMS data to determine violations of the 20% opacity limitation increases the likelihood that pollution violators will be detected, it does not alter the posted emission limit. The Clean Air Act does not assume an accepted level of undetected non-compliance; it provides that there is to be continuous compliance with pollution limitations. See 42 U.S.C. § 7602(k) (“The terms ‘emission limitation’ and ‘emission standard’ mean a requirement ... which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis ....”) (emphasis added). A state’s “interpretation” of its SIP cannot change the act’s mandate of continuous compliance.
ADEM’s 2% de minimis rule is an attempt to unilaterally revise the opacity limitation without submitting the revision to the rigors of the SIP amendment process. What was missed by this unilateral revision or “interpretation” approach is illustrated by the procedures employed when ADEM finally started in 2003 — long after the conduct relevant to this case had occurred — the process necessary to revise the SIP to include the 2% de minimis rule. At that time, as required by 40 C.F.R. § 51.102(a)(1) and 42 U.S.C. § 7410(a)(1), ADEM held public hearings and accepted public comment (including some from the Sierra Club) on the proposal to add the 2% de minimis rule to the Alabama SIP. Pri- or to that 2003 proposal, however, ADEM never gave any notice and never held any hearings about the rule that it was informally using to excuse thousands of opacity violations. Moreover, neither ADEM nor TVA has offered any formal documentation of ADEM’s “interpretation” of the Alabama SIP to allow for the 2% de min-imis rule prior to 2003, other than documents generated after the Sierra Club announced its intention to sue.
This lack of pre-litigation documentary support for establishing the 2% de minimis rule gives rise to some obvious questions. Where did the 2% de minimis rule come from? Who actually proposed it to ADEM? Why was the de minimis line drawn at 2%, instead of 1%, 3%, 5%, or 10%? In the “Summary of Reasons Supporting the Adoption of the Proposed Amendment,” which discussed the 2% de minimis rule and was published after this litigation began, ADEM stated only that it was proposing that SIP revision to “codify [its] practices” and to “provide certainty to the regulated community as to what is expected with respect to opacity performance as measured by a COMS.” It provided no other explanation for, or history of, the rule.
There is no pre-2003 evidence mentioning the 2% de minimis rule. The record does include nineteen letters from ADEM to TVA containing the agency’s responses to the quarterly emissions reports TVA filed for the Colbert plant. None of those letters cited TVA for violations of the 20% opacity limitation, but none of them mentioned the 2% de minimis rule either.
Earlier in this opinion we discussed the four exceptions to the 20% opacity limitation that are contained in the SIP, which EPA approved. See Part II. A, above. The 2% de minimis rule is no less an exception than the four contained in the SIP. The critical difference is that during the time period involved in this case, the 2% de minimis rule, unlike the other four exceptions, had not been subjected to the formal rulemaking process or submitted to EPA for approval.
By using an informal, non-public, undocumented “interpretation” method of revising the SIP before 2003, ADEM short-circuited the important protections against uninformed and arbitrary rulemaking, and it attempted to avoid entirely EPA oversight of the SIP process. It tried an impermissible end-run around the SIP revision process. See Pennzoil Co. v. FERC, 645 F.2d 360, 371 (5th Cir. May 1981) (“The purpose of the Administrative Procedure Act ... notice and comment requirement is that the agency educate itself before adopting a final order. This assures fairness and mature consideration of rules having a substantial impact on those regulated.”); see also Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 678 (6th Cir.2005) (explaining that “one of the central purposes of the requirement of notice and comment is to give those with interests affected by rules the chance to participate in the promulgation of the rules ... [in order to] ensure fair treatment for persons to be affected by regulations”); MCI Telecomm. Corp. v. FCC, 57 F.3d 1136, 1142 (D.C.Cir.1995) (stating that “an agency may not turn the provision of notice into a bureaucratic game of hide and seek”). The EPA has never sanctioned ADEM’s use of the 2% de minimis rule and has yet to accept or reject it as a proposed SIP revision.
For all of these reasons, ADEM’s practice of employing the 2% de minimis rule to determine violations of the 20% opacity limitation using COMS data was invalid under Clean Air Act § 110(i). Because we reject the district court’s conclusion and TVA’s contention that ADEM’s use of the 2% de minimis rule is a permissible interpretation of the Alabama credible evidence rule, we do not need to discuss further the parties’ arguments concerning deference to state administrative interpretations under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and its progeny. TVA is not entitled to summary judgment on the broad ground that the COMS data did not show a violation of the opacity limitation when viewed in light of the 2% de minimis rule.
VII.
We now turn to the more narrow ground on which TVA sought and the district court granted summary judgment concerning the existence of violations: that the Colbert plant’s COMS data may not be used to determine violations of the 20% opacity limitation prior to May 20,, 1999, the effective date of the Alabama credible evidence rule. Because the Sierra Club has only the COMS data, if that type of data may not be used to establish violations before May 20, 1999, TVA is entitled to summary judgment insofar as all violations before that date are concerned.
A
Alabama’s opacity regulation provides that “[cjompliance with opacity standards ... shall be determined by conducting observations in accordance with Reference Method 9 .... ” Ala. Admin. Code r. 335-3-4-01(2) (emphasis added). The key word is “shall” and its usage here is not ambiguous. As the Supreme Court has stated, “ ‘shall’ ... normally creates an obligation impervious to judicial discretion.” Lexecon, Inc. v. Milberg Weiss Bershad, Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 962, 140 L.Ed.2d 62 (1998) (interpreting “shall” in the multidistrict litigation statute, 28 U.S.C. § 1407); see also Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 430, 91 L.Ed. 436 (1947) (“The word ‘shall’ is ordinarily ‘[t]he language of command.’ ”) (citation omitted); Global Satellite Communication Co. v. Starmill U.K Ltd., 378 F.3d 1269, 1272 (11th Cir.2004) (“The contract provision, “Venue shall be in Broward County,’ because it uses the imperative ‘shall,’ is most reasonably interpreted to mandate venue in Broward County, and Broward County alone.”). The plain language of this regulation is a command that only opacity data collected by a field observer using Method 9 may be used to determine compliance.
The Sierra Club argues that the plain language of Alabama’s opacity regulation should not be read as ruling out the use of COMS data for determining violations before the credible evidence rule was adopted, because of the existence of two other regulations, both of which have been around for years. One of them requires COMS installation, Ala. Admin. Code r. 335-3-12-02(3), and the other requires that COMS data be reported to ADEM, id. r. 335-3-l-.04(2)(d). Those requirements, however, have a purpose apart from the use of COMS data to measure compliance.
The record shows that although ADEM did not use COMS data to determine compliance with the 20% opacity limitation before the credible evidence rule was adopted, ADEM did use that data as an indicator of whether a plant’s particulate emission control technologies were working properly and to determine whether an extensive particulate compliance test was necessary. (Report of Richard E. Grus-niek in support of TVA’s motion for summary judgment.) Given the alternative purpose for gathering and reporting COMS data, any implication that can be drawn from the two COMS-related regulations is not strong enough to overcome the clear command of Alabama’s opacity regulation itself. See Ala. Admin. Code r. 335-3 — 4—.01(2). The command is that only Method 9 data may be used to determine opacity violations, and that command governed until Alabama’s credible evidence rule, Ala. Admin. Code r. 335-3-1-13(2), became effective on May 20,1999.
Although it relates to evidence, the credible evidence rule does not apply retroactively. Retroactive application of administrative rules is highly disfavored, and they “ ‘will not be construed to have retroactive effect unless their language requires this result.’” Landgraf v. USI Film Prods., 511 U.S. 244, 264, 114 S.Ct. 1483, 1496, 128 L.Ed.2d 229 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988)). The language of the rule does not require retroactive application. It actually points the other way. The rule expressly provides that it will become effective on a date certain, May 20, 1999. There is no point in specifying an effective date if a provision is to be applied retroactively.
For these reasons, we conclude, as the district court did, that COMS data cannot be used to determine whether pre-May 20, 1999 emissions violated the opacity limitation, at least not so far as Alabama’s regulations are concerned. That conclusion leads to the Sierra Club’s remaining contention relating to the emissions during that time period.
B.
The Sierra Club contends that the federal credible evidence rule, 40 C.F.R. § 52.12(c), which became effective in April 1997, authorized the use before May 20, 1999 of COMS data to prove opacity violations at the Colbert plant. The federal credible evidence rule provides:
For purposes of Federal enforcement, the following test procedures and methods shall be used, provided that for the purpose of establishing whether or not a person has violated or is in violation of any provision of the plan, nothing in this part shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test procedures or methods had been performed:
(1) Sources subject to plan provisions which do not specify a test procedure and sources subject to provisions promulgated by the Administrator will be tested by means of the appropriate procedures and methods prescribed in part 60 of this chapter unless otherwise specified in this part.
(2) Sources subject to approved provisions of a plan wherein a test procedure is specified will be tested by the specified procedure.
40 C.F.R. § 52.12(c)(emphasis added).
The Sierra Club’s position is that on its effective date in April 1997 the federal credible evidence rule automatically became part of the enforcement provisions in every state SIP. We don’t think so. When EPA adopted the regulation containing the federal credible evidence rule in 1997, it included a separate provision requiring each state to adopt through the SIP process its own credible evidence rule. See 40 C.F.R. § 51.212(c). Alabama complied. ADEM promulgated its own credible evidence rule, submitted it to EPA for approval as a SIP provision, and in November 1999 EPA approved it. See Approval and Promulgation of Implementation Plans: Revisions to the Alabama Department of Environmental Management (ADEM) Administrative Code for the Ail* Pollution Control Program, 64 Fed.Reg. 59,633 (Nov. 3, 1999). If the federal credible evidence rule was already a part of the Alabama SIP, as the Sierra Club contends, there would have been no point in EPA’s insisting that each state adopt its own rule and in Alabama’s doing so.
The EPA’s own statements in reference to the Credible Evidence Revisions support this analysis: “On February 24, 1997, EPA promulgated regulations ... that gave EPA the authority to use all available data to prove [Clean Air Act] violations.” 64 Fed.Reg. at 59,633 (emphasis added). It did not give any other party the authority to use all available data to prove a violation. Before EPA’s approval of the Alabama credible evidence rule, the state’s SIP did not contain one. See Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1206 (D.C.Cir.1998) (noting that in response to comments during the credible evidence rulemaking that the Credible Evidence Revisions were unauthorized, EPA stated: “EPA is not by this rulemaking revising any SIP; rather, EPA is amending the rules governing SIPs.”).
Moreover, by its own terms, the federal credible evidence rule applies only “[f]or purposes of Federal enforcement.” 40 C.F.R. § 52.12(c). Section 113 of the Clean Air Act, “Federal enforcement,” authorizes EPA to issue notices and orders, assess administrative penalties, and bring civil actions against “any person [who] has violated or is in violation of any requirement or prohibition of an applicable [SIP] or permit .... ” 42 U.S.C. § 7413(a)(1)-(2), invalidated in part by TVA v. Whitman, 336 F.3d 1236, 1260 (11th Cir.2003) (declaring administrative consent orders under Section 113 unconstitutional under the Due Process Clause of the Fifth Amendment “to the extent that mere noncompliance with the terms of an [administrative consent order] can be the sole basis for the imposition of severe civil and criminal penalties”), cert. denied, Leavitt v. TVA, 541 U.S. 1030, 124 S.Ct. 2096, 158 L.Ed.2d 711 (2004). The EPA may also “request the Attorney General to commence a criminal action .... ” 42 U.S.C. § 7413(a)(3)(D). The agency,, however, cannot bring citizen suits, which are separately authorized by Section 304 and are not “federal enforcement” under Section 113. Therefore, the plain language of the regulation containing the federal credible evidence rule makes it unavailable in citizen suits to enforce the emission limitations contained in a state implementation plan.
It is true that in adopting the federal credible evidence rule provisions, EPA declared that its action: “creates no new rights or powers for citizen enforcers; instead, the rule clarifies existing EPA regulations. Citizens have been free to use credible evidence in Clean Air Act enforcement, and have won at least two court cases using it.” Credible Evidence Revisions, 62 Fed.Reg. at 8318 (citing Unitek Envtl. Servs., Inc. v. Hawaiian Cement, 1997 U.S. Dist. LEXIS 19261 (D.Haw. 1997) (allowing use of data from air monitoring and modeling, expert testimony, and eyewitness observations to establish violations of primary particulate emission limitation in a suit between adjacent landowners for civil penalties under Clean Air Act § 113(e), which specifically provides for the use of “any credible evidence” to establish the duration of a violation) and Sierra Club v. Pub. Serv. Co. of Colorado, Inc., 894 F.Supp. 1455 (D.Colo.1995) (allowing use of COMS data to establish opacity violations where the Colorado regulation provided solely for use of Reference Method 9)). Elsewhere in its explanation of the revisions, however, EPA stated: “Today’s rulemaking is intended to clarify that EPA’s regulations do not constrain EPA to using reference tests to prove a violation of an emission standard. Rather, EPA retains its full authority under [Clean Air Act] Section 113(a) to use ‘any information’ as the basis for an enforcement action.” Credible Evidence Revisions, 62 Fed.Reg. at 8320 (emphasis added). Those comments indicate, as does the plain language of the federal rule itself (“For purposes of Federal enforcement ... ”), that the federal credible evidence rule did not amend any state SIP and does not apply directly to citizen suits. The plain language of the rule coupled with some consistent indication in the accompanying explanation trumps an inconsistent indication elsewhere in the explanation.
Because we hold that the Alabama credible evidence rule did not apply prior to its adoption on May 20, 1999, and because the federal credible evidence rule does not apply, we affirm the district court’s grant of summary judgment to TVA on the alleged opacity violations occurring before May 20,1999.
VIII.
Finally, we address the district court’s grant of summary judgment to TVA on the Sierra Club’s claim for a civil penalty of $27,500 per day on which a violation occurred. Here we are talking about violations that occurred on or after May 20, 1999 because, in light of our holding in the preceding part, they are the only alleged violations left in the case. The issue is whether Congress waived the sovereign immunity of TVA, a federal agency, from liability for punitive fines imposed for past conduct — as opposed to coercive fines for ongoing conduct — in citizen suits under Clean Air Act § 304.
Section 304(a) provides as follows:
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or
(3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of sub-chapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit.
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2))....
42 U.S.C. § 7604(a) (emphasis added). The parties agree that injunctive relief and coercive fines to enforce compliance with an injunction are available in citizen suits against the United States under the Clean Air Act. The district court, relying on U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992), held that § 304(a) does not waive the federal government’s sovereign immunity against punitive fines for past violations, and for that reason it granted summary judgment to TVA on the Sierra Club’s request for civil penalties.
In Department of Energy v. Ohio, the Supreme Court held that the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a), does not waive the federal government’s sovereign immunity with respect to punitive fines for past conduct. 503 U.S. at 619-20, 112 S.Ct. at 1635-36. The Clean Water Act citizen suit provision provides, in pertinent part:
[A]ny citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter ....
The district courts shall have jurisdiction ... to enforce such an effluent standard or limitation, ... and to apply any appropriate civil penalties under section 1319(d) of this title.
33 U.S.C. § 1365(a) (emphasis added). Section 1319(d), in turn, provides for a maximum $25,000 per day civil penalty against “any person” who violates certain sections of the Clean Water Act, a water permit, or an- administrative order. Id. § 1319(d).
The Supreme Court reasoned that the incorporation of the civil penalty section into the citizen suit provision of the Clean Water Act “must be read as encompassing all the terms of the penalty provision[], including [its] limitations.” U.S. Dep’t of Energy v. Ohio, 503 U.S. at 617, 112 S.Ct. at 1634. Importantly, for purposes of Clean Water Act § 1319(d), “person” does not include the United States, which means that the civil penalty section does not apply to the United States. Id. at 617-18, 112 S.Ct. at 1634-35. The Court rejected Ohio’s argument that the inclusion of the United States in the citizen suit provision overrides the limitations on the civil penalty section, explaining that rejection on the ground that the “special definition” of “any person” in Clean Water Act § 1365(a)(1) “go[es] to the clauses subjecting the United States to suit, but no further.” Id. at 619, 112 S.Ct. at 1635. Absent “[a] clear and unequivocal waiver” of sovereign immunity, the Supreme Court held that the United States is not subject to punitive fines for past conduct under the Clean Water Act. Id. at 619, 112 S.Ct. at 1635.
In City of Jacksonville v. Department of the Navy, decided after the district court’s ruling at issue here, we stated the general principles governing waivers of sovereign immunity as follows:
In order for this Court to find a-waiver of sovereign immunity with regard to punitive penalties, it must be unequivocally expressed in the statutory text. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096 (1996). Any waiver of immunity must be strictly construed in favor of the sovereign, and it cannot be enlarged beyond what the statutory language allows. See id. See also United States Dep’t of Energy [v. Ohio], 503 U.S. 607, 615, 112 S.Ct. 1627, 1633. Moreover, where a waiver would authorize payments from the federal treasury, [...] it “must extend unambiguously to such monetary claims.” Lane, 518 U.S. at 192, 116 S.Ct. at 2097.
348 F.3d 1307, 1314 (11th Cir.2003). We went on to hold in City of Jacksonville that the Clean Air Act’s general waiver of sovereign immunity contained in § 118(a), 42 U.S.C. § 7418(a), which is sometimes called the “federal facilities provision,” is limited to coercive fines. 348 F.3d at 1317. We also held that § 304(e), 42 U.S.C. § 7604(e), which governs state enforcement actions against the federal government in state venues, does not waive the United States’ sovereign immunity as to punitive fines. Id. at 1319. Given those holdings, the Sierra Club’s position comes down to an assertion that § 304(a), by authorizing civil suits, waives the federal government’s sovereign immunity as to punitive fines. It does not.
There is only one relevant difference between the Clean Water Act citizen suit provision involved in Department of Energy v. Ohio and Clean Air Act § 304(a). The Clean Water Act provision is tied to that act’s civil penalty provision, while § 304(a) does not refer to the Clean Air Act’s civil penalty provision, § 113(e)(1), 42 U.S.C. § 7413(e)(1), but instead provides that “appropriate civil penalties” are authorized. The Sierra Club argues because § 304(a) does not incorporate a limitation from another part of the Clean Air Act as does the Clean Water Act citizen suit provision, the inclusion of “United States” in § 304(a)(1) constitutes a sufficient waiver of the sovereign immunity against punitive fines for past conduct.
If we held that, we would be ignoring a critical aspect of the Supreme Court's analysis in Department of Energy v. Ohio, which applies equally to the Clean Air Act’s § 304(a). The Supreme Court explained that inclusion of the United States in a provision authorizing suit “against any person” is limited to that “clause or sentence alone.” 503 U.S. at 619, 112 S.Ct. at 1635. For our purposes, § 304(a), as excerpted above, contains two relevant sentences.. The first one, which includes three numbered clauses, authorizes suit against any person, including the United States, who is in violation of an emission standard or limitation. The second sentence grants federal district courts jurisdiction over those suits and the power to impose “any appropriate civil penalties.” Those two grants of power are distinct. The first grant vests power in citizen plaintiffs to bring suit; the second one vests enforcement power in the district courts, including the power to impose appropriate civil penalties.
Applying the Supreme Court’s reasoning in Department of Energy v. Ohio, it follows that the grant of authority in the first sentence of § 304(a) for citizens to sue the federal government for Clean Air Act violations does not necessarily carry over to the grant of power to federal district courts to impose civil penalties in citizen suits under the act. The inclusion of the United States in the first sentence does not include it by necessary implication in the second one. It does not because there are authorized remedies against the United States, such as declaratory and injunc-tive relief, other than the imposition of punitive civil penalties for past conduct. As a result, including the United States in the first sentence’s list of potential defendants serves a purpose, even though punitive civil penalties against it would not be “appropriate” within the meaning of the second sentence. The provisions may rationally be read to permit declaratory and injunctive relief against the United States and its agencies but not punitive fines or civil penalties for past conduct. And so long as we may read the statutory provisions in a rational way not to waive sovereign immunity, we must read them that way. City of Jacksonville, 348 F.3d at 1314 (explaining that “[a]ny waiver of immunity must be strictly construed in favor of the sovereign”).
Having decided that the waiver contained in § 304(a)(1) does not itself authorize the imposition against the United States of punitive fines for past conduct, we are left with the Sierra Club’s contention that the grant of jurisdiction in the second sentence of § 304(a) is enough to waive sovereign immunity against punitive fines. That sentence authorizes federal district courts “to apply any appropriate civil penalties” in citizen suits. 42 U.S.C. § 7604(a). Although the term “civil penalties” encompasses both punitive and coercive fines, the modifier “appropriate” limits the district court’s power to impose civil penalties and suggests that some civil penalties are not appropriate.
As applied to federal government entities, punitive fines are not appropriate unless Congress “unequivocally expressed]” in the statutory text the intent to waive sovereign immunity for punitive fines. See Lane, 518 U.S. at 192, 116 S.Ct. at 2096; see also Ruckelshaus v. Sierra Club, 463 U.S. 680, 682-86, 103 S.Ct. 3274, 3276-78, 77 L.Ed.2d 938 (1983) (holding that Clean Air Act § 307(f), which authorizes an award of “appropriate” attorney fees, “modifies but does not completely reject the traditional rule that a fee claimant must ‘prevail’ before it may recover attorney’s fees”). The federal facilities provision of the Resource Conservation and Recovery Act exemplifies an unequivocal expression: “The ... substantive and procedural requirements referred to in this subsection include ... all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature .... The United States hereby expressly waives any immunity otherwise applicable to the United States ... including ... any ... civil or administrative penalty or fine referred to in the preceding sentence .... ” 42 U.S.C. § 6961(a) (emphasis added). This language illustrates that Congress knows how to write an unequivocal and unambiguous waiver of sovereign immunity when it wants to do so.
Congress did not use in § 304(a) of the Clean Air Act the kind of clear and unambiguous language it used in the Resource Conservation and Recovery Act. Instead, it used language that, at best, permits an inference that Congress intended to waive the United States’ sovereign immunity against punitive fines for past conduct. That is not enough: Where “[a] clear and unequivocal waiver ... cannot be found[,] a broader waiver may not be inferred.” Dep’t of Energy v. Ohio, 503 U.S. at 619, 112 S.Ct. at 1635; see also United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992) (noting that where there is a “plausible” reading of a statute that does not result in a waiver of sovereign immunity, that “is enough to establish that ... imposing monetary liability on the Government is not ‘unambiguous’ and therefore should not be adopted”).
Because the Clean Air Act § 304(a) does not waive the United States’ sovereign immunity against punitive fines for past conduct, we affirm the district court’s grant of summary judgment to TVA on the Sierra Club’s claim for civil penalties for past opacity violations.
IX.
We affirm the district court’s grant of summary judgment to TVA on the Sierra Club’s claim as to violations of the 20% opacity limitation occurring before May 20, 1999, and on its request for civil penalties for any violations. We reverse summary judgment for TVA on the Sierra Club’s claim as to violations of the opacity limitation on or after May 20, 1999. We remand for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
. An alternative to Method 9, contained in an EPA regulation, is the use of a mobile "Lidar” ("Laser Radar” or "Light Detection and Ranging”) system. The Lidar system generates its own light source and may be used to measure opacity remotely at any time, day or night. 40 C.F.R. Pt. 60, App. A-4, Alt. Method 1. Lidar is operated by an observer on the ground while COMS uses equipment mounted inside the smokestack itself. The Sierra Club describes Lidar as "[a] second method for determining opacity compliance.” TVA says that Lidar is not prescribed for use as a compliance test by Alabama’s regulations. It does not matter, because everyone agrees that no Lidar data was submitted in this case. For that reason, we will ignore Lidar when we are talking about the regulations and the issues arising from them.
. The prerequisite terms of § 110(i) are clearly met. The Colbert plant is a "stationary source.” See 42 U.S.C. § 7602(z). The Alabama SIP is an "applicable implementation plan.” See id. § 7602(q).
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. Id. at 1209.
. TVA's ADEM-issued air permits reflect these regulatory requirements: TVA must install COMS to measure opacity and include “average and maximum excess emissions over 20% [opacity] computed from six-minute averages” in quarterly reports to ADEM. ADEM Permit No. 701-0010-Z009 at 3.
. This provision was revised along with four other provisions, including 40 C.F.R. § 51.212(c) as noted in Part II. C, above, as part of EPA’s Credible Evidence Revisions final rulemaking of February 24, 1997. See 62 Fed.Reg. at 8314-28. Revisions were also made to 40 C.F.R. §§ 52.30, 60.11, and 61.12. Credible Evidence Revisions, 62 Fed.Reg. at 8328.
. Recall that the Alabama credible evidence rule's effective date in the ADEM regulations was May 20, 1999, which is the date that the district court found, and the parties agree, is proper to begin consideration of COMS data to prove opacity violations. However, EPA's approval of the Alabama credible evidence rule took effect January 3, 2000, which is the date the rule became a part of the Alabama SIP. Approval and Promulgation of Implementation Plans: Revisions to the Alabama Department of Environmental Management (ADEM) Administrative Code for the Air Pollution Control Program, 64 Fed.Reg. at 59,-633.
. Section 113 refers to § 304 (which is § 7604(a) of Title 42) only in its provision for "Penalty assessment criteria.” 42 U.S.C. § 7413(e)(l)-(2) ("In determining the amount of any penalty to be assessed under this section or section 7604(a) of this title
. Clean Air Act § 113(e)(1) explicitly provides that “any credible evidence” may be used to establish the duration of a violation for purposes of assessing civil penalties in citizen suits under § 304 as well as federal enforcement actions under § 113. 42 U.S.C. § 7413(e)(1). That provision does not mention declaratory and injunctive relief but only civil penalties. Because, as we explain in Part VIII., civil penalties cannot be awarded in this case, that provision of the Act has no bearing on this case.
. The Supreme Court also interpreted the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a); however, because the two provisions were so similar, the Court used the same analysis for both. Dep’t of Energy v. Ohio, 503 U.S. at 615-18, 112 S.Ct. at 1633-35.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.09615384615384616, Costs: 0
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RAWLINSON, Circuit Judge:
Petitioner, Montana Environmental Information Center (Information Center), challenges an action of the United States Environmental Protection Agency (Agency) approving a 1994 revision to Montana's State Implementation Plan (Implementation Plan). Information Center asserts that the Agency's approval was arbitrary and capricious because Montana interprets one of its provisions less stringently than the Clean Air Act would allow. We have jurisdiction to review the EPA's action under 42 U.S.C. § 7607(b)(1), and deny the petition for review.
I. Statutory and Regulatory Background
A. Clean Air Act
Congress passed the Clean Air Act to protect and enhance the quality of the nation's air. See 42 U.S.C. § 7401(b)(1). To achieve this, "the States and the Federal Government partner[ed] in the struggle against air pollution." General Motors Corp. v. United States , 496 U.S. 530, 532, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990). We have deemed this partnership "a uniquely important system of cooperative federalism in the quest for clean air." Committee for a Better Arvin v. EPA , 786 F.3d 1169, 1173 (9th Cir. 2015) (citation omitted).
B. Federal-State Partnership
One of the Agency's primary responsibilities under the Clean Air Act is to identify air pollutants that endanger the public health and welfare. See 42 U.S.C. § 7408(a). Once identified, the Agency must then set National Ambient Air Quality Standards (Air Quality Standards), which specify the maximum allowable concentration of those pollutants in the atmosphere. See id . § 7409. The Air Quality Standards are subject to periodic review and revision. See id . In sum, the federal government's role in the federal-state partnership is to combat air pollution by identifying pollutants and then setting (and updating) Air Quality Standards.
But what of the states? "The [Clean Air Act] requires the states to submit State Implementation Plans, or 'SIPs,' showing how the states will attain [Air Quality Standards] ... " El Comite Para el Bienestar de Earlimart v. EPA , 786 F.3d 688, 692 (9th Cir. 2015) (citing 42 U.S.C. § 7410(a)(1) ); see also Whitman v. Am. Trucking Assn's, Inc ., 531 U.S. 457, 470, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("It is to the States that the [Clean Air Act] assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources. ...") (citations omitted). These Implementation Plans must "make demonstrations (of how attainment, maintenance, and progress will be achieved) and [ ] provide a control strategy that will achieve the necessary reductions and otherwise meet the requirements of the Act." Hall v. EPA , 273 F.3d 1146, 1153 (9th Cir. 2001), as amended (citation omitted). Each plan must "specify the manner in which [Air Quality Standards] will be achieved and maintained within each air quality control region." 42 U.S.C. § 7407(a).
C. State Implementation Plans
If the Agency determines that a proposed Implementation Plan meets the applicable requirements, then that Implementation Plan "bec[o]me[s] federal law, not state law." Safe Air For Everyone v. EPA , 488 F.3d 1088, 1097 (9th Cir. 2007), as amended (emphasis in the original). That is true in part because Implementation Plans cannot be amended without the EPA's further approval. See id .
When the Agency updates its Air Quality Standards, states have three years to revise their Implementation Plans to comply with the new standards. See 42 U.S.C. § 7410(a)(1). "These revisions need not be wholesale recastings of [Implementation Plans]; instead, the [Clean Air Act] allows the states to submit, and [the] Agency to review, piecemeal amendments dealing with discrete [Implementation Plan] provisions, leaving most of the plan untouched." Safe Air , 488 F.3d at 1092 (citation omitted).
In addition, Implementation Plans must comply with the Clean Air Act's Prevention of Significant Deterioration program (PSD program). See 40 C.F.R. § 51.166(a)(1) ("[E]ach applicable State Implementation Plan ... shall contain emission limitations and such other measures as may be necessary to prevent significant deterioration of air quality."). The purpose of the PSD program is to ensure that major sources of air pollution do not degrade areas that either meet Air Quality Standards (also known as "attainment" areas) or cannot be classified as meeting-or not meeting-Air Quality Standards (also known as "unclassifiable" areas). 42 U.S.C. § 7407(d)(1). The PSD program combats degradation of these areas by requiring developers to acquire permits before constructing new sources of emissions or modifying existing ones. See 40 C.F.R. § 51.166(a)(7). The permit requirement applies to existing sources that are planned to undergo a "major modification," id ., resulting in a "significant emissions increase" and a "significant net emissions increase." Id . § 51.166(a)(1)(7)(iv)(a). "Significant emissions increases" are calculated by taking the "actual emissions" of a source, which establishes a representative baseline level of emissions, id . § 51.166(b)(47), and comparing that baseline to the projected emissions, post-modification. See id . § 51.166 (a)(7)(iv)(c).
This formula evokes the question of how to determine a source's "actual emissions." The answer has evolved over time. In 1980, the Agency stated that actual emissions
shall 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. The reviewing authority may allow the use of a different time period upon a determination that it is more representative of normal source operation.
40 C.F.R. § 51.24(b)(21)(1980).
In 1992, the Agency clarified that "a 2-year period which precedes the particular date" has "historically [meant] the 2 years immediately preceding the proposed change to establish the baseline." 57 Fed. Reg. 32,314, 32,323 (July 21, 1992) (citations omitted). Going forward, however, "the [Agency] would presume that any 2 consecutive years within the 5 years prior to the proposed change is representative." Id.
Ten years later, the Agency formally updated its definition of "baseline actual emissions." This update involved creating separate definitions for steam power plants and all other stationary sources. As of 2002, the baseline actual emissions of steam power plants equaled the average rate of a pollutant actually emitted "during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding [the] ... actual construction of the project. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation." 40 C.F.R. § 51.166(b)(47)(i). The baseline actual emissions of non-steam sources equaled omissions occurring "during any consecutive 24-month period ... within the 10-year period immediately preceding" construction of a project. Id . § 51.166(b)(47)(ii).
Although the Clean Air Act requires each Implementation Plan to contain permitting processes that comply with the PSD program, the Act does not require verbatim adoption of the PSD program. Rather, a state is free to deviate so long as it "specifically demonstrates" that those deviations "are more stringent than or at least as stringent in all respects as the corresponding provisions [of the Clean Air Act.]" 40 C.F.R. 51.166(a)(7)(iv).
II. Factual and Procedural Background
Montana, "like every other state, was first required to submit [an Implementation Plan] to the [Agency] within thirteen months of the Act's ... passage." Safe Air , 488 F.3d at 1093 (citing Train v. NRDC , 421 U.S. 60, 65, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). In addition, Montana is required to revise its Implementation Plan concomitantly with EPA updates to federal standards. See 42 U.S.C. § 7410. Relevant to this case is a revision Montana submitted on March 30, 1994 (1994 Revised Implementation Plan). The revision contained the following definition of "actual emissions:"
Actual emissions as of a particular date shall 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. The department may determine that a different time period is more representative of normal source operation. ...
This definition, in large part, mirrors the Agency's 1980 definition of actual emissions, see 40 C.F.R. § 51.24(b)(21) (1980), and was approved by the Agency in 1995. See 60 Fed. Reg. 36,715, 36,719 (July 18, 1995).
Between 2008 and 2012, the Agency updated its Air Quality Standards. See 81 Fed. Reg. 4225 (Jan. 26, 2016). These updates triggered Montana's obligation to revise its Implementation Plan within three years. See 42 U.S.C. § 7410. On December 17, 2015, Montana submitted its final Implementation Plan in response to the 2008-2012 updates. This Implementation Plan contained the same emissions definition that was approved by the Agency in 1995. During the Agency's subsequent notice and comment period, Information Center submitted a comment to the effect that Montana interpreted the definition of "actual emissions" from its 1994 Revised Implementation Plan less stringently than the PSD program requires.
The basis for Information Center's comment was the interpretation of "actual emissions" advanced by the Montana Department of Environmental Quality (DEQ) in unrelated litigation. See Sierra Club and MEIC v. Talen Montana, LLC , CV13-32-BLG-DLC-JCL, 2015 WL 13714343 (D. Mont. Dec. 31, 2015). In Talen , the DEQ acknowledged that the Information Center and the Agency read the definition of "actual emissions" to mean " 'the' two-year period immediately preceding" a modification. DEQ argued that "no deference [should be given] to [the Agency's interpretation]
because ... the interpretation that [it is] 'the ' two-year period immediately preceding [a modification] is inconsistent within the rule language which says ... 'a ' two-year period." (emphases added).
The Agency responded that it "appreciates and takes seriously [Information Center's comment] that Montana has adopted 'policy interpretations' outside the context of the [Implementation Plan] that may undermine the State's implementation of the [Implementation Plan] as approved by the [Agency]." Still, the Agency did not find it necessary to "evaluat[e] the merits of these assertions concerning implementation of the [Implementation Plan] in the context of this action" because "this action involves a review of the [Implementation Plan] itself." Accordingly, the Agency expressed its "inten[t] to evaluate the merits of these assertions, separate from this action, at a future time." The Agency determined that the previously approved 1994 Revised Implementation Plan and the 2015 Implementation Plan "[met] the relevant structural requirements," and approved the 2015 Implementation Plan. Information Center timely petitioned this court to review the Agency's action.
III. Standard of Review
We review the approval of an Implementation Plan "by considering whether the [Agency's] decision was arbitrary, capricious, an abuse of discretion, or contrary to law." Committee for a Better Arvin , 786 F.3d at 1174-75 (citations omitted); see also Hall , 273 F.3d at 1155. Whether the Agency acted arbitrarily and capriciously "rests on whether it articulated a rational connection between the facts found and the choice made." Friends of Yosemite Valley v. Norton , 348 F.3d 789, 793 (9th Cir. 2003) (citation and internal quotation marks omitted), opinion clarified , 366 F.3d 731 (9th Cir. 2004). In conducting this review, we may neither "rubber-stamp administrative decisions" nor "substitute our judgment for that of the agency." Id . (citation and alterations omitted).
"With respect to the [Clean Air Act], Congress has given [the Agency] general rulemaking authority, 42 U.S.C. § 7601(a)(1), which, when exercised, requires our deference in accordance with Chevron ...." Sierra Club v. EPA , 671 F.3d 955, 962 (9th Cir. 2012) (citation and internal quotation marks omitted).
IV. Analysis
A. Montana Department of Environmental Quality Statements
The entirety of Information Center's appeal rests on the DEQ's statements in the Talen litigation. Information Center argues that Montana's 1994 Revised Implementation Plan did not comply with the Clean Air Act, because the DEQ interprets "actual emissions" less stringently than federal standards would allow. The DEQ's interpretation, Information Center contends, carries the force of law. Information Center maintains that Montana's 1994 Revised Implementation Plan was therefore deficient, and that the Agency should not have approved the 2008-2015 revisions until the state definition of "actual emissions" complied with federal standards.
Information Center relies on Go v. Holder , 744 F.3d 604, 611 (9th Cir. 2014), to support its argument that the DEQ's statements have the force of law. But reliance on Go is misplaced in the circumstances of this case. It is well settled that once the Agency approves either an Implementation Plan or a Revised Implementation Plan, that plan becomes federal law. See Committee for a Better Arvin , 786 F.3d at 1174. As such, "a state may not unilaterally alter the legal commitments of its [Implementation Plan]
once [the Agency] approves the plan." Safe Air , 488 F.3d at 1097 (citation omitted). Thus, the DEQ's interpretation of "actual emissions" could not invalidate Montana's 1994 Revised Implementation Plan. And, where the Agency has officially interpreted a vague regulatory term, the Agency's interpretation prevails. See Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).
B. Implementation of Program As Opposed to Approval of Plan
The Clean Air Act "permits the [Agency] to issue 'partial approvals' [of Implementation Plans]. Hall , 273 F.3d at 1159 (citation and alteration omitted). In light of this circumstance, the question becomes to what extent the Agency must consider the DEQ's statements as part of the approval process for an Implementation Plan.
"In interpreting [an Implementation Plan], we begin with a look toward the plain meaning of the plan and stop there if the language is clear. ..." Safe Air , 488 F.3d at 1095. The language at issue is:
(1) "Actual emissions as of a particular date shall equal ... a two-year period which precedes the particular date [of construction,]" and
(2) "The department may determine that a different time period is more representative of normal source operation."
Under Information Center's theory, the DEQ and the Agency reasonably interpreted "a two-year period" to mean two different things. Therefore, the language at issue is ambiguous. See NRDC v. Cnty. of Los Angeles , 725 F.3d 1194, 1205 (9th Cir. 2013) (explaining that language is ambiguous "if reasonable people could find its terms susceptible to more than one interpretation") (citation omitted). And while Safe Air , 488 F.3d at 1095-96, provides guidance for instances where Implementation Plan language is clear , it does not do so for Implementation Plan language that is un clear. We do so here: Where the plain meaning of an Implementation Plan cannot be readily discerned from the text, we think it appropriate to give deference to the Agency's reasonable interpretation. This approach is consistent with the deference given under Chevron to the Agency's rulemaking authority, and with how we have reviewed the Agency's interpretation of Implementation Plan-related documents. See, e.g. , El Comite Para el Bienestar de Earlimart , 786 F.3d at 696 ("Because the plain language of the relevant documents is ambiguous, we defer to the EPA's interpretation if it is reasonable, i.e., if it 'sensibly conforms to the purpose and wording of the regulations.' ") (citation omitted).
The Agency's interpretation of the two-year period immediately preceding the commencement of construction is consistent with the tenor of the regulation to fix a finite period for the measurement of baseline emissions. See 40 C.F.R. § 51.24(b)(2). In any event, we agree with the Agency that Information Center's comment raises a question of implementation of a program rather than approval of a plan. As such, DEQ's statements in the Talen case need not be resolved at the approval phase of the state plan. As explained above, DEQ's policy interpretations do not carry the force of law, contrary to Information Center's contention. See Committee for a Better Arvin , 786 F.3d at 1174 ("Once approved by [the Agency, an Implementation Plan] becomes federal law, and cannot be changed unless and until [the Agency] approves any change. ...") (citation, alterations and internal quotation marks omitted). At this point, we are not even sure if Montana will adhere to its interpretation of the plan language at issue should the occasion arise to implement that language. As matters currently stand, Montana still has the option to change course and adopt the Agency's interpretation that "a 2-year period which precedes the particular date" means "the 2 years immediately preceding the proposed change." 57 Fed. Reg. at 32,323. As a result, we cannot say at this juncture that the Agency acted arbitrarily in approving the 1994 Revised Implementation Plan.
At bottom, we conclude that the Agency's interpretation of the regulation was a reasonable one. See Auer , 519 U.S. at 461, 117 S.Ct. 905. The EPA interpreted "a 2-year period which precedes the particular date" to mean "the 2 years immediately preceding" the particular date. 57 Fed. Reg. at 32,323. In Talen , Montana argued that this interpretation is irreconcilable with the text because the text employs the indefinite article "a," not the definite article "the." Although the Agency's interpretation does incorporate a definite article, the fact that the language is ambiguous, as discussed, gave the Agency leeway to pose a reasonable interpretation of the language. See Comite Para el Bienstar de Earlimart , 786 F.3d at 696.
Because the Agency's interpretation of ambiguous text in the 1994 Revised Implementation Plan was a permissible one, and because the Agency's interpretation controlled, its approval of the succeeding 2015 Implementation Plan was not arbitrary or capricious. See Committee for a Better Arvin , 786 F.3d at 1174-75. The 2015 Implementation Plan was otherwise in conformance with the Agency's PSD program under the Clean Air Act. See 40 C.F.R. 51.166(a)(7)(iv) (requiring Implementation Plan compliance with the Agency's PSD program).
V. Conclusion
The Agency's interpretation of "a 2-year period which precedes the particular date" was a permissible one. 57 Fed. Reg. at 32,323. DEQ's contrary interpretation had no effect on the Agency's approval process. Accordingly, the Agency's approval of Montana's 2015 Implementation Plan was neither arbitrary nor capricious, and Information Center's comment regarding Montana's interpretation of the language in question raised a question of implementation, better addressed at a different time. As the Agency mentioned in its response to Information Center's comment, "there are multiple statutory tools that the [Agency] can use to rectify problems with state implementation of its [Implementation Plan]. For example, the [Clean Air Act] provides the [Agency] the authority to issue [an Implementation Plan] call, 42 U.S.C. § 7410(k)(5) ; make a finding of failure to implement, id. §§ 7410(m), 7509(a)(4) ; and take measures to address specific permits pursuant to the [Agency's] case-by-case permitting oversight. See, e.g. , id . § 7661d(b)."
PETITION FOR REVIEW DENIED.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1, Costs: 0.03333333333333333
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BENAVIDES, Circuit Judge:
The present case requires the Court to determine whether Sandy Creek’s current and ongoing construction of a coal-fired power plant, for which no MACT determination has ever been made, violates the Clean Air Act § 112(g). Because we conclude that § 112(g)(2)(B) prohibits the act of construction, and not merely the commencement thereof, we find that Sandy Creek’s current and ongoing construction of a “major source” without a final MACT determination violates the plain language of the statute. Accordingly, we REVERSE the judgment, and remand to the district court for further proceedings not inconsistent with this opinion.
Facts and Regulatory/Procedural Background
Defendant Sandy Creek Energy Associates, L.P. (“Sandy Creek”) is currently constructing a coal-fired power plant in Riesel, Texas. The Texas Commission on Environmental Quality (“TCEQ”) would ordinarily perform a routine case-by-case “MACT determination” prior to the company’s commencement of construction on a coal-fired power plant, in order to comply with federal Clean Air Act (“CAA”) requirements. See 42 U.S.C. § 7412(g)(2)(B) (“No person may construct or reconstruct any major source of hazardous air pollutants, unless the Administrator (or the State) determines that the maximum achievable control technology emission limitation under this section for new sources will be met. Such determination shall be made on a case-by-case basis where no applicable emission limitations have been established by the Administrator.”); see also 30 Tex. Admin. Code § 116.711(5) & (11) (implementing § 112(g)’s “case-by-case MACT determination” by incorporating it into the State’s pre-construction permitting process). Because Sandy Creek’s Riesel plant will emit more than ten tons per year of hydrogen chloride — a listed hazardous pollutant under the Act — the Riesel plant falls under § 112(g)’s MACT construction proscription.
“MACT” refers to “Maximum Achievable Control Technology” — an emission limitation standard for the listed “hazardous” pollutants Congress ordered the EPA to regulate in § 112. Section 112 requires major sources, like the Riesel plant, to “comply with technology-based emission standards requiring the maximum degree of reduction in emissions EPA deems achievable, often referred to as ‘maximum achievable control technology’ or MACT standards.” Nat’l Min. Ass’n v. EPA 59 F.3d 1351, 1353 (D.C.Cir.1995) (quoting 42 U.S.C. § 7412(d)(1)-(2)). Congress noted that § 112’s MACT emissions standards would “be more stringent” than the standards imposed by other provisions of the Act-such as New Source Review or Prevention of Significant Deterioration (“PSD”)-and explained this as necessary since the MACT “program is for the control of extremely harmful air pollutants.” S.Rep. No. 101-228, at 140 (1989), U.S. Code Cong. & Admin.News 1990, pp. 3385, 3552.
Thus, in ordinary circumstances, we would not question whether § 112(g)(2)(B)’s requirement of a case-by-case MACT determination applied to Sandy Creek’s Riesel Plant. The present case, however, presents us with an unusual circumstance. In March of 2005, the EPA issued a rule removing coal and oil-fired electric utility steam generating units (“EGUs”) from the list of sources whose emissions are regulated under § 112. Thus, although Sandy Creek submitted an application for a MACT determination to TCEQ, TCEQ concluded that, as a result of EPA’s Delisting Rule, no such determination was legally required. On May 25, 2006, TCEQ stated that “[n]o case-by-case MACT determination for the PC boiler is needed because the type of steam generating unit (PC boiler) that Sandy Creek is proposing is not subject to MACT regulation.” Sandy Creek then commenced construction on its coal-fired power plant in Riesel, Texas, on January 7, 2008.
One month later, on February, 8, 2008, the D.C. Circuit vacated EPA’s March 2005 Delisting Rule, declaring that EPA’s decision to remove EGUs from the list of § 112’s regulated sources violated “the plain text and structure of section 112.” New Jersey v. EPA 517 F.3d 574, 583 (D.C.Cir.2008). Consequently, the D.C. Circuit held that EGUs “remain listed under section 112.” On March 14, 2008, the mandate issued and the Delisting Rule was officially vacated. As a result of the D.C. Circuit’s decision in New Jersey, § 112(g)’s construction prohibition on “major sources” with no MACT determination once again became applicable to all coal-fired power plants.
Soon thereafter, on August 8, 2008, Plaintiffs Public Citizen, Inc. and Sierra Club, Inc. (collectively, “Sierra Club”) filed their complaint in federal district court. In the complaint, the Plaintiffs alleged that Sandy Creek’s construction of its coal-fired plant in Riesel was in violation of CAA § 112(g)(2)(B) because Sandy Creek had never obtained a MACT determination for the plant.
Sierra Club filed a motion for summary judgment on March 4, 2009, and then on April 2, 2009, Sandy Creek filed its cross-motion for summary judgment, arguing that the district court should abstain from deciding Sierra Club’s § 112(g)(2)(B) challenge pursuant to Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). On September 28, 2009, the district court issued its Order. Although the district court declined to abstain pursuant to Burford, the district court determined that § 112(g)’s requirement for a MACT determination no longer applied to Sandy Creek, and consequently, the district court granted summary judgment in Sandy Creek’s favor and denied Sierra Club’s motion for summary judgment. Sierra Club timely appealed, asserting that the district court erred when it found that § 112(g)(2)(B)’s requirement for a final MACT determination no longer applies to Sandy Creek. On appeal, Sandy Creek asserts that the district court abused its discretion when it declined to abstain under Burford.
We will consider both claims in turn.
Standard of Review
“We review a grant of summary judgment de novo, applying the same legal standard as the district court.” Croft v. Governor of Tex., 562 F.3d 735, 742 (5th Cir.2009) (internal quotations omitted). Summary judgment should be rendered if the record demonstrates that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue is material if its resolution could affect the outcome of the action.” Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.2001). “In deciding whether a fact issue has been created, the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Id. Although both parties moved for summary judgment before the district court, “[t]he mere fact that both appellants and appellee moved for summary judgment does not warrant the grant of either motion if the record reflects a genuine issue of fact.” Hindes v. United States, 326 F.2d 150, 152 (5th Cir.1964).
Analysis
The question before this Court is how to interpret and apply § 112(g) to a coal-fired power plant still under construction, when the construction on that plant commenced before the D.C. Circuit’s decision in New Jersey — that is, where the construction of the plant began during a time period in which a MACT determination was not required under the EPA’s unlawful Delisting Rule — and TCEQ declined to make one. Sandy Creek makes two arguments in support of its position that it should not be required to obtain a MACT determination now. First, Sandy Creek argues that when TCEQ issued Sandy Creek its preconstruction permit on May 25, 2006, it actually made a MACT determination. In the alternative, Sandy Creek also argues that because § 112(g) did not apply to it when it commenced construction, § 112(g)’s requirement for a MACT determination does not apply to its ongoing construction. Neither the record, nor the plain language of the statute, support these two positions.
I. TCEQ Has Not Made a MACT Determination
Sandy Creek asserts that its ongoing construction of a coal-fired plant is not in violation of § 112(g)(2)(B) because TCEQ did make a MACT determination. In this regard, Sandy Creek conflates a decision not to make a MACT determination with an actual final MACT determination that the Act requires. Because TCEQ declared in its May 2006 Final Order that no MACT determination was required, and Sandy Creek’s application for a MACT determination and TCEQ’s preliminary determination were deficient as they did not contain substantive evaluations of MACT limits or MACT floors for any hazardous air pollutant, this Court finds that TCEQ did not make a proper MACT determination in its May 2006 Final Order.
The district court’s factual findings are ambiguous as to whether or not TCEQ made a final MACT determination for Sandy Creek’s Riesel plant. The evidence in the record, however, shows that TCEQ did not make a MACT determination for Sandy Creek’s Riesel plant. First, the May 2006 Final Order’s provision that the MACT determination requirement is inapplicable strongly indicates that TCEQ did not make a MACT determination. The TCEQ provided, “[n]o case-by-case MACT determination for the PC boiler is needed because the type of steam generating unit (PC boiler) that Sandy Creek is proposing is not subject to MACT regulation.” This May 2006 Final Order thus did not contain a case-by-case evaluation of MACT limits or set a MACT floor for Sandy Creek.
Nothing in the record demonstrates that TCEQ made a MACT determination. Even though we accept as true Sandy Creek’s contention that it prepared and submitted an application to TCEQ under the assumption that a MACT determination would be required, that does not constitute evidence that TCEQ actually made the determination. Moreover, Sandy Creek’s initial § 112(g) submissions were deficient, in that the application’s proposed MACT limits did not include a MACT floor. A BACT limit cannot substitute for a MACT limit because BACT limits do not include a floor as the MACT limits do. Compare 42 U.S.C. § 7412(d)(3) (establishing MACT floor) with 42 U.S.C. § 7479(3) (defining BACT limits as taking economic costs into account). Moreover, a MACT determination requires assessment of every hazardous air pollutant produced by a plant, including for emissions of arsenic, hydrochloric acid, selenium, and cadmium, whereas the alleged MACT determination in Sandy Creek’s permit is limited to mercury. See 42 U.S.C. § 7412(d)(1).
In its May 2006 Final Order TCEQ did not acknowledge the deficiencies in its preliminary decisions, and instead relied on the Delisting Rule to conclude that no case-by-case MACT determination was necessary for the pulverized coal boiler. R. at 680. A letter from an employee deeming the MACT determination requirement satisfied is clearly insufficient to make up for these inadequacies in the alleged MACT determination. Furthermore, Sandy Creek’s argument that TCEQ’s decision not to make a MACT determination constitutes a MACT determination is without merit. As such, we conclude that TCEQ never made a MACT determination for Sandy Creek.
II. Defendant’s Ongoing Construction Violates § 112(g)(2)(B)
Furthermore, we find that Sandy Creek’s current, ongoing construction of a coal-fired plant — for which Sandy Creek has received no final MACT determination — violates the plain language of § 112(g)(2)(B). We reject Sandy Creek’s argument that because it commenced construction when EPA’s unlawful Delisting Rule was still in effect in January of 2008, the Delisting Rule should continue to preclude the application of § 112(g)(2)(B) to its Riesel plant now.
A plain reading of the statute does not support Sandy Creek’s position. Instead, a plain reading of § 112(g)’s statutory language leads to the conclusion that the date of commencement of construction on a “major source” does not alter, shift, or eradicate the application of § 112(g)’s prohibition on the construction of that “major source” until, or unless, a MACT determination has been made. Notably, § 112(g)(2)(B) states that “no person may construct or reconstruct any major source of hazardous air pollutants, unless the Administrator (or the State) determines that the maximum achievable control technology emission limitation under this section for new sources will be met.” See also 40 C.F.R. § 63.43(l)(2) (interpreting § 112(g)(2)(B) to mean that violations are not limited to commencement of construction, but rather, occur “for whatever period the owner or operator is determined to be in violation of [MACT] requirements”).
That is, § 112(g)(2)(B) simply states “no person may construct.” It does not state “no person may begin construction” or “start to construct.” Section 112(g)(2)(B) does not state that prior to beginning construction, the Administrator (or the State) must determine that the MACT emission limitation has been met. Instead, § 112(g)(2)(B) simply renders the act of constructing itself unlawful — unless and until a MACT determination has been made. The day Sandy Creek actually commenced construction is, therefore, irrelevant to § 112(g)(2)(B)’s current application to Sandy Creek’s concurrent and ongoing construction, since § 112(g)(2)(B) prohibits the act of construction itself— and not the commencement thereof.
Thus, the question really is not whether Sandy Creek must comply with § 112, but rather, the question is when and how. Because Sandy Creek is currently constructing a “major source,” we find that § 112(g)’s MACT requirement for new sources constitutes the most appropriate application of § 112 to the Riesel plant. In so finding, we find it important to note that any construction Sandy Creek undertook prior to March 14, 2008, should not be considered in violation of § 112(g)(2)(B). We agree with the EPA’s position “[that] consideration [must be given] to the effect of prior construction, undertaken in reasonable reliance on now-vacated rules.” However, the Delisting Rule has since been vacated, and consequently, Sandy Creek must now come into compliance with § 112(g)(2)(B). Accordingly, we conclude that Sandy Creek’s ongoing construction of a coal-fired power plant — for which no MACT determination has been made — is in violation of § 112(g)(2)(B).
III. Harper Does Not Preclude the Application of § 112(g)
In coming to the conclusion that § 112(g) does not presently apply to Sandy Creek’s ongoing construction of a “major source,” the district court erroneously relied on the Supreme Court’s decision in Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). In Harper, the Supreme Court considered whether a judicial decision might have retroactive effect, reasoning “that the nature of judicial review strips [the Court] of the quintessentially legislative prerogative to make rules of law retroactive or prospective as we see fit....” Id. at 95, 113 S.Ct. 2510. The Supreme Court held that judicial decisions will only have retroactive effect on those “cases still open on direct review.” Id. at 97, 113 S.Ct. 2510. The Harper Court, however, did not consider — nor did it create — any guidelines for lower courts to apply when considering the retroactive effect of a restored administrative rule or regulation. Moreover, the district court seemed to assume that to find a violation of § 112(g)(2)(B), it would have to retroactively apply New Jersey, but that is not the case. Because § 112(g)(2)(B) applies throughout the construction process, the issue of whether New Jersey can be applied retroactively to make illegal the construction that began before the D.C. Circuit decided New Jersey is not determinative. We interpret the plain language of § 112(g)(2)(B) to bar Sandy Creek from constructing a coal-fired plant without a final MACT determination. The Supreme Court’s decision in Harper does nothing to absolve Sandy Creek of its present duty to abide by the requirements in § 112(g)(2)(B).
Furthermore, in its consideration of Harper, the district court also concluded that because a Texas state district court affirmed TCEQ’s May 2006 Final Order for the Riesel plant’s PSD permit, the “direct review of TCEQ’s MACT-related findings and conclusions in the final permit was closed on the date that the Texas district court rendered its decision on March 29, 2007.” This particular application of Harpers “direct review” rule is erroneous.
That is, for purposes of its “direct review” analysis, the district court has conflated TCEQ’s granting of a PSD permit, see 42 U.S.C. §§ 7470-7492, with the issuance of a final MACT determination. See 42 U.S.C. § 7412(g). On March 29, 2007, the Texas state district court approved TCEQ’s granting of a PSD permit. Of course, the state district court’s decision to affirm TCEQ’s granting of Sandy Creek’s PSD permit closed the door to any future challenges to the legal legitimacy of that particular PSD permit. The Texas state district court, however, did not affirm TCEQ’s MACT determination — mainly because TCEQ never made one. Accordingly, since Sierra Club is challenging Sandy Creek’s failure to obtain a MACT determination pursuant to § 112(g)(2)(B) — and because Sierra Club is not challenging the legal legitimacy of Sandy Creek’s PSD permit — what the Texas state district court affirmed on March 29, 2007, regarding Sandy Creek’s PSD permit, does not influence our consideration of Sandy Creek’s statutory obligation to obtain a MACT determination. This is because the affirmation of this PSD permit said nothing about the legality (or existence of) a MACT determination pursuant to § 112(g).
Accordingly, a plain reading of the statute demonstrates that securing a PSD permit does not obviate the need to comply with § 112, and here, where Sandy Creek has not yet obtained a final MACT determination, Sandy Creek’s continued construction of a major source constitutes a violation of § 112(g)(2)(B).
IV. The District Court was Correct Not to Abstain
Finally, Sandy Creek asserts that the district court should have abstained, pursuant to Burford, 319 U.S. 315, 63 S.Ct. 1098. This Court “generally review[s] abstention decisions under an abuse of discretion standard.” Sierra Club v. City of San Antonio, 112 F.3d 789, 793 (5th Cir.1997). Given this standard of review, and the applicable law concerning Burford abstention, we would be hard pressed to conclude that the district court abused its discretion in refusing to abstain in this case.
“We start with the command that the federal courts have a ‘virtually unflagging obligation to exercise the jurisdiction given them.’ ” Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir.1993) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). As a result, “[abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River, 424 U.S. at 813, 96 S.Ct. 1236. This Court has recognized five factors for a court to weigh when considering whether to abstain under Burford. In Wilson, the Court listed these five Burford factors as follows:
(1) whether the cause of action arises under federal or state law (finding abstention inappropriate where the case did not involve a state-law claim); (2) whether the case requires inquiry into unsettled issues of state law, or into local facts; (3) the importance of the state interest involved; (4) the state’s need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review.
Wilson, 8 F.3d at 313 (internal quotation marks and citations omitted).
In the present case, consideration of these five factors support the district court’s decision not to abstain. The first factor overwhelmingly affirms the district court’s decision, since no state cause of action is involved in a federal CAA citizen suit. See New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (holding that Burford abstention is not appropriate where the plaintiffs claim “does not involve a state-law claim,” and rejecting the Fifth Circuit’s declaration that “ ‘the absence of a state law claim [is] not fatal’ ” to the application of Bur-ford abstention) (quoting and overturning New Orleans Public Serv., Inc. v. City of New Orleans, 798 F.2d 858, 861-62 (5th Cir.1986)). Whereas Burford consisted of a federal constitutional challenge to a state-created agency action, see Burford, 319 U.S. at 331, 63 S.Ct. 1098, the present challenge raises no federal constitutional concerns about any state-created regulatory body-but instead utilizes a federal congressionally-created cause of action to challenge a particular entity’s failure to comply with a federally created regulatory scheme.
Furthermore, the remaining factors weigh in favor of the district court’s decision not to abstain. Although it is true that Congress created in the CAA “a comprehensive national program that made the States and the Federal Government partners in the struggle against air pollution,” GM Corp. v. United States, 496 U.S. 530, 532, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990), it is also true that Congress gave EPA the power to revoke a State’s regulatory authority if that State does not abide by the CAA’s federal statutory requirements. See 42 U.S.C. § 7410(c)(1)(B) (granting EPA the discretion to revoke a State’s air permitting authority if the EPA “disapproves a State implementation plan submission in whole or in part”). Recently, the EPA formally announced it has disapproved Texas’s State Implementation Plan, and consequently, TCEQ’s continued authority to issue air permits under the CAA will soon (perhaps temporarily) expire. Consequently, the present case would make for an odd application of Bur-ford, given that the federal district court would be abstaining from ruling when the state-regulatory body may soon lose its federally-granted authority to regulate.
In contrast to Burford and this Court’s decision in Sierra Club v. City of San Antonio, the regulatory framework at issue here was created by the United States Congress — not a state legislative body. Further, the legal question involves the application of federal law — not state law. And finally, any need for a “coherent policy” is best attributed to the federal government, not the state of Texas. One reason Congress decided to amend § 112 in 1990 and create a federally enforceable MACT requirement was to remedy the states’ widely divergent approaches to regulating hazardous pollutants nationwide. See H.R.Rep. No. 101-490, pt. 1, at 330 (1990) (noting that “the approaches taken by States to control air toxics vary considerably” and this has “produced a patchwork of differing standards”).
Thus, for the reasons described above, we conclude that the district court did not abuse its discretion when it refused to abstain under Burford.
Conclusion
For the foregoing reasons, we find that the district court did not err in its decision not to abstain under Burford, and because we find that Sandy Creek’s ongoing construction of a coal-fired power plant with no final MACT determination violates CAA § 112(g)(2)(B), we REVERSE the judgment of the district court and remand for further proceedings not inconsistent with this opinion.
. 42 U.S.C. § 7412(g). This opinion will routinely refer to statutory provisions by their Clean Air Act section numbers (z'.e. "section 112”), rather than from the U.S.Code codification (z.e. "42 U.S.C. § 7412”).
. Section 112(a)(1) defines "major source” as follows:
The term "major source” means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.
The question of whether Sandy Creek’s Riesel plant qualifies as a "major source” under § 112 is not before this Court since both parties agree the plant will emit enough tons of mercury to qualify the plant as a “major source” under the Act.
. In its brief, Sandy Creek conceded that before March of 2005, § 112(g)’s MACT requirement applied to its Riesel plant.
. This agency action became known as the "Delisting Rule,” and will be discussed in greater detail below.
. The D.C. Circuit recognized that the plain language in § 112(c) meant that "the only way EPA could remove EGUs from the section 112(c)(1) list was by satisfying section 112(c)(9)’s requirements.” New Jersey, 517 F.3d at 582. The EPA, however, conceded "that it never made the findings section 112(c)(9) would require in order to delist EGUs.” Id. Consequently, the New Jersey Court held that "EPA's purported removal of EGUs from the section 112(c)(1) list therefore violated the CAA's plain text and must be rejected under step one of Chevron. ” Id. The vacatur of the Delisting Rule means that EGUs are still legally obligated to comply with § 112(g)(2)(B)'s MACT requirement for any hazardous pollutant they emit. Id.
. Although the CAA’s Citizen Suit Provision, see 42 U.S.C. § 7604(a), (f), gives this Court jurisdiction over suits asserting that specific "major emitting facilities” violate the requirements of the CAA, Congress specifically reserved jurisdiction over challenges to EPA's administrative rules and regulations implementing the statute as a whole to the D.C. Circuit Court of Appeals. See id. § 7607(b)(1). Congress's decision to designate the D.C. Circuit as the Court with exclusive jurisdiction over challenges to rules such as the Delisting Rule and other “standard-setting actions by the Administrator was to ensure uniformity in decisions concerning issues of more than purely local or regional impact.” Natural Res. Def. Council, Inc. v. EPA, 512 F.2d 1351, 1357 (D.C.Cir.1975). Consequently, it is clear, and no party contests, that the D.C. Circuit's vacatur of the Delisting Rule applies unequivocally throughout all of the Federal Circuits.
. Most notably, Sandy Creek's own engineer told TCEQ at the administrative hearing that with regard to Sandy Creek’s Riesel plant, the “MACT regulation ... is no longer relevant.” R. at 140-41.
. We note that the record does support Sandy Creek's assertion that TCEQ conducted a BACT ("Best Available Control Technology") review for the Riesel plant's emission of hazardous air pollutants, including mercury. See R. at 693 ("[TCEQ] conducted a best available control technology (BACT) and impacts review.”). We do not, however, agree with Sandy Creek’s assertion that we should "consider this BACT review as equivalent to MACT review.” Id. We find § 112’s language is clear in its command that MACT — and not BACT — be applied to a coal-fired plant's emissions of hazardous pollutants like mercury. Yet even if the language of the statute could be construed as ambiguous, that ambiguity would fall in face of the legislative history reflecting Congress’s intent that the more stringent MACT be applied to hazardous pollutants-and not the less stringent BACT. See S. Rep. No. 101-228, at 140 (1989) (explaining that previously proposed legislation had "proposed to add a BACT concept to section 112,” but Congress determined that "the case-by-case BACT determinations ... were not sufficiently stringent and in many cases provided no more control than would have been required through application of new sources performance standards.”). Consequently, Congress created an "emissions limitation based on section 112(d) [that] will, in most cases, be more stringent than a new source performance standard for the same category of sources or pollutants.” Id. In creating MACT, Congress further noted that the ("emissions limitation imposed here, and the standard for control which is its foundation, shall generally be referred to as the 'maximum achievable control technology’ or MACT to distinguish it from other requirements in the Act.”). As a result, we find that for purposes of § 112, MACT and BACT are not equivalent, and a State Agency's BACT review does not satisfy § 112’s mandate that "major facilities” receive a MACT determination.
. In this regard, Sandy Creek also argues that § 112(g)(2)(B) does not require that a MACT determination be made now, in 2010, since "both TCEQ's and EPA's rules make the § 112(g) case-by-case MACT determination part of the preconstruction permitting process, [and] not an ongoing, freestanding requirement.” Essentially, Sandy Creek argues that because TCEQ and EPA have elected to administratively implement the requirements of § 112(g) in regulations that procedurally place MACT determinations in the preconstruction permitting process, any violation of § 112(g) that occurs outside of this regulatory process is no longer a violation of the statute itself. This is an incorrect reading of the interplay of administrative law and statutory interpretation. Even if EPA and TCEQ intended to, they cannot issue regulations that alter § 112(g)(2)(B)’s explicit requirement that no person construct a major source without a MACT determination. It is a fundamental precept of administrative law that an agency action, rule, or regulation "cannot overcome the plain text enacted by Congress.” New Jersey, 517 F.3d at 583; see also Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("[T]he court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”). Section 112(g) says nothing about a preconstruction permitting process. It simply prohibits the act of constructing a major source for which no MACT determination has been made.
. Judge Ebel, of the Tenth Circuit Court of Appeals, recently came to the same conclusion when, sitting on the District Court by designation, he reasoned that while ordinarily the statute and its corresponding regulations "requir[e] an operator to obtain a MACT determination before 'construct[ing] or reconstructing]' a major source, nothing in the text indicates that the operator is relieved of the responsibility of complying with the statute after construction begins. ‘[Cjonstruct or reconstruct' are active verbs that have force after the permit is issued and after construction or reconstruction has begun.” Wildearth Guardians v. Lamar Utilities Bd., No. 1:09-CV-02974-DME-BNB, 2010 WL 3239242, at *5 (D.Colo. Aug. 13, 2010).
. March 14, 2008, is the date the D.C. Circuit issued the mandate in New Jersey v. EPA.
. Notably, on January 7, 2009, in a letter from Robert J. Meyers, Principal Deputy Assistant Administrator, the Agency stated that:
[ajlthough these EGUs may have relied in good faith on rules that EPA issued that were subsequently vacated, the Agency believes that these EGUs are legally obligated to come into compliance with the requirements of Section 112(g).... We therefore request that the appropriate State or local permitting authority commence a process under Section 112(g) to make a new-source MACT determination in each of these cases.... Section 112(g) proceedings ordinarily are concluded before the commencement of any construction activity, so it is reasonable for the permitting authority— under these unique and compelling circumstances, and within the bounds of its discretion under Clean Air Act Section 112(g) and EPA's section 112(g) regulations — to give consideration to the effect of prior construction, undertaken in reasonable reliance on now-vacated rules, in making the case-by-case determination of applicable MACT requirements....
Thus, EPA’s interpretation protects the conduct of those who undertook construction in reliance on what is now a vacated rule, while simultaneously effectuating the congressional purpose behind § 112(g) — that is, ensuring that these new major sources of congressionally listed hazardous pollutants will be constructed with "the maximum achievable control technology emission limitation.” 42 U.S.C. § 7412.
. We note that our discussion of Harper is limited to our recognition that the Supreme Court’s holding in Haiper is inapposite to the present case before us. In this regard, we recognize that the Supreme Court’s jurisprudence on the retroactive application of judicial decisions is more complex than our analysis herein necessitates. See, e.g., Danforth v. Minnesota, 552 U.S. 264, 271, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (discussing the "confused and confusing ‘retroactivity’ cases decided in the years between 1965 and 1987.”); Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (explaining that in the context of criminal appeals, "[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”) (internal quotation marks and brackets omitted); Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (" ‘Judicial decisions have had retrospective operation for near a thousand years.’ ”) (quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 54 L.Ed. 228 (1910) (Holmes, J., dissenting)). Consequently, it is not our intention to interpret Harper as reciting an exhaustive list of judicial decisions that enjoy retroactive application and an exhaustive list of those that do not — and any such reading of our discussion of Harper would be unnecessarily broad and mistaken.
. In contrast to the permits that implement National Ambient Air Quality Standards, Congress created § 112’s technology-based requirement of a case-by-case MACT determination "to accelerate the regulation of hazardous air pollutants.” S.Rep. No. 101-228 at 133 (1989), U.S. Code Cong. & Admin.News 1990, at p. 3540 (emphasis added). That is, Congress determined that creating a more stringent program for certain listed hazardous pollutants in § 112 was “appropriate” since, in contrast to PSD permits, section 112(g) “is for the control of extremely harmful air pollutants.” Id. at 140, U.S. Code Cong. & Admin.News 1990, p. 3552. Consequently, TCEQ's determination that Sandy Creek was in compliance with the applicable PSD emission limitations in its permit says nothing about Sandy Creek’s compliance with § 112(g)’s MACT requirement. See § 112(b)(6) (“Prevention of significant deterioration: The provisions of part C of this sub-chapter (prevention of significant deterioration) shall not apply to pollutants listed under this section [§ 112].”) (emphasis added).
. Notably, Congress designed this regulatory scheme to specifically grant federal courts subject matter jurisdiction over suits like the one presently before us. The CAA’s Citizen Suit provision, see 42 U.S.C. § 7604(a), (f), gives this Court jurisdiction over suits such as this one, where citizens challenge the construction of a "modified major emitting facility” id. at a(3), for which “any requirement under section 7411 or 7412 of this title” has not been met. Id. at (f)(3).
. On June 30, 2010, the EPA announced its formal disapproval of Texas’s state permitting program run by TCEQ:
Today, EPA announced final disapproval of the flexible permit program that the Texas Commission on Environmental Quality (TCEQ) had submitted for inclusion in its clean-air implementation plan. EPA has determined that this program does not meet several national Clean Air Act requirements that help to assure the protection of health and the environment.
EPA Disapproves Texas Flexible Air Permit Program, News Releases From Region 6, United States Department of Environmental Protection Agency (Jun. 30, 2010), http:// yosemite.epa.gov/opa/admpress.nsl/e8f4ff7f 7970934e8525735900400c2e/ld91bf2747c 5682b8525775200626aa6!OpenDocument (last visited Sept. 09, 2010).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1176470588235294, Costs: 0.02941176470588235
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EASTERBROOK, Chief Judge.
Two sections of the Clean Air Act provide that neither national nor state officials may make any changes that cause air quality to deteriorate in parts of the country that have yet to attain the required standard. See sections 110(i) and 193, codified at 42 U.S.C. §§ 7410(i), 7515. See also Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007), which discusses the new source review (nsr) program against the background of the prevention-of-significant-deterioration (psd or anti-backsliding) requirement. In 2002 the Environmental Protection Agency changed the rules that determine when polluters need permits in order to modify existing facilities — and, if they need permits, what restrictions they carry. 67 Fed.Reg. 80,-186 (Dec. 31, 2002). These new rules were challenged as violations of §§ 7410(i) and 7515, among other statutes, but the D.C. Circuit concluded that the new rules are rational and consistent with the Act. New York v. EPA 413 F.3d 3 (D.C.Cir.2005). Along the way, the court deemed unripe an argument that the agency’s new approach actually would lead to more emissions. 413 F.3d at 43. The epa’s models project that the new approach will have neutral or beneficial effects on aggregate emissions; whether that is trae, or instead backsliding occurs, depends on data rather than lawyers’ arguments, the court stated.
Businesses have argued that the new approach is too strict rather than too lax. Our decision in United States v. Cinergy Corp., 623 F.3d 455 (7th Cir.2010), illustrates how one aspect of the current approach substantially limited the allowable emissions from aging coal-fired power plants in need of major repairs — so much so that a district court ordered an entire plant shut down and emissions from other plants reduced. We reversed that decision, holding that the new approach does not apply to the repair work in question, but our opinion and the district court’s decision in Cinergy show how the new approach can limit air pollution.
The Natural Resources Defense Council and the Sierra Club, however, are convinced that the 2002 revisions will make pollution worse. Wisconsin’s latest implementation plan includes features from the 2002 federal regulations. The epa approved Wisconsin’s plan. 72 Fed.Reg. 19,-829 (Apr. 20, 2007); 73 Fed.Reg. 76,560 (Dec. 17, 2008); 75 Fed.Reg. 10,415 (Mar. 8, 2010) (denying petition for reconsideration). The nrdc and the Sierra Club have filed petitions for review, which repeat arguments that failed to persuade the D.C. Circuit in New York. This proceeding is the first challenge to a specific state plan that implements the 2002 changes; one other is pending in the Sixth Circuit, and perhaps more are in the works.
Three aspects of the 2002 revisions were contested in New York and again here. First, the 2002 approach determines whether a modification requires a permit (and, if so, what controls are necessary) by comparing actual emissions in the past with projected actual emissions in the future — rather than by comparing the maximum potential emissions before the modification against maximum potential emissions after. The 2002 rules also change the period in which these are compared, asking about emissions over the course of a year rather than emissions per hour. (The old approach favored repairs that increased the number of hours a plant could operate while leaving emissions per hour unchanged; the new approach treats more hours at the same level per hour just like it treats holding constant the number of hours but emitting more per hour.) It was the actual-to-projected-actual comparison that affected the electric utility in Cinergy.
Second, the 2002 approach allows polluters to select two years from a ten-year baseline to measure their past emissions; the former approach used a shorter baseline. Third, the 2002 approach allows a plantwide applicability limitations (pal) calculation, similar to the “bubble” sustained in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under pal a polluter can choose to treat its entire plant as the source of emissions, which allows it to increase emissions from one machine or process as long as it makes offsetting reductions elsewhere in the plant. Under the pal program, a polluter needs a permit to make modifications or repairs only when they ■will increase emissions from the plant as a whole.
The nrdc and the Sierra Club observe that all three of these changes could lead to more pollution. Some, such as the actual-to-projected-actual comparison, could do this by making new permits so onerous that a firm will choose to run an old plant into the ground without repairs, avoiding a need to get a permit for modifications, even though old plants generally are dirtier than new ones (or newly repaired ones). Others, such as the ten-year baseline, could allow firms to choose their two highest-emissions years from the decade, making it seem as if their pollution has gone down even though today’s emissions are higher than the average from the decade (or higher than the amount computed under the shorter baseline under the former rules). Even the plantwide limit could increase pollution, if emitters can use reductions they would have made anyway to offset increases elsewhere in a plant, increases that would have required their own permits under pre-2002 rules.
These are not new arguments. They were presented to the D.C. Circuit in New York, and that court sustained the rules. See New York, 413 F.3d at 21-38. The D.C. Circuit observed that the epa was well aware of these possibilities and took them into account when evaluating the net effects of the 2002 revisions. The agency’s models projected that the 2002 changes would either reduce pollution or have no net effect. As the D.C. Circuit saw things, scientific estimates, plus the presumption that an agency’s estimates are rational, see FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978), beat lawyers’ conjectures.
In the current litigation, nrdc and the Sierra Club observe that the epa is relying on the same models that it used in 2002 and has no better reason now than it did then to think that a concrete plan, such as Wisconsin’s, will curtail emissions. But if the epa is in the same position as 2002 (and 2005), so are petitioners. The lineup is still: models on one side, lawyers’ talk on the other. As in 2002 and 2005, the models supply substantial evidence for the epa’s decision and show that it is neither arbitrary nor capricious.
At oral argument, counsel for petitioners and the epa told us that about half of the states have changed their implementation plans to track the 2002 revisions. We asked what effect these changes have had on aggregate emissions: neither side knew, and we have not found any published studies on the subject. Counsel did know, and debated the significance of, how many permits have been issued in several of the states under one or another feature of the 2002 approach. But the statutes concern the quantity of emissions, not the quantity of permits.
Petitioners rely on a prediction that the staff of Wisconsin’s Department of Natural Resources made in 2003, a prediction that the state agency has since repudiated. They complain that the epa did not analyze this prediction adequately. But the way to test the epa’s models is not to compare them with someone else’s ballpark numbers. (The state agency’s staff did not have a model — at least, did not reveal one — but made what seems to have been a back-of-the-envelope calculation. The 2003 prediction comprises eight PowerPoint slides that give conclusions without any supporting rationale, plus two pages of tables that do not even hint at the method of their derivation.) The way to test a model is to compare its projection against real outcomes. Alternatively one might validate a model by “retrodiction” — using the model to “predict” past events. The two-in-ten rule, for example, might allow a business to increase average emissions, but does it? So far, we have no answer to that question, either from actual experience in adopting states or through efforts to test a model by retrodiction.
The experience in the states that have implemented the 2002 revisions may vindicate the epa or may refute it; as long as the judiciary remains behind the veil of ignorance, it must accept the epa’s projections. An agency that clings to predictions rather than performing readily available tests may run into trouble. See Bechtel v. FCC, 10 F.3d 875 (D.C.Cir.1993). At some point, preferring predictions over facts is no longer rational. But challengers who fail to put data in the administrative record — likely because this record was assembled before data from other states became available — cannot complain that the agency continues to rely on models.
This conclusion makes it unnecessary to decide whether § 7515 applies to the 2002 regulation and state plans that rely on it. The D.C. Circuit also ducked this question. 413 F.3d at 43. Section 7515 says that a state can’t change any “control requirement” that was “in effect before November 15, 1990” in a nonattainment area, unless “the modification insures equivalent or greater emission reductions”. Intervenors have argued that the new source review program is not a “control requirement”; resolution of that argument can await another day.
A few other subjects require brief attention.
Petitioners say that the epa should have allowed another round of comments after responding to their comments on the Wisconsin plan. That’s not how rulemaking works. An agency publishes draft rules; private parties comment; the agency analyzes the comments and adopts a rule, making revisions as needed. Unless the revisions materially change the text, adding features that the commentators could not have anticipated, there’s no need for another round of public comments. American Medical Association v. United States, 887 F.2d 760, 767-69 (7th Cir.1989); Omnipoint Corp. v. FCC, 78 F.3d 620, 631 (D.C.Cir.1996). In other words, the public gets to comment on the proposed rules, not on the agency’s response to earlier public comments. The epa did not make any material change to Wisconsin’s proposed implementation plan, so there was no need for another round of comments.
Petitioners contend that Wisconsin’s plan contains a technical error in its definition of “major modification.” This was not pointed out to the epa during the rulemaking and so has not been preserved for judicial review. Complainants must exhaust their administrative remedies.
A final observation: If Wisconsin’s implementation of the 2002 revisions turns out to allow more emissions, then the state must do something else (or something more) to curtail pollution. The epa’s decision that Wisconsin may put its plan into practice and find out what happens does not relieve the state of that statutory obligation.
The petitions for review are denied.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.03125, Costs: 0
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PAEZ, Circuit Judge:
Bill MacClarence petitions this court for review of an order by the Environmental Protection Agency Administrator (the “Administrator”) denying his request that the Environmental Protection Agency (“EPA”) object to the issuance of a Clean Air Act Title V permit for pollutant-emitting activities at Gathering Center # 1 (“GC 1”), an oil and gas processing facility in Prudhoe Bay. The Alaska Department of Environmental Conservation’s (“ADEC”) granted the permit to British Petroleum Exploration (Alaska), Inc.’s (“BP”), which owns GC 1. We have jurisdiction to review MacClarence’s petition for review pursuant to 42 U.S.C. §§ 7661d(b)(2) and 7607(b)(1). Because the Administrator’s denial of Mac-Clarence’s request was not arbitrary or capricious, we deny the petition.
I. Background
A. The Prudhoe Bay Unit
The Prudhoe Bay Unit (PBU) is located on the North Slope of Alaska and extends over 300 square miles. It consists of a series of oil and gas facilities, including thirty-eight drill sites or “well pads” and six production centers, as well as support facilities for PBU workers. GC 1 is one of the six production facilities at the PBU. BP owns approximately 26.35% to 50.7% of the facilities at the PBU, including GC 1, and operates all of the PBU facilities pursuant to an agreement with the other owners. Although the PBU oil field is composed of a number of different oil leases, those leases have been unitized or pooled by the State of Alaska so that the field may be exploited efficiently.
The PBU facilities are engaged in a continuum of oil and gas refining activities, from drilling to sale. Well pads in the PBU pump “three-phase” crude oil from the tundra beneath the PBU facilities. This oil is transferred to the production centers, including GC 1, where it is separated into processed crude oil, water, and hydrocarbon gases. The processed crude oil is pumped from the production centers to the Trans-Alaska Pipeline for sale, while other facilities at the PBU dispose of or re-inject the by-products of the production process.
B. Title Y of the Clean Air Act
MacClarence petitioned the Administrator to object to a final permit issued for GC 1 pursuant to Title V of the Clean Air Act (the “CAA”), 42 U.S.C. §§ 7401 et seq. The CAA was enacted in 1963 to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” § 7401(b)(1). Built on a scheme of “cooperative federalism,” the CAA places the onus of enforcement on state and local governments, but “provides for ‘Federal financial assistance and leadership ... for the development of cooperative, Federal, State, regional, and local programs to prevent and control air pollution.’ ” N.Y. Pub. Interest Research Group v. Whitman (N.Y.PIRG I), 321 F.3d 316, 320 (2d Cir.2003) (quoting 42 U.S.C. § 7401(a)(3), (4); Connecticut v. EPA, 696 F.2d 147, 151 (2d Cir.1982)).
The Clean Air Act Amendments of 1990, Pub.L. No. 101-549, §§ 501-07, 104 Stat. 2399, 2635-48 (1990), enacted Title V of the CAA, which requires facilities that are “major sources” of pollutants to obtain operating permits from state-run permitting programs that have been approved by EPA. See 42 U.S.C. § 7661a. ADEC is Alaska’s EPA-approved Title V permitting authority. 66 Fed.Reg. 63,184, 63,184 (Dec. 5, 2001). Each permit must “include enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permitting authority ... the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of [the CAA].” 42 U.S.C. § 7661c(a). Title Y, however, does not itself impose additional substantive clean air standards. 40 C.F.R. § 70.1(b).
Title V further provides for both EPA and public review of permits. 42 U.S.C. § 7661d; 40 C.F.R. § 70.8(d). After a permitting authority receives an application for a Title V permit, it is required to submit a copy of the permit application and the “permit proposed to be issued and issued as a final permit” to EPA, 42 U.S.C. § 7661d(a)(l)(B), and to provide the public with notice and opportunity to comment on the draft permit, 40 C.F.R. § 70.7(h). If the permit “contains provisions that are determined by the Administrator as not in compliance with the applicable requirements of [the CAA],” the Administrator, within forty-five days of receiving the proposed permit, “shall ... object to its issuance.” 42 U.S.C. § 7661d(b)(l).
If the EPA does not object to the permit within this time frame, however, “any person” may petition the Administrator to make an objection within sixty days after the expiration of EPA’s period of review. Id. § 7661d(b)(2). The petition must be based on objections that were made “with reasonable specificity during the public comment period” on the draft permit. Id. “[I]f the petitioner demonstrates to the Administrator that the permit is not in compliance with the requirements of [the CAA],” Title V provides that the Administrator “shall issue an objection....” Id. If EPA does object to a permit, “the permitting authority may not issue the permit unless it is revised” to meet the objection. Id. §§ 7661d(b)(3), (c).
C. Aggregation
Here, MacClarence petitioned for an objection pursuant to § 7661d(b)(2), arguing that the permit did not comply with the CAA because ADEC, in the final draft permit for GC 1, had not properly “aggregated” stationary sources of air pollution in the PBU. Title V and other CAA provisions, such as the “prevention of significant deterioration” (PSD) requirements, 42 U.S.C. §§ 7470-79, apply to certain “stationary sources” of air pollution. In some cases, several discrete stationary sources may be required to be aggregated into one single stationary source for purposes of compliance with these provisions. For example, as noted above, Title V requires every “major source” of air pollution to obtain a permit. 42 U.S.C. § 7661a(a). The Title V regulations, in turn, define “major source” as a “stationary source (or any group of stationary sources that are located on one or more contiguous or adjacent properties, and are under common control of the same person (or persons under common control)) belonging to a single major industrial grouping....” 40 C.F.R. § 70.2 (emphasis added).
Similarly, the PSD requirements, which “ensure that the air quality in attainment areas or areas that are already ‘clean’ will not degrade,” Alaska Dep’t of Envtl. Conservation v. EPA 540 U.S. 461, 470, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (quoting R. Belden, Clean Air Act 43 (2001)), may require the aggregation of stationary sources. Under the PSD requirements, “major stationary sources” may not be constructed or modified in a significant way “unless a permit prescribing emission limitations has been issued for the facility.” Id. at 472, 124 S.Ct. 983 (citing 42 U.S.C. §§ 7475(a)(1), 7479(2)(C)). A “major stationary source,” for PSD purposes, is a “stationary source” that emits or has the potential to emit a certain quantity of pollutants. 42 U.S.C. §§ 7479(1), 7602(j). In turn, a “stationary source” is “any building, structure, facility, or installation which emits or may emit a regulated ... pollutant.” 40 C.F.R. § 51.166(b)(5). The regulations define “[bjuilding, structure, facility, or installation” as “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....” Id. § 51.166(b)(6).
As the record for this case reveals, the aggregation of pollutant-emitting activities for the purposes of designating a “major source” or “major stationary source” is not a clear-cut task. Under the governing regulations, however, determinations regarding “major sources” for purposes of issuing Title V permits and “major stationary sources” for purposes of meeting PSD requirements involve the same analysis; the aggregated sources must belong to the same industrial grouping, be located on continuous or adjacent properties, and be under common control. See 40 C.F.R. §§ 51.166(b)(6), 70.2. Over the years, EPA has provided some guidance on the aggregation of pollutant-emitting activities and the designation of “major sources” and “major stationary sources.” When EPA promulgated regulations for the PSD program in 1980, it noted that a “stationary source” should reflect “a common sense notion of ‘plant.’ ” 45 Fed.Reg. 52,676, 52,-694-95 (Aug. 7, 1980). EPA has also issued memoranda in order to provide regional EPA administrators and state permitting authorities with guidance in applying aggregation principles to designate stationary sources. See, e.g., Memorandum from Acting Assistant Administrator, EPA, to Regional EPA Administrators, Source Determinations for Oil and Gas Industries (Jan. 12, 2007), EPA docket EPA-HQ-OAR-2007-0629-0001 .pdf, http://www. regulations.gov/search/Regs/content Streamer?objectld = 0900006480269a33 & disposition=attachment & content-Type=pdf (withdrawn by Gina McCarthy, Assistant Administrator, EPA, to Regional EPA Administrators, Withdrawal of Source Determinations for Oil and Gas Industries (September 22, 2009), EPA docket EPA-HQ-OAR-2007-0629-0003.pdf, http://www.regulations.gov/search/ Regs/contentStreamer?objectId= 0900006480a3309c & disposition=attachment & contentType=pdf); Letter from Director, Air Program, EPA, to Utah Division of Air Quality, Response to Request for Guidance in Defining Adjacent with Respect to Source Aggregation (May 21, 1998), http://www.epa.gov/region07/ programs/artd/air/title5/t5memos/ utiltrl. pdf.
D. The Permitting Process for GC 1
With this statutory and regulatory framework in mind, we turn to the permitting process for GC 1. In 1997, ARCO, then the owner of GC 1, applied to ADEC for a Title V permit. ADEC prepared a draft permit and submitted it for public comment on February 22, 2002. This initial draft permit did not aggregate GC 1 with any other potential pollutant-emitting sources in the PBU. The following month, MacClarence submitted comments on the draft permit, arguing that “[a]ll BP units within the Prudhoe Bay Facility” should be aggregated in such a way that the Title V permit applied to the PBU as a whole, rather than just GC 1. In April 2002, the Pacific Northwest Regional Office of the EPA (EPA Region 10) also submitted “preliminary comments” to ADEC regarding the GC 1 draft permit. Echoing Mac-Clarence’s concerns, EPA stated,
[A]bsent a contrary rationale, it is EPA’s position that the BP GC 1 facility is part of the larger source consisting of all BP units within the Prudhoe Bay .... [T]he BP facilities are interdependent, located on adjacent properties, and are owned or operated by the same person under common control.
ADEC revised the draft permit and submitted a new draft permit for public comment in March 2003. ADEC again proposed to extend coverage of the operations permitted under Title V only to GC 1. Significantly, however, ADEC also proposed a condition that would require BP to aggregate all of the pollutant-emitting sources within the PBU “for the purpose of determining applicability with the modification requirements of [Alaska’s approved PSD program].” The revised permit’s Statement of Basis explained in detail why the PBU in its entirety should be considered a “major stationary source,” referencing CAA provisions and EPA guidance on aggregation, and used diagrams to depict the interconnectedness of the various pollutant-emitting sources within the PBU. ADEC concluded by stating that “[t]he individual facilities at the Prudhoe Bay Unit act as a single integrated production facility for the purpose of delivering crude oil to the Trans Alaska Pipeline System----”
In response to the March 2003 draft permit, BP submitted comments requesting that aggregation conditions be completely eliminated from the permit. Shortly thereafter, in July 2003, ADEC reversed course and issued a proposed permit that, like the initial draft permit, did not aggregate GC 1 with any other PBU facilities. In August 2003, EPA responded to this proposed permit by requesting that ADEC
postpone issuing draft, proposed and final Title V permits for those North Slope operations which raise aggregation issues until the agencies have come to a mutual understanding on an overarching approach to the issue or until either agency has advised the other that it has decided to forego further attempts to reach a mutual understanding.
BP was included in ADEC’s and EPA’s ensuing conversations regarding aggregation of pollutant-emitting sources in the North Slope.
In October 2003, after these discussions concluded, ADEC issued a new draft permit that employed a “hub-and-spoke” aggregation model. Under this model, ADEC aggregated GC 1 with the well pads that supply it with three-phase crude oil for purposes of Title V and for the PSD requirements. The draft permit, however, did not aggregate GC 1 with the rest of the PBU facilities as had been requested by MacClarence in his March 2002 comments. In a Statement of Basis for “Revision 1,” discussed infra, ADEC explained that it rejected aggregation of the entire PBU facilities because, among other things (1) the PBU covers roughly 300 square miles and therefore aggregation “stretches the concept of proximity” that underlies aggregation determinations; (2) “[t]he complexity of administering ... and operating ... a stationary source as large as the PBU without clear corresponding environmental benefit argues against” aggregation of the entire PBU; and (3) “there [was] no precedent for defining such a large stationary source.... ”
When the EPA, in February 2004, did not object to this permit under 42 U.S.C. § 7661d(b), MacClarence petitioned the EPA Administrator to object to the permit. This petition, like MacClarence’s March 2002 comments, argued that the permit violated the CAA because it did not aggregate all of the pollutant-emitting sources in the PBU into one stationary source. MacClarence attached to the petition his 2002 comments, ADEC’s March 2003 Statement of Basis, and EPA’s August 2003 letter to ADEC requesting a postponement of ADEC’s issuance of any permits involving aggregation issues in the North Slope.
After MacClarence submitted his petition, EPA notified him that ADEC had issued a revision to the final permit, “Revision 1.” Revision 1, among other things, “added to the permit itself the definition of the title V source, which was previously only in the statement of basis” and “made minor changes to the aggregation discussion in the statement of basis.” Pursuant to EPA’s request, MacClarence refiled his petition for an objection to the permit on April 14, 2004. He resubmitted his original petition with a cover letter stating that his petition remained unchanged as Revision 1 did not address his concerns and did not explain ADEC’s decision to reverse course from its March 2003 draft permit that required aggregation.
The Administrator denied MacClarence’s request for an objection on April 20, 2007. MacClarence timely petitioned this court for review of EPA’s denial of his request for an objection.
II. Discussion
In considering MacClarence’s petition for review, we do not decide whether Mac-Clarence’s substantive argument — that the CAA requires all pollutant-emitting sources in the PBU to be aggregated for purposes of Title V and other substantive CAA provisions — is correct. Rather, we consider only whether the EPA Administrator erred in determining that MacClarence failed to demonstrate, pursuant to 42 U.S.C. § 7661d(b)(2), that the final Title V permit for GC 1 did not comply with the CAA.
In denying MacClarence’s request, the Administrator reasoned that MacClarence (1) “failed to provide adequate information to support his claim that the entire PBU should be aggregated,” and (2) “failed to demonstrate that the failure to aggregate all facilities within the PBU has led to a deficiency in the content of the permit.” Because we conclude that we may properly uphold the Administrator’s denial of Mac-Clarence’s petition on the basis of the first ground, we need not reach the second.
A. Standard of Review
Our review of the “the reasonableness of [the Administrator’s] decision-making processes” in denying MacClarence’s petition is governed by the Administrative Procedure Act (APA). CHW W. Bay v. Thompson, 246 F.3d 1218, 1226 (9th Cir.2001) (citing Transitional Learning Comm, at Galveston, Inc. v. U.S. Office of Pers. Mgmt., 220 F.3d 427, 430 n. 2 (5th Cir. 2000)); see Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.2003). Under the APA, we may only set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We review the Administrator’s interpretation of 42 U.S.C. § 7661d(b)(2), as expressed in its order denying MacClarence’s petition, under the principles set forth in Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). De Jesus RamirezZavala v. Ashcroft, 336 F.3d 872, 875 (9th Cir.2003).
B. MacClarence’s Petition
This petition for review requires us, for the first time, to consider a petitioner’s burden under 42 U.S.C. § 7661d(b)(2) to “demonstrate[ ] to the Administrator that [a Title Y] permit is not in compliance with the requirements of [the CAA].” § 7661d(b)(2). Specifically, we must determine whether the Administrator’s interpretation of the word “demonstrate,” as expressed in his order denying MacClarence’s petition, was a permissible construction of § 7661d(b)(2), and whether the Administrator’s application of § 7661d(b)(2) to the petition was arbitrary and capricious.
Chevron provides the guiding principles for according deference to an agency’s interpretation of a statute it administers. See 467 U.S. at 842, 104 S.Ct. 2778. Here, it is undisputed that EPA is tasked with the administration of the CAA. Therefore, we first decide “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear ... the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. If, however, the statute is ambiguous, “Chevron deference applies, ‘when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’ ” Nw. Ecosystem Alliance v. United States Fish & Wildlife Serv., 475 F.3d 1136, 1141 (9th Cir.2007) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). Under Chevron deference, the agency’s interpretation is valid so long as it “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. When Chevron deference does not apply, we are guided by the principles of Skidmore v. Swift, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); “[t]he ‘fair measure of deference’ may then range from ‘great respect’ to ‘near indifference,’ depending on ‘the degree of the agency’s care, its consistency, formality, and relative expertness, and ... the persuasiveness of the agency’s position.’ ” Nw. Ecosystems Alliance, 475 F.3d at 1141 (quoting Mead, 533 U.S. at 228, 121 S.Ct. 2164).
Several of our sister circuits have concluded that the word “demonstrate” in § 7661d(b)(2) is an ambiguous term. See Sierra Club v. EPA 557 F.3d 401, 406 (6th Cir.2009); Sierra Club v. Johnson (Sierra Club II), 541 F.3d 1257, 1266 (11th Cir. 2008); Citizens Against Ruining the Environment v. EPA 535 F.3d 670, 677-78 (7th Cir.2008); N.Y. Pub. Interest Research Group v. Johnson (“NYPIRG II”), 427 F.3d 172, 179 (2d Cir.2005). We agree. The word “demonstrate” may mean variously, to “point out;” “to manifest clearly, certainly, or unmistakably;” or “to make evident or reveal as true by reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples.” Webster’s Third New International Dictionary 600 (1993). As the Eleventh Circuit pointed out in Sierra Club II, the plain meaning of the term “demonstrate” in § 7661d(b)(2) “does not resolve important questions that are part and parcel of the Administrator’s duty to evaluate the sufficiency of a petition, for example, the type of evidence a petitioner may present and the burden of proof guiding the Administrator’s evaluation of when a sufficient demonstration has occurred.” 541 F.3d at 1266. The ambiguity of this provision in the statute suggests that Congress has left the meaning of “demonstrate” open for EPA to supply a reasonable interpretation under Chevron. See NYPIRG I, 321 F.3d at 333 n. 11 (“There clearly is some room for the exercise of agency expertise in [§ 7661d(b)(2) ].... ”).
Whether we defer to the Administrator’s interpretation of “demonstrate” under Chevron’s reasonableness standard or Skidmore’s persuasiveness standard, nothing in the Administrator’s order denying MacClarence’s petition qualifies as an impermissible interpretation of his burden under § 7661d(b)(2). The Administrator denied MacClarence’s petition, in part, because MacClarence “failed to provide adequate information to support his claim that the entire PBU should be aggregated.... ” Specifically, he noted that MacClarence “ma[d]e only generalized statements that all facilities in the PBU must be aggregated and d[id] not provide adequate references, legal analysis, or evidence in support of these general assertions.”
This construction of MacClarence’s burden under § 7661d(b)(2) is both reasonable and persuasive, and is consistent with our common understanding of the word “demonstrate.” The Administrator’s expectation that MacClarence provide “references, legal analysis, or evidence” comports with Webster’s definition of “demonstrate” — “to make evident or reveal as true by reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples.” New International Dictionary, supra, at 600. Further, the Administrator’s interpretation is consistent with § 7661d(b)(2) as a whole, which mandates that the Administrator “shall issue an objection” to the permit with which the permitting authority must comply, should a petitioner satisfy his burden under the statute. See Sierra Club v. Johnson (Sierra Club I), 436 F.3d 1269, 1280 (11th Cir. 2006) (quoting 42 U.S.C. § 7661d(b)(2)) (holding that the Administrator’s duty to object to a permit once a petitioner demonstrates that it does not comply with the CAA is mandatory, not discretionary); NYPIRG I, 321 F.3d at 333 (same). Because a petition that properly demonstrates that a permit is not in compliance with the CAA requires the Administrator and state permitting authority to take certain action, the Administrator’s requirement that MacClarence support his allegations with legal reasoning, evidence, and references is reasonable and persuasive.
Thus, the Administrator’s conclusion that MacClarence “failed to provide adequate information to support his claim that the entire PBU should be aggregated” was not arbitrary or capricious. The success of MacClarence’s petition turned on his argument that aggregation of the entire PBU pollutant-emitting sources was necessary for the permit to comply with the CAA and that the final aggregation decision — the hub-and-spoke model — did not comply with the CAA. Rather than offering a reasoned analysis of why the entire PBU should be aggregated or of the deficiencies in the hub-and-spoke model, MacClarence merely stated in his petition:
As reinforced by ADEC’s original analysis, shown at Attachment 2, the March 7, 2003 version of this permit complies with all federal requirements for source aggregation. ADEC’s rationale for requiring aggregation is based on EPA directives. By contrast, the permit decisions referenced in the final permit are at variance with your agency’s own guidance.
Although MacClarence’s March 2002 comments and ADEC’s March 2003 Statement of Basis, which were attached to the petition, provided an explanation of why aggregation of the entire PBU pollutant-emitting sources was necessary to comply with the CAA, he merely alleged that the final aggregation decision, the hub-and-spoke model, was “at variance with [EPA’s] own guidance.” Neither Mac-Clarence’s petition nor the documents attached to the petition address EPA guidance memoranda or directives with which the hub-and-spoke model conflicted or explained how the hub-and-spoke model contravened such guidance or the CAA.
At the end of his petition, MacClarence did challenge ADEC’s reliance on permit decisions by other states to support its final aggregation decision. His brief discussion of these references, however, noted only that the facilities at issue in those other permit decisions were dissimilar to the PBU, and at best, showed that those permit decisions did not support ADEC’s decision to adopt a hub-and-spoke aggregation model. MacClarence made no attempt to show that the hub-and-spoke model was at “variance” with the CAA or any other EPA guidance.
MacClarence also argues that the Administrator improperly faulted him for failing to challenge the reasonableness of ADEC’s Statement of Basis for the final permit. In denying MacClarence’s petition, the Administrator stated that Mac-Clarence “does not provide any argument as to why ADEC’s decision not to aggregate [the entire PBU], which is described in great detail in the Statement of Basis for the final Revision 1 permit, is unreasonable.” MacClarence argues that this statement reflects an improper interpretation of his burden under § 7661d(b)(2) by requiring him to show the “unreasonableness” of ADEC’s rationale for employing the hub-and-spoke model in the final permit, rather than the final permit’s noncompliance with the CAA.
We reject this argument. The Administrator’s order denying MacClarence’s petition properly sets forth MacClarence’s burden under § 7661d(b)(2), stating that “[t]o justify exercise of an objection by EPA to a title V permit pursuant to [§ 7661d(b)(2) ], a petitioner must demonstrate that the permit is not in compliance with the requirements of the CAA” and later concluding that “the general allegations of the Petitioner in the April 2004 Petition ... fail to demonstrate a basis for Petitioner’s claim that Revision 1 to the GC 1 Permit violates the CAA....” In light of the Administrator’s proper recitation of MacClarence’s burden, we view the Administrator’s statement that MacClarence should have shown that ADEC’s explanation for its aggregation decision was unreasonable, as requiring MacClarence to challenge the basis or reasons for ADEC’s final decision and to demonstrate that the permit did not comply with the CAA. We see nothing wrong with the Administrator’s expectation that MacClarence needed to challenge this reasoning. MacClarence’s petition relied on ADEC’s March 2003 Statement of Basis. ADEC, however, rejected the aggregation decisions reflected in that Statement of Basis and explained why it did so in the new Statement of Basis for the final permit. The Administrator reasonably expected Mac-Clarence to challenge that explanation.
Further, the Administrator’s conclusion that MacClarence did not challenge ADEC’s reasoning for the final permit was not arbitrary or capricious. ADEC’s final Statement of Basis explained how the hub- and-spoke aggregation model complied with the CAA, why complete aggregation of the facilities in the PBU was impractical and unprecedented, and why the hub-and-spoke model was a better alternative than complete aggregation. Although MacClarence asserted in his petition that the out-of-state permit decisions cited by ADEC did not support its final aggregation decision, his petition failed to demonstrate that the hub-and-spoke aggregation model did not comply with the CAA. More importantly, MacClarence failed to challenge ADEC’s reasoning that “[t]he complexity of administering ... and operating ... a stationary source as large as the PBU without clear corresponding environmental benefit argues against [the aggregation of the entire PBU].”
Therefore, we conclude that the Administrator’s determination that MacClarence did not demonstrate that the entire PBU should be aggregated did not constitute an impermissible interpretation of MacClarence’s burden under 42 U.S.C. § 7661d(b)(2), to “demonstrate” that ADEC’s final Title V permit for BP’s GC 1 did not comply with the CAA, nor was it arbitrary or capricious.
PETITION DENIED.
. The various functions and the interconnectedness of the PBU facilities are too complex to describe fully here. The brief description of the facilities and activities of the PBU is intended only to provide background and context for our opinion. For a more extensive discussion of the PBU oil and gas production and processing facilities, see generally Alaska Department of Environmental Conservation Air Quality Operating/Construction Permit, Permit No. 182TVP01 (Feb. 17, 2004) ("Revision 1”), http://www.dec.state.ak.us/air/ap/ docs/182tvp01rl .pdf.
. In making "stationary source” determinations, ADEC looks to the definitions of "stationary source” outlined in the federal PSD and Title V regulations. See Alaska Stat. § 46.14.990(26) (citing 40 C.F.R. 51.116(b) (PSD requirements) and 40 C.F.R. § 70.2 (Title V requirements)).
. Revision 1 was the version of the final permit to which MacClarence responded in his petition to the EPA Administrator. Alaska Department of Environmental Conservation Air Quality Operating/Construction Permit, Permit No. 182TVP01 (Feb. 17, 2004) ("Revision 1”), http://www.dec.state.ak.us/air/ap/ docs/182tvp01rl.pdf. ADEC, however, revised the permit yet again in August 2005, "Revision 2”. Because MacClarence petitioned for an objection prior to Revision 2, any future references to "the final permit,” or its Statement of Basis, are to the final permit as modified by Revision 1.
. MacClarence does not challenge EPA’s unexplained failure to respond to his petition within the sixty-day period required by statute. See 42 U.S.C. § 7661d(b)(2).
. MacClarence argues that the Administrator did not consider the documents he attached to his petition in evaluating his arguments and thus prohibited him from “incorporating by reference” arguments and other information. In light of the Administrator's statement that he considered "available information, including ... information provided by the Petitioner in his petition,” we are not persuaded by this argument.
. MacClarence’s attempt to challenge the merits of the hub-and-spoke aggregation model before this court are unavailing. Our review is limited to the record before the Administrator. Asarco, Inc. v. EPA, 616 F.2d 1153, 1158-60 (9th Cir.1980).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05405405405405406, Costs: 0.05405405405405406
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DAUGHTREY, J., delivered the opinion in which BATCHELDER, J., joined in the result. BATCHELDER, J. (pp. 741-45), delivered a separate opinion concurring in the judgment. ROGERS, J. (pp. 745-56), delivered a separate dissenting opinion.
OPINION
MARTHA CRAIG DAUGHTREY, Circuit Judge.
This case is before us for a second time, following an order of remand in United States v. DTE Energy Co. (DTE I), 711 F.3d 643 (6th Cir. 2013). As we noted there, regulations under the Clean Air Act require a utility seeking to modify a source of air pollutants to “make a preconstruction projection of whether and to what extent emissions from the source will increase following construction.” Id. at 644. This projection then “determines whether the project constitutes a ‘major modification’ and thus requires a permit” prior to construction, as part of the Act’s New Source Review (NSR) program. Id.; see also 42 U.S.C. §§ 7475, 7503; 40 C.F.R. § 52.21. The NSR regulations require an operator to “consider all relevant information” when estimating its post-project actual emissions but allow for the exclusion of any emissions “that an existing unit could have accommodated during the [baseline period] ... and that are also unrelated to the particular project, including any increased utilization due to product demand growth.” 40 C.F.R.- § 52.21 (b)(41)(ii)(a) and (c). An operator must document and explain its decision to exclude emissions from its projection as resulting from future “demand growth” ¿nd provide such information to the EPA or to the designated state regulatory agency. 40 C.F.R. § 52.21(r)(6)(i)-(ii).
Defendants DTE Energy Co. and its subsidiary, Detroit Edison Co. (collectively DTE), own and operate the largest coal-fired power plant in Michigan at their facility in Monroe, where, in 2010, DTE undertook a three-month-long overhaul of Unit 2 costing $65 million. On the day before it began construction, DTE submitted a notification to the Michigan Department of Environmental Quality stating that DTE predicted an increase in post-construction emissions 100 times greater than the minimum necessary to constitute a “major modification” and require a pre-construction permit. DTE initially characterized the projects as routine maintenance, repair, and replacement activities, a designation that, if accurate, would exempt the projects from triggering NSR. See New York v. U.S. Envtl. Prot. Agency, 443 F.3d 880, 883-84 (D.C. Cir. 2006). DTE also informed the state agency that it had excluded the entire predicted emissions increase from its projections of Unit 2’s post-construction emissions based on “demand growth.” This designation, if it could be established to the agency’s satisfaction, also would have exempted DTE’s modification from the necessity of a permit and, thus, allowed DTE to postpone some of the pollution-control installations that were planned as a future upgrade. See 40 C.F.R. § 52.21(b)(41)(ii)(c). DTE began construction on Monroe Unit 2 without obtaining an NSR permit.
After investigation of DTE’s projections, the EPA filed this enforcement action, challenging the company’s routine-maintenance designation and its exclusion for “demand growth,” and insisting that DTE should have secured a preconstruction permit and included pollution controls in the Unit 2 overhaul to remediate the projected emissions increases. The district court granted summary judgment to DTE, holding that the EPA’s enforcement action was premature because the construction had not yet produced an actual increase in emissions. On appeal, we reversed and remanded, holding that the EPA was authorized to bring an enforcement action based on projected increases in emissions without first demonstrating that emissions actually had increased after the project. DTE I, 711 F.3d at 649.
On remand, the district court again entered summary judgment for DTE, this time focusing on language in our first opinion to the effect that “the regulations allow operators to undertake projects without having EPA second-guess their projections.” Id. at 644. The district court apparently (and mistakenly) took this to mean that the EPA had to accept DTE’s projections at face value, holding that:
EPA is only entitled to conduct a surface review of a source operator’s pre-construction projections to determine whether they comport with the letter of the law. Anything beyond this cursory examination would allow EPA to “second-guess” a source operator’s calculations; an avenue which the Sixth Circuit explicitly foreclosed to regulators. [Emphasis added.]
In this case, EPA claims that defendants improperly applied the demand growth exclusion when they “expected pollution from ... Unit 2 to go up by thousands of tons each year after the overhaul,” and then discounted this entire emissions increase by attributing it to additional consumer demand. In other words, EPA does not contend that defendants violated any of the agency’s regulations when they computed the preconstruction emission projections from Unit 2. Rather, EPA takes defendants to task over the extent to which they relied upon the demand growth exclusion to justify their projections. This is exactly what the Sixth Circuit envisioned when it precluded EPA from second-guessing “the making of [precon-struction emission] projections.” [Internal citations omitted.]
The problem with the district court’s analysis is two-fold. First, the focus on so-called “second-guessing” is misplaced. That language from our earlier opinion is, technically speaking, dictum, because the holding of the opinion was, as noted above, that the EPA could bring a preconstruction enforcement action to challenge DTE’s emissions projections. Second, in reviewing an operator’s attribution of increased emissions to demand growth, the EPA definitely is not confined to a “surface review” or “cursory examination.”
Indeed, two agency pronouncements, dating back to 1992, make clear that the EPA must engage in actual review. The first is in 57 Fed. Reg. 32,314, 32,327 (July 21, 1992), which is quoted in our first opinion: “[W]hether the [demand growth] exclusion applies ‘is a fact-dependent determination that must be resolved on a case-by-case basis’ ” DTE I, 711 F.3d at 646 (emphasis added). The second is found in 72 Fed. Reg. 72,607, 72,611 (Dec. 21, 2007) (emphasis added): NSR record-keeping requirements “establish[ ] an adequate paper trail to allow enforcement authorities to evaluate [an operator’s] claims concerning what amount of an emissions increase is related to the project and what amount is attributable to demand growth.”
But the EPA cannot evaluate a fact-dependent claim on a case-by-case basis unless the operator supplies supporting facts, which the record establishes was not done here. In other words, a valid projection must consist of more than the following list, which is, in effect, all that DTE provided to the EPA:
Increase in nitrous oxide emissions. 4,096 tons
Increase in sulfur dioxide emissions.. 3,701 tons
Total increase in emissions. .7,797 tons
Less amount attributable to demand growth .7,797 tons
.0 tons NSR projection for post-construction emissions
The record before us is devoid of any support for this thoroughly superficial calculation. DTE baldly asserted that it was excluding from its projections “ ‘that portion of the unit’s emissions following the project that an existing unit could have accommodated ... and that are also unrelated to the particular project,’ including increases due to demand and market conditions or fuel quality.” Mar. 12, 2010 Notice Letter, Page ID 165 (quoting the Michigan equivalent of 40 C.F.R. § 52.21(b)(41)(ii)(c)). DTE then went on to claim that “emissions and operations fluctuate year-to-year due to market conditions,” and “[a]t some point in the future, baseline levels may be exceeded again, but not as a result of this outage.” Id. This letter provided no rationale for the company’s claim that Unit 2 was capable of accommodating the increased emissions prior to the construction projects or that future growth in the demand for electricity was the sole cause of the projected increase in pollutants. Although DTE later sent two more letters to the EPA supposedly clarifying the method of calculating baseline emissions, these letters also failed to explain why DTE applied the demand-growth exclusion to its entire projected-emissions increase. In its motion for summary judgment below, DTE claimed that it attributed the increased emissions to future demand for power “[biased on the company’s business and engineering judgment” (Page ID 6716), but gave no specific information to support that judgment.
In fact, not one of DTE’s attempts to justify its application of the demand-growth exclusion was supported by documentation, without which the EPA could not meaningfully evaluate DTE’s projections. There was, in truth, nothing to evaluate. Moreover, the results of a computer model that DTE ran, when it was rerun by the EPA, showed that DTE should actually have predicted a decrease in demand. (Page ID 372) Contrary to DTE’s “business and engineering judgment,” what did occur in the immediate post-construction period was a decline in consumer demand, not an increase. Appellee’s Br. at 64.
DTE’s failure to carry its burden to set out a factual basis for its demand-growth exclusion is just one problem with its projections. In order to exclude increased emissions as the product of increased demand under 40 C.F.R. § 52.21(b)(41)(ii), the company must establish (1) that the projected post-construction emissions could have been accommodated during the preconstruction period and (2) that the projected emissions are unrelated to the construction project. As to the first requirement, DTE did not and could not establish that the increase in emissions could have been accommodated during the baseline period. Prior to the overhaul, DTE was running Unit 2 at full capacity— that is, Unit 2 was operating every hour that it could be operated. (Page ID 294) But Unit 2 was experiencing continual outages that kept it from running almost 20 percent of the time (Page ID 302), which is obviously why DTE shut it down for three months to accomplish the overhaul, aimed at increasing efficiency and reliability. For the same reason, DTE did not and could not establish that the increase in emissions was unrelated to the construction process. The planned increase in efficiency and reliability would allow the plant to operate for at least an additional 12 days each year (Page ID 306), which in turn would result in increased emissions unless the construction also had included pollution controls, as the issuance of a permit would have required.
In DTE I, we referenced the second sentence of 40 C.F.R. § 52.21(r)(6)(ii):
If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph (r)(6)(i). Nothing in this paragraph (r)(6)(ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the Administrator before beginning actual construction.
711 F.3d at 650 (emphasis added). Judge Rogers’s current dissent seems to take a broader view of this regulation than the text permits in repeatedly cautioning that permitting the EPA’s enforcement action to go forward would create “a de facto prior approval system.” (Rogers Opinion at 745-46, 747, 748-49) But this reading is patently too expansive, because the regulation does not say that the EPA has to accept projections at face value or that it is prohibited from questioning their legitimacy. Instead, and in context, the rule means that once the required information has been submitted to the EPA for review, the operator does not have to delay construction until it receives a decision on the necessity of a permit, but may commence construction prior to a “determination from the Administrator.” Of course, if the operator actually begins construction without waiting for a “determination” from the EPA and it later turns out that a permit was required, a violation of NSR has occurred, and the operator risks penalties and injunctive relief requiring mitigation of illegal emissions, a possible shut down of the unit, or a retrofit with pollution controls to meet emissions standards. See, e.g., United States v. Cinergy Corp., 618 F.Supp.2d 942, 971 (S.D. Ind. 2009), rev’d on other grounds, 623 F.3d 455 (7th Cir. 2010).
In short, DTE was not required by the regulations to secure the EPA’s approval of the projections, or the project, before beginning construction, but in going forward without a permit, DTE proceeded at its own risk. The EPA is not prevented by law or by our prior opinion in DTE I from challenging DTE’s preconstruction projections, such as they are. Viewing the facts in the light most favorable to the EPA, we conclude that there are genuine disputes of material fact that preclude summary judgment for DTE regarding DTE’s compliance with NSR’s statutory preconstruction requirements and with agency regulations implementing those provisions. Therefore, we REVERSE the district court’s grant of summary judgment to DTE and REMAND this case for further proceedings consistent with this opinion.
In terms of the remand, it is important to note that the panel unanimously agrees — now that DTE I is the law of this case and of the circuit — that actual post-construction emissions have no bearing on the question of whether DTE’s precon-struction projections complied with the regulations. (Batchelder Concurrence at 745; Rogers Opinion at 749) DTE I foreclosed that question in holding that an operator who begins construction without making a projection in accordance with the regulations is subject to enforcement, no matter what post-construction data later shows. 711 F.3d at 649. The district court erred initially and again on remand when it ruled that post-construction data could be used to show that a construction project was not a “major modification.” Apparently, it is necessary to reiterate that the applicability of NSR must be determined before construction commences and that liability can attach if an operator proceeds to construction without complying with the preconstruction requirements in the regulations. Post-construction emissions data cannot prevent the EPA from challenging DTE’s failure to comply with NSR’s pre-construction requirements.
. As it turns out, the EPA does not consider a $65-million overhaul to be routine by definition, .
. Those upgrades have since been completed. Since the Monroe Unit 2 overhaul was completed in 2010, DTE has installed the scrubbers and other pollution controls necessary to remediate toxic emissions at the facility, so that implementation is no longer at issue. Appellee's Br. at 13 n.4. But, if it is found to have violated the Act, DTE still could face monetary penalties and be required to mitigate excess emissions caused by the delay in installing pollution controls.
. Clearly, DTE failed to comply with the regulation requiring it to “document ... the amount of emissions excluded under paragraph (b)(41)(ii)(c) of this section and an explanation for why such amount was excluded.” 40 C.F.R. § 52.21 (r)(6)(i).
. Both requirements must be met. See New York v. U.S. Envtl. Prot. Agency, 413 F.3d 3, 33 (D.C. Cir. 2005) (citing 67 Fed. Reg. 80,186, 80,203 (Dec. 31, 2002)) ("[E]ven if the operation of an emissions unit to meet a particular level of demand could have been accomplished during the representative baseline period, but it can be shown that the increase is related to the changes made to the unit, then the emissions increases resulting from the increased operation must be attributed to the modification project, and cannot be subtracted from the projection of post-change actual emissions.”).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.04069767441860465, Costs: 0.01744186046511628
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LYNCH, Chief Judge.
This appeal by Southern Union, a natural gas company convicted by a jury of storing hazardous waste without a permit, raises two issues of initial impression. First, the case tests whether federal criminal enforcement may be used under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6928(d), where certain federally approved state regulations as to hazardous waste storage have been violated. Second, the case also raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.
The hazardous waste at issue in this case is mercury, which can poison and kill those exposed to it. See 40 C.F.R. § 261.33(f) tbl. (listing mercury as hazardous waste due to toxicity). Here, 140 pounds of mercury became the play toy of young vandals who spread it about, including at their homes in a local apartment complex, after they spilled it around Southern Union’s largely abandoned and ill-guarded Tidewater site in Pawtucket, Rhode Island.
We affirm the district court’s rulings on Southern Union’s conviction, as set forth in United States v. Southern Union, 643 F.Supp.2d 201 (D.R.I.2009) (Southern Union I). We conclude that:
(1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA’s 2002 Immediate Final Rule authorizing Rhode Island’s RCRA regulations. Having failed to use the statutory procedure for judicial review, Southern Union may not raise the issue by collateral attack;
(2) the 2002 Rule, in any event, is valid and was within the EPA’s authority to adopt; and
(3) the conviction does not violate Southern Union’s right to fair notice under the Due Process Clause.
We also affirm the fine imposed. The Apprendi issue is close but the Supreme Court’s recent decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), leads us to hold that the Apprendi rule does not apply to the imposition of statutorily prescribed fines. If, however, we were wrong in our assessment of the Apprendi issue, we would find that any error under Apprendi was not harmless and that the issue of the fine would need to be remanded. Finally, we also hold that the financial penalties imposed did not constitute an abuse of the district court’s discretion.
I. SOUTHERN UNION’S MERCURY STORAGE AND RELEASE
Southern Union, a Texas-based natural gas distributor, began supplying natural gas to Rhode Island and Massachusetts customers in 2000 through a subsidiary, New England Gas Company, that it formed after acquiring several local gas companies. It stopped serving Rhode Island customers in 2006.
As part of the transactions in 2000, Southern Union acquired a twelve-acre complex, once used as a gas manufacturing plant, on Tidewater Street in Pawtucket, Rhode Island. Most of the complex sat unused, but Southern Union used a few buildings for automated monitoring and used outdoor spaces to store construction supplies and waste.
The Tidewater property was not maintained and had fallen into disrepair. The perimeter fence was rusted, with gaps that were left unrepaired. There were no security cameras, and Southern Union had removed the single part-time security guard from the site by September 2004. Southern Union was aware that homeless people were staying in a tin shed on the property, and that the property was frequently vandalized.
In June 2001, Southern Union began removing outdated mercury-sealed gas regulators (MSRs) from customers’ homes and replacing them with updated regulators. The old MSRs were taken to a brick building at the Tidewater facility. There, for about five months, an environmental firm removed the mercury from the regulators and shipped it to a recycling facility, leaving the regulators to be cleaned and scrapped. Southern Union stopped removing MSRs as a matter of course in November 2001, and its arrangement with the environmental firm ended in December 2001. However, Southern Union continued to remove MSRs whenever they malfunctioned, bringing them to Tidewater, where they were “stored” in doubled plastic bags placed in plastic kiddie pools on the floor of the brick building.
Employees were also encouraged to bring any loose mercury they found in their departments to Tidewater, where it was placed in the same building as the gas regulators. The loose mercury was stored in the various containers in which it arrived, including a milk jug, a paint can, glass jars, and plastic containers. Southern Union kept the containers in a locked wooden cabinet that was not designed for mercury storage. The brick building was in poor condition and had suffered break-in attempts and vandalism. It had many broken windows and its walls were covered in graffiti. Neither the cabinet nor the building itself contained any warning notice that hazardous substances were inside.
Southern Union had no use for any of the mercury it accumulated. By July 2004, when a Southern Union employee catalogued the contents of the brick building, it held 165 MSRs and approximately 1.25 gallons, or more than 140 pounds, of loose mercury (two tablespoons of mercury weigh just under one pound). That cataloging did not lead the company to arrange for recycling, to secure the building, or to secure a storage permit from the state.
Southern Union was well aware that the mercury was piling up and that it was kept in unsafe conditions. The Environmental Services Manager for its New England Gas Company division, who testified that he was concerned about the safety risk the mercury posed to the company’s employees, drafted proposed Requests for Proposals (RFPs) in 2002, 2003, and 2004 to solicit bids to remove and dispose of or recycle the regulators “and associated wastes.”
The 2002 draft was sent to Southern Union’s Texas corporate headquarters for review by the Director of Environmental Services, where it died. Not only was the RFP not issued, but the New England Gas Company engineer who oversaw the environmental department became angry when he was repeatedly asked about it. The 2003 proposed RFP met the same fate, even though it specified the contents of a number of different containers of mercury. The draft, titled “Request for Proposals for Waste Segregation, Packaging, Transportation, and Disposal,” sought a bid to “[rjemove liquid mercury from several small containers” and “[transport and dispose (or recycle) of all waste generated” by this work (emphasis added). Nor did anything come of the 2004 proposed RFP, even though the environmental manager went outside his chain of command trying to get the RFP issued to vendors.
The safety risk posed by the conditions under which the mercury was stored was discussed at joint employee-management safety committee meetings in May, June, and September 2004. Indeed, the employee who brought a regulator in on September 20, 2004 was so concerned about the accumulating mercury that he raised the issue with his supervisor. No action was taken.
In late September 2004, youths from a nearby apartment complex broke into the brick building, broke open the wooden cabinet, found the mercury, and, playing with it, spilled some of it in and around the building. They also took some of the mercury back to their apartment complex, where they spilled more on the ground, dipped cigarettes in it, and tossed some in the air. Mercury was tracked into the residences when people walked through it and was found in several homes.
Southern Union discovered the break-in and spills on October 19, roughly three weeks later, when a worker found pancake-sized puddles of mercury around the brick building. Southern Union immediately called in a contractor to begin cleaning up the spills at Tidewater and the apartment complex.
A Southern Union employee also left a voicemail message that day for Jim Ball, the Emergency Response Coordinator at the state Department of Environmental Management. However, Southern Union did not contact the Pawtucket Fire Department or the state Fire Marshal, the designated points of contact for a release of more than a pound of mercury. The Fire Department did not arrive at Tidewater until the next day, after having found out about the spill from the Department of Environmental Management. By that time, the contractor had already removed the remaining mercury from the building and begun to ship it offsite.
Altogether, the company spent more than $6 million remediating the two spill sites. All five buildings in the apartment complex were evacuated. Residents, 150 of them, were displaced for two months. Most were tested for mercury levels in their blood. While some had elevated levels, none met current standards for hazardous exposure.
II. CHALLENGES TO THE CONVICTION
In 2007, a federal grand jury returned a three-count indictment against Southern Union. The indictment charged Southern Union with two counts of storing hazardous waste without a permit in violation of RCRA. See 42 U.S.C. § 6928(d)(2)(A). Count One of the indictment covered the loose liquid mercury, and Count Three covered the mercury-embedded gas regulators. Count Two of the indictment charged Southern Union with failing to properly report a mercury release of more than one pound, a violation of the Emergency Planning and Community Right-to-Know Act. See 42 U.S.C. §§ 11004, 11045(b)(4).
Southern Union’s prime defense at trial was that the mercury was not a waste, but rather was a commercial chemical product that the company intended to recycle. Even if the mercury was not a commercial chemical product, the Company argued, it had not “knowingly stored a hazardous waste” because it believed the mercury was recyclable. After a nearly four-week trial, a jury convicted Southern Union on Count One only. Southern Union I, 643 F.Supp.2d at 207.
Just before trial, Southern Union filed a motion arguing that the federal government lacked authority to enforce Rhode Island’s regulations governing small quantity generators, under which Southern Union was prosecuted, because they were “broader in scope” than the federal RCRA program and therefore not part of the federally approved and federally enforceable state program. The district court denied the motion, and Southern Union renewed it after the jury verdict in a motion for a judgment of acquittal.
The district court denied the motion for acquittal in a published opinion issued July 22, 2009, finding Southern Union’s challenge untimely under 42 U.S.C. § 6976(b), which governs judicial review of the EPA’s authorization of state hazardous waste programs. Southern Union I, 643 F.Supp.2d at 209-10. The court highlighted the statute’s specific prohibition against judicial review of such authorizations in “criminal proceedings for enforcement.” Id. (quoting 42 U.S.C. § 6976(b)). The court in the alternative rejected Southern Union’s challenge on the merits, finding that the authorization was a valid, binding legislative rule that authorized federal enforcement. Id. at 210-13.
Southern Union challenges the district court’s application of RCRA and the 2002 Rule and claims that the prosecution violated due process. We review legal and constitutional questions de novo. United States v. Sampson, 486 F.3d 13, 19 (1st Cir.2007). Southern Union does not challenge the district court’s factual determinations pertinent to the issue. Both of Southern Union’s claims of error fail.
A. Legal Structure
RCRA, 42 U.S.C. § 6901 et seq., regulates the “treatment, storage, and disposal of solid and hazardous waste” in order to minimize the waste generated and the harm done by that waste. Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). It is a federal crime to knowingly store hazardous waste, such as mercury waste, “without a permit under this subchapter,” that is, under 42 U.S.C. §§ 6921-6939Í, inclusive. 42 U.S.C. § 6928(d)(2)(A); 40 C.F.R. § 261.33(f) tbl (listing mercury as hazardous waste). Within that subchapter, § 6926 directs the EPA to authorize states to enforce their own hazardous waste programs “in lieu of’ the federal program, if the state programs are “equivalent to” and “consistent with” the baseline federal program. 42 U.S.C. § 6926(b).
The effect of the statute is that there is federal enforcement, including federal criminal enforcement, of state rules that are part of federally authorized state plans under RCRA. This court so held in United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 44 (1st Cir. 1991). Southern Union does not contest this proposition. Rather, it argues that the Rhode Island regulations enforced here are not part of a federally authorized state plan.
Under § 6926, the EPA has promulgated regulations governing federal approval of state programs, which provide that states may adopt and enforce requirements that are “more stringent” or have a “greater scope of coverage” than the federal baseline program. 40 C.F.R. § 271.1(i). However, for state programs with “a greater scope of coverage,” the “additional coverage” does not become part of the federally approved program. 40 C.F.R. § 271.1(i)(2). Southern Union argues that the Rhode Island regulations applicable here provide additional coverage.
Rhode Island has administered its own federally authorized hazardous waste program since 1986, and has secured federal approval of amendments from time to time. See 67 Fed.Reg. 51,765, 51,766 (Aug. 9, 2002). Pertinent here is the EPA’s authorization of further amendments to the state program on August 9, 2002. Id. at 51,765. On that date, the EPA published an “Immediate final rule” (the “2002 Rule”) in the Federal Register under which the authorization would automatically go into effect on October 8, 2002, unless the EPA received a comment in opposition to the authorization within thirty days. Id. at 51,765, 51,766.
The 2002 Rule explained that the major difference between the new Rhode Island program and the federal baseline program was that Rhode Island now regulated conditionally exempt small quantity generators (CESQGs) more stringently than did the federal regulations. Under the federal baseline program, CESQGs are exempt from many requirements — including the permit requirement — that are imposed on generators of higher quantities of hazardous waste. 40 C.F.R. §§ 261.5(a)(2) (outlining limited regulation of CESQGs), 270.1(c) (generally requiring permits to store hazardous waste).
Relying on the federal conditional exemption, Southern Union says it was a CESQG and therefore not required to have a permit. But the 2002 Rule made two things clear. One was that under Rhode Island law, Southern Union needed a permit. The second, tellingly, was that this tighter regulation was going to be federally enforced.
Southern Union did not comment; in fact, the EPA received no comments from the public. Nor did Southern Union take any action to seek judicial review of the EPA’s final determination.
B. Southern Union’s Challenge
Southern Union argues that Rhode Island’s regulation of CESQGs, under which it was prosecuted for storing loose mercury without a permit, cannot, merely by virtue of the 2002 Rule, be the basis for federal criminal prosecution. From this it argues that the district court erred in refusing to put the question of whether it was a CESQG under federal law to the jury. It argues that only the part of a state’s hazardous waste program that is “required by federal law” becomes part of the state’s federally authorized — and therefore federally enforceable — program. Southern Union has put the cart before the horse.
1. Southern Union Is Precluded, By 12 U.S.C. § 6976(b) from Attacking Federal Criminal Enforcement of the Federally Authorized State Rule
In enacting RCRA, Congress clearly channeled and limited the mechanism for judicial review of EPA authorizations:
Review of the Administrator’s action (1) in issuing, denying, modifying, or revoking any permit under section 6925 of this title ... or (2) in granting, denying, or withdrawing authorization or interim authorization under section 6926 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such issuance, denial, modification, revocation, grant, or withdrawal, or after such date only if such application is based solely on grounds which arose after such ninetieth day. Action of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in civil or criminal proceedings for enforcement. Such review shall be in accordance with sections 701 through 706 of Title 5.
42 U.S.C. § 6976(b) (emphasis added).
Two of the statute’s mechanisms are involved here. First, under § 6976(b), judicial review of the EPA Administrator’s actions in granting authorization (or interim authorization) to state programs under RCRA may be had in the pertinent federal court of appeals within ninety days of issuance of the authorization. Such review is to be in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 701-706. It is undisputed that Southern Union failed to challenge the 2002 Rule in this manner. Second, when review of the Administrator’s actions could have been obtained under § 6976, the statute denies judicial review of the Administrator’s action in “civil or criminal proceedings for enforcement.”
This congressional channeling of the forum, method, and timing of judicial review and exclusion of collateral attacks is not unusual. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has a similar provision, see 42 U.S.C. § 9613(a), as do several other environmental statutes, see 33 U.S.C. §§ 1369(b), 2717(a); 42 U.S.C. §§ 300j-7, 4915(a), 7607(b). Courts have upheld such channeling. See, e.g., United States v. Walsh, 8 F.3d 659, 664 (9th Cir. 1993) (“[Tjhere is nothing to prevent Congress from providing a single national forum for the litigation of [asbestos removal] standards [under 42 U.S.C. § 7607(b) ].”); Chrysler Corp. v. EPA, 600 F.2d 904, 912-14 (D.C.Cir.1979) (applying 42 U.S.C. § 4915). The CERCLA provision, to take one example, was enforced in a cost-recovery action to preclude the corporate defendant’s collateral attack on a Superfund site listing. See United States v. Asarco, Inc., 214 F.3d 1104, 1107 (9th Cir.2000). Southern Union has not argued that § 6976(b) is itself unconstitutional.
The federal circuit courts construing § 6976(b) and the similar review provision in § 6976(a) have unanimously rejected later collateral attacks on the Administrator’s decisions. See Safe Food & Fertilizer v. EPA 350 F.3d 1263, 1267 (D.C.Cir. 2003) (rejecting, under § 6976(a), an “impermissible ‘back-door’ challenge” to rule-making); Chem. Weapons Working Grp., Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1491-93 (10th Cir.1997); Greenpeace, Inc. v. Waste Techs. Indus., 9 F.3d 1174, 1180-82 (6th Cir.1993); Palumbo v. Waste Techs. Indus., 989 F.2d 156, 159-62 (4th Cir.1993).
In its reply brief, Southern Union argues that there is a distinction between a challenge to an authorization and “a challenge to the [federal] [g]overnment’s authority to enforce Rhode Island’s CESQG permit requirement.” There is no such distinction. It is the Administrator’s authorization in the 2002 Rule that is under attack. Once that authorization is given through the Administrator’s findings under 40 C.F.R. Part 271, which provides the requirements for federal authorization of state programs, federal enforcement follows automatically as a matter of law. MacDonald, 933 F.2d at 44. As Judge Wilkinson noted in Palumbo, the defendant’s position “[a]t bottom ... is nothing more than a collateral attack on the prior ... decisions of the federal EPA. The RCRA judicial review provision plainly forbids such an attack, in place of a direct appeal.” Palumbo, 989 F.2d at 159.
We wish to be clear: whether or not Southern Union had filed an action within ninety days of October 8, 2002 challenging the 2002 Rule, we may not under § 6976 review a defense in a criminal proceeding that the EPA’s action was legally in error.
Nonetheless, in an abundance of caution we go on to examine the legality of the EPA’s actions and conclude in an alternate holding that those actions withstand challenge.
2. Southern Union’s Attack on the Legality of the Federal Authorization of Rhode Island’s Regulation of CESQGs Fails
Southern Union’s arguments fall into several general categories. It argues (1) that the 2002 Rule is not a binding legislative rule on its face for several reasons; (2) that the agency erred in its interpretation of the requirements in 40 C.F.R. § 271.1(1), because the state rule provides a “greater scope of coverage” and so cannot be within federal enforcement authority; and (3) that the 2002 Rule is invalid because it is inconsistent with prior EPA practice and that inconsistency has not been adequately explained or justified.
First, Southern Union challenges the authority under which the 2002 Rule was promulgated and the legal force of the Rule’s statement that Rhode Island’s regulation of CESQGs is federally enforceable. Southern Union claims, without citing authority, that the “EPA delegated to the Regions only the responsibility to authorize state RCRA programs under Section 6926(b),” not “to determine or expand the breadth of federal enforcement authority.” But the EPA has a statutory duty to approve state programs to the extent they meet the statutory and regulatory criteria. Southern Union does not explain how the EPA — including the regional administrators exercising their delegated authorization responsibilities — can fulfill that duty without specifying which parts of a state’s program fulfill the criteria, thereby becoming federally approved and enforceable.
Still pursuing its attack on the legal force of the 2002 Rule, Southern Union argues that the portion of the Rule that discusses federal enforceability is a mere unenforceable preamble. Cf. Florida Power & Light Co. v. EPA 145 F.3d 1414, 1418-20 (D.C.Cir.1998) (describing preamble to a proposed rule as not a final action for purposes of 42 U.S.C. § 6976(a)). It argues that the 2002 Rule neither purports to be a binding rule nor can be one, since it was not simultaneously codified in the Code of Federal Regulations. Cf. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C.Cir.1986) (characterizing publication in Federal Register as minimum threshold requirement for status as regulation, id. at 538, but stating “[t]he real dividing point between regulations and general statements of policy is publication in the Code of Federal Regulations,” id. at 539).
As a threshold matter, Southern Union’s preamble argument is factually wrong. Unlike the Federal Register notices in the cases Southern Union cites, the 2002 Rule was not divided into separate preamble and rule sections and did not portray any part of the notice as “preamble.” Southern Union mischaracterizes other salient features of the 2002 Rule as well. The EPA authorization expressly stated that the action the EPA was taking was an “[immediate final rule,” 67 Fed.Reg. at 51,765; that it was a “final authorization” under 42 U.S.C. § 6926, 67 Fed.Reg. at 51,765, 51,768; and that the rule would later be codified in the Code of Federal Regulations, id. at 51,768. Moreover, the EPA clearly treated the 2002 authorization as having binding legal force, promulgating it through formal notice-and-comment rulemaking, and stating in the rule itself that the rule represented final agency action.
Second, Southern Union presents an argument construing the relevant federal regulation. It argues that since the baseline federal program does not require CESQGs to obtain hazardous waste storage permits, the United States cannot enforce state rules that do. We reject this strained interpretation of 40 C.F.R. § 271.l(i), which governs federal authorization of state hazardous waste programs. The provision reads as follows:
(i) Except as provided in § 271.4, nothing in this subpart precludes a State from:
(1) Adopting or enforcing requirements which are more stringent or more extensive than those required under this sub-part;
(2) Operating a program with a greater scope of coverage than that required under this subpart. Where an approved State program has a greater scope of coverage than required by Federal law, the additional coverage is not part of the Federally approved program.
On Southern Union’s interpretation of the regulation, any state rule that is not “required” by the federal baseline program necessarily imposes “a greater scope of coverage,” and so the district court erred when it held that “more stringent” requirements are federally approved while only greater-in-scope requirements are not. We reject Southern Union’s interpretation because it vitiates the clear distinction between “more stringent” and “greater in scope,” collapsing the two terms into one.
Beyond that, if there were any ambiguity, we would “afford[ ] ‘considerable deference’ to the agency’s interpretation of regulations promulgated under [its statutory] authority.” Rhode Island Hosp. v. Leavitt, 548 F.3d 29, 34 (1st Cir.2008); see also Martex Farms, S.E. v. EPA, 559 F.3d 29, 32 (1st Cir.2009). Here, where the agency has expressed that interpretation in a legislative rule promulgated through notice-and-comment rulemaking, the agency’s interpretation is binding unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), or otherwise defective under the APA. See Levesque v. Block, 723 F.2d 175, 182 (1st Cir.1983); see also Coal. for Common Sense in Gov’t Procurement v. Sec’y of Veterans Affairs, 464 F.3d 1306, 1317 (Fed.Cir.2006) (stating that a substantive rule has the force and effect of law).
Southern Union offers no argument that the EPA’s interpretation is arbitrary or capricious, or that the agency somehow exceeded its statutory authority. It argues only that its own reading is better on the plain language of the regulation. We do not agree about the reading and in any event this is not enough. The EPA’s interpretation of 40 C.F.R. § 271.1(i) to permit federal enforcement of “more stringent” state regulations is a reasonable one based on the text and structure of the regulation.
Southern Union argues in the alternative that even if “more stringent” requirements are federally authorized, a state’s regulation of CESQGs is “additional coverage” rather than merely a “more stringent” requirement because it expands the universe of regulated entities to include entities that would not otherwise be covered by RCRA.
Southern Union’s argument is based on its misreading of 40 C.F.R. § 261.5. This federal regulation clearly regulates CESQGs, governing how they categorize their waste, where they may store it, and how they may dispose of it. 40 C.F.R. § 261.5(c), (g). This is in addition to the eligibility requirements for categorization as a CESQG in a given month. 40 C.F.R. § 261.5(a), (g)(2). Further, because the eligibility requirements are based on the amount of hazardous waste generated or stored in a particular month, CESQG status is transient, so that some generators will be CESQGs only some of the time. It does not expand the universe of regulated entities to subject already-regulated entities to fuller regulation in Rhode Island.
Third, and finally, Southern Union strongly urges that the 2002 Rule is invalid because it is irrationally inconsistent with prior pronouncements of the EPA’s position on the regulation of CESQGs and on which state regulations will receive federal authorization. Southern Union’s argument relies primarily on various nonbinding EPA guidance documents stemming from the agency’s interpretations, in the 1980s, that state regulation of CESQGs was not federally enforceable. However, these internal guidance documents have not been put forth as legally binding and were not promulgated through notice-and-comment rulemaking, and therefore cannot trump the agency’s formal regulatory promulgations. Cf. Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).
Southern Union also points in passing to prior formal EPA authorizations of state programs — in 1992 as to California and in 2001 as to the District of Columbia — determining that state regulation of CESQGs was not then, in the EPA’s view, federally enforceable. See 66 Fed.Reg. 46,961, 46,-965 (Sept. 10, 2001) (District of Columbia); 57 Fed.Reg. 32,726, 32,729 (July 23, 1992) (California). Southern Union argues the 2002 EPA Rule authorizing Rhode Island’s program cannot be binding on the regulated community because it is inconsistent with these prior determinations.
We briefly explain why the 2002 Rule is not subject to attack on grounds of irrational inconsistency with other EPA authorizations of state programs. The facts show that Southern Union overstates the supposed conflict. Since 1999, with the sole exception of the District of Columbia in 2001, EPA has consistently characterized state regulation of CESQGs as federally enforceable. See 72 Fed.Reg. 12,568, 12,570 (Mar. 16, 2007) (Vermont); 71 Fed. Reg. 9727, 9732, 9733 (Feb. 27, 2006) (New Hampshire); 69 Fed.Reg. 57,842, 57,856 (Sept. 28, 2004) (Connecticut); 64 Fed. Reg. 48,099, 48,101 (Sept. 2, 1999) (Louisiana). The District of Columbia decision in 2001 demonstrates, at worst, an aberration, and the agency has maintained a consistent position ever since. In this vein, EPA has issued a proposed rule making California’s CESQG regulations federally enforceable. 75 Fed.Reg. 60,398, 60,-401-02 (Sept. 20, 2010).
Policy change over time is not irrational inconsistency. Agencies may change their policies provided substantive changes in an agency’s position are accomplished by notice-and-comment rulemaking, see Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 100, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995); U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 34-35 (D.C.Cir.2005), and accompanied by “some indication that the shift is rational,” Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59 F.3d 284, 291 (1st Cir.1995) (citing Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973) (stating agency’s rationale must be clear “so that the reviewing court may understand the basis of the agency’s action.”)). These conditions are met here. Each state program authorization has been promulgated through notice-and-comment rulemaking. And the change was clearly rational; the EPA’s “reasoned basis” for deciding state CESQG regulations are federally enforceable is clearly discernible from the very text and structure of the regulation. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).
C. Southern Union’s Due Process Claim
There was no lack of due notice to Southern Union that its behavior could lead to criminal prosecution.
The law embodies two commonsense notions in the face of protestations of innocence by reason of ignorance. One is that those who keep dangerous materials on hand know their activity is regulated. United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 565, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (“[W]here ... obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.”). The other is that those who manage companies in highly regulated industries are not unsophisticated. Southern Union is in the natural gas industry, which is highly regulated both federally and locally. It is part of its business to keep abreast of government regulation. See United States v. Lachman, 387 F.3d 42, 56-57 (1st Cir.2004) (stating that companies in highly regulated industries are presumed to be on notice of applicable regulatory regime).
Further, the company’s activities put it in violation of state law. R.I. Gen. Laws § 23-19.1-18 (making violation of state hazardous waste rules a felony punishable by imprisonment, $25,000 fíne for each day’s violation, and remediation costs). Southern Union does not argue it lacked notice of that. Rather, it argues it lacked notice that it could be federally prosecuted for activity it acknowledges was a state crime. We have held in a parallel situation that notice that conduct violates state law constitutes fair notice of a counterpart federal violation. United States v. Gagnon, 621 F.3d 30, 33 (1st Cir.2010).
In any event, the Environmental Services Manager for Southern Union’s New England Gas Company subsidiary received a letter in July 2002 explaining that the EPA would soon authorize revisions to Rhode Island’s hazardous waste program and inviting the company to comment. The company had actual notice of the publication of a Final Rule. The ensuing federal 2002 Rule was crystal clear on its face that the state standards would be federally enforced. It became effective twenty-three months before the event which led to the prosecution of Southern Union. There was no trap for the unwitting here. Obliviousness is not a defense.
Southern Union also claims that because in 1992 and 2001 the EPA declined federal enforcement of CESQG regulations in California and the District of Columbia, respectively, federal enforcement of Rhode Island’s CESQG regulations is so irrational as to violate due process. As we have noted, the EPA has proposed federal enforcement in California, and all enforcement decisions since 1999, save for the aberration of the District of Columbia, have been consistent with the Rhode Island enforcement decision. Southern Union has failed to show meaningful inconsistency, much less irrational inconsistency. Our conclusion above that the EPA has over time engaged in a rational shift toward a policy of federal enforcement disposes of this due process argument as well.
III. CHALLENGES TO THE FINE
The statutory fíne for knowing storage of hazardous waste without a permit is “not more than $50,000 for each day of violation.” 42 U.S.C. § 6928(d). The district court imposed a $6 million fíne and a $12 million “community service obligation.” Southern Union adequately preserved an objection to these penalties on the grounds that the $38.1 million maximum fine calculated in the pre-sentence report violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Apprendi requires that “any fact” other than that of a prior conviction “that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Southern Union argued at sentencing that the court could not impose a fine greater than $50,000, the maximum fine for a one-day violation. That was because Southern Union presented evidence at trial from which the jury could have found that for at least some of the period of the indictment, it had treated the loose mercury as a recyclable resource rather than as waste. The jury, it notes, was not asked to determine the number of days of violation, but only “to determine whether ... at some point in time the liquid mercury was discarded by being abandoned” (emphasis added).
The prosecution argued that the Apprendi rule against judicial factfinding does not apply in the context of criminal fines. The district court held that Apprendi does apply, but found it implicit in the jury verdict and the indictment on which the verdict form was based that Southern Union had violated RCRA for the full 762 days charged in the indictment. United States v. Southern Union Co., No. 07-134, 2009 WL 2032097, at *3-4 (D.R.I. July 9, 2009) (Southern Union II). It then used that information to calculate the maximum fine of $38.1 million. Id. at *4. The indictment charged conduct “[f]rom on or about September 19, 2002 until on or about October 19, 2004,” and the verdict form encompassed Southern Union’s conduct “[a]s to Count 1 of the Indictment, on or about September 19, 2002 to October 19, 2004.” From these, the court concluded that the jury had found beyond a reasonable doubt that Southern Union violated RCRA during the entire period from approximately September 19, 2002 until October 19, 2004. Southern Union II, 2009 WL 2032097, at *3.
On appeal, Southern Union makes two arguments challenging the fine. First, it argues that where the statute of conviction sets a maximum fine of $50,000 “for each day of violation,” 42 U.S.C. § 6928(d), then the issue of the number of days of violation must be submitted to the jury under Apprendi Second, it argues that the penalties imposed constituted an abuse of discretion. While we disagree with the district court on the Apprendi issue, we also reject Southern Union’s arguments.
A. Apprendi Does Not Apply to Criminal Fines
We start with the Apprendi argument, which presents a pure issue of law, reviewed de novo. United States v. González-Vélez, 466 F.3d 27, 40 (1st Cir.2006). It is an open question in this circuit whether Apprendi applies to criminal fines, though we have assumed that criminal fines are subject to the rule of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a post-Apprendi case on the Federal Sentencing Guidelines. United States v. Bevilacqua, 447 F.3d 124, 127 (1st Cir.2006); see also United States v. Uribe-Londoño, 409 F.3d 1, 5 n. 5 (1st Cir.2005).
Southern Union argues that the question of whether Apprendi applies is resolved by the plain language of the Supreme Court’s opinion in that case, which states that the rule covers “any fact that increases the penalty for a crime” beyond the statutory maximum. Apprendi 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). If Apprendi applies only to facts increasing terms of incarceration, and not to criminal fines, Southern Union argues, the Court’s use of the broad word “penalty” becomes superfluous, and corporations, which cannot be incarcerated, are left outside Apprendi’s protection.
The Supreme Court extended the Apprendi rule to new contexts in several post-Apprendi decisions. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (applying rule to statute authorizing death penalty upon judge’s finding of aggravating factor); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (applying rule to statute authorizing “exceptional sentence” upon judge’s finding of aggravating factor); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (applying rule to mandatory Federal Sentencing Guidelines enhancements); Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (applying rule to scheme authorizing schedule of longer prison terms if judge finds aggravating circumstance). Under these decisions, a judge may not mete out any “punishment” for which the jury has not found all the necessary “facts.” Blakely, 542 U.S. at 304, 124 S.Ct. 2531. This has been called a “bright-line rule.” Cunningham, 549 U.S. at 288, 127 S.Ct. 856. These cases do not distinguish among types of “penalties” or “punishment,” leaving the broad language unglossed. From this one might conclude that a fine is like all other penalties, or one could reach a different conclusion. What is clear is that none of these cases deals with the question of whether the imposition of a fine falls under the Apprendi rule.
The prosecution argues that both the reasoning and the express language in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), mean that Apprendi does not apply to criminal fines, which have historically been within the discretion of judges, and not assigned to juries for determination. In Ice, the Court upheld a state sentencing regime that allowed judges to find facts justifying the imposition of consecutive, rather than concurrent, sentences of incarceration. Id. at 720. The Court characterized its decisions under Apprendi as curtailing any “legislative attempt to ‘remove from the [province of the] jury’ the determination of facts that warrant punishment for a specific statutory offense.” Id. at 718 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (alteration in original). The Court, reasoning from historical practice, cautioned that “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense” is the “animating principle” in which the Apprendi rule must remain rooted. Id. at 717. The Court expressly considered the history at common law of the practice Ice challenged. Finding that at the time of the Founding, it was judges who chose whether to impose sentences concurrently or consecutively, and that therefore no traditional jury function had been curtailed by Oregon’s scheme, the Court declined to extend the Apprendi rule to this determination. Id. at 717-18. The logic and method of Ice alter any previous broad understanding of Apprendi.
The prosecution argues that we should follow not only the method of historical analysis endorsed by Ice but also the opinion’s express language about criminal fines. The Court made an express statement in Ice, albeit in dicta, that it is inappropriate to extend Apprendi to criminal fines. Observing that many states permit judicial factfinding on matters “other than the length of incarceration,” the Court explained that “[t]rial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.” Id. at 719. The Court warned that applying Apprendi to these types of determinations “surely would cut the rule loose from its moorings.” Id.
We agree that we must give this language great weight. We do not discount the Supreme Court’s language merely because it was used in dicta. We “are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly when ... a dictum is of recent vintage and not enfeebled by any subsequent statement.” Rossiter v. Potter, 357 F.3d 26, 31 n. 3 (1st Cir.2004) (alteration in original) (quoting McCoy v. MIT, 950 F.2d 13, 19 (1st Cir. 1991)) (internal quotation mark omitted).
Turning again to the method of reasoning the Court used in Ice, we agree with the prosecution that we must follow the logic of Ice’s reasoning, which further supports the conclusion that Apprendi does not apply to criminal fines. As the Supreme Court recently stated, “[a] holding ... can extend through its logic beyond the specific facts of the particular case.” Los Angeles County v. Humphries, — U.S. -, 131 S.Ct. 447, 453, 178 L.Ed.2d 460 (2010).
Applying Ice’s reasoning and logic to the issue in this case, it is now highly relevant that, historically, judges assessed fines without input from the jury. Judges had discretion to determine the amount of any fine imposed, and “[t]he range was apparently without limit except insofar as it was within the expectation on the part of the court that it would be paid.” Kathryn Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982). This is in direct contrast with the Supreme Court’s reasoning in the Apprendi context that the “English trial judge of the later eighteenth century had very little explicit discretion in sentencing.” Apprendi, 530 U.S. at 479, 120 S.Ct. 2348 (quoting John H. Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, at 13, 36-37 (A. Schiappa ed., 1987)). Judicial discretion was limited in this context because the jury decided what level of crime the defendant had committed, which in turn largely determined the sentence. Id. at 479-80, 120 S.Ct. 2348.
Southern Union’s main rejoinder is that historical practices do not speak to the specific issue here, the determination of the duration of an offense on which a fine is determined. Even assuming fines are similar to sentences of incarceration, this argument misses the point of the analogy and the flow of the logic used by the Ice majority. The historical record presented in Ice showed that at common law, judges chose within their unfettered discretion whether to impose consecutive or concurrent sentences, and consecutive sentences were the default rule. Ice, 129 S.Ct. at 717. The prosecution here presents strong evidence of historic practice that at common law, judges’ discretion in imposing fines was largely unfettered. The Court in Ice specifically cautioned that it would be senseless to use Apprendi to nullify sentencing schemes in which legislatures have curtailed the discretion judges had at common law. Id. at 719.
Our view that Ice has effected a change in the application of the Apprendi rule to the issue in this case is directly supported by the dissent in Ice. The four dissenting Justices stated that the majority opinion had altered the method of analysis underlying Apprendi in at least five different ways. Id. at 721-22 (Scalia, J., dissenting). They protested that the majority had constructed formal limits narrowing the broad, “nonformalistic rule” originally set forth in Apprendi. Id. at 720. The dissent stated that the Ice majority had accepted arguments the Court had previously rejected under Apprendi about the relevance of common-law sentencing practices to the constitutionality of modern legislative sentencing schemes. Id. at 720-22. The dissent, colorfully accusing the majority of giving life to arguments previously “dead and buried,” insisted that the Court’s opinion in Ice “gives cause to doubt whether the Court is willing to stand by” the Apprendi rule. Id. at 723.
Our holding is based on the Supreme Court’s language in Ice that “[intruding Apprendi’s rule into” decisions such as “the imposition of statutorily prescribed fines ... surely would cut the rule loose from its moorings.” Id. at 719 (majority opinion). To the extent that excluding criminal fines from Apprendi requires a more restrained view of the rule’s scope than did the Court’s previous Apprendi— line decisions, it is the Supreme Court in Ice that has imposed the restraint. See id. (“Members of this Court have warned against ‘wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.’ ”) (quoting Cunningham, 549 U.S. at 295, 127 S.Ct. 856 (Kennedy, J., dissenting)).
In the interest of judicial economy and efficiency we reach an additional issue. We hold that if we are wrong and if Apprendi does apply to criminal fines, it would be necessary to remand for resentencing. The district court erred in holding, despite the absence of a special interrogatory, that the jury necessarily found beyond a reasonable doubt that Southern Union had violated RCRA during all or nearly all of the date range in the indictment. Southern Union II, 2009 WL 2032097, at *3. The court reasoned that the indictment’s description of the date range — from “on or about September 19, 2002 to October 19, 2004” — was “listed on the verdict form and found by the jury beyond a reasonable doubt.” Id. From this date range the court calculated a period of violation of 762 days, resulting in a statutory maximum fine of $38.1 million, reduced a bit at the margin due to the “on or about” language in the verdict form. Id.
The prosecution essentially concedes and we agree that if Apprendi did apply to criminal fines, the jury did not necessarily determine the number of days of violation. The jury did not need to find that Southern Union began to violate RCRA “on or about” September 19, 2002 in order to convict Southern Union on Count 1. As the court instructed the jury, the jury needed only to “determine ... whether at some point in time the liquid mercury was discarded by being abandoned” and therefore ceased to be legally held for future recycling and began to be stored as waste (emphasis added). Southern Union produced evidence that at several points throughout the indictment period, and as late as the summer of 2004, Southern Union employees discussed a potential mercury recycling project. The district court could not conclude from the verdict form the number of days of violation the jury had necessarily found.
Where an error is constitutional in nature, “the government has the burden of proving beyond a reasonable doubt that the error did not affect the defendant’s substantial rights.” United States v. Sepúlveda-Contreras, 466 F.3d 166, 171 (1st Cir.2006). Apprendi error is harmless “where the evidence overwhelmingly establishes” the facts necessary “to justify the statutory maximum under which the defendants were sentenced.” United States v. Soto-Beníquez, 356 F.3d 1, 46 (1st Cir.2004). That is not this case. We reject the prosecution’s suggestion that the evidence was so overwhelming that no reasonable jury could conclude other than that the mercury was treated as waste throughout the period in the indictment.
If, then, we are wrong about whether the Apprendi rule applies to criminal fines, the case would need to be remanded to the district court for resentencing. The district court would need to address several issues that we mention but do not resolve here.
First, it would need to address the prosecution’s argument at sentencing that even if Apprendi applied, Southern Union could be assessed a $500,000 fine under the alternative fine statute. See 18 U.S.C. § 3571(c).
Second, it may need to clarify the nature of the financial penalties it imposed. At sentencing, after determining that the statute “yields a maximum fine ... of $38.1 million,” the district court characterized the $18 million in financial penalties it imposed as two separate pools of funds, including a “fine” of $6 million and a “community service obligation,” listed in the court’s judgment as a special condition of probation, of $12 million. In describing the community service obligation, the court did not use the term “restitution,” but neither did the court specify that it was part of a total fine.
The prosecution argues that the district court should be “permitted to clarify the status of the $12 million” it assessed in community service obligations as “restitution.” Restitution is exempt from Apprendi under our circuit law. United States v. Milkiewicz, 470 F.3d 390, 402-04 (1st Cir.2006).
Southern Union, in its opening brief, ignored the district court’s treatment of the financial penalties as having two separate components, and described its obligations as a single $18 million penalty. In its reply brief, it argues that the district court cannot recharacterize the community service obligations as restitution because it did not invoke the statutory restitution procedure before sentencing. See 18 U.S.C. § 3664. If a remand were necessary, the district court may need to address these issues in the first instance and determine which arguments Southern Union has preserved.
B. The Fine Imposed Was Reasonable
We review the reasonableness of the sentence imposed, upholding the sentence unless the district court abused its discretion. United States v. Carrasco-De-Jesús, 589 F.3d 22, 26 (1st Cir.2009); United States v. Thurston, 544 F.3d 22, 24-25 (1st Cir.2008). First, we determine whether the district court considered the relevant statutory sentencing factors and adequately explained the sentence it chose. See United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Second, we consider whether the sentence is substantively reasonable under the totality of the circumstances, giving due deference to the district court’s experience and familiarity with the facts of the case. Id.
The Sentencing Guidelines on fines do not apply here, and so in addition to the relevant RCRA provision, 42 U.S.C. § 6928(d), the district court was obliged to consider only the sentencing factors in 18 U.S.C. §§ 3553 and 3572. U.S.S.G. §§ 8C2.1 cmt. background, 8C2.10 (2009); see also United States v. Ionia Mgmt. S.A., 555 F.3d 303, 310-11 (2d Cir.2009) (explaining review of fine imposed when Sentencing Guidelines do not apply). Even assuming arguendo that the $12 million community service obligation was a fine, the financial penalties imposed were within the discretion of the district court.
Southern Union argues that the district court misapplied the statutory sentencing factors, placing too much emphasis on factors likely to increase the fine, such as the company’s profitability, and too little on mitigating factors, such as its prior history as a clean, responsible corporate citizen and its outlays in remediating the damage from the mercury distribution. The prosecution urges us to review these claims only for plain error, because Southern Union failed to present them to the district court despite clear opportunity to do so after the court announced the sentence. See United States v. Almenas, 553 F.3d 27, 36 (1st Cir.2009) (applying plain error review); United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir.2007) (same). In any event we hold there was no procedural error, let alone plain error, in the district court’s methodical, detailed consideration of each sentencing factor.
Southern Union also claims the $18 million penalty was substantively unreasonable, arguing that it was grossly excessive in comparison to the penalties of $75,000-$250,000 imposed in what it describes as cases of more egregious RCRA violations. See 18 U.S.C. § 3553(a)(6) (requiring courts to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But the district court made “an individualized assessment based on the facts presented,” and “adequately explained] the chosen sentence.” Gall, 552 U.S. at 50, 128 S.Ct. 586.
The district court explained why the statutory factors justified the penalties, noting that Congress measured the seriousness of long-term RCRA violations by imposing a high, per-day statutory maximum fine; that Southern Union’s willingness to put a densely-populated residential community, local public safety employees, and its own employees at risk by storing hazardous waste under deplorable conditions in their midst indicated great culpability; and that there was a need for a penalty substantial enough to attract the attention of large corporations, thereby achieving not only specific, but also general, deterrence. Further, the district court specifically acknowledged the need to avoid creating unwarranted disparities, but explained that it had concluded that “sentencing in criminal environmental matters is a very individualistic task” in which case-to-case comparisons are difficult to make. Reviewing the totality of the circumstances, we find no abuse of discretion in the sentence imposed by the district court.
IV.
In this case each side has been well represented by able counsel.
For the reasons stated above, we affirm Southern Union’s conviction as well as the sentence and financial penalties imposed.
So ordered.
. Fifty-five plaintiffs filed related civil litigation.
. Southern Union also filed a Rule 33 motion for a new trial. The district court denied the motion, United States v. Southern Union Co., 643 F.Supp.2d 201, 217 (D.R.I.2009) (Southern Union I), and Southern Union does not appeal the denial.
. The federal program categorizes hazardous waste generators by the amount of hazardous waste they produce monthly. A hazardous waste generator qualifies as a conditionally exempt small quantity generator (CESQG) for a given month if it produces less than 100 kilograms of hazardous waste in that month and has accumulated no more than 1000 kilograms on-site. 40 C.F.R. § 261.5(a), (g)(2). In addition to complying with these limits, CESQGs must comply with regulations governing the categorization, treatment, and disposal of hazardous wastes. See 40 C.F.R. §§ 261.5(g)(1), (3); 262.11.
. The Rule also made it clear that a different part of the regulation, not at issue here, would not be federally enforced, indicating that the EPA did not simply assume all additional state requirements were federally enforceable.
. The extension of time for challenging actions of the Administrator on grounds that arise after the ninetieth day is not applicable here.
. Southern Union's argument about § 6976(b) is presented in its reply brief. Arguments initially made in a reply brief are usually deemed waived. See United States v. Hall, 557 F.3d 15, 20 n. 3 (1st Cir.2009). But we bypass any issue of waiver and resolve the preclusion issue on the merits.
. In its reply brief Southern Union attempts to argue that it could not have challenged the 2002 Rule within ninety days because there was no final agency action to challenge. That, it argues, is because the operative language was a mere “preamble.” It then merges this into an attack on the merits of the regulation, arguing that it is not a “binding” or "enforceable” determination by the Administrator. We address this argument below.
. Compare Natural Res. Def. Council v. EPA, 559 F.3d 561, 565 (D.C.Cir.2009) with 72 Fed.Reg. 13,560, 13,560, 13,580 (Mar. 2, 2007) (Federal Register notice at issue in Natural Res. Def. Council); compare Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1414-18 (D.C.Cir.1998), with 59 Fed.Reg. 55,-778, 55,778, 55,792 (Nov. 4, 1994) (Federal Register notice at issue in Florida Power & Light).
. In applying the similar review provision in § 6976(a), the D.C. Circuit examines three factors to determine whether the EPA has issued a "final regulation” under RCRA: (1) EPA’s characterization of the action, (2) whether the action was published in the Federal Register or the Code of Federal Regulations, and (3) most importantly, whether the action has a binding effect on either private parties or the EPA. E.g., Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 226-27 (D.C.Cir.2007); Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) (stating third factor most important). We need not address whether this circuit would take a similar view.
. This subpart includes 40 C.F.R. §§ 271.1-271.27 inclusive, all of which sections specify requirements for federal authorization of state programs.
. Southern Union does not challenge the validity of 40 C.F.R. § 271.1 (i) itself (nor could it, since such a challenge would be untimely under 42 U.S.C. § 6976(a)).
. The district court found Southern Union had waived the Apprendi argument by failing to raise the issue during discussions about the structure of the jury verdict form, and raising the issue for the first time in objecting to the presentence report. United States v. Southern Union Co., No. 07-134, 2009 WL 2032097, at *2 (D.R.I. July 9, 2009) (Southern Union II). Southern Union disagrees that there was waiver, given that in United States v. Pérez-Ruiz, 353 F.3d 1, 14 (1st Cir.2003), we found that "[i]n order to preserve a claim of Apprendi error for appeal, it is enough that a defendant offer a timely objection at sentencing.” Id. The prosecution did not seek the district court's waiver ruling and does not press it on appeal.
. The Court explained that its decision was also justified by states' sovereign interest in maintaining authority over their criminal justice systems and by the administrative difficulties the contrary rule, which could necessitate bifurcated or trifurcated trials, would place on state court systems. Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 718-19, 172 L.Ed.2d 517 (2009). The prosecution has provided a long list of state statutes that impose fines per day of violation, urging this court to consider the impact on state sovereignty that the application of Apprendi to fines could have on these statutes. Because we find ample reason not to extend the rule here, we need not decide the merits of this argument.
. We have previously held that orders of restitution are not subject to the Apprendi rule. See United States v. Milkiewicz, 470 F.3d 390 (1st Cir.2006). There, we explained that the statutory scheme for restitution, under which the court determines the victim’s losses by a preponderance of the evidence, id. at 403, does not trigger the principles underlying Apprendi because the jury's verdict of guilt automatically authorizes restitution in the full amount of the victim’s losses, id. at 404. We reached this result despite noting that a "literal application of the Supreme Court's language might suggest” that the Apprendi rule does apply, id. at 403, indicating that even before Ice the Supreme Court's Apprendi line of cases tolerated nuanced application despite the cases' broad language.
. Before incarceration became widely used, "the two main forms of noncapital punishment were whippings and fines, and in both cases, the judge could set the amount or even elect between the two, depending on the nature of the defendant and the crime.” Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings about Apprendi, 82 N.C. L.Rev. 621, 641 (2004).
. Southern Union also argues that there is evidence that ten states allowed juries to determine fines at the turn of the twentieth century. Such evidence, however, is of little utility where the inquiry concerns the role of the jury at common law. See Ice, 129 S.Ct. at 717 ("Our application of Apprendi’s rule must honor the 'longstanding common-law practice’ in which the rule is rooted.”) (quoting Cunningham v. California, 549 U.S. 270, 281, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)).
. We recognize that two circuits, which could not or did not discuss Ice, have applied Apprendi to criminal fines. See United States v. Pfaff, 619 F.3d 172 (2d Cir.2010); United States v. LaGrou Distribution Sys., Inc., 466 F.3d 585 (7th Cir.2006). In LaGrou, which was decided before the Supreme Court’s decision in Ice, the Seventh Circuit simply quoted the rule in Apprendi and held that the fine imposed in that case violated the rule. LaGrou, 466 F.3d at 594. In Pfaff, the Second Circuit cited to LaGrou without adding analysis of its own, other than to distinguish criminal fines from restitution on the stated grounds that only criminal fines are subject to statutory máximums. Pfaff, 619 F.3d at 174-75.
. $1 million of the $12 million obligation is designated for the following recipients: $200,000 each for the Rhode Island Chapter of the American Red Cross, the Rhode Island Environmental Response Fund, the Hasbro Children’s Hospital in Providence, the state Distressed Communities Recreation and Acquisition Fund, and the Pawtucket Fire Department. The remaining $11 million is designated to endow a grantmaking fund, to be managed by the Rhode Island Foundation, in order to fund grants in environmental education, remediation, conservation, and children's health issues related to toxic waste.
. Southern Union does not challenge the district court’s pertinent findings of fact.
. Based on the five cases Southern Union encourages us to consider, the court’s conclusion was warranted. Four were resolved by plea agreements. The fifth, United States v. Kelley Technical Coatings, Inc., 157 F.3d 432 (6th Cir.1998), upheld an RCRA conviction for which a $225,000 fine was imposed. Id. at 444. Kelley’s sentence was not at issue on appeal, and the opinion lacks information necessary to any reasoned comparison — for instance, whether Kelley’s manufacturing plants were in a populated area, or how large or profitable Kelley was. See id. at 435-36. Further, the Sixth Circuit affirmed the conviction of Kelley’s vice president and his sentence to a fine and imprisonment, id. at 443-44 — a substantial penalty imposing individual responsibility that is completely absent in Southern Union’s case since, as the district court noted, there is no evidence of any individual shouldering any responsibility for the company’s RCRA violation.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0.1071428571428571
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Affirmed by published opinion. Judge WHITNEY wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.
OPINION
WHITNEY, District Judge:
Van der Linde Housing, Inc. (“Van der Linde”) appeals the dismissal of its complaint against the Rivanna Solid Waste Authority (“the Authority”), alleging, inter alia, that it was denied equal protection of the laws in violation of the Fourteenth Amendment. We review the district court’s order of dismissal de novo, Baird v. Rose, 192 F.3d 462, 467 (4th Cir.1999), and now affirm.
I.
Van der Linde is a Virginia corporation with its principal place of business in Charlottesville, Virginia. As a municipal waste disposer, Van der Linde owns fourteen roll-off container trucks that it uses to collect, transport, and dispose of municipal solid waste pursuant to contracts with various third parties. Van der Linde collects municipal solid waste primarily from construction sites in several municipalities, including the City of Charlottesville and AI-bermarle County, Virginia. Van der Linde uses a variety of locations for waste disposal, including (at the time this action was instituted) a transfer station (“Zion Crossroads Transfer Station”) near Zion Crossroads, Virginia.
The Authority is a governmental entity that is vested under Va.Code § 15.2-5136 with the authority to fix disposal fees or “tipping fees” on waste originating within its service area. The Rivanna Service Area is defined as the City of Charlottes-ville and Albermarle County, Virginia. In 1997, the Authority entered into an agreement with BFI Waste Systems of North America, Inc. (“BFI”), which then owned the Zion Crossroads Transfer Station, to allow waste haulers within the Rivanna Service Area to deposit their waste at the transfer station. The Zion Crossroads Transfer Station is presently owned and operated by Allied Waste Systems (“AWS”), BFI’s successor. In addition to operating the transfer station, AWS also collects, transports, and disposes of municipal solid waste originating in the Rivanna Service Area, competing directly against Van der Linde and other waste haulers.
Under the agreement, the Authority is responsible for collecting disposal fees from all Rivanna Service Area haulers which deliver municipal solid waste to the Zion Crossroads Transfer Station. The fee has two components: (1) a base disposal fee of $46 per ton that the Authority collects and pays to AWS for the use of the transfer station; and (2) a “service contribution fee” of $16 per ton, which the Authority retains in return for providing “comprehensive waste management services.” “Comprehensive waste management services” is not defined in the agreement, but the Authority maintains that it is a service charge for billing and operational costs.
Prior to 2005, Van der Linde paid the $46 per ton base disposal fee directly to AWS and therefore paid nothing to the Authority, since the Authority was not involved in the billing process. Beginning in 2005, however, the Authority began asserting its rights under the agreement to invoice area waste haulers (except AWS) for their use of the transfer station and tack on the $16 per ton service contribution fee. Van der Linde does not challenge the rationality of exempting AWS from the $46 per ton base fee, which, if assessed against AWS, would simply be remitted back to itself. However, Van der Linde does argue that all area waste haulers, including AWS, should share equally in the responsibility for paying the Authority’s billing and operational costs through the $16 per ton service contribution fee.
Van der Linde, through the institution of this lawsuit in late 2005, had not passed the $16 per ton “service contribution fee” onto its customers, and alleges that because of this it has incurred approximately $31,882.35 in damages by absorbing the cost of the fee. Additionally, Van der Linde alleges that it will suffer lost business because AWS has been contacting customers of Van der Linde and informing them that they can save $16 per ton by switching to AWS for municipal waste disposal. Since AWS does not have to pay the $16 fee, it does not have to pass this cost on to its customers, and thus AWS has a $16 per ton price advantage over all of its competitors. These activities form the basis of Van der Linde’s equal protection claim.
II.
A.
The Equal Protection Clause to the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Clause does not proscribe most forms of unequal treatment, because “[l]awmaking by its nature requires that legislatures classify, and classifications by their nature advantage some and disadvantage others.” Helton v. Hunt, 330 F.3d 242, 245 (4th Cir.2003). Rather, the guarantee of equal protection was intended merely “as a restriction on state legislative action inconsistent with elemental constitutional premises.” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Thus, the Constitution only forbids arbitrary differentiations among groups of persons who are similar in all aspects relevant to attaining the legitimate objectives of legislation. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).
Some classifications, like those based on race and gender, are deemed inherently “suspect” because they are rarely relevant to attaining a permissible legislative goal, and thus are subjected to varying degrees of heightened scrutiny by the courts. Plyler, 457 U.S. at 216 & n. 14, 102 S.Ct. 2382. Other classifications will likewise be treated as suspect where they have the purpose or effect of burdening a group in the exercise of a fundamental right protected by the Constitution. Id. at 217 & n. 15, 102 S.Ct. 2382. But the vast majority of governmental action — especially in matters of local economics and social welfare, where state governments exercise a plenary police power — enjoys a “strong presumption of validity” and must be sustained against a constitutional challenge “so long as it bears a rational relation to some legitimate end.” Helton, 330 F.3d at 246 (emphasis added).
The Supreme Court has described the rational basis standard of review as “a paradigm of judicial restraint.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). It is emphatically not the function of the judiciary to sit as a “super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1323 (4th Cir.1994). Van der Linde bears the heavy burden of negating every conceivable basis which might reasonably support the challenged classification. Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. Moreover, the Authority’s policy decisions are “not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Id. Neither may a policy’s rationality be judged on the basis of its wisdom, fairness, or logic (or lack thereof). Id. at 313, 113 S.Ct. 2096. “[A]bsent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and ... judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Thus, to be irrational in the Constitutional sense, “the relationship of the classification to its goal” must be “so attenuated as to render the distinction arbitrary.” Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).
B.
Van der Linde cannot satisfy its heavy burden of negating every conceivable basis supportive of the Authority because there is an unassailable rational basis supporting the economic classification here at issue. Van der Linde’s lawsuit seeks nothing more than to challenge the Authority’s assessment of a service fee against waste haulers who utilize disposal services that the Authority makes available to them. The Authority has negotiated for the right of Van der Linde and other area waste haulers to dispose of their waste at a type of facility that they do not own but to which they must have access. The Authority then charges a service contribution fee for serving in this capacity as a market intermediary.
To recite Van der Linde’s argument in these terms is to refute it. The fundamental difference between Van der Linde and AWS, by which the Authority legitimately differentiates between them, is ownership versus non-ownership of a waste disposal site. In this one important respect the economic relationship between the Authority and AWS is exactly the opposite of the relationship between the Authority and Van der Linde. AWS, which owns and controls the Zion Crossroads Transfer Station, obtains no benefit from the Authority’s negotiation of a right of access to local disposal sites. In fact, AWS helps facilitate the supply of outlets for waste by making its own transfer station available to all other waste haulers through the Authority as intermediary. In other words, AWS is a supplier of the type of public services that the Authority provides, while Van der Linde is a consumer.
As far as government programs go, it is hard to conceive of a classification much more rational than the one at issue here. The Authority’s classification places the financial burden upon those entities (like Van der Linde) that utilize the public services provided by the Authority, while exempting those entities (like AWS) that the Authority relies upon to ensure public access to those services. Thus, the classification here at issue is nearly perfectly tailored to effectuate the purpose for which the Authority exists: making available the means to dispose of municipal solid waste by negotiating with suppliers for landfill access and taxing consumers for the Authority’s intermediary services. This tight fit between the Authority’s clas-sifieation and a legitimate public purpose is unassailable from a rational basis standpoint, which would support even a very-loose fit. Cf. Vance v. Bradley, 440 U.S. 93, 108, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).
C.
Van der Linde nevertheless argues that the Authority’s classification is irrational because in practice it could produce an unintended, irrational result. The irrational result that Van der Linde fears is the monopolization of waste collection services in the hands of AWS, since the Authority’s classification effectively gives AWS a $16 per ton cost advantage over other waste haulers.
Van der Linde’s argument demonstrates its fundamental misunderstanding of the rational basis standard of review. The “rational” aspect of rational basis review refers to a constitutionally minimal level of rationality; it is not an invitation to scrutinize eithér the instrumental rationality of the chosen means (i.e., whether the classification is the best one suited to accomplish the desired result), or the normative rationality of the chosen governmental purpose (i.e., whether the public policy sought to be achieved is preferable to other possible public ends). In other words, the Equal Protection Clause does not require the government to pursue a sound economic policy, only one that does not offend entrenched constitutional principles. Nor does it require that the methods by which the government pursues those policies be particularly palatable to us, so long as they are not completely arbitrary. Thus, from a constitutional standpoint, our analysis is unaffected by the fact that the Authority has chosen to implement a waste management plan — clearly a legitimate governmental purpose- — that incidentally might result in the monopolization of the waste collection market. Despite this potentially undesirable result, our inquiry ends with a determination of minimal rationality. Van der Linde’s proper mode of redress for this kind of grievance is to challenge the Authority’s policy by engaging the political process or using state channels for review of municipal governance, not by filing an equal protection lawsuit in federal court.
For these reasons, the district court’s judgment of dismissal is
AFFIRMED.
. Although each waste hauler must have access to some outlet for waste disposal, no policy of the Authority forces Van der Linde to utilize the Zion Crossroads Transfer Station and thereby incur the service fee. For example, nothing in the record suggests that Van der Linde cannot avoid the fee altogether by (1) opening and operating its own transfer station or landfill or (2) hauling the municipal solid waste that it collects to an alternative disposal facility, such as another transfer station or directly to the landfill. Indeed, at oral argument counsel for Van der Linde represented that his client has begun recycling most of the waste it collects so as to avoid paying the fees associated with use of the Zion Crossroads Transfer Station.
. As Justice Holmes wrote in dissent in the now-overruled case of Lochner v. New York, 198 U.S. 45, 75-76, 25 S.Ct. 539, 49 L.Ed. 937 (1905):
[A] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.02777777777777778, Costs: 0
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JON 0. NEWMAN, Chief Judge:
This case is before the Court upon the petition of Ciba-Geigy Corporation and Hercules Incorporated (collectively “Ciba”), the current and past operators of a hazardous waste site in Glen Falls, New York, for review of a Memorandum of Agreement between the Environmental Protection Agency and New York State, a decision of the Environmental Appeals Board, and two decisions of the EPA Regional Administrator. In each challenge, Ciba seeks to vindicate a narrow legal point: its contention that EPA cannot administer federal permits for hazardous waste sites in states that have their own federally approved hazardous waste programs under the Hazardous and Solid Waste Amendments (“HSWA”) to the Resource Conservation and Recovery Act (“RCRA”). Because we conclude that Ciba has partially failed to exhaust administrative remedies, we dismiss the petition in part. As to the remaining aspects of the petition, we conclude that EPA’s construction of RCRA is permissible, and deny the petition.
Background
A brief review of the underlying statutory scheme will be helpful in understanding our disposition of this petition.
A. RCRA permits
RCRA established “a comprehensive ‘cradle-to-grave’ system for regulating the management of hazardous wastes.” 1 Susan M. Cooke, et al., The Law of Hazardous Waste § 1.01 at 1-4 (1993). The statute regulates generators of waste, transporters of waste, and operators of waste treatment, storage, and disposal facilities. See 42 U.S.C.A. §§ 6922-24 (West 1983 & Supp.1993). Facility operators are required to obtain an operating permit. See 42 U.S.C. § 6925(a) (1988).
The statutory scheme contemplates an eventual delegation of permit-issuing authority from EPA to the states. States may submit to the EPA Administrator details of a proposed state hazardous waste program. 42 U.S.C. § 6926(b) (1988). The program must be “equivalent” to the federal RCRA program. Id. § 6926(b)(1). If the Administrator approves the program, the state carries out its program “in lieu” of the federal program. Id. § 6926(b). In particular, the state is responsible for the issuance and administration of permits. Id. However, even after approval of a state program, EPA retains significant involvement. EPA may bring enforcement actions, see 42 U.S.C. §§ 6928, 6973 (1988), and may inspect and monitor sites, see 42 U.S.C.A. §§ 6927, 6934 (West 1983 & Supp.1993). See generally Wyckoff Co. v. E.P.A., 796 F.2d 1197, 1200-01 (9th Cir.1986) (EPA may issue order under 42 U.S.C. § 6934 requiring operator to perform monitoring and report results to EPA even after state authorization).
The original version of RCRA primarily concentrated on ongoing management of hazardous wastes, and did not provide authority for mandating corrective action to cure past mismanagement of waste. Congress acted to close this gap in 1984 with enactment of HSWA. Among other requirements, HSWA requires that permits for facilities with an existing hazardous waste problem include a schedule for cleaning up the wastes. See 42 U.S.C. § 6924(u)-(v). HSWA also significantly complicated the division of authority between the federal government and the states. Concerned that regulations promulgated under HSWA be implemented as quickly as possible, Congress provided that new federal HSWA regulations would take effect in all states simultaneously, whether or not the state had an approved program under section 6926(b). See 42 U.S.C. § 6926(g)(1) (1988); Cooke § 1.03[3], at 1-20 to 1-21. If states wish to take over administration of these new regulations, they must amend their hazardous waste programs so as to be “substantially equivalent” to the federal HSWA regulations. Once this amendment is accomplished, the state may apply to the Administrator for “interim authorization ... to carry out [the state] requirement in lieu of direct administration in the State by the Administrator of [the federal] requirement.” Id. § 6926(g)(2). Eventually, states wishing to administer these regulations must adopt regulations fully equivalent to federal HSWA regulations, and obtain final authorization for the state HSWA program under section 6926(b).
In states that have obtained RCRA authorization under section 6926(b) but have not obtained authorization for HSWA regulations, whether under section 6926(g)(2) or section 6926(b), operators of most hazardous waste sites are required to obtain permits from both the state and EPA. See American Iron and Steel Institute v. U.S. E.P.A., 886 F.2d 390, 403 (D.C.Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); Cooke § 5.03[1], at 5-53 to 5-54. In practice, these dual permits apparently tend to overlap considerably and may even impose conflicting requirements since “[i]t is not uncommon for the state and EPA to have different views on the same substantive issue. When this occurs, the applicant may get whipsawed between the two agencies.” See John C. Chambers, Jr. & Peter L. Gray, Intergovernmental Relations: EPA and State Roles in RCRA and CERCLA, Nat. Resources & Env’t, July 1989, at 7.
The statute does not contain specific provisions concerning the status of existing federal permits after a state obtains HSWA authorization under section 6926(g)(2) or section 6926(b). Under regulations adopted by EPA, the state is required to reissue permits to existing permittees. 40 C.F.R. § 271.-13(d). These state RCRA permits contain the requirements of both the previously issued state and federal permits. Id. At some point after issuance of the state RCRA permit, EPA will terminate the previous federal permit. See 40 C.F.R. § 271.8(b)(6).
B. The New York program
By 1986, the New York Department of Environmental Conservation (“DEC”) had obtained authorization under section 6926(b), and thus ran the RCRA permitting process in New York. Following enactment of HSWA and the issuance of federal HSWA regulations, DEC adopted new regulations, and applied in September 1991 for authorization to administer these regulations. After a public comment period, the Administrator granted DEC “final authorization” on May 22, 1992.
This authorization is reflected in a Memorandum of Agreement (“MOA”) between EPA and DEC. The MOA includes provisions that concern the transfer and administration of existing federal permits. It appears to provide that while all pending permit applications will be transferred to DEC, existing federal permits will continue to be administered by EPA. Once DEC issues new permits containing all applicable requirements, EPA will consider termination of the federal permits on a case-by-case basis.
C. The pending dispute
Ciba owns a paint pigment production facility in Glen Falls, New York. Various waste products were impounded at the site, largely in an open lagoon. In 1989, Ciba decided to close the site, and applied to DEC for an appropriate permit. Because the site contained hazardous wastes and DEC was not yet authorized to administer HSWA regulations, both DEC and EPA issued draft permits. The permits are in large measure identical, because DEC included clean-up requirements, as it had the right to do. Ciba submitted comments requesting that EPA not issue a permit. EPA responded that it could not accede to the request since the DEC permit might not cover all necessary requirements; EPA issued a federal permit in October 1991. Ciba sought review of the federal permit from the EPA Administrator. During the pendency of the review process, the federal permit was automatically stayed. Ciba made two arguments in its review petition. It contended that the federal permit was improper because it substantially duplicated the state permit. It also contended that even if the federal permit could be issued prior to authorization of the New York HSWA program, the federal permit was required to contain an automatic termination provision triggered by state authorization. The Environmental Appeals Board (“EAB”) denied the petition in a written opinion. Matter of CIBA-GEIGY Corp., RCRA Appeal No. 91-28 (Apr. 7, 1992). The EAB found (a) that EPA was required to administer the HSWA program prior to state authorization, even if the state had adopted substantially similar requirements and had included those requirements in its permit, and (b) that there was no requirement that the federal permit have an automatic termination provision. The EAB suggested that the termination of the federal permit would be resolved by the MOA between the state and EPA, or otherwise would be resolved by EPA after state authorization. The federal permit accordingly became effective (after some minor delays) on May 8, 1992 — some two weeks before New York received authorization to administer its HSWA program. On July 2, 1992, Ciba requested that the Regional Administrator terminate the federal permit in light of the intervening authorization of the New York program. The Regional Administrator did not formally respond. However, counsel to the Regional Administrator stated in a phone call to counsel for Ciba that the Regional Administrator’s lack of a response should be treated as a denial of the request.
DEC has not yet issued a new post-authorization permit to Ciba. Although EPA has suggested that it would voluntarily terminate the federal permit upon issuance of a new state permit to Ciba, EPA has also indicated that because New York is not authorized to administer 100 percent of HSWA requirements, some type of federal permit might remain necessary to cover those areas in which New York lacks authorization. However, EPA has never identified any specific HSWA requirements relevant to Ciba that only it can enforce.
On August 5, 1992, Ciba petitioned this Court pursuant to 42 U.S.C. § 6976(b) (1988) for review of (1) the EAB decision rejecting the petition for review of the October 1991 decision to issue the federal permit, (2) the May 1992 decision of the Regional Administrator to terminate the stay of the permit, (3) the July 1992 refusal of the Regional Administrator to terminate the permit upon request, and (4) the portions of the MOA failing to provide for automatic termination of a federal permit. For relief, Ciba requests that the permit be set aside or that the MOA be modified to provide for termination.
Discussion
A. Exhaustion
At oral argument, the Court inquired of Ciba whether it had exhausted administrative remedies as to each of the three permitting decisions. We felt obligated to raise the issue sua sponte, since it directly related to the suitability of these matters for judicial review. See Dettmann v. United States Department of Justice, 802 F.2d 1472, 1476 n. 8 (D.C.Cir.1986). After reviewing Ciba’s post-argument submission, we have concluded that of the permitting decisions, only the original decision to issue the permit is properly before us.
As an initial matter, we believe that there are really only two permitting decisions that Ciba seeks to challenge. This is because the second of the decisions — the Regional Administrator’s May 1992 termination of the stay — is not meaningfully distinct from the two other permitting decisions. To the extent Ciba is complaining that the permit should not have been issued initially, that issue is brought before us by the petition for review of the October 1991 decision approved by the EAB. To the extent Ciba is complaining that new evidence — the authorization of New York’s HSWA program in late May 1992 — required that the permit not be made effective, that issue is presented by the July 1992 request to the Regional Administrator to terminate. The only sense in which the May 1992 decision is distinct from the July 1992 decision is that the Regional Administrator then chose to follow EPA regulations for lifting a stay after a challenged permit was affirmed by the EAB. See 40 C.F.R. § 124.16. We do not understand that Ciba wishes to challenge those regulations.
As to the two permitting challenges at issue, we conclude that administrative remedies have been exhausted as to the October 1991 decision but have not been exhausted as to the July 1992 decision. These conclusions stem from two' sources. First, the relevant statute authorizes us to review only the “Administrator’s action ... in issuing, denying, modifying, or revoking any permit.” 42 U.S.C. § 6976(b)(1) (emphasis added). The EAB’s decision rejecting Ciba’s petition for review of the original issuance of the permit constitutes action of the Administrator. See 40 C.F.R. § 22.04(a). However, the remaining two actions are actions by the Regional Administrator, Constantine Sidamon-Eristoff.
Second, EPA has adopted regulations creating express exhaustion requirements. For issuance of a permit, appeal to the EAB is a “prerequisite to the seeking of judicial review of the final agency action.” 40 C.F.R. § 124.19(e). Ciba has complied with this requirement. However, Ciba has failed to comply with the parallel requirement for review of the Regional Administrator’s refusal to terminate the permit. Such review is provided under 40 C.F.R. § 124.5(b), which allows an “informal appeal” to the Administrator of a Regional Administrator’s refusal to terminate a permit. The regulation further provides that “[tjhis informal appeal is, under 5 U.S.C. § 704, a prerequisite to seeking judicial review.” Id. In its post-argument submission, Ciba argues that 40 C.F.R. § 124.5(b) is inapplicable because it applies only to requests to terminate under 40 C.F.R. § 124.5(a), and the request to terminate the federal permit because of approval of the state program could not have been made under section 124.5(a). We disagree. Section 124.5(a) provides that RCRA permits may be modified or terminated for the reasons specified in 40 C.F.R. §§ 270.41, 270.43. Section 270.41, in turn, provides that modification requests by the permittee are governed by 40 C.F.R. § 270.42, which allows for modification requests of any type, see id. § 270.42(d). While Ciba appears to be correct that the regulations contemplate termination per se only at the request of EPA, and only for egregious wrongdoing by the permittee, see 40 C.F.R. § 270.43, Ciba’s goal of terminating the permit can be achieved by modifying the expiration date of the permit (which is currently November 12, 1996). Accordingly, the proper course for obtaining review of the refusal to terminate is to make a formal request under section 124.5(a) for a modification of the expiration date in compliance with the procedures outlined in section 270.42. If the Regional Administrator rejects the request, an informal appeal to the Administrator should be taken under section 124.5(b). Review would then be available in this Court under 42 U.S.C. § 6976(b)(1).
In its post-argument submission, Ciba also argues that EPA, by failing to mention exhaustion in its brief, has waived any defense based on exhaustion. Ciba is correct that under limited circumstances, an agency can waive an exhaustion defense. See Weinberger v. Salfi, 422 U.S. 749, 764-67, 95 S.Ct. 2457, 2466-68, 45 L.Ed.2d 522 (1975); 4 Kenneth C. Davis, Administrative Law Treatise § 26:8, at 445 (1983). In Salfi, the Supreme Court reviewed the constitutionality of a Social Security Administration decision denying survivor’s benefits to a widow on the ground she had been married to the deceased for less than nine months before his death. Although the petitioner had clearly not exhausted her claim within the agency, the Court found review appropriate because the Secretary had not raised an exhaustion defense, the applicant had presented “her claim at a sufficiently high level of review to satisfy the Secretary’s administrative needs,” and the Secretary had determined that “the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine,” and that the claim was otherwise valid. Salfi, 422 U.S. at 765, 95 S.Ct. at 2467. We believe that Salfi is distinguishable and that additional agency review would be quite helpful. The regulatory scheme is complex, the agency must construe both the statute and its own regulations, and no severable constitutional issue is presented.
B. Ripeness
EPA contends that the two remaining challenges — to the original permitting decision and to the MOA — are not ripe for adjudication by this Court. EPA points out that Ciba has identified no inconsistency between the state and federal permits and does not object to any specific decision requiring it to take any particular action in operating or cleaning up the site. Because Ciba seeks only to avoid the possibility of some future dispute, EPA asks that we dismiss the remaining portions of the petition as non-justi-ciable.
EPA relies on decisions under the Administrative Procedure Act that provide that agency action is not ripe unless the issue presented (i) is fit for judicial determination, in the sense that further factual development would not be helpful, and (ii) the withholding of court consideration would cause a hardship. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). Arguably, decisions like Abbott Laboratories have limited relevance to Ciba’s challenges, since RCRA specifically authorizes review in the Court of Appeals of the “Administrator’s action (1) in issuing, denying, modifying, or revoking any permit under section 6925 ..., or (2) in granting, denying, or withdrawing authorization or interim authorization under section 6926.” 42 U.S.C. § 6976(b). Thus, this may be a situation in which “Congress explicitly provides for our correction of the administrative process at a higher level of generality,” see Lujan v. National Wildlife Federation, 497 U.S. 871, 894, 110 S.Ct. 3177, 3191, 111 L.Ed.2d 695 (1990), than the usual ripeness test demands. But see W.R. Grace & Co.— Conn. v. U.S. E.P.A, 959 F.2d 360, 364-67 (1st Cir.1992) (applying general test of ripeness to permit dispute reviewable under 42 U.S.C. § 6976(b)(1)).
Even under the general test, however, we believe that the original permitting decision reviewed by the EAB is ripe for review. As to fitness, the issue is fairly well developed. We are well past the point where the agency has merely taken the position that it has the power to issue duplicative federal permits. Rather, the agency has issued the duplicative permit. In contrast to W.R. Grace & Co.-Conn. v. U.S. E.P.A, 959 F.2d 360 (1st Cir.1992), in which the First Circuit declined to review a dispute over the mode of review of EPA modifications to a permit prior to the proposal of any actual modifications, it is difficult to see in this case how further factual development would make the legal question more fit for judicial review. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-35, 57 L.Ed.2d 595 (1978); American Petroleum Institute v. U.S. E.P.A., 906 F.2d 729, 739 (D.C.Cir.1990) (“a ‘purely legal question’ ... is ‘presumptively reviewable’ ”). As to hardship, Ciba points out that even if the federal permit does not impose different substantive requirements, it imposes burdensome procedural requirements. Ciba will be required to submit additional copies of all its plans, and await the approval of EPA before it can perform remediation activity. Whether duplicate filing obligations alone would suffice to warrant judicial review is debatable, but the need to await agency approval before taking action entitles Ciba to secure review of the agency’s assertion of jurisdiction. That this dispute can grow worse does not mean that hardship does not exist now. See Central Hudson Gas & Electric Corp. v. U.S. E.P.A., 587 F.2d 549, 558-60 (2d Cir.1978) (finding ripe EPA’s assertion of jurisdiction to issue Clean Water Act permit, despite authorization of state program, prior to issuance of federal permit); Sayles Hydro Associates v. Maughan, 985 F.2d 451, 453-454 (9th Cir.1993) (federally licensed dam operator could challenge state permitting requirement on preemption grounds without awaiting state’s imposition of inconsistent requirements under its permit); see generally Natural Resources Defense Council, Inc. v. U.S. E.P.A., 859 F.2d 156 (D.C.Cir.1988) (in some cases, regulations requiring certain conditions in permits are ripe for review even before issuance of permits).
EPA also contends that Ciba’s challenge to the MOA is not ripe. However, EPA’s actual argument appears to be a standing argument: that Ciba may not challenge the MOA because it “has no impact on Ciba’s conduct.” EPA Brief at 23. EPA does not appear to contemplate that Ciba would be able to challenge the MOA itself at a later date. Instead, EPA insists that Ciba must await specific action by some agency under the MOA, and then may challenge that action. While we agree with EPA that any injury suffered by Ciba as a result of the MOA is slight, RCRA authorizes “any interested person” to challenge EPA’s action in “granting, denying, or withdrawing authorization or interim authorization under section 6926.” 42 U.S.C. § 6976(b). The MOA is the means by which EPA grants authorization under section 6926. See 40 C.F.R. §§ 271.8, 271.126. We do not believe that standing is lacking in a constitutional sense, since Ciba has suffered at least the minimal injury of being subjected to dual approval requirements and duplicative submission requirements, and because a change in the MOA would remedy Ciba’s slight injury.
C. Merits
Ciba’s surviving challenges on the merits present extremely narrow questions: whether EPA must include an automatic termination provision, triggered by state authorization, in pre-authorization federal permits, and whether an MOA must provide for the immediate termination of pre-existing federal permits. It is important to recognize what is not before us: the permissibility of EPA’s general policy of continued administration, and perhaps issuance, of federal permits in authorized states. Most of Ciba’s arguments are devoted to that question, a particularly difficult question since the lack of exhaustion has failed to make completely clear what EPA’s position is on this question. However, we will consider in turn each of Ciba’s arguments as they apply to the narrow questions before us.
1. Judicial estoppel. Ciba’s first argument is judicial estoppel. This argument rests on the contention that EPA took a position inconsistent with its current position in two District Court cases, Chemical Waste Management, Inc. v. Templet, 770 F.Supp. 1142 (M.D.La.1991), aff'd, 967 F.2d 1058 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1048, 122 L.Ed.2d 357 (1993), and Thompson v. Thomas, 680 F.Supp. 1 (D.D.C.1987). This argument is unavailing. EPA was not even a party to the Chemical Waste Management case. In the Thompson case, which involved an attempt to force EPA to take discretionary enforcement actions against a dump, EPA argued that such a suit was not authorized by RCRA. The Court agreed, and suggested that the plaintiffs could bring a state court action against the dump in Wisconsin, since Wisconsin was an authorized state. Whatever consequence EPA’s action in this litigation might have for EPA’s broad policy on post-authorization administration, it is not at all relevant to either the question of whether a federal permit must include an automatic termination provision or the question of whether an MOA must provide for immediate termination of a federal permit upon issuance of a state permit.
2. Inconsistency with regulations. Ciba next argues that EPA’s position is inconsistent with 40 C.F.R. § 271.8(b)(6), which provides:
When existing permits are transferred from EPA to the State for administration, the Memorandum of Agreement shall contain provisions specifying a procedure for transferring the administration of these permits. If a State lacks the authority to directly administer permits issued by the Federal government, a procedure may'be established to transfer responsibility for these permits.
Note: For example, EPA and the State and the permittee could agree that the State would issue a permit(s) identical to the outstanding Federal permit which would simultaneously be terminated.
Ciba contends that by adoption of this regulation, EPA committed itself to including termination provisions in federal permits and to immediately terminating federal permits upon state authorization. The simple answer is that this is not what the regulation says. The regulation says nothing about the content of permits. As to MOAs, the regulation requires only that they contain provisions for transfer of existing permits; the content of those provisions is left open. The Note appended to the end of the section only suggests one method. There can be no doubt that the MOA has provisions governing the transfer of existing permits. Ciba just does not like those provisions. Moreover, other regulations adopted by EPA clearly contemplate the continued administration of federal permits after state authorization, at least to the point where the state issues a new state permit. See, e.g., 40 C.F.R. § 270.51(d).
3. Impermissible construction of RCRA. Finally, Ciba contends that EPA’s position is impermissible under the statute. The parties agree that resolution of this question is governed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct, 2778, 81 L.Ed.2d 694 (1984). Thus, Ciba may prevail only by showing that EPA’s resolution of the issues is directly contrary to congressional intent, or that the statute is silent on the issues and the agency’s resolution is unreasonable. Ciba devotes most of its brief to arguing under the first prong of Chevron. Section 6926(g)(2), which governs interim HSWA authorization, provides that
The Administrator shall, if the evidence submitted shows the State requirement to be substantially equivalent to the [federal requirement], grant an interim authorization to the State to carry out such requirement in lieu of direct administration in the State by the Administrator of such requirement. [Emphasis added.]
Virtually identical language appears in section 6926(b), which governs final authorization. Ciba contends that the emphasized language means that after state authorization, the federal program is entirely displaced and EPA must immediately terminate or transfer any existing permits.
Whatever this statutory language might signify for EPA’s general policies on permit administration, it does not speak to the questions before the Court. The “direct administration” language cannot be read to specify any particular procedure for termination of federal permits, whether by an automatic termination provision in the permit or an immediate termination provision in the MOA, and does not specify any time limit by which federal involvement must cease.
We thus reach the second prong of Chevron. Ciba must show that EPA’s interpretation fails a highly deferential reasonableness test, applied with due regard to the statutory purpose. Congress’ primary purpose in adopting RCRA and HSWA was protection of the environment and public health. While delegation to states was also an important purpose, EPA’s refusal to include a termination provision in the original permit and its refusal to provide for immediate termination of federal permits cannot be said to be unreasonable. Continued administration of federal permits past the immediate moment of state authorization avoids the gap in regulation that might occur if the state failed to immediately' issue a new permit containing all applicable requirements, and allows the state and federal regulators the opportunity to coordinate in an effective manner a gradual transfer of jurisdiction. See Central Hudson Gas & Electric Corp. v. U.S. E.P.A., 587 F.2d 549, 561-62 (2d Cir.1978) (reasonable for EPA to issue federal permits under Clean Water Act, notwithstanding authorization of state permitting program, so as to “allow[] for the smooth transition from federal to state permit program”).
Conclusion
Ciba’s petition for review of the July 1992 refusal to terminate the federal permit and of the May 1992 decision to terminate a stay of the federal permit is dismissed for failure to exhaust administrative remedies. The petition for review of the October 1991 issuance of the permit approved by the EAB in April 1992 and of the May 1992 MOA between EPA and New York is denied.
. All C.F.R. cites are to the July 1, 1992, edition.
. It is not entirely clear from the record whether the May 1992 authorization constituted interim authorization under 42 U.S.C. § 6926(g)(2), as Ciba contends, or whether it constituted final authorization of the state HSWA program under 42 U.S.C. § 6926(b), as EPA contends. We suspect that EPA is correct, since the federal register notice identifies the proposed action as "final authorization,” see 57 Fed.Reg. 9978 (Mar. 23, 1992), and since interim authorization would have expired on January 1, 1993, see 40 C.F.R. § 271.24(c). As will become clear in our later discussion, however, it makes no difference under which section New York has been authorized.
. EPA regulations provide that the Administrator may review permit decisions by Regional Administrators. See 40 C.F.R. § 124.19. Prior to February 13, 1992, this authority was exercised by the Administrator directly in concert with the Agency Judicial Officer. On February 13, 1992, the position of Agency Judicial Officer was abolished, and the Environmental Appeals Board was created to exercise the Administrator's review authority. See 40 C.F.R. § 22.04(a). The Board consists of three environmental judges. Ciba’s petition was filed with the Agency Judicial Officer and determined by the Environmental Appeals Board.
. The mandatory exhaustion language contained in this regulation distinguishes this case from Darby v. Cisneros, - U.S. -, 113 S.Ct. 2539, 125 L.Ed.2d 113 (U.S. 1993), in which a Housing and Urban Development Department regulation provided that parties "may request” administrative review of the decision of a hearing officer, and contained no language identifying this review as a prerequisite to judicial review. In such a case, the Supreme Court held that section 10(c) of the Administrative Procedure Act, 5 U.S.C. § 704 (1988), prohibits courts from engrafting additional exhaustion requirements. Here, in contrast, agency rule, and not judge-made doctrine, is the source of the exhaustion requirement.
. While it is clear that EPA believes it may continue to administer pre-authorization federal permits in authorized states, the exact contours of EPA's position are far from clear. What might be called EPA’s minimum position is that it may administer federal permits in authorized states until the time the state issues a new permit incorporating HSWA regulations. EPA’s maximum position is that it may issue and administer federal permits in authorized states at any time during which, as will inevitably occur, the state has lagged behind EPA in issuing new hazardous waste regulations. Under this approach, the right of EPA to issue and enforce permits would come and go as a regulatory gap opens and closes between state regulations and EPA regulations.
. Specifically, Section VI of the MOA provides that EPA will terminate federal permits ”[w]hen the state either incorporates the terms and conditions of the federal permits in the State RCRA permits or issues State RCRA permits to those facilities.” Section V of the MOA also provides that "[w]henever EPA adds permitting standards for processes not currently covered by State regulations, EPA will process and enforce HSWA permits in the new areas until the State receives final authorization for these standards.”
. Ciba also relies on several decisions more relevant to the question of the permissibility of EPA’s general policies on permit administration. See Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 381-82 (7th Cir.1986) (EPA may not issue new permits in authorized states when those permits concern only those regulations the state is authorized to administer); Dague v. City of Burlington, 935 F.2d 1343, 1348-49 (2d Cir. 1991) (dicta indicating that individuals may not bring direct actions in federal court under 42 U.S.C. § 6972(a) to enforce RCRA regulations after state authorization, but must bring those actions in state court), rev'd on other grounds, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). These decisions are not helpful in resolving the very narrow issues before the Court.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1224489795918367, Costs: 0
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BALDOCK, Circuit Judge.
This case examines the relationship between the Resource Conservation and Recovery Act of 1976 (“RCRA”), Pub.L. No. 94-580, 90 Stat. 2795, as amended by the Hazardous and Solid Waste Amendments of 1984 (“HSWA”), Pub.L. No. 98-616, 98 Stat. 3221 (codified as amended at 42 U.S.C. §§ 6901-6981 (West 1983 & Supp. 1992)), and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), Pub.L. No. 96-510, 94 Stat. 2767, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-499, 100 Stat. 1613 (codified as amended at 42 U.S.C. §§ 9601-9675 (West 1983 & Supp. 1992) and 26 U.S.C. § 9507 (West Supp. 1992)). At issue is whether a state which has been authorized by the Environmental Protection Agency (“EPA”) to “carry out” the state’s hazardous waste program “in lieu of” RCRA, see 42 U.S.C. § 6926(b) (West Supp.1992), is precluded from doing so at a hazardous waste treatment, storage and disposal facility owned and operated by the federal government which the EPA has placed on the national priority list, see id. § 9605(a)(8)(B), and where a CERCLA response action is underway. See 42 U.S.C. § 9604 (West 1983 & Supp.1992).
I.
The Rocky Mountain Arsenal (“Arsenal”) is a hazardous waste treatment, storage and disposal facility subject to RCRA regulation, see 42 U.S.C. § 6924(a) (West Supp.1992), which is located near Commerce City, Colorado in the Denver metropolitan area. The United States government has owned the Arsenal since 1942, and the Army operated it from that time until the mid-1980’s. Without reiterating its environmental history, suffice it to say that the Arsenal is “one of the worst hazardous waste pollution sites in the country.” Daigle v. Shell Oil Co., 972 F.2d 1527, 1531 (10th Cir.1992) (footnote omitted). The present litigation focuses on Basin F which is a 92.7 acre basin located within the Arsenal where millions of gallons of liquid hazardous waste have been disposed of over the years.
A.
Congress enacted RCRA in 1976 “to assist the cities, counties and states in the solution of the discarded materials problem and to provide nationwide protection against the dangers of improper hazardous waste disposal.” H.R.Rep. No. 1491, 94th Cong., 2d Sess. 11 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6249. RCRA requires the EPA to establish performance standards, applicable to owners and operators of hazardous waste treatment, storage and disposal facilities “as may be necessary to protect human health and the environment.” 42 U.S.C. § 6924(a) (West Supp.1992). The EPA enforces RCRA standards by requiring owners and operators of facilities to obtain permits, see 42 U.S.C. § 6925 (West 1983 & Supp.1992), and by issuing administrative compliance orders and seeking civil and criminal penalties for violations. Id. § 6928. The EPA may authorize states to “carry out” their own hazardous waste programs “in lieu of” RCRA and to “issue and enforce permits for the storage, treatment, or disposal of hazardous waste” so long as the state program meets the minimum federal standards. 42 U.S.C. § 6926(b) (West Supp.1992). See also H.R.Rep. No. 1491(1) at 32, reprinted in 1976 U.S.C.C.A.N. at 6270 (under RCRA, states retain “primary authority” to implement hazardous waste programs). However, RCRA does not preclude a state from adopting more stringent requirements for the treatment, storage and disposal of hazardous waste. 42 U.S.C. § 6929 (West Supp.1992). See also Old Bridge Chems., Inc. v. New Jersey Dep’t of Envtl. Protection, 965 F.2d 1287, 1296 (3d Cir.) (“RCRA sets a floor not a ceiling for state regulation of hazardous wastes”), cert. denied, — U.S. -, 113 S.Ct. 602, 121 L.Ed.2d 538 (1992). Once the EPA authorizes a state to carry out the state hazardous waste program in lieu of RCRA, “[a]ny action taken by [the] State [has] the same force and effect as action taken by the [EPA]....” 42 U.S.C. § 6926(d) (West 1983). The federal government must comply with RCRA or an EPA-authorized state program “to the same extent as any person....” 42 U.S.C. § 6961 (West 1983). In short, RCRA provides “a prospective cradle-to-grave regulatory regime governing the movement of hazardous waste in our society.” H.R.Rep. No. 1016(1), 96th Cong., 2d Sess. 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120. See also Old Bridge, 965 F.2d at 1292 (RCRA is “principal federal statute regulating the generation, transportation, and disposal of hazardous wastes”).
B.
Because RCRA only applied prospectively, it was “clearly inadequate” to deal with “ 'the inactive hazardous waste site problem.’ ” H.R.Rep. No. 1016(1), at 17-18, reprinted in 1980 U.S.C.C.A.N. at 6120. Consequently, Congress enacted CERCLA in 1980 “to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites.” Id. at 22, reprinted in 1980 U.S.C.C.A.N. at 6125. Among its provisions, CERCLA required the President to revise the “national contingency plan for the removal of ... hazardous substances” which would “establish procedures and standards for responding to releases of hazardous substances.... ” 42 U.S.C. § 9605(a) (West Supp.1992). See also 40 C.F.R. pt. 300 (1992). When “any hazardous substance is released or there is a substantial threat of such a release into the environment,” CERCLA authorizes the President to
act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance ... at any time ... or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment.
42 U.S.C. § 9604(a)(1) (West Supp.1992). CERCLA finances these government response actions through the Hazardous Substance Superfund, see id. § 9611(a)(1); 26 U.S.C. § 9507 (West Supp.1992), and permits the government to seek reimbursement from responsible parties by holding them strictly liable. Id. § 9607(a). See also H.R.Rep. No. 1016, at 17, 1980 U.S.C.C.A.N. at 6120 (CERCLA establishes “a Federal cause of action in strict liability to enable [the EPA] to pursue rapid recovery of the costs ... of [response] actions”). See, e.g., United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir.1992). CERCLA also requires the President to develop a national priority list, as part of the national contingency plan, which identifies “priorities among releases or threatened releases throughout the United States” for government response actions, id. § 9605(a)(8). See 40 C.F.R. pt. 300 app. B (1992), and the listing of a particular site on the national priority list is a prerequisite to a Superfund-financed remedial action at the site. 40 C.F.R. § 300.425(b)(1) (1992). We note that Superfund monies cannot be used for remedial actions at federal facilities, 42 U.S.C. § 9611(e)(3) (West Supp.1992), but CERCLA otherwise applies to the federal government “to the same extent, both procedurally and substantively, as any nongovernmental entity.” Id. § 9620(a)(1). In short, CERCLA is a remedial statute “designed to facilitate cleanup of environmental contamination caused by releases of hazardous substances.” Colorado v. Idarado Mining Co., 916 F.2d 1486, 1488, 1492 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991). See also Daigle, 972 F.2d at 1533.
II.
In November 1980, the Army, as the operator of the Arsenal, submitted to the EPA part A of its RCRA permit application which listed Basin F as a hazardous waste surface impoundment. Appellants’ App. at 413. By submitting the part A RCRA application, the Army achieved RCRA interim status. See supra note 2. In May 1983, the Army submitted part B of its RCRA permit application to the EPA which included a required closure plan for Basin F, Appellants’ App. at 505, and the following month, the Army submitted a revised closure plan for Basin F. Appellants’ App. at 471. See also supra notes 1 and 7. In May 1984, the EPA issued a notice of deficiency to the Army regarding part B of its RCRA permit application and requested a revised part B application within sixty days under threat of termination of the Army’s interim status. Appellants’ Br. Attach. 12. The Army never submitted a revised part B RCRA permit application to the EPA; rather, in October 1984, the Army commenced a CERCLA remedial investigation/feasibility study (“RI/FS”). Appellee’s App. at 9, 30.
Effective November 2, 1984, the EPA, acting pursuant to 42 U.S.C. § 6926(b) (West Supp.1992), authorized Colorado to “carry out” the Colorado Hazardous Waste Management Act (“CHWMA”), Colo.Rev. Stat. §§ 25-15-301 to 25-15-316 (1989 & Supp.1992), “in lieu of” RCRA. See 49 Fed.Reg. 41,036 (1984). That same month, the Army submitted its part B RCRA/ CHWMA permit application to the Colorado Department of Health (“CDH”) which is charged with the administration and enforcement of CHWMA. Appellants’ App. at 473. Notably, the part B application was the same deficient application that the Army submitted to the EPA in June 1983. Id. Not surprisingly, CDH found the application, specifically the closure plan for Basin F, to be unsatisfactory. Id.
Consequently, in May 1986, CDH issued its own draft partial closure plan for Basin F to the Army, id. at 481, and in October 1986, CDH issued a final RCRA/CHWMA modified closure plan for Basin F and requested the Army’s cooperation in immediately implementing the plan. Id. at 393. The Army responded by questioning CDH’s jurisdiction over the Basin F cleanup. Id. at 395-96.
In response to the Army’s indication that it would not implement CDH’s closure plan for Basin F, Colorado filed suit in state court in November 1986. Colorado sought injunctive relief to halt the Army’s alleged present and future violations of CHWMA and to enforce CDH’s closure plan for Basin F. The Army removed the action to federal district court, and moved to dismiss Colorado’s CHWMA enforcement action claiming that “CERCLA’s enforcement and response provisions pre-empt and preclude a state RCRA enforcement action with respect to the cleanup of hazardous wastes at the Arsenal.” Colorado v. United States Dept. of the Army, 707 F.Supp. 1562, 1565 (D.Colo.1989).
In June 1986, the Army announced that it was taking a CERCLA interim response action with respect to Basin F. Appellee’s App. at 20. In September 1986, the Army agreed with Shell Chemical Company on an interim response action in which Shell would construct storage tanks with a total capacity of four million gallons to hold Basin F liquids. Id. In June 1987, the Army, the EPA, Shell and Colorado agreed on a Basin F interim response action which required the Army to remove contaminated liquids to the temporary storage tanks and contaminated sludges and soils to a temporary holding area until determination of a final Arsenal-wide remedy. Id. at 47-50. In August 1987, the Army requested that Colorado identify potential applicable or relevant and appropriate requirements (“ARAR’s”), see 42 U.S.C. § 9621(d) (West Supp.1992); infra note 20, for the Basin F interim response action, and, in October 1987, the Army requested comment on its plan, see 42 U.S.C. § 9621(f)(1)(E) (West Supp.1992); however, Colorado did not respond to either of these requests. Appellee’s App. at 21-22.
In October 1987, the Army advised Colorado that it was withdrawing its still pending part B RCRA/CHWMA permit application claiming that it was ceasing operations of all structures addressed in the application and that it intended to remediate Basin F pursuant to CERCLA. Appellants’ App. at 398-400. The Army indicated that it would, however, comply with RCRA and CHWMA in accordance with CERCLA’s provisions at 42 U.S.C. § 9620(i) and § 9621(d)(2)(A)(i). Id. at 399.
In December 1987, the Army transmitted a draft decision document for the Basin F interim response action to the EPA, Shell and Colorado and initiated a thirty day public comment period, see 42 U.S.C. § 9617 (West Supp.1992). Appellee’s App. at 22. In January 1988, the Army issued its decision document for the Basin F interim response action. Appellants’ App. at 5. Thereafter, the Army began the Basin F interim response action, and, in December 1988, completed the removal of eight million gallons of hazardous liquid wastes from Basin F, relocating four million gallons to three lined storage tanks and four million gallons to a double-lined holding pond. Appellee’s App. at 12. In addition, the Army removed 500,000 cubic yards of contaminated solid material from Basin F, dried it, and placed it in a sixteen acre, double lined, capped wastepile. Id. The Army also capped the Basin F floor. Id.
In February 1989, the federal district court denied the Army’s motion to dismiss Colorado’s CHWMA enforcement action. The district court relied on several provisions of both RCRA and CERCLA, including CERCLA’s provision for the application of state laws concerning removal and remedial action at federal facilities not listed on the national priority list. Colorado v. United States Dep’t of the Army, 707 F.Supp. at 1569-70 (citing 42 U.S.C. § 9620(a)(4)). The district court found this provision to be particularly noteworthy in light of the fact that Basin F was not listed on the national priority list. Id. Furthermore, the district court expressed particular concern about the relationship between the Army and the EPA, noting that the EPA’s “potential monitoring of the Army’s Basin F cleanup operation under CERCLA does not serve as an appropriate or effective check on the Army’s efforts,” and that Colorado's involvement “would guarantee the salutary effect of a truly adversary proceeding that would be more likely, in the long run, to achieve a thorough cleanup.” Id. at 1570. Thus, the district court held that Colorado was not precluded from enforcing CHWMA, pursuant to its EPA-delegated RCRA authority, despite the Army’s cleanup efforts under CERCLA. Id.
In March 1989, the month following the district court’s order, the EPA added Basin F to the national priority list. 54 Fed.Reg. 10,512 (1989). The Army immediately moved for reconsideration of the district court’s order in light of the EPA’s listing of Basin F on the national priority list.
In September 1989, CDH, acting in accordance with the district court’s February 1989 order, issued a final amended compliance order to the Army, pursuant to CDH’s authority under CHWMA. The final amended compliance order requires the Army to submit an amended Basin F closure plan, as well as plans and schedules addressing soil contamination, monitoring and mitigation, groundwater contamination, and other identified tasks for each unit containing Basin F hazardous waste as required under CHWMA. Appellants’ App. at 96-103. The final amended compliance order also requires that CDH shall approve all plans and that the Army shall not implement any closure plan or work plan prior to approval in accordance with CHWMA. Id. at 98.
As a result of the final amended compliance order, the United States filed the present declaratory action, invoking the district court’s jurisdiction under 28 U.S.C. § 2201. The United States’ complaint sought an order from the federal district court declaring that the final amended compliance order is “null and void” and enjoining Colorado and CDH from taking any action to enforce it. Id. at 13. Colorado counterclaimed requesting an injunction to enforce the final amended compliance order. Id. at 35-41. On cross motions for summary judgment, the district court relied on CERCLA’s provision which limits federal court jurisdiction to review challenges to CERCLA response actions, see 42 U.S.C. § 9613(h) (West Supp.1992), and held that “[a]ny attempt by Colorado to enforce [] CHWMA would require [the] court to review the [Army’s CERCLA] remedial action ... prior to [its] completion” and that “[s]uch a review is expressly prohibited by [CERCLA] § 9613(h).” United States v. Colorado, No. 89-G-1646, slip op. at 10 (D.Colo. Aug. 14, 1991) (Mem. Order & Op.). It is important to note that the district court distinguished its earlier order, which held that Colorado could enforce CHWMA despite the Army’s CERCLA response action, Colorado v. United States Dep’t of the Army, 707 F.Supp. at 1570, based on the EPA’s intervening listing of Basin F on the national priority list. United States v. Colorado, No. 89-C-1646, slip op. at 4, 8, 1991 WL 193519. In doing so, the district court appears to have implicitly relied on § 9620(a)(4), which provides for the application of state laws concerning removal and remedial action at federal facilities not listed on the national priority list, in addition to § 9613(h). Based on this reasoning, the district court granted summary judgment to the United States on its claims for declaratory and injunctive relief, denied Colorado’s cross-motion for summary judgment, and enjoined Colorado and CDH from taking “any action to enforce the [] final amended compliance order.” Id. at 10-11.
III.
Colorado filed a timely notice of appeal from the district court’s order giving us jurisdiction over this matter. 28 U.S.C. § 1291. Colorado contends that § 9613(h) is not applicable to a state’s efforts to enforce its EPA-delegated RCRA authority, that listing on the national priority list is immaterial, and that the district court’s order amounts to a determination that CERCLA preempts a state’s EPA-delegated RCRA authority contrary to well-settled principles. In addition to arguing that § 9613(h) bars Colorado from enforcing its EPA-delegated RCRA authority, the United States alternatively contends that CERCLA’s provision, which grants the President authority to select the remedy and allow for state input through the ARAR’s process, see 42 U.S.C. § 9621 (West Supp.1992), bars Colorado from enforcing state law independent of CERCLA. See Hill v. Ibarra, 954 F.2d 1516, 1525 n. 4 (10th Cir.1992) (“grant of summary judgment ... may be upheld on any grounds supported by the record”).
We review a district court order granting or denying summary judgment de novo, applying the same standard as the district court. United States v. Hardage, 985 F.2d 1427, 1432 (10th Cir.1993). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, we construe the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Hardage, 985 F.2d at 1433.
As this is a case of statutory construction, our job is to effectuate the intent of Congress. Colorado v. Idarado Mining Co., 916 F.2d 1486, 1494 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991). While our starting point is the statutory language, Hallstrom v. Tillamook County, 493 U.S. 20, 25, 28-29, 110 S.Ct. 304, 308, 309-311, 107 L.Ed.2d 237 (1989), we must also look to the design of the statute as a whole and to its object and policy. Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990). See also King v. St. Vincent’s Hosp., — U.S.-,-, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991) (statute must be read as a whole because “meaning, plain or not, depends on context”). When Congress has enacted two statutes which appear to conflict, we must attempt to construe their provisions harmoniously. Negonsott v. Samuels, 933 F.2d 818, 819 (10th Cir.1991), aff'd, — U.S. -, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993). See also County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, — U.S. -, -, 112 S.Ct. 683, 692, 116 L.Ed.2d 687 (1992) (“Courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is [our] duty ... absent clearly expressed congressional intention to the contrary, to regard each as effective.”). Even when a later enacted statute is not entirely harmonious with an earlier one, we are reluctant to find repeal by implication unless the text or legislative history of the later statute shows that Congress intended to repeal the earlier statute and simply failed to do so expressly. United States v. Barrett, 837 F.2d 933, 934 (10th Cir.1988). See also Kremer v. Chemical Constr. Corp., 456 U.S. 461, 470, 102 S.Ct. 1883, 1892, 72 L.Ed.2d 262 (1982) (“an implied repeal must ordinarily be evident from the language or operation of the statute”). We turn now to the application of these well-settled rules of statutory construction to this particular case.
IV.
The district court focused on CERCLA’s provision governing civil proceedings which grants federal courts exclusive jurisdiction over all actions arising under CERCLA. 42 U.S.C. § 9613(b) (West Supp.1992). As the district court recognized, § 9613(h) expressly limits this grant of jurisdiction by providing, with exceptions not relevant here, that “[n]o Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action selected under section 9604 of this title....” Id. § 9613(h). However, contrary to the district court’s reasoning, § 9613(h) does not bar federal courts from reviewing a CERCLA response action prior to its completion; rather, it bars federal courts from reviewing any “challenges” to CERCLA response actions. This is a critical distinction because an action by Colorado to enforce the final amended compliance order, issued pursuant to its EPA-delegated RCRA authority, is not a “challenge” to the Army’s CERCLA response action. To hold otherwise would require us to ignore the plain language and structure of both CERCLA and RCRA, and to find that CERCLA implicitly repealed RCRA’s enforcement provisions contrary to Congress’ expressed intention.
A.
Congress clearly expressed its intent that CERCLA should work in conjunction with other federal and state hazardous waste laws in order to solve this country’s hazardous waste cleanup problem. CERC-LA’s “savings provision” provides that “[njothing in [CERCLA] shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.” 42 U.S.C. § 9652(d) (West 1983). Similarly, CERCLA's provision entitled “relationship to other laws” provides that “[n]othing in [CERCLA] shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State.” 42 U.S.C. § 9614(a) (West 1983). By holding that § 9613(h) bars Colorado from enforcing CHWMA, the district court effectively modified the Army’s obligations and liabilities under CHWMA contrary to § 9652(d), and preempted Colorado from imposing additional requirements with respect to the release of hazardous substances contrary to § 9614(a).
As a federal facility, the Arsenal is subject to regulation under RCRA. See 42 U.S.C. § 6961 (West 1983). More importantly, because the EPA has delegated RCRA authority to Colorado, the Arsenal is subject to regulation under CHWMA. Id. See also Parola v. Weinberger, 848 F.2d 956, 960 (9th Cir.1988) (§ 6961 “unambiguously subjects federal instrumentalities to state and local regulation”). While the President has authority to exempt federal facilities from complying with RCRA or respective state laws “if he determines it to be in the paramount interest of the United States,” 42 U.S.C. § 6961 (West 1983), nothing in this record indicates that the Army has been granted such an exemption with respect to its activities at the Arsenal. Thus, Colorado has authority to enforce CHWMA at the Arsenal, and “[a]ny action taken by [Colorado] ... [has] the same force and effect as action taken by the [EPA]....” Id. § 6926(d).
Notwithstanding Colorado’s RCRA authority over the Basin F cleanup, and CERCLA’s express preservation of this authority, § 9613(h), which was enacted as part of SARA, limits federal court jurisdiction to review challenges to CERCLA response actions. Congress’ expressed purpose in enacting § 9613(h) was “to prevent private responsible parties from filing dilatory, interim lawsuits which have the effect of slowing down or preventing the EPA’s cleanup activities.” H.R.Rep. No. 253(1), 99th Cong., 2d Sess. 266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2941 (emphasis added). Nonetheless, the language of § 9613(h) does not differentiate between challenges by private responsible parties and challenges by a state. Thus, to the extent a state seeks to challenge a CERCLA response action, the plain language of § 9613(h) would limit a federal court’s jurisdiction to review such a challenge. See, e.g., Alabama v. EPA, 871 F.2d 1548, 1557 (11th Cir.), cert. denied, 493 U.S. 991, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989).
Be that as it may, an action by a state to enforce its hazardous waste laws at a site undergoing a CERCLA response action is not necessarily a challenge to the CERCLA action. For example, CDH’s final amended compliance order does not seek to halt the Army’s Basin F interim response action; rather it merely seeks the Army’s compliance with CHWMA during the course of the action, which includes CDH approval of the Basin F closure plan prior to implementation. Thus, Colorado is not seeking to delay the cleanup, but merely seeking to ensure that the cleanup is in accordance with state laws which the EPA has authorized Colorado to enforce under RCRA. In light of §§ 9652(d) and 9614(a), which expressly preserve a state’s authority to undertake such action, we cannot say that Colorado’s efforts to enforce its EPA-delegated RCRA authority is a challenge to the Army’s undergoing CERCLA response action.
The United States relies principally on two cases to support its claim that § 9613(h) bars any action by Colorado to enforce the final amended compliance order. In Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990), the Seventh Circuit held that § 9613(h) barred private citizens from bringing a CERCLA citizen suit which challenged a consent decree between the EPA and a responsible party on the grounds that failure to prepare an environmental impact statement violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. 900 F.2d at 1095. Responding to the citizens’ argument that they were not challenging the remedial action but rather merely asking that certain procedural requirements be met, the court held that “challenges to the procedure employed in selecting a remedy nevertheless impact the implementation of the remedy and result in the same delays Congress sought to avoid by passage of the statute; the statute necessarily bars these challenges.” Id. at 1097.
While we do not doubt that Colorado’s enforcement of the final amended compliance order will “impact the implementation” of the Army’s CERCLA response action, we do not believe that this alone is enough to constitute a challenge to the action as contemplated under § 9613(h). The plaintiffs in Schalk were attempting to invoke the federal court’s jurisdiction under CERCLA’s citizen suit provision. See 42 U.S.C. § 9659 (West Supp.1992). While one of the exceptions to § 9613(h)’s jurisdictional bar is for CERCLA citizen suits, such suits “may not be brought with regard to a removal where a remedial action is to be undertaken at the site.” Id. § 9613(h)(4). Thus, the CERCLA citizen suit in Schalk was jurisdictionally barred by the plain language of the statute. See 900 F.2d at 1095. Accord Alabama v. EPA, 871 F.2d at 1557. Unlike the plaintiffs in Schalk, Colorado has not asserted and need not assert jurisdiction under CERCLA’s citizen suit provision to enforce the final amended compliance order; therefore, Schalk’s reasoning does not apply.
Nonetheless, the plain language of § 9613(h) bars federal courts from exercising jurisdiction, not only under CERCLA, but under any federal law to review a challenge to a CERCLA remedial action. See 42 U.S.C. § 9613(h) (West Supp.1992). In Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir.1991), the Third Circuit held that § 9613(h) barred the federal court from exercising federal question jurisdiction, 28 U.S.C. § 1331, under the National Historic Preservation Act, 16 U.S.C. § 470 et seq., in an action which sought to stay the EPA’s CERCLA response action pending determination of whether property qualified for historic site status. 923 F.2d at 1021.
Like Schalk, Boarhead is also distinguishable from the present case. First, the plaintiff in Boarhead was a responsible party under CERCLA; therefore, permitting the plaintiff’s action to proceed would have been contrary to Congress’ expressed intent in enacting § 9613(h). Moreover, the plaintiff’s complaint in Boarhead sought to stay the CERCLA remedial action; thus, the plaintiff’s action under the Preservation Act clearly constituted a challenge to the CERCLA remedial action. Boarhead, 923 F.2d at 1015. See also Alabama v. EPA, 871 F.2d at 1559 (plaintiff’s prayer for relief seeking to enjoin the EPA from participating in CERCLA remedial action “belie[dj” plaintiff’s assertion that it was not challenging the remedial action plan). Most importantly, the Boarhead court’s application of § 9613(h) to the facts of that case did not “affect or modify in any way the obligations or liabilities” of a responsible party “under other Federal or State law ... with respect to releases of hazardous substances,” see 42 U.S.C. § 9652(d) (West 1983), and did not “preempt[] [the] state from imposing any additional liability or requirements with respect to the release of hazardous substances.” See id. § 9614(a). In light of the plain language of §§ 9652(d) and 9614(a), and our responsibility to give effect to all of CERCLA’s provisions, Boar-head cannot control this case.
B.
Not only is the district court’s construction of § 9613(h) inconsistent with §§ 9652(d) and 9614(a) of CERCLA, it is also inconsistent with RCRA’s citizen suit provision. See 42 U.S.C. § 6972 (West 1983 & Supp.1992). While CERCLA citizen suits cannot be brought prior to the completion of a CERCLA remedial action, Schalk, 900 F.2d at 1095, RCRA citizen suits to enforce its provisions at a site in which a CERCLA response action is underway can be brought prior to the completion of the CERCLA response action.
RCRA’s citizen suit provision permits any person to commence a civil action against any other person, including the United States government or its agencies, to enforce “any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to” RCRA. 42 U.S.C. § 6972(a)(1)(A) (West Supp.1992). Such suits are prohibited if the EPA or the state has already “commenced and is diligently prosecuting” a RCRA enforcement action. Id. § 6972(b)(1)(B). See, e.g., Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1323-24 (7th Cir.1992). Federal courts have jurisdiction over such suits and are authorized “to enforce the permit, standard, regulation, condition, requirement, prohibition, or order_” 42 U.S.C. § 6972(a) (West Supp.1992).
RCRA’s citizen suit provision also permits any person to commence a civil action against any other person, including the United States government or its agencies, to abate an “imminent and substantial endangerment to health or the environment....” Id. § 6972(a)(1)(B). These types of RCRA citizen suits are prohibited, not only when the EPA is prosecuting a similar RCRA imminent hazard action pursuant to 42 U.S.C. § 6973, but also when the EPA is prosecuting a CERCLA abatement action pursuant to 42 U.S.C. § 9606; the EPA is engaged in a CERCLA removal action or has incurred costs to initiate a RI/FS and is “diligently proceeding” with a CERCLA remedial action pursuant to 42 U.S.C. § 9604; or the EPA has obtained a court order or issued an administrative order under CERCLA or RCRA pursuant to which a responsible party is conducting a removal action, RI/FS, or remedial action. Id. § 6972(b)(2)(B). Federal courts have jurisdiction over RCRA citizen imminent hazard suits and are authorized “to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste_” Id. § 6972(a).
By prohibiting RCRA citizen imminent hazard suits with respect to hazardous waste sites where a CERCLA response action is underway, while not prohibiting RCRA citizen enforcement suits with respect to such sites, Congress clearly intended that a CERCLA response action would not prohibit a RCRA eitizen enforcement suit. Because the definition of “person” under RCRA includes a state, 42 U.S.C. § 6903(15) (West 1983), Colorado could enforce RCRA in federal court by relying on RCRA’s citizen enforcement suit provision, 42 U.S.C. § 6972(a)(1) (West Supp.1992), provided that it complied with the requisite notice provisions. See id. § 6972(b)(1)(A). See also Hallstrom v. Tillamook County, 493 U.S. 20, 26, 110 S.Ct. 304, 309, 107 L.Ed.2d 237 (1989) (“compliance with ... notice provision is a mandatory ... condition precedent for suit”). Because CHWMA became “effective” pursuant the EPA’s delegation of RCRA authority to Colorado, and the final amended compliance order was issued pursuant to CHWMA, Colorado could arguably seek enforcement of the final amended compliance order in federal court pursuant to § 6972(a)(1). However, we need not decide this issue. While Colorado’s counterclaim sought enforcement of the final amended compliance order in the district court, Colorado asserted the counterclaim solely under CHWMA, claiming that it was compulsory pursuant to Fed.R.Civ.P. 13(a), and seeking to invoke the district court’s ancillary jurisdiction. See Appellants’ App. at 30. Thus, we do not express any opinion on whether federal court jurisdiction over Colorado’s counterclaim is proper under § 6972(a)(1)(A). Nonetheless, our discussion of this provision is relevant to our determination that Congress did not intend a CERCLA response action to bar a RCRA enforcement action, or an equivalent action by a state which has been authorized by EPA to enforce its state hazardous waste laws in lieu of RCRA.
C.
Rather than challenging the Army’s CERCLA remedial action, Colorado is attempting to enforce the requirements of its federally authorized hazardous waste laws and regulations, consistent with its ongoing duty to protect the health and environment of its citizens. CERCLA itself recognizes that these requirements are applicable to a facility during the pendency of a CERCLA response action. See Moskal v. United States, 498 U.S. 103, 109-10, 111 S.Ct. 461, 465-66, 112 L.Ed.2d 449 (1990) (statutes must be construed to give effect to “every clause and word”). Further, RCRA contemplates that enforcement actions may be maintained despite an ongoing CERCLA response action, and we cannot say that CERCLA implicitly repealed RCRA’s enforcement provision given CERCLA’s clear statement to the contrary. See Manor Care, Inc. v. Yaskin, 950 F.2d 122, 127 (3d Cir.1991) (“Congress did not intend for CERCLA remedies to preempt complementary state remedies.”). While the decision to use CERCLA or RCRA to cleanup a site is normally a “policy question [ ] appropriate for agency resolution,” Apache Powder Co. v. United States, 968 F.2d 66, 69 (D.C.Cir.1992), the plain language of both statutes provides for state enforcement of its RCRA responsibilities despite an ongoing CERCLA response action. Thus, enforcement actions under state hazardous waste laws which have been authorized by the EPA to be enforced by the state in lieu of RCRA do not constitute “challenges” to CERCLA response actions; therefore, § 9613(h) does not jurisdictionally bar Colorado from enforcing the final amended compliance order.
V.
Even if an action by Colorado to enforce the final amended compliance order would be a “challenge” to the Army’s CERCLA response action, the plain language of § 9613(h) would only bar a federal court from exercising jurisdiction over Colorado’s action. Colorado, however, is not required to invoke federal court jurisdiction to enforce the final amended compliance order. Rather, Colorado can seek enforcement of the final amended compliance order in state court. Therefore, § 9613(h) cannot bar Colorado from taking “any” action to enforce the final compliance order.
The final amended compliance order was issued by CDH pursuant to its authority under CHWMA. CHWMA not only authorizes CDH to issue compliance orders, it also authorizes CDH to request the state attorney general to bring suit for injunc-tive relief or civil or criminal penalties. Colo.Rev.Stat. § 25-15-308(2)(a) (Supp. 1992). See also id. § 25-15-309 (administrative and civil penalties); id. § 25-15-310 (criminal offenses-penalties). Compare 42 U.S.C. § 6928(a)(1) (West Supp.1992) (authorizing the EPA to issue RCRA compliance orders, assess civil penalties, and bring civil enforcement action); Id. § 6928(d) (criminal penalties for knowing violations of RCRA). Unlike RCRA-en-forcement suits by the EPA which must be brought in federal court, 42 U.S.C. § 6928(a)(1) (West Supp.1992), CHWMA enforcement actions must be brought in the state “district court for the district in which the site or facility is ... located” or in the “district in which the violation occurs.” Colo.Rev.Stat. §§ 25-15-305(2)(b), 25-15-309(1) (Supp.1992). As the operator of a federal facility subject to regulation under CHWMA, the Army is subject to “process or sanction” of the Colorado state courts with respect to enforcement of CHWMA. 42 U.S.C. § 6961 (West 1983). Because Colorado may bring an enforcement suit in state court, § 9613(h) does not preclude Colorado from taking “any” action to enforce the final amended compliance order.
VI.
By distinguishing its February 1989 order, which recognized that Colorado could enforce CHWMA with respect to Basin F, from its order in this case, which enjoined Colorado and CDH from taking any action to enforce the final amended compliance, based on the EPA’s subsequent placement of Basin F on the national priority list, the district court also appears to have implicitly relied on 42 U.S.C. § 9620(a)(4) (West Supp.1992). Section 9620 sets forth CERCLA’s application to federal facilities. Subsection (a)(4) provides, in relevant part, that “[sjtate laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States when such facilities are not included on the National Priority list.” Id. Apparently, the district court construed this subsection as precluding the application or enforcement of state laws concerning removal or remedial action at federal facilities which are listed on the national priority list.
As the United States candidly concedes, the district court’s application of § 9620(a)(4) is incorrect. See Appellee’s Br. at 36. At most, § 9620(a)(4) determines the controlling law, not federal court jurisdiction over actions by a state. Moreover, the district court’s reasoning regards CHWMA as a state law “concerning removal and remedial action.” While we recognize that CERCLA’s definition of “removal and remedial action” is conceivably broad enough to encompass certain RCRA corrective actions, see 42 U.S.C. §§ 9601(23), 9601(24) (West Supp.1992), we believe that had Congress intended § 9620(a)(4) to exclude states from enforcing their EPA-delegated RCRA responsibilities, it would have expressly said so. The district court’s reasoning is contrary to § 9620(i) which expressly preserves the obligations of federal agencies “to comply with any requirement of [RCRA] (including corrective action requirements).” 42 U.S.C. § 9620(i) (West Supp.1992). This provision indicates that Congress did not intend that RCRA, or state laws authorized by the EPA to be enforced in lieu of RCRA, to be equivalent to laws concerning removal and remedial actions.
Despite the United States’ concession concerning the incorrect application of § 9620(a)(4), it argues that the listing of Basin F on the national priority list removes any doubt that Colorado’s enforcement of CHWMA at the Arsenal is precluded by § 9613(h). However, the national priority list is nothing more than “the list of priority releases for long-term remedial evaluation and response.” 40 C.F.R. § 300.425(b) (1992). It “serves primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial action.” S.Rep. No. 848, 96th Cong., 2d Sess. 60 (1980). Placement on the national priority list simply has no bearing on a federal facility’s obligation to comply with state hazardous waste laws which have been authorized by an EPA delegation of RCRA authority or a state’s. ability to enforce such laws.
VII.
The United States alternatively contends that CERCLA’s provision, which grants the President authority to select the remedy and allow for state input through the ARAR’s process, see 42 U.S.C. § 9621 (West Supp.1992), bars Colorado from enforcing state law independent of CERCLA. This is a curious argument in light of §§ 9614(a) and 9652(d) which expressly preserve state RCRA authority, and we find it to be without merit.
A.
While the United States does not dispute that Congress intended states to play a role in hazardous waste cleanup, the United States argues that the states’ role when a CERCLA response action is underway is confined to CERCLA’s ARAR’s process. Undoubtedly, CERCLA’s ARAR’s provision was intended to provide “a mechanism for state involvement in the selection and adoption of remedial actions which are federal in character.” Colorado v. Idarado Mining Co., 916 F.2d 1486, 1496 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1584, 118 L.Ed.2d 648 (1991). See also United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1455 (6th Cir.1991) (ARAR’s provisions “reflect Congress’ special concern that state interests in the health and welfare of their citizens be preserved, even in the face of a comprehensive federal environmental statute”). Nonetheless, nothing in CERCLA supports the contention that Congress intended the ARAR’s provision to be the exclusive means of state involvement in hazardous waste cleanup.
Contrary to the United States’ claim, Colorado is not invading the President’s authority to select a CERCLA remedial action. Rather, Colorado is merely insuring that the Army comply with CHWMA which §§ 9614(a) and 9652(d) of CERCLA expressly recognize is applicable. Sections 9614(a) and 9652(d) were included within CERCLA when it was originally enacted in 1980. See Pub.L. No. 96-510, §§ 114(a), 302(d), 94 Stat. 2795, 2808 (1980). However, the ARAR’s provision was not enacted until the 1986 amendments to CERCLA. See Pub.L. No. 99-499, § 121, 100 Stat. 1672 (1986). Certainly, Congress could not have intended the ARAR’s provision to be the exclusive means of state involvement in hazardous waste cleanup as provided under §§ 9614(a) and 9652(d) when the ARAR’s concept did not even come into being until six years after CERCLA was enacted.
Moreover, while the ARAR’s provision requires the President to allow a state to participate in remedial planning and to review and comment on remedial plans, 42 U.S.C. § 9621(f)(1) (West Supp.1992), it only allows states to ensure compliance with state law at the completion of the remedial action. See id. §§ 9621(d)(2)(A), 9621(f)(2), 9621(f)(3). However, §§ 9614(a) and 9652(d) expressly contemplate the applicability of other federal and state hazardous waste laws regardless of whether a CERCLA response action is underway. Given that RCRA clearly applies during the closure period of a regulated facility, see 40 C.F.R. § 264.228 (1992); id. § 265.228, the ARAR’s provision cannot be the exclusive means of state involvement in the cleanup of a site subject to both RCRA and CERC-LA authority.
Contrary to the United States’ claim, permitting state involvement in hazardous waste cleanup outside of CERCLA’s ARAR’s process, based on independent state authority, does not render the ARAR’s process irrelevant. When a state does not have independent authority over the cleanup of a particular hazardous waste site, the ARAR’s provision insures that states have a meaningful voice in cleanup. However, when, as here, a state has RCRA authority over a hazardous waste site, §§ 9614(a) and 9652(d) expressly preserve the state’s exercise of such authority regardless of whether a CERCLA response action is underway.
B.
The United States also argues that to allow Colorado to enforce the final amended compliance order would violate CERCLA’s provision that “[n]o Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with [§ 9621].” 42 U.S.C. § 9621(e)(1) (West Supp.1992). While this provision arguably conflicts with §§ 9652(d) and 9614(a) when a state has been authorized to issue and enforce RCRA permits, the facts of this case do not require us to reconcile the potential conflict. The final amended compliance order does not require the Army to obtain a permit. Rather, it merely requires the Army to update its existing RCRA/CHWMA permit application to include all units currently containing Basin F hazardous waste, see Appellants’ App. at 101, as required by both RCRA and CHWMA regulations applicable to interim status facilities. See 40 C.F.R. § 270.72(a)(3); 6 Colo.Code Regs. 1007-3 § 100.11(d)(1) (1993). Thus, enforcement of the final amended compliance order would not violate § 9621(e)(1).
C.
[13] The United States also directs us to CERCLA’s section governing “[settlements,” 42 U.S.C. § 9622 (West Supp.1992), and specifically its provision, within the “[s]pecial notice procedures” subsection, entitled “[inconsistent response action.” Id. § 9622(e)(6). This provision states that
[w]hen either the President, or a potentially responsible party pursuant to an administrative order or consent decree under [CERCLA], has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.
Id. While the relevance of § 9622(e)(6) to the present case is unclear, the United States relies on the EPA’s interpretation of this provision in a policy statement concerning the listing of federal facilities on the national priority list. See 54 Fed.Reg. 10,520 (1989). In the course of discussing why it would not apply its policy of deferring placement of RCRA-subjected sites on the national priority list to federal facilities, the EPA recognized that when it undertakes a CERCLA response action at a site subject to state-delegated RCRA authority, a conflict may arise “from the overlap of the corrective action authorities of the two statutes.” Id. at 10,522. The EPA takes the position that § 9622(e)(6) gives the EPA final authority over the remedy when the conflicting views of the EPA and a RCRA-authorized state cannot be resolved in regard to a site where a RI/FS has been initiated. Id. at 10,523. In the EPA’s view, § 9622(e)(6)’s authorization requirement applies, not only to a potentially responsible party’s independent remedial action, but also to any action by a party which has been ordered by the state under its RCRA authority “as both types of action could be said to present a potential conflict with a CERCLA authorized action.” Id. Thus, in the case of a conflict between the EPA and the state, § 9622(e)(6) authorizes the EPA to withhold authorization to a potentially responsible party from going forward with a RCRA corrective action ordered by the state. Id. Not surprisingly, the United States argues for deference to the EPA’s interpretation of § 9622(e)(6). See Hill v. National Transp. Safety Bd., 886 F.2d 1275, 1278 (10th Cir.1989).
The EPA’s interpretation of § 9622(e)(6) has several problems, not the least of which is that it permits the EPA to preempt state law contrary to § 9614(a) and to modify a responsible party’s obligations and liabilities under state RCRA programs contrary to § 9652(d). Section § 9622(e)(6) makes absolutely no mention of RCRA-authorized state actions, and it seems highly suspect that Congress intended this provision which is buried within a subsection entitled “notice provisions” in a section addressing settlements with private responsible parties to resolve conflicts between state-RCRA laws and CERCLA response actions. See H.R.Rep. No. 253(1), 99th Cong., 2d Sess. 100 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2882 (§ 9622 was “designed to encourage and facilitate negotiated private party cleanup”).
Moreover, applying the EPA’s interpretation of § 9622(e)(6) to federal facilities is contrary to the plain language of CERC-LA’s section specifically addressing federal facilities. 42 U.S.C. § 9620 (West Supp. 1992). Congress expressly provided within the federal facilities section that “[njothing in this section shall affect or impair the obligation of any department, agency or instrumentality of the United States to comply with any requirement of [RCRA] (including corrective action requirements).” Id. § 9620(i). While the EPA takes the position that its interpretation of § 9622(e)(6) is not inconsistent with § 9620(i) because RCRA requirements can be achieved through the ARAR’s process pursuant to § 9621(d)(2), 54 Fed.Reg. at 10,526, the ARAR’s process cannot be the exclusive means of a RCRA-authorized state’s involvement in the cleanup of a RCRA-regulated site because otherwise a party’s obligations under other federal and state hazardous waste laws would be modified during the closure period contrary to § 9652(d), and state law would be preempted contrary to § 9614(a). See supra. By the same reasoning, if the ARAR’s process constituted a state’s sole means of enforcing its RCRA program at a federal facility, the federal agency’s RCRA obligations pri- or to completion of the CERCLA remedial action would be “affected or impaired” contrary to the plain language of § 9620(i). See H.R.Rep. No. 253(1), at 95, reprinted in 1986 U.S.C.C.A.N. at 2877 (federal facilities section “provides the public, states, and [the EPA] increased authority and a greater role in assuring the problems of hazardous substance releases are dealt with by expeditious and appropriate response actions”).
Finally, § 9622(e)(6) is triggered by the initiation of a RI/FS. The federal facilities provision requires federal agencies to commence a RI/FS within six months after the facility is included on the national priority list, 42 U.S.C. § 9620(e)(1) (West Supp. 1992), and commence a remedial action within fifteen months of the study’s completion, id. § 9620(e)(2), while at the same time providing that this section does not affect or impair the agency’s RCRA corrective action requirements. Id. § 9620(i). Certainly, Congress could not have intended to require a RI/FS and RCRA compliance in one section while at the same time barring RCRA compliance when a RI/FS is initiated in another section. As summed up by one commentator, “if placement on the [national priority list], completion of a RI/ FS, and initiation of remedial action pursuant to [§ 9620] does not impair RCRA obligations, mere initiation of the required investigation cannot have this effect.” Joseph M. Willging, Why the EPA’s Current Policies on Potential CERCLA-RCRA Authority Conflicts May be Wrong, 1 Fed. Facilities Envtl. J. 69, 82-83 (Spring 1990).
Because the EPA’s interpretation of § 9622(e)(6) is “contrary to the plain and sensible meaning” of §§ 9622, 9614(a) and 9652(d), and, when applied to federal facilities, § 9620, we do not afford it any deference. Hill, 886 F.2d at 1278 (quotations omitted). In our view, § 9622(e)(6) does not bar a state from exercising its EPA-delegated RCRA authority at a federal facility where a RI/FS has been initiated.
VIII.
We REVERSE the district court’s grant of summary judgement for Plaintiff-Appel-lee, the United States. We REMAND to the district court with instructions to VACATE the order prohibiting Defendants-Appellants, Colorado and CDH, from taking any action to enforce the final amended compliance order and for further proceedings consistent with this opinion.
. Among the standards promulgated by the EPA are specific requirements governing the closure of hazardous waste treatment, storage and disposal facilities. See 40 C.F.R. § 264.228 (1992) (closure and post-closure care); id. § 265.228 (closure and post-closure care for interim status facilities). See also 1 Donald W. Stever, Law of Chemical Regulation and Hazardous Wastes, § 5.06[2][d][iii][A], at 5-65 (1991).
. Pending permit approval, RCRA permitted preexisting hazardous waste treatment, storage and disposal facilities to continue operating during the permit application process under "interim status." 42 U.S.C. § 6925(e)(1) (West Supp. 1992).
. Congress encouraged states to develop their own hazardous waste programs by directing the EPA to "promulgate guidelines to assist States in the development of [such] programs.” 42 U.S.C. § 6926(a) (West 1983).
. In United States Dep’t of Energy v. Ohio, — U.S. -, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992), the Supreme Court held that federal agencies retained sovereign immunity from state civil penalties imposed under RCRA. Id. at-, 112 S.Ct. at 1639-40. See also Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1296 (10th Cir.1990). However, Congress recently amended § 6961 to clearly provide that federal agencies are not immune from such penalties. See Federal Facility Compliance Act of 1992, Pub.L. No. 102-386, § 102, 106 Stat. 1505.
. In 1984, Congress amended RCRA with the enactment of HSWA which sought to close "various loopholes" that were allowing millions of tons of hazardous waste to escape RCRA's control. See H.R.Rep. No. 198(1), 98th Cong., 2d Sess. 19, reprinted in 1984 U.S.C.C.A.N. 5576, 5578. Congress was concerned that RCRA was not being "conducted in a manner that controls and prevents present and potential endangerment to public health and the environment” and enacted HSWA to prevent "future burdens on the 'Superfund’ program_" Id. at 20, reprinted in 1984 U.S.C.C.A.N. at 5579.
. Congress amended CERCLA in 1986 by enacting SARA after realizing that CERCLA was "inadequate” to address the environmental threat presented by abandoned hazardous waste sites. See H.R.Rep. No. 253, 99th Cong., 2d Sess. 54-55 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2836-37. SARA "buil[t] on existing law and significantly strengthen[ed] [CERCLA] in all respects ... [as well as] providing] the EPA with appropriate flexibility and discretion in order to respond appropriately to each site...." Id. at 56, reprinted in 1986 U.S.C.C.A.N. at 2838.
. Obtaining a RCRA permit is a two-step process. Part A of the permit application requires general information concerning the facility, the operator, the hazardous wastes and the processes for treatment, storage and disposal. See 40 C.F.R. § 270.13 (1992). Part B of the permit application requires more detailed information including a specific closure plan. See id. § 270.-14.
. As a hazardous waste surface impoundment, Basin F is subject to specific RCRA regulations. See 40 C.F.R. §§ 265.220-265.230 (1992) (interim status standards for surface impoundments). Further, under HSWA, an interim status surface impoundment cannot receive, store, or treat hazardous waste after November 8, 1988, unless (1) it is in compliance with § 6924(o)(l)(A) which requires the "installation of two or more liners," a "leachate collection system," and “groundwater monitoring,” or (2) it has at least one liner and there is no evidence that it is leaking, is located more that a quarter mile from an underground source of drinking water, and is in compliance with the groundwater requirements applicable to RCRA permitted facilities. See 42 U.S.C. § 6925(j) (West Supp.1992). See also id. § 6924(o)(l).
. While most of the President’s CERCLA authority has been delegated to the EPA pursuant to 42 U.S.C. § 9615 (West 1983), the President delegated his CERCLA response action authority under § 9604(a-b) with respect to Department of Defense facilities to the Secretary of Defense. See Exec. Order No. 12,316, 46 Fed.Reg. 42,237 (1981), as amended by Exec. Order No. 12,418, 48 Fed.Reg. 20,891 (1983), revoked by and current delegation of authority at Exec. Order No. 12,580, 52 Fed.Reg. 2,923 (1987). A RI/FS is the first step in a CERCLA remedial action in order "to assess site conditions and evaluate alternatives to the extent necessary to select a remedy." 40 C.F.R. § 300.430(a)(2) (1992). Interestingly, the Army initiated the RI/FS during the month preceding HSWA’s effective date, which provided that RCRA interim status surface impoundments undertake corrective action in order to continue treating, storing and disposing of hazardous waste after November 1988. See supra note 8. The Army has since maintained that its CERCLA response action precludes Colorado from enforcing its EPA-delegated RCRA authority at the Arsenal.
. From 1946 to 1982, Shell leased a portion of the Arsenal from the Army and disposed of hazardous wastes in Basin F.
. The Basin F interim response action led several nearby residents to sue for damages allegedly caused by the release of airborne pollutants. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1532 (10th Cir.1992). The Basin F interim response action also calls for the Army to incinerate the removed liquids. This has yet to be done. Final disposition of the solids remaining under the Basin F cap and in the wastepile will be determined as part of the remedial action for which a final record of decision will be issued in 1994.
. Additionally, the district court relied on RCRA’s provision regarding its application to federal facilities, 707 F.Supp. at 1565 (citing 42 U.S.C. § 6961), and its citizen suit provision. Id. at 1565-66 (citing 42 U.S.C. § 6972). The district court also relied on CERCLA’s provisions permitting a state to impose additional requirements on the release of hazardous waste and preserving all other obligations or liabilities of persons under other federal or state law, id. at 1569 (citing 42 U.S.C. §§ 9614(a), 9652(d)), and CERCLA’s provisions concerning federal facilities which indicated to the district court that CERCLA did not affect or impair the obligation of a federal facility to comply with RCRA. Id. (citing 42 U.S.C. §§ 9620(a)(1), 9620(a)(4), 9620(i)).
. The district court noted that the Army, as a responsible party, has an "obvious financial interest to spend as little money and effort as possible on the cleanup,” whereas the EPA has the responsibility "to achieve a clean up as quickly and thoroughly as possible_” 707 F.Supp. at 1570. The district court also noted that the same Justice Department attorneys were representing both the Army and the EPA despite the court’s expressed concern over a conflict. Id.
. Although the EPA had listed the Arsenal on the national priority list in July 1987, 52 Fed.Reg. 27,620, 27,641 (1987), Basin F was expressly excluded from the national priority list “because the EPA believed that Basin F might be subject to RCRA Subtitle C corrective action authorities and thus might be appropriate for deferral....” 54 Fed.Reg. 10,512, 10,515 (1989). See also 48 Fed.Reg. 40,682 (1983) (describing EPA policy of deferring national priority listing of sites undergoing RCRA cleanup); 49 Fed.Reg. 40,323-40,324, 40,336 (1984). See generally Apache Powder Co. v. United States, 968 F.2d 66, 68 (D.C.Cir.1992). When the EPA added Basin F to the national priority list in 1989, it indicated that Basin F should not have been deferred from listing under the policy in effect in 1987 because it had stopped receiving RCRA hazardous wastes prior to July 26, 1982 and did not certify closure prior to January 26, 1983. 54 Fed.Reg. at 10,515-10,516 & n. 2.
. The United States filed the present action while the Army’s motion for reconsideration of the district court’s February 1989 order in Colorado's enforcement action was still pending. Following the district court’s ruling in the present case, the district court dismissed Colorado's earlier enforcement action which was the subject of the district court’s February 1989 order.
. Colorado also counterclaimed for civil penalties. The district court dismissed this counterclaim on sovereign immunity grounds, relying on this court’s opinion in Mitzelfelt v. Department of Air Force, 903 F.2d 1293 (10th Cir.1990). See United States v. Colorado, No. 89-C-1646 (D.Colo. June 19, 1990) (order). Although Congress has subsequently amended RCRA to expressly allow for civil penalties to be enforced against federal facilities, see supra note 4, Colorado has not appealed the dismissal of its counterclaim for civil penalties.
. Colorado also argues that the district court's order violates the separation of powers doctrine by allowing an executive branch agency to dictate the outcome of pending litigation. In light of our holding, we need not address this argument.
. “Person” under CERCLA is defined to include the United States government. 42 U.S.C. § 9601(21) (West Supp.1992).
. The legal significance of a particular site being placed on the national priority list is that "[o]nly those releases included on the [national priority list] shall be considered eligible for Fund-financed remedial action.” 40 C.F.R. § 300.425(b)(1) (1992). Given that federal facilities, like the Arsenal, are not eligible for Superfund-financed remedial action, 42 U.S.C. § 9611(e)(3) (West Supp.1992); 40 C.F.R. § 300.425(b)(3) (1992), placement of a federal facility on the national priority list serves only informational purposes. See 54 Fed.Reg. 10,-520, 10,521 (1989) (EPA Listing Policy for Federal Facilities) (“placing Federal facility sites on the [national priority list] serves an important informational function and helps to set priorities and focus cleanup efforts on those Federal sites that present the most serious problems”).
. CERCLA provides that "[t]he President shall select appropriate remedial actions determined to be necessary to be carried out under section 9604 ... which are in accordance with this section, and to the extent practicable, the national contingency plan, and which provide for cost effective response." 42 U.S.C. § 9621(a) (West Supp.1992). Any hazardous substance remaining on site at the completion of the remedial action may be subject to a level or standard of control equivalent to any federal or state ARAR, including RCRA or state hazardous waste laws. Id. § 9621(d)(2)(A). The President has the authority to waive federal or state ARAR’s in selecting a remedial action under certain circumstances. See id. § 9621(d)(4). When the President waives ARAR’s with respect to federal facilities, the state may seek judicial review in federal court, limited to the administrative record, to determine whether the President’s finding supporting the waiver is supported by substantial evidence. Id. § 9621(f)(3)(B)(i). If substantial evidence does not support the President’s finding, a court may modify the remedial action to conform to the ARAR, id. § 9621(f)(3)(B)(ii); however, if the state fails to establish that the President’s finding is not supported by substantial evidence, the state may pay the additional cost attributable to meeting the ARAR. Id. § 9621(f)(3)(B)(iii).
. The United States relies on Idarado Mining and Akzo Coatings to support its claim that the ARAR’s provision provides the exclusive means for state involvement in the cleanup of a hazardous waste site where a CERCLA response action is underway. In Idarado Mining, we held that § 9621(e)(2) which authorizes a state to “enforce any Federal or State standard, requirement, criteria, or limitation to which the remedial action is required to conform under” CERC-LA in federal district court, did not authorize the district court to grant a state injunctive relief in the state’s CERCLA response cost action. 916 F.2d at 1494. Unlike Idarado Mining, Colorado here is not seeking to broaden its § 9607 response action authority or § 9621(e)(2) ARAR enforcement authority under CERCLA.
In Akzo Coatings, the Sixth Circuit held that the terms of a consent decree between the EPA and a responsible party "set the parameters of relief available to the state” against the responsible party, and § 9621(f) precluded the state from pursuing alternative state remedies against the responsible party. 949 F.2d at 1454-55. Unlike the state in Akzo Coatings, Colorado is asserting its independent EPA-delegated RCRA authority rather than challenging the selection of a CERCLA remedy.
. While Basin F lost its interim status on November 8, 1985, because the Army never requested a final Part B permit determination and never certified compliance with applicable groundwater monitoring requirements, see 42 U.S.C. § 6925(e)(2) (West Supp.1993), the Army is obligated to comply with RCRA and/or CHWMA regulations applicable to interim status facilities pending closure of Basin F pursuant to an approved closure plan. See 40 C.F.R. § 265.1(a) (1992) (standards for interim status facilities "define the acceptable management of hazardous waste during the period of interim status and until certification of final closure")-, id. § 265.1(b) (interim status standards “apply ... until either a permit is issued ...or until applicable ... closure and post-closure responsibilities are fulfilled). See also 6 Colo.Code Regs. 1007-3 § 265.1(a-b) (1993).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.06, Costs: 0.055
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OPINION OF THE COURT
ADAMS, Circuit Judge.
One of the assumptions upon which our society is premised is that technological advancement will be encouraged and material comfort will be increased by rewarding innovation with profit. Long ago, Sir Edward Coke noted that “everyone thirsteth after gaine,” and, by and large, the law recognizes that experimentation and innovation will be persisted in only to the degree that an opportunity for “gaine” is presented. This may be especially so today when our continued efforts in scientific research depend almost as much on those who are willing to fund them as on the ingenuity of the researchers themselves.
But the recognition of the desirability of encouraging technological advancement does not mean that the Congress, if it chooses to do so, may not diminish innovation to some degree in order to further some other purpose. Nor does it mean that courts may refuse to give effect to such a legislative decision even if they suspect that the “other purpose” guiding the legislature will be disserved rather than furthered by the statute in question. This is so because Congress is entitled to make its own judgments in this area and once they are made the judiciary must respect them even if its own assessments are to the contrary.
1. DOW’S CHALLENGE TO THE EPA’S INTERPRETATION OF SECTION 8(d) OF TOXIC SUBSTANCES CONTROL ACT.
The present appeal is by Dow Chemical Company, which charges that the Environmental Protection Agency (EPA) is misread its statutory mandate in seeking, under § 8(d) of the Toxic Substances Control Act, 15 U.S.C. § 2607(d) (1976), to obtain information and studies regarding research and development projects undertaken by a commercial enterprise, when such research and development are ultimately expected to produce a profitable product. Section 8(d) provides:
(d) Health and safety studies. — The Administrator shall promulgate rules under which the Administrator shall require any person who manufactures, processes, or distributes in commerce or who proposes to manufacture, process, or distribute in commerce any chemical substance or mixture (or with respect to paragraph (2), any person who has possession of a study) to submit to the Administrator—
(1) lists of health and safety studies (A) conducted or initiated by or for such person with respect to such substance or mixture at any time, (B) known to such person, or (C) reasonably ascertainable by such person, except that the Administrator may exclude certain types or categories of studies from the requirements of this subsection if the Administrator finds that submission of lists of such studies are unnecessary to carry out the purposes of this Act; and
(2) copies of any study contained on a list submitted pursuant to paragraph
(1) or otherwise known by such person. Guidance in interpreting § 8 is provided by the following definition in subsection (f):
“For purposes of this section, the terms ‘manufacture’ and ‘process’ mean manufacture or process for commercial purposes.” The dispute in the case at hand concerns the scope of the authority given the Administrator under § 8.
Congress passed the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (1976), in order to prevent the general environment from becoming the laboratory in which harmful effects of chemicals are discovered. The Act establishes an intricate and at times unfathomable system of regulation administered by the EPA. It places the burden of ensuring adequate research and testing of toxic substances squarely on those companies who seek to profit from the use or sale of such chemicals.
One of the most important provisions of the Act is § 4, which gives the Administrator the authority to require that certain companies — those that manufacture, distribute in commerce, process, use, or dispose of chemical substances or mixtures that the EPA suspects may be hazardous — conduct tests on such materials. 15 U.S.C. § 2603(a). Section 4(e) calls for the establishment of a committee that is expected to make recommendations to the EPA regarding what chemicals or mixtures should be tested pursuant to § 4(a). This committee, known as the Interagency Testing Committee (I.T.C.), is required to publish in the Federal Register and transmit to the EPA a list of chemicals and proposed areas of study.
In October 1977 the I.T.C. published such a list, including ten chemicals and categories of chemicals. 42 Fed.Reg. 55026. According to the I.T.C. list, the specified chemicals presented serious potential for public exposure and there was a substantial possibility that they could be hazardous. The Committee recommended testing in six general areas: carcinogenicity, mutagenicity, teratogenicity, other chronic effects, environmental effects, and epidemiology.
To determine what tests would be necessary, the EPA, pursuant to § 8(d), proposed a rule designed to obtain the submission of already existing health and safety studies. This proposed regulation stipulated that all manufacturers, processors and distributors of any of the named chemicals must submit to the EPA lists of studies initiated by or conducted for them and copies of any such studies in their possession. Section 1(a)(4) of EPA’s proposed rule defined the terms “manufacture or process” to include all manufacture or process of chemicals even if only for research purposes.
Several interested parties commented on § 1(a)(4) of the proposed rule, complaining that submission to the EPA of information gleaned from tests for new uses of chemicals might discourage product research and development inasmuch as competitors would be apt to gain valuable information about a company’s future plans. Notwithstanding these complaints, the changes made in the final rule gave no relief to those troubled by the possible chilling effects of the regulation on product research and development and innovation in the chemical field generally. Instead, the Agency specifically included a “Note” in the final regulation stating that the definition of manufacturing “for commercial purposes” includes “product research and development.” 43 Fed.Reg. 39086. And the two principal changes made to the proposed rule broadened rather than narrowed the scope of the regulation.
Most important for our purposes, the final rule required that the companies subject to the rule submit copies of health and safety studies in their possession even if the studies were of chemicals that that company did not manufacture, process, or distribute. The listing requirement itself, however, remained limited to those substances actually manufactured, processed or distributed by the reporting company. See 40 C.F.R. § 730.5(a), 43 Fed.Reg. 30986. A second change substantially expanded the scope of the type of studies sought beyond the six areas suggested by the I.T.C.
Dow, believing the changes in the proposed rule to be significant, charged that, the EPA had violated the Administrative Procedure Act by enlarging the scope of the regulation without adequate notice and fair opportunity to comment. See 5 U.S.C. § 553 (1976). Dow also challenged the Administrator’s substantive authority under the Act in two respects. First, it contended that the manufacture of small quantities of a chemical solely for purposes of research and development is not manufacture “for commercial purposes” and, therefore, is beyond the reach of § 8(d). Second, Dow urged that the EPA’s effort to obtain copies of studies under § 8(d)(2) should be limited to those studies that a company was required to list under § 8(d)(1). The second paragraph, Dow argued, cannot be read to give the Agency a power broader than that given in the first paragraph.
In apparent response to Dow’s filing of a petition and brief on December 15,1978, the EPA, on January 26, 1979, withdrew the rule. But the EPA still insists that the regulation was within its statutory authority and that it was revoked solely because of procedural irregularities. Given the revocation, however, the EPA maintains that Dow’s appeal is now moot inasmuch as it challenges a rule that is no longer in effect. Before we may consider the merits of Dow’s petition, then, we must first address the question of mootness — a question that implicates the jurisdiction of the Court.
II. MOOTNESS.
At first reading, the case for dismissing the present petition as moot has considerable appeal. Simply put, the government urges that there is at this time no rule extant with which Dow must comply. Moreover, the government asserts there is no suggestion that Dow failed to comply in any material respect with the now-withdrawn rule when that rule was in effect. Thus, it may fairly be questioned whether this litigation retains the characteristics of a live case or controversy necessary for adjudication in a federal court. A careful analysis persuades us, however, that the petition is not moot.
In recent years the Supreme Court has evolved a mootness doctrine that includes both constitutional and policy elements. Under Article III, section 2 of the Constitution, the power of the judiciary is limited to “cases or controversies.” When a dispute ceases to be sufficiently alive or concrete so as to be a genuine “controversy” it is no longer a fit subject for federal court adjudication. The judgment of a federal court must resolve
a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.
We have interpreted Supreme Court pronouncements on this subject to require (1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.
Here Dow and the EPA are undoubtedly adverse parties. They offer contrary interpretations of a specific section of the statute. The dispute is thus real, not hypothetical; concrete not generalized. To resolve the question, this Court need not anticipate certain contingencies. Had the EPA, for example, withdrawn the rule because it was uncertain as to its statutory authority under the Act, the case might have been rendered non-justiciable — either because it lacks sufficient adversary quality or because the controversy would become to some extent hypothetical' inasmuch as it would depend on the mere possibility of future action by the EPA. The agency, however, withdrew the rule only because Dow’s petition raised questions regarding the EPA’s compliance with the procedural requirements of the Administrative Procedure Act. In the notice revoking the regulation, the EPA clearly stated that it did not intend “to change its interpretation of the scope of its statutory authority” about which “it entertains no doubt.” 44 Fed. Reg. 6099. In fact, the agency is in the process of proposing a new § 8(d) rule that will take precisely the same substantive position adopted in the withdrawn rule. Id. Under these circumstances, we believe that the Article III prerequisites for the exercise of federal court jurisdiction are satisfied.
An' argument may be made, of course, that even if the constitutional prerequisites for federal court jurisdiction exist, the policy aspects of the mootness doctrine should not be lightly dismissed. But in this case policy considerations favor resolution of the petition at this time. First it is the EPA, not Dow, that urges us to treat the appeal as moot as a result of its own action in withdrawing the rule. Courts are understandably reluctant to permit agencies to avoid judicial review, whenever they choose, simply by withdrawing the challenged rule. As Judge Skelly Wright has noted:
Where a court is asked to adjudicate the legality of an agency order, it is not compelled to dismiss the case as moot whenever the order expires or is withdrawn. Consideration of important legal issues “ought not to be, as they might be, defeated, by short term orders, capable of repetition but evading review »
Although we do not believe that this case may be classified as one involving official action “ ‘capable of repetition but evading review,’ ” we are at least to some degree persuaded by the policy concerns that underlie that exception to the mootness doctrine. The EPA has not altered its substantive stance, it has merely withdrawn its regulation for technical reasons with the declaration that it will be resubmitted. If this action by the EPA were alone sufficient to render a live dispute moot, the timing and venue of judicial review could be effectively controlled by the agency. We are reluctant, then, to dismiss a genuine and concrete controversy for what in this case amounts to a technical reason, brought about by the party seeking such a dismissal. As the Supreme Court has .noted:
[Voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. A controversy may remain to be settled in such circumstances, e. g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.
A second policy reason also supports retention of jurisdiction over this case. Although the precise regulation under scrutiny has been withdrawn, the previous promulgation of the regulation, combined with EPA’s adherence to the interpretation of the statute included therein, may continue to have a present impact on Dow. Because the EPA has unequivocally taken the public posture that it will seek health and safety studies resulting from research and development work, Dow’s present decisions regarding research and development projects are necessarily colored by the very real possibility of having to provide the EPA with confidential information of considerable value to Dow’s competitors. The resulting “chill” on Dow’s research and development is thus a present harm that merits our attention, provided that the jurisdictional requirements have been met. To delay adjudication here would not leave the parties in the same position they occupied before the EPA took any action — rather it would leave Dow under a non-speculative threat of agency action while delaying any decision on the legality of that action. As in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), where the Supreme Court declared that it was not deprived of jurisdiction because of mootness,
the challenged governmental activity in the present case is not contingent has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.
Finally, it bears emphasis that there appear to be no persuasive policy reasons supporting a conclusion of mootness here. There is no possibility of “passing prematurely on constitutional questions.” Nor are we likely to gain any additional information or insights by awaiting EPA’s re-promulgation of the contested regulation. Furthermore, until this issue is resolved there is a substantial possibility that product research and development as well as the EPA’s investigation of toxic chemicals will suffer: the.former from the chill discussed above, the latter from further litigation regarding the scope of the agency’s power. Because it is in the public interest to encourage both innovation and the control of toxic substances, we believe that it is the better policy to resolve the issue and thereby proffer Congress the opportunity quickly to rectify the situation if we have misread their intent. The only advantage in delaying adjudication here is that the EPA might change its mind and thus eliminate the controversy. But this possibility has been strongly and explicitly negatived by the agency, and must be considered remote at best. To refuse to pass on the questions presented, then, would require both the parties and the Court to undergo considerable additional expense and effort for no valid reason. Moreover, it would leave unresolved a dispute that it is in the interests of both parties as well as the public at large to have resolved.
Accordingly, we conclude that this matter is not moot and proceed to address the merits.
III. THE EPA’S STATUTORY AUTHORITY UNDER § 8(d) OF THE TOXIC SUBSTANCES CONTROL ACT.
Two issues of statutory construction are presented by Dow’s challenge to the EPA’s regulation. First, does § 8(d) permit the Administrator to include in his definition of “manufacture” the production of small amounts of a chemical for purposes of research and development? Given the definition of “manufacture” provided in § 8(f)— “for commercial purposes” — this issue may be reduced to the question whether the production of limited quantities of chemical for research and development purposes may be considered a manufacture for commercial purposes. Second, does § 8(d)(2) permit the Administrator to seek copies of studies in the possession of a company even if that company is not required to list the studies pursuant to § 8(d)(1) and is not itself a manufacturer, processor, or distributor of the chemical that is the subject of the studies?
Each of these questions is a matter of first impression. Not only has this Court not previously confronted them, but neither counsel nor our research has yielded any judicial construction of the section in question. Before attempting an analysis of the statutory language and legislative history of the sections in question, however, we must first consider what deference should be accorded the agency’s interpretation of these sections.
A. The Deference to be Accorded the EPA’s Interpretation of the Act.
It is now a commonplace of administrative law that courts in construing a statute will give “considerable weight” to a “consistent and longstanding interpretation by the agency charged with administration of [that statute].” United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975). This rule of deference has been repeated frequently by the Supreme Court and by this Court, and remains the standard for interpreting federal statutes. ' Like any rule, however, this precept of deference must be tailored to those situations that occasioned its creation. It should not be used, for example, as a shield for permitting agencies to extend their statutory authority beyond that delegated to them by Congress.
Deference is generally accorded administrative agencies because of their experience and expertise. Although it has been said that the nation’s faith in government by experts has recently declined, it is only logical that courts of general jurisdiction should give deference on matters that are more fully understood by specialist agencies. Agencies may be more qualified in certain fields because of their understanding of the actual area that is being regulated. Thus in labor law, the N.L.R.B. may ascertain what in fact chills workers organizational rights better than would a tribunal that is less experienced in labor matters. Alternatively, agencies may be more qualified because of their sensitivity to the practicalities of the administrative process, and because of the need to supervise complex and often confusing statutory programs in a realistic and pragmatic manner. Consequently, the EPA has often been given broad deference in its attempts to produce a workable administrative system from obscure statutory language in highly technical statutes. Were we dealing here with an agency interpretation stemming either from its experience with the subject matter being regulated or with administrative practicalities we would be inclined to accept EPA’s suggestion that its interpretation of § 8(d) is entitled to great or controlling deference.
The statutory problems for resolution in the present case, however, are largely unrelated to the agency’s expertise in regulating possibly toxic substances or the nature of its administrative process. Rather, the problems we address here involve the limits to be placed upon the EPA’s information-gathering authority under the Act. These are issues of statutory construction requiring careful analysis of the language used by Congress in drafting the statute, as well as the legislative history of the Act. A federal court is as qualified, as an agency in assaying such a task, and is more disinterested. The words at issue do not relate directly to the subject matter that EPA is regulating: we are not construing “hazardous,” “mixture,” or “chemical” as those terms are used in the Act. Such words may properly depend on expert interpretation and standards. Instead we are construing an alleged limitation placed on the authority of the agency to obtain certain information. That an agency may adopt an interpretation maximizing its own authority is not surprising, but we do not believe we can fairly accord such an interpretation the same degree of deference that is generally given to the interpretation of those portions of a statute directly related to the expertise of the agency involved. Congress has delegated considerable authority to the EPA under this and other acts. The agency must be given deference in determining how to exercise that authority. But it need not and should not be given deference in determining how much authority has in fact been delegated to it. Were courts required to defer to an agency’s determination of the extent of its authority, the agency could proceed to exercise as much power as “reasonable,” even though a more plausible reading of its mandate suggests the power it seeks to exercise was never delegated by Congress.
Accordingly, pursuant to Dow’s request that we set aside agency action “in excess of statutory jurisdiction, authority, or limitations,” we shall objectively construe § 8(d) of the Toxic Substances Control Act, and sustain the agency’s interpretation of the authority given the Administrator under the Act only if it appears that such interpretation comports with the statutory language and the intent of Congress.
B. Research and Development as a Commercial Purpose.
Under § 8(d) the Administrator is authorized to seek certain information from those who “manufacture, process or distribute in commerce” or who “propose to manufacture, process or distribute in commerce” any chemical substance or mixture. “Manufacture” is defined in § 3 of the Act:
The term “manufacture” means to import into the customs territory of the United States (as defined in general headnote 2 of the Tariff Schedules of the United States), produce, or manufacture.
This definition would appear to do little more than include importing as a type of manufacture. It offers little guidance in the resolution of the problem posed in this appeal.
In two sections of the Act, however — § 5 and § 8 — a specific limitation is put on the term manufacture. For purposes of those sections, manufacture means manufacture “for commercial purposes.” Dow contends that the manufacture of small quantities of a chemical that it does not propose to offer in commerce, but that it will use solely for purposes of product research and development, is not a manufacture “for commercial purposes” and, therefore, the EPA may not seek information about such a limited “manufacture.”
There is a certain plausibility to this reading of the statute, and Dow adds to its appeal by emphasizing the harm that would result from a contrary reading. In enunciating the policy of the United States with regard to possibly toxic substances, Congress specifically stated that:
authority over chemical substances and mixtures should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation . . .
Dow argues with considerable force that the obligation to report to the EPA on tests done at the preliminary stages of product development will effectively eliminate the competitive advantage that is a prime spur to innovation. If competing concerns are able to learn of the type of research being performed by Dow — or any other similar company — those competitors would be able to ascertain what the reporting company’s future course of marketing and product promotion will be. Companies such as Dow, accordingly, are likely to eschew any research regarding those chemicals that the EPA is interested in learning about. The result of such a policy, as Dow sees it, is to discourage research on the very materials that EPA fears may be hazardous to our citizens.
The EPA counters this argument by pointing to § 14 of the Act, 15 U.S.C. § 2613, which provides for some measure of protection for confidential information. Just because Dow must share its secrets with the EPA, the agency contends, it does not have to share them with competitors. Whether or not one could fairly expect Dow to be reassured by this position, it, as the EPÁ freely admits, is largely beside the point. This case concerns Dow’s duty to submit information to the EPA, not the EPA’s duty, or ability, to keep that information confidential — as important as this may be.
It is the language of the statute itself, in our view, that defeats Dow’s interpretation of the Act. For Dow’s construction to be correct, the use of “for commercial purposes” in limiting §§ 5 and 8 must have excluded manufacture for purposes of research and development. But this it clearly did not do. In both section, § 5 and § 8, specific language is used to exempt research and development from certain of the requirements set out in those sections. Thus § 8(a)(1) reads:
(a) Reports — (1) The Administrator shall promulgate rules under which—
(A) each person (other than a small manufacturer or processor) who manufactures or processes or proposes to manufacture or process a chemical substance (other than a chemical substance described in subparagraph (B)(ii)) shall maintain such records, and shall submit to the Administrator such reports, as the Administrator may reasonably require, and
(B) each person (other than a small manufacturer or processor) who manufactures or processes or proposes to manufacture or process—
(i) a mixture, or
(ii) a chemical substance in small quantities (as defined by the Administrator by rule) solely for purposes of scientific experimentation or analysis or chemical research on, or analysis of, such substance, or another substance, including any such research or analysis for the development of a product, shall maintain records and submit to the Administrator reports but only to the extent the Administrator determines the maintenance of records or submissions of reports, or both, is necessary for the effective enforcement of this chapter.
Similarly § 8(b)(1) includes an exception from the Administrator’s duty to compile an inventory:
(b) Inventory. — (1) The Administrator shall compile, keep current, and publish a list of each chemical substance which is manufactured or processed in the United States. . . . The Administrator shall not include in such list any chemical substance which is manufactured or processed only in small quantities (as defined by the Administrator by rule) solely for purposes of scientific experimentation or analysis or chemical research on, or analysis of such substance or another substance, including such research or analysis for the development of a product.
A review of § 5, the other section using the “commercial purposes” language, also reveals a specific exception for research and development. Section 5(h) reads:
(3) The requirements of subsections (a) and (b) of this section do not apply with respect to the manufacturing or processing of any chemical substance which is manufactured or processed, or proposed to be manufactured or processed, only in small quantities (as defined by the Administrator by rule) solely for purposes of—
(A) scientific experimentation or analysis, or
(B) chemical research on, or analysis of such substance or another substance, including such research or analysis for the development of a product, if all persons engaged in such experimentation, research, or analysis for a manufacturer or processor are notified (in such form and manner as the Administrator may prescribe) of the risk to health which the manufacturer, processor, or the Administrator has reason to believe may be assodated with such chemical substance.
Were we to adopt Dow’s construction of “commercial purposes” the above provisions of the Act would seem to be rendered almost meaningless. If the manufacture or process of a chemical in small quantities for purposes of research and development does not constitute a commercial purpose, there would be no need to provide for any special treatment for such chemicals in either of the two sections subject to the “commercial purpose” limitation. They would be entirely exempt from both sections. An objective reading of these sections reveals that Congress thought that the special exemptions for reporting, inventory, and notice were necessary, and that they did not believe that research and development had been generally excluded by the addition of a “commercial purposes” limitation.
Dow attempts to meet this problem with two arguments. First it contends that the exceptions found in §§ 8(a)(1), 8(b)(1), and 5(h)(3) are not necessarily deprived of meaning under Dow’s interpretation. Second, it argues that the EPA’s interpretation may also be criticized on the ground that it conflicts with certain other language in the statute. Neither of these contentions is persuasive.
The alternative explanation offered for the three specific exceptions provided for research and development is that although such exceptions were not strictly necessary for “in-house” research and development, they were needed to protect research chemicals that are actually sold commercially. According to Dow, “in-house” research and development is wholly exempt from both §§ 5 and 8 because of the “commercial purposes” limitation, whereas manufacturers of research and development chemicals produced for sale are offered more limited protection by §§ 8(a)(1), 8(b)(1), and 5(h)(3).
We find this reading of the statute an unlikely one, both in terms of the language of the statute itself and the legislative history. Nowhere in the congressional reports and debates is there any indication that the drafters of the legislation perceived the distinction drawn by Dow and intended to craft an exception specifically for those in the business of manufacturing research chemicals for sale. In fact, it appears that Congress was under the impression that the exemptions in §§ 5 and 8 were necessary to protect both purchased and “in-house” research chemicals. Thus in explaining the exemption provided for research and development chemicals in § 5 — which requires that a prospective manufacturer give notice to the EPA ninety days before manufacturing a new chemical substance — Congressman McCollister of Nebraska made clear that both types of research were to be protected:.
Section 5 is probably one of the most onerous provisions of the legislation with its requirement for premarket notification of all new chemical substances. However, this section does contain exemptions. For example, chemicals which are manufactured in small quantities for sale to laboratories for research purposes would not be subject to the premarket notification provisions of the bill. Further, research and analysis being performed during the developmental stages of chemicals which may ultimately be produced commercially would also be exempt from the premarket notification provisions of the bill. This exception for research and analysis related to product development would exist regardless of whether the manufacturer were evaluating the product within its own plant or had made the product available to a potential customer with or without the payment of a fee. Section 5 must not be interpreted in such a way as to stifle product development and innovation, and we expect the EPA will implement Section 5 and the other provisions of the bill so that this result will not occur.
This view was echoed by other Congressmen as well, including the authors of the bill. Indeed, it would appear that there was more certainty that the exemption was designed to protect “in-house” research than that it covered the activity for which Dow claims it was intended. Congressman Murphy of New York made a point of emphasizing its dual purpose:
Mr. Chairman, I think it is important to point out to my colleagues that research chemicals are exempted from the requirements of section 5. It has come to my attention that some people have interpreted this exemption as applying only to research chemicals which are manufactured and used in-house by a company. While the exemption does not include such research chemicals, it is not limited to them. If a chemical is manufactured by one person in small quantities for use as a research chemical and sold to another person to use for research purposes, then the exemption covers such a chemical. In other words, one company can make chemicals to be used for research by another company or by another person and the exemption covers that chemical.
I would like to ask the authors of the legislation, the gentleman from Texas (Mr. Eckhardt) and the gentleman from North Carolina (Mr. Broyhill), if that is their understanding of the exemption?
Mr. Eckhardt. Mr. Chairman, that is my understanding of the exemption.
Mr. Broyhill. Mr. Chairman, I agree with the gentleman from New York.
These statements of the congressional understanding indicate that the drafters of the Act did not believe that the exemption they had fashioned in § 5(h)(3) was necessary only to protect research chemicals manufactured for sale, although it served to protect that manufacture as fully as “in-house” manufacture. Rather, they believed that the exception would benefit both types of research chemicals, and drew no apparent distinction between them. The same reasoning would logically apply to the exemptions appearing in § 8 and the use of the term “commercial purposes” in that section. The statute accordingly does not appear to bear the distinction urged by Dow to explain the inclusion of the exceptions in §§ 5(h)(3), 8(a), and 8(b) when no such exemption is found in § 8(d).
Dow’s second reason for rejecting the EPA’s interpretation is that that construction, too, appears to render other language in the statute close to meaningless. Although it would not be unheard of to discover that a statute is internally inconsistent, we do not agree that the language referred to by Dow is deprived of meaning by the EPA’s construction of the legislation.
There are two principal portions of the statutory language of § 8(d) that Dow relies upon as being incongruent with the EPA’s interpretation. The first is “for commercial purposes” — the very language upon which Dow has based its interpretation of the statute. If “commercial purposes” does not serve to exclude research projects, Dow suggests, it is difficult to see what it does do. The second is the inclusion of “proposes to manufacture, process or distribute” in the statement of those from whom the Administrator may require lists of health and safety studies. If a company’s initial research on a not-yet-developed product is a “commercial purpose,” Dow asks, why is the “proposes to” language necessary inasmuch as the EPA can reach even the pre-proposal stage of product development?
We agree that Dow’s explanation of these terms is internally consistent, but we do not believe that the EPA’s explanation is any less so. The EPA interprets any activity engaged in for profit as commercial activity. Inasmuch as Dow engages in product development in the hope of making profit and not out of pure scientific interest, its purpose may be fairly described as “commercial.” In this sense the “for commercial purposes” language distinguishes any profit-making enterprise from a non-profit institution, such as a university or foundation.
Moreover, the “for commercial purposes” language does provide commercial companies with some protection — albeit less than Dow would like. The House Committee explained the meaning of this clause in its report referring to § 5:
By use of the term “for commercial purposes” the Committee does not intend to restrict coverage to substances manufactured or processed “for sale.” Any commercial purpose, such as use as a chemical intermediate in a manufacturing process, is sufficient to bring the manufacture or processing of a substance within the ambit of section 5. The Committee realizes that there are certain minor reactions occurring incidental to the mixing process or upon storage of a mixture, such as the cross-linking of polymers. Such a minor reaction may result in what would technically be considered a “new” chemical substance. However, since the “new” substance is not manufactured for commercial purposes per se it would not be subject to the notification provisions of this section.
Although this explanation does not specifically contradict Dow’s construction, neither does it gainsay the EPA’s interpretation. The language is not deprived of meaning under either view; it merely is given a narrower scope under the EPA’s reading. As we have previously stated, this interpretation, although narrower, is, in our view, more in keeping with other subsections of § 8 and the statute as a whole. .
Nor do we find the EPA’s interpretation to be at odds with the inclusion of “proposes to” in § 8(d). One who does not “manufacture” any chemicals could “propose to” do so, or could “propose to” distribute chemicals in commerce even if it were not the manufacturer. A company proposing to engage in the production industrial use, or distribution of chemicals is still subject to the requirements of § 8(d) even if it has not yet begun actual manufacture, use or distribution. The inclusion of such companies— which are not as yet manufacturers, processors, or distributors — is not inconsistent with an intention to secure research studies from those who are manufacturers, processors, or distributors.
Because we find EPA’s reading of its authority under § 8(d) to be in accord with the statute as a whole, and because we believe Dow’s interpretation does not adequately explain the specific exemptions provided for research and development elsewhere in the Act, we believe that the EPA’s inclusion of manufacture for research purposes in its final rule promulgated to effect the purposes of § 8(d) was within its statutory authority under that section.
C. The EPA’s Authority Under § 8(d)(2) to Seek Copies of Health and Safety Studies From Persons Not Subject to the Listing Requirement of § 8(d)(1).
Dow’s second challenge to the substantive authority of the Administrator also presents a difficult question. Section 8(d)(1) requires manufacturers, processors and distributors of possibly hazardous chemicals to submit lists of existing health and safety studies known to them. Section 8(d)(2) then requires the submission of copies of any studies sought by the Administrator. The question presented is whether § 8(d)(2) authorizes the Administrator to seek copies of studies not appearing on the submitted lists. Specifically, the EPA contends that whereas § 8(d)(1) applies only to studies regarding those I.T.C. specified chemicals that are actually manufactured, processed, or distributed by the reporting company, § 8(d)(2) permits the Administrator to obtain copies of studies in the possession of a reporting company regarding all the I.T.C. recommended substances, even if the reporting company does not manufacture, process, or distribute the chemical that is the subject of the study. Dow, on the other hand, urges that a reporting compahy may be required to submit only copies of those studies that it is required to list pursuant to § 8(d)(1).
Dow’s interpretation of § 8(d)(2) is certainly an understandable one. It is not illogical to reason that the requirement of submitting copies of studies is narrower than that of submitting lists. Indeed, the legislative history contains several statements by legislators assuming this to be the normal procedure. Thus, the Senate Report states:
[Manufacturers must maintain with the Administrator lists of health and safety studies conducted, whether or not they have been conducted as a result of this legislation. The Administrator is authorized to require the submission of any study on the list.
Similarly, the House Committee Report does not appear to have contemplated that companies would be required to submit copies of studies regarding chemicals that they did not manufacture, process or distribute:
Briefly, the bill will. . . . [authorize the Administrator to require manufacturers and processors to submit reports and maintain records respecting their commercially produced chemical substances and mixtures, to maintain records respecting adverse health or environmental effects of such substances and mixtures, and to provide available health and safety data on them.
The legislative history, therefore, may be fairly said to give some support to Dow’s two-step reading of the statute.
But the legislative history may also be read to support the EPA’s interpretation of § 8(d)(2). Some of the legislative language indicating that the submission of copies of studies was to be confined to listed studies reflects an earlier Senate draft of the Toxic Substances Bill which explicitly stated: “The Administrator, on the basis of the lists submitted, may request submission of any study appearing on such list.” This is not the language used in the final version of § 8(d), however. A possible reason is suggested by the Conference Committee Report, which stated, with respect to § 8(d), that “the conferees emphasize the importance of gaining information that errs on the side of too much rather than too little.” Thus, it cannot be said that the legislative history is all, or even predominantly, on Dow’s side.
Where the legislative history is confused and the statutory language is clear, the latter must certainly prevail. Indeed, the language actually used in a statute is the most determinative guide to the meaning of any piece of legislation. Here the language of the statute itself appears to comport more closely with the EPA’s approach. Section 8(d) refers to “any person who manufactures, processes, or distributes in commerce” or who “proposes to” do so. But immediately following this language there is a parenthetical clause, which reads:
“or with respect to paragraph (2), any person who has possession of a study.”
This parenthetical expression can be viewed only as broadening, at least to some degree, the coverage of § 8(d)(2) — the paragraph requiring the submission of copies. Although § 8(d)(1) is limited to manufacturers, processors or distributors,-» § 8(d)(2) includes “any person who has possession of a study.” This latter group may be required to submit to the Administrator
“copies of any study contained on a list submitted pursuant to paragraph (1) or otherwise known by such person.”
We believe this language plainly contradicts Dow’s theory that the Administrator may require only the submission of studies appearing on lists prepared pursuant to § 8(d)(1), even though that theory finds support in certain portions of the legislative history. It is possible that some members of Congress envisioned the two-step process described by Dow, but the language used in the statute unquestionably points the other way in two respects. First, it includes persons other than manufacturers, processors, or distributors — i. e. those who have possession of studies. The parenthetical expression can hardly be read any other way. Second, it includes studies other than those listed pursuant to § 8(d)(1). That is the only possible reading of the addition of “or otherwise known to such person” in § 8(d)(2). Given this statutory language, we are inclined to believe that Congress did intend that the EPA possess a wider authority in securing copies of studies than in securing lists. As in contract law, where “there is no surer way to find out what parties meant, than to see what they have done,” so in construing statutes the intent of Congress is best determined from the words used in the legislation itself.
Dow recognizes the apparent inclusiveness of the statutory language and attempts to meet it by offering a more narrow interpretation. First, Dow explains the apparently broad parenthetical clause by suggesting that it was added for the limited purpose of permitting the EPA to secure copies of listed studies in the possession of a third party. Otherwise manufacturers could insulate studies performed for them by leaving such studies in the hands of another company or individual. And, according to Dow, the “otherwise known by such person” language, appearing in § 8(d)(2) “serves the function of insuring that copies are submitted even if a study was inadvertently left off the list, or was initiated after the list was submitted .
In this manner, the language ‘otherwise known to’ serves a valuable ‘mop-up’ function, guaranteeing that EPA receives all listable studies, whether or not included on the previously submitted lists.”
Again this interpretation is plausible. But it concedes the point that the EPA, in seeking copies of studies, may reach parties other than manufacturers, processors, and distributors. And it admits that the EPA may seek copies of studies not appearing on any submitted list. Once these points are conceded, the legislative history referring to submitting copies of any study on a list is no longer helpful to Dow because it appears to conflict as much with Dow’s narrower reading as it does with the EPA’s broader construction.
Deprived of the support provided in the legislative history noted above, Dow’s interpretation seems no more likely than the EPA’s construction. Indeed, we believe it to be less likely. The “otherwise known” language unquestionably contemplates the existence of studies in the possession of a company, which studies that company is not under an obligation to list. Such studies would necessarily concern chemicals that the company does not manufacture, process, or distribute, inasmuch as they must list all those chemicals that they do produce. When the section is read as a whole, and the parenthetical clause combined with the “otherwise known” language of paragraph two, this reading seems more likely than Dow’s attempt to confine § 8(d)(2) to a “mop-up” role of including “listable” studies that are, as yet, unlisted.
Consequently, on this point, too, we believe that the EPA’s final rule did not go beyond the authority delegated to it under § 8(d) of the Toxic Substances Control Act.
IV. CONCLUSION.
The result we reach today may understandably cause concern to those troubled about the relative decline of technological innovation in the United States. If companies are required to submit to a federal administrative agency the results of tests they perform in the process of developing new products their chances of realizing a substantial competitive advantage may be measurably reduced. With the opportunity for “gaine” diminished in this fashion, corporate research may concentrate on substances that are not presently subject to the agency’s scrutiny. The result may be a net reduction of general research on the very substances — hazardous chemicals — on which research is greatly needed. Were this to come about, it would presumably conflict with one of Congress’ purposes in passing the Act. Alternatively, companies may simply reduce their research and development spending altogether, particularly since the Toxic Substances Control Act is not the only current disincentive to innovation.
Of course, in the present case good arguments may be made for the Act as drafted. It is fair to doubt whether the primary commitment of large corporations is to the health of our citizenry — and reasonable for the government to seek to learn about and more carefully control toxic substances. The drafting of legislation often entails difficult policy choices, and the statute at issue here is no exception. But the issue for this Court cannot be whether we would have drafted § 8(d) so as to provide greater protection for product research and development. Nor is the question whether the regulation actually promulgated is a desirable one. We recognize the potentially unfortunate consequences of the EPA’s regulation and of our reading of the Act. Our role, however, is confined to construing the statute so as to give effect to the legislation as written and to the intent of Congress in enacting such legislation. In so doing we have determined that Congress delegated to the EPA the authority to promulgate the regulation that is under challenge here. Perhaps the public may have reason to regret this result, but the possibility that the Act as drafted may inhibit technological innovation may not be relied upon as a justification for ignoring the apparent congressional decision in the drafting of the statute. Rather, any change in this regard is for the Congress to consider.
The petition for review will be denied; each side to pay its own costs.
. Coke, The Third Part of the Institutes of the Laws of England, 195 (E. & R. Brooke eds. 1797).
. See, e. g., the power given Congress in Article I, Section viii, clause 8 of the Constitution:
“To promote the Progress of Science and useful Acts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
. Not all chemicals were recommended for all areas of testing.
. The purpose of the proposed regulation was to help EPA to “ascertain whether, and if so what, testing rules are necessary.” 43 Fed. Reg. 4074.
. § 730.1(a) of the proposed rule reads:
(a) “Manufacture or process” means to manufacture or process for commercial purposes, which includes (1) for distribution in commerce, including for test marketing purposes; (2) for use as a catalyst or intermediate; (3) for the exclusive use by the manufacturer or processor, or (4) for product research or development.
43 Fed.Reg. 4075.
. One of the comments illustrates the problem: For example, the fact that a consumer goods firm was testing a compound formerly used only in limited factory applications for its skin immersion effects might indicate to the competing firms in its industry that a new cleaning application was being considered for that compound.
A-43.
. The first mootness holding explicitly relying on Article III of the Constitution was Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), although there were references to Article III limitations in earlier cases. See generally Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373 (1974).
. See Franks v. Bowman Transportation Co., 424 U.S. 747, 756 n.8, 96 S.Ct. 1251, n.8, 47 L.Ed.2d 444 (1976).
. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975), quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937).
. See Geraghty v. United States Parole Comm’n, 579 F.2d 238, 246 (3d Cir. 1978) cert. granted 440 U.S. 945, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979).
. Nader v. Volpe, 154 U.S.App.D.C. 332, 333, 475 F.2d 916, 917 (D.C. Cir. 1973) quoting Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
. Dow urges that the present case does, in fact, constitute an example of official action capable of repetition yet evading review. We agree that EPA’s regulation is capable of repetition — indeed it is almost certain of repetition given the EPA’s continued adherence to the statutory construction it advanced in the regulation. The use of the capable of repetition but evading review exception must turn therefore on whether the Administrator’s interpretation will “evade review.”
We are disinclined to read this traditional exception to the mootness doctrine as broadly as Dow does. Most cases utilizing this approach have involved official action that by its very nature could not, or probably would not be able to be adjudicated while fully “live.” Thus Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) concerned a woman’s claim of a right to abort her unborn child. Given the nine month gestation period, her pregnancy was certain to terminate before the case was adjudicated. Accord, First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed,2d 707 (1978) (election campaign would terminate before bar to corporate participation therein could be reviewed); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (one year residency requirement for obtaining a divorce found to be of insufficient duration to permit complete review while still applicable to any particular plaintiff.).
Here, in contrast, the new rule that EPA proposes to advance would be subject to review. We thus cannot say with certainty that EPA’s actions, if repeated, would “evade review.” At worst they would appear to do no more than delay review. We, therefore, rest our rejection of mootness here not on the repetitious evasion of review exception to the mootness doctrine but on the conclusion that that doctrine is not properly applicable to this, a live controversy, virtually certain of repetition, and with some present effect on the appellant.
. See Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974) reversed on other grounds 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). There, Judge Wisdom refused to allow the EPA’s disapproval of the particular regulations under challenge to moot plaintiffs’ argument, inasmuch as the EPA did not disapprove the underlying theory behind those regulations. A live dispute still existed, he reasoned, regarding the underlying strategy despite the EPA’s removal of specific regulations. The subsequent Supreme Court decision does not appear to have addressed this question.
. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (citations omitted).
. 416 U.S. at 122, 94 S.Ct. 1694, 1698.
. Franks v. Bowman Transportation Co., 424 U.S. 747, 756 n. 8, 96 S.Ct. 1251 n. 8, 47 L.Ed.2d 444 (1976), quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
. One of the reasons for such deference, suggested in Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974), is the opportunity— over time — for Congress to correct a serious misinterpretation. See id. at 74, 95 S.Ct. 272.
. See e. g., International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 566, & n. 20, 99 S.Ct. 790, 800 & n. 20, 58 L.Ed.2d 808, 820 & n. 20 (1979); DuPont v. Train, 430 U.S. 112, 134-35, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). The reasons for this deference and, more im- ■ portantly, limits to it were stated by the Supreme Court in Daniel: “This deference is a product both of an awareness of the practical expertise which an agency normally develops, and of a willingness to accord some measure of flexibility to such an agency as it encounters new and unforseen problems over time. But this deference is constrained by our obligation to honor the clear meaning of a stature, as revealed by its language, purpose and history.” 439 U.S. at 566 n. 20, 99 S.Ct. at 800 n. 20, 58 L.Ed.2d at 808 n. 20.
. E. g., American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1041 (3d Cir. 1975); Budd Co. v. OSHA, 513 F.2d 201, 203-05 (3d Cir. 1975).
. See J. Freedman, Crisis and Legitimacy; The Administrative Process and American Government, 44-57 (1978).
. See, e. g., Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946) (agency determination of what constitutes labor dispute “in active progress”). But see Getman & Goldberg, The Myth of Labor Board Expertise, 39 U.Chi.L.Rev. 681 (1972) (criticizing courts’ assumption that NLRB has special expertise to determine impact of employer conduct on exercise of employee rights).
. See DuPont v. Train, 430 U.S. 112, 134-35 & n. 25, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).
. “The question . is . solely one of statutory interpretation. The resolution of that issue does not require any expertise on the part of the [agency]; the proper interpretation is certainly not a matter of discretion.” McKart v. United States, 395 U.S. 185, 198-99, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 (1969). See United States ex rel. Sanders v. Arnold, 535 F.2d 848, 853-55 (3d Cir. 1976) (Adams, J., dissenting).
. See the scope of review set out in the Administrative Procedure Act, 5 U.S.C. § 706(2)(C).
. 15 U.S.C. § 2602(7).
. 15 U.S.C. §§ 2604(i) and 2607(f).
. 15 U.S.C. § 2601(b)(3).
. Dow questions the protection offered by § 14, noting that § 14(b)(1)(A) authorizes public disclosure of all health and safety studies once a testing rule is issued, regardless of whether a particular chemical has been offered for commercial distribution. Even were this problem avoided, Dow questions whether a large government agency is equipped to guarantee absolute confidentiality in circumstances such as these.
. 15 U.S.C. § 2607(a)(1) (emphasis supplied).
. 15 U.S.C. § 2607(b)(1) (emphasis supplied).
. 15 U.S.C. § 2604(h)(3).
. 122 Cong.Rec. 48805 (Aug. 23, 1976), reprinted in Legislative History of the Toxic Substances Control Act at 520-21 (emphasis added).
. Id. 574-75 (emphasis added).
. H.Rep.No.94-1341, 94th Cong., 2d Sess. at 30-31, reprinted in Legislative History, supra, • at 437-38.
Nor does the legislative history reveal any Congressional intent to exclude research and development in its entirety:
Mr. Broyhill. I want to compliment that gentleman for giving a very adequate explanation of the many provisions in a bill that do exempt research chemicals from provisions of this bill. But would the gentleman not agree with me that striking the reporting requirements altogether would not be wise, because there is one thing the EPA should have, and that is adequate knowledge of the new chemicals that are being developed?
Mr. Murphy of New York. That is one of the thrusts of this bill.
Mr. Broyhill. That is not certainly an onerous burden to know the formulas of new chemicals that are being developed, is it?
Mr. Murphy of New York. It is not.
Cong.Rec., Aug. 23, 1976, reprinted in Legislative History, supra, at 557.
. The use of this term would appear to be tied to the § 5 requirement of a formal proposal of new chemical manufacture or sale. See 15 U.S.C. § 2604.
. As is noted, supra, a company must list studies (1) conducted by or for it; (2) known to it; or (3) reasonably ascertainable by it. See 15 U.S.C. § 2607(d)(1).
. EPA Internal Memorandum Submitting Final Regulation to the Administration. A-228. See § 730.5(a)(2) of the final rule, 43 Fed.Reg. 30986.
. S.Rep.No.94-698, 94th Cong., 2d Sess., at 2, reprinted in Legislative History, supra, at 158 (emphasis added), U.S.Code Cong. & Admin. News 1976, pp. 4491, 4492.
. H.R.Rep.No.94-1341, 94th Cong., 2d Sess., at 4, reprinted in Legislative History, supra, at 410 (emphasis added).
. Hearings Before the Subcommittee on the Environment of the Committee on Commerce, S. 776, 94th Cong., 1st Sess., 94-24 (1975) at 27.
. Conference Report, H.R.Rep.No.94-1679, 94th Cong., 2d Sess. at 81, U.S.Code Cong. & Admin.News 1976, p. 4566, reprinted in Legislative History, supra at 694.
. In Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956), Justice Frankfurter puckishly declared that in such a situation it is prudent to apply “the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.”
. 15 U.S.C. § 2607(d) (emphasis added).
. 15 U.S.C. § 2607(d) (emphasis added).
. Insurance Co. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877).
. Brief for the Petitioner at 37.
. The EPA may hope to remedy such decline through the use of testing requirements pursuant to § 4 of the Act. Whether government ordered research is an adequate substitute for individual initiative is at least open to debate.
. Spending for research and development as a percentage of the gross national product is lower now than it was fifteen years ago. Indeed, private spending for research and development as a percentage of gross national product has now fallen behind that of both Germany and Japan. And it has been suggested that governmental actions are part of the problem. See I. Shapiro, Technology’s Decline: America’s Self-Made Paradox (Speech Before the Economic Club of Detroit, Jan. 22, 1979) reprinted in 45 Vital Speeches of the Day 360 (1979); J. Harley, The Day Innovation Died: Defensive R. & D., (Speech Before the Houston Club, Sept. 26, 1978) reprinted in 45 Vital Speeches of the Day 55 (1978).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.21875, Costs: 0.03125
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VAN OOSTERHOUT, Senior Circuit Judge.
Before us are petitions filed by Southern National Manufacturing Company, Inc., (Southern) and Neodane Company, Inc., (Neodane) to review the final order of the Environmental Protection Agency (EPA) entered November 3, 1971, modified November 16, 1971, canceling petitioners’ registration of lin-dane pellets for use in vaporizers unless petitioners revised their labeling of such products as directed in the order and canceling outright the registration of lindane pellets for use in Southern’s one-shot fumigator. Jurisdiction is established under 7 U.S.C.A. § 135b(d).
Petitioners are manufacturers and interstate distributors of certain lindane vaporizer products which are “economic poisons” as that term is used in the Federal Insecticide, Fungicide and Ro-dentieide Act (FIFRA). See 7 U.S.C.A. § 135-135k. As such, these products are required to be registered with the Administrator of the EPA (see 35 Fed. Reg. 15623, Oct. 6, 1970), when distributed in interstate commerce. 7 U.S.C.A. § 135b(a). The Administrator may “cancel the registration of an economic poison whenever it does not appear that [there has been compliance] with the provisions of [FIFRA].” 7 U.S.C.A. § 135b (c). One of the central FIFRA provisions prohibits the distribution of economic poisons which are “misbrand-ed.” 7 U.S.C.A. § 135a(a)(5). An economic poison is misbranded if, inter alia: (1) “the labeling accompanying it does not contain directions for use which are necessary and if complied with adequate for the protection of the public; [(2)] the label does not contain a warning or caution statement which may be necessary and if complied with adequate to prevent injury to living man . . .; [or (3)] in the case of an insecticide, . . . when used as directed or in accordance with commonly recognized practice it shall be injurious to living man . . . 7 U.S.C.A. § 135(a)(2) (c), (d), (g).
Upon the ground of misbranding, the Secretary of Agriculture on April 24, 1969, through its authorized representative acting under 7 U.S.C.A. § 135b(c), instituted proceedings to cancel the registration of lindane for use in the following products of petitioners:
(1) The Neodane “Hari-Kari” and Southern’s “Bugmaster” Models G and H continuously operating lindane vaporizers which had been authorized under FI-FRA for commercial and industrial use only.
(2) Southern’s one-shot lindane fumigator which had been authorized for home use.
Pursuant to its statutory option, Neo-dane requested that the “matter be referred to an advisory committee . . . composed of experts . . . selected by the National Academy of Sciences . ...” 7 U.S.C.A. § 135b(c). The advisory committee recommended that the cancellation of registration be maintained. The recommendation was followed and the cancellation was affirmed. Southern had previously invoked the FI-FRA provisions which allow for a public hearing. Subsequent to the affirmation of the cancellation order involving its products, Neodane joined in this request. A consolidated hearing was held before an Agency Hearing Examiner pursuant to the regulations set forth in 7 C.F.R. §§ 2764.20-.42 (1971). On the basis of the evidence adduced at the hearing, the Hearing Examiner found that petitioners had met their burden of proof with respect to the alleged misbranding of the products in question and recommended that the notices of cancellation be vacated. The EPA excepted to the Hearing Examiner’s report and an appeal was taken to the Judicial Officer who rendered the final administrative decision. 7 C.F.R. § 2764.34 (1971). The Judicial Officer held that both the continuous vaporizers and the one-shot fumigator devices were misbranded. Regarding the continuous vaporizers, it was decided that a labeling alteration would be required in order to satisfy the FIFRA misbranding provisions. The proposed label reads in part as follows:
NOT FOR USE OR SALE TO DRUGSTORES, SUPERMARKETS, OR HARDWARE STORES OR OTHER ESTABLISHMENTS THAT SELL INSECTICIDES TO CONSUMERS. NOT FOR SALE TO OR USE IN FOOD HANDLING, PROCESSING OR SERVING ESTABLISHMENTS.
With respect to the one-shot fumigator, the Judicial Officer ordered an unconditional cancellation. In reaching these conclusions, the Judicial Officer considered certain evidence which had been excluded by the Hearing Examiner. Moreover, he grounded his decision in part on a statutory provision (7 U.S.C. A. § 135(z)(2)(d)) that raised a mis-branding issue which, pursuant to stipulation by the parties, had also been excluded from consideration by the Hearing Examiner.
Petitioners raise the following issues in support of their petition to review:
I. Whether the Judicial Officer’s factual determinations were supported by substantial evidence; whether the Judicial Officer’s conclusions of law were induced by an erroneous view of the FI-FRA legislation.
II. Whether the label ordered by the Judicial Officer for the continuous vaporizers is vague, ambiguous, and beyond the authority of the Judicial Officer under FIFRA.
III. - Whether the Judicial Officer’s consideration of evidence unfavorable to petitioners subsequent to its exclusion at the hearing by the Hearing Examiner constituted prejudicial error.
IV. Whether the Judicial Officer’s reliance on FIFRA subsection (2) (z) (2) (d) (7 U.S.C.A. § 135(z)(2)(d)) subsequent to its stipulated exclusion as an issue at the hearing constituted prejudicial error.
I.
In a registration cancellation under FIFRA, the burden is on the respondent to show that his pr*oduct is safe. Stearns Electric Paste Co. v. Environmental Protection Agency, 461 F.2d 293, 302-305 (7th Cir.1972); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 592-593 (1971).
The court’s review of the Judicial Officer’s findings of fact is limited by 7 U.S.C.A. § 135b(d) which provides: “The findings of the Administrator with respect to questions of fact shall be sustained if supported by substantial evidence when considered on the record as a whole, including any report and recommendation of an advisory committee . . . .” This is in accord with judicial principles applied to review of administrative agency actions. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
As pointed out in Universal Camera, the responsibility for making fact findings based on the record as a whole is placed on the Administrator. The Hearing Examiner’s report is part of the record and is entitled to consideration but does not preclude the Administrator from making contrary findings when supported by the record as a whole. In Universal Camera, the Court states:
“We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. The ‘substantial evidence’ standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular ease. . . .” 340 U.S. 474, 496, 71 S.Ct. at 469.
The Judicial Officer who was authorized to make the final administrative decision found that continuously operating lindane vaporizers were safe for commercial use where no food was handled but were not safe for home use. He pointed out that the exposure in commercial establishments was generally for an eight-hour period while the home use involved a continuous twenty-four exposure.
There is substantial evidentiary support for the Judicial Officer’s determination that the vaporizer and the lindane pellets used in connection therewith are unsafe for home use.
The Advisory Committee, a group of scientists appointed by the National Academy of Sciences, whose report is to be considered a part of the record under FIFRA, unanimously found the vaporizers to be hazardous. The Hearing Examiner did not find the vaporizers to be safe for home use but found the products were not misbranded because the labels contained directions for use which, if complied with, afforded adequate protection for the benefit of the public. It is noteworthy, however, that the Examiner includes in his report a recommendation to the effect “that a study be made of possible conditions to be locked into each registration or re-registration for the purpose of continuing surveillance of a registrant’s distributing and selling procedures; to the view of utilizing the Enforcement [Branch] of the Pesticides Regulation Division as a more effective, tool in administering the Act.”
In any event, petitioners have failed to meet the burden resting upon them to establish that their vaporizers and related pellets are safe for home use.
As heretofore stated, the registration of the continuously operating vaporizers was limited to commercial use. The required labels which have been used include a skull and cross bones, the word “poison,” the antidote, a warning to keep out of the reach of children, and the words “for commercial use, not for home use.”
The Judicial Officer, as a basis for his decision on the vaporizers, states:
“There can be no doubt that these products have been promoted for home use and are so used. The Agency has introduced evidence to this effect, and registrants do not dispute it. The fact that it has been determined in the registration process that these products are unsuited for home use is sufficient to require adjustment of the label to achieve that end, if it be concluded that the products are ‘mis-branded.’
“Counsel for registrants disputes the Agency’s contention that, in view of the hazard and the fact that home use is prevalent, registrants’ continuous products are ‘misbranded’ within the meaning of sections 2(z)(2)(c), 2(z) (2) (d), and 2(z)(2)(g) of FI-FRA, and registration should be can-celled. Counsel in the Agency places particular emphasis on the language of section 2(z)(2)(g) which provides that a product is ‘misbranded,’ if ‘in the case of an insecticide . . . when used as directed or in accordance with commonly recognized practice it shall be injurious to living man.’
“At oral argument counsel for registrants contended that the ‘commonly recognized practice’ language means in the case of a continuous vaporizer, the prescribed use, dispersed at 1 gram/15,000 cu. ft/24 hour period, and does not refer to abuses of the product. A reading of the In re Stearns reading of 2(z)(2)(g) would, according to registrants’ counsel, create large responsibility for industry.
“The Judicial Officer in In re Stearns ruled that the language of 2(z)(2)(g) was meant to cover the situation of a warning which practical experience demonstrates to be the kind of caution that is ignored. I agree. It is part of human nature to be careless and defiant, and experience teaches us that certain directions are apt to be ignored. In requiring a product to be safe when used ‘in accordance with commonly recognized practice,' Congress was anticipating that certain products would be used other than in accordance with their label.
“The language of 2(z)(2)(g) and the legislative history make it unmistakably clear that Congress intended just the opposite of what counsel for registrants urges. The ‘or commonly recognized practice’ language was added to FIFRA in 1947. It appeared in the first print of the bill, H.R. 4851, 79th Cong., 1st Sess. (1945), that later was enacted 61 Stat. 163. At hearings before the House Agriculture Committee, the representative of the Agricultural Insecticide and Fungicide Association objected strenuously to this new language pointing out that custom ‘might or might not represent the proper use of the materials’ and that it was unfair to make industry ‘responsible for anything except [its own] . . . claims . . .’ Hearings before The Committee on Agriculture of the House of Representatives on A Bill To Regulate the Marketing of Economic Poisons and Devices, and For Other Purposes, 79th Cong., 2d Sess., at 32 (1946). The 2(z)(2)(g) language was retained in the final legislation notwithstanding the protest of industry. The language of the section and the signposts in the legislative history point down a path that leads to a common sense result. ft
We agree with such reasoning. The record reflects that the petitioners through advertising and other promotional means have vigorously encouraged the use of continuously operating vaporizers in the home. The record includes' newspaper advertising to this effect and a reply to a letter from a purchaser, who was alarmed by the label provision restricting home use, in which Southern’s president in answering at length stated that the device was perfectly safe for home use, that it had been successfully used in more than half of a million homes, and that the warning was applied merely to conform with the federal requirements. Sales by petitioners of their vaporizers and pellets for home use have become a commonly recognized practice brought about and enlarged by the petitioners’ promotional activities.
The Judicial Officer found that the use of continuously operating vaporizers in homes, notwithstanding label directions to the contrary, afforded ample justification for the cancellation of the registrations under § 2(z)(2)(g), but concluded such result would be harsh by reason of the registrants proof that the device was safe for use in commercial establishments. He states that under § 135b(e) he has jurisdiction to require “modifications of claims on the labels” and that pursuant thereto, “I have attempted to devise a label that will effectively deter and prevent . . . use in the home.”
At footnote 27, App. 109, the Judicial Officer observes:
“The success in keeping lindane out of the home, because the Agency has no enforcement authority under the FIFRA over distribution, will depend essentially on the voluntary compliance of the manufacturer and the distributor in order to accomplish the stated objective. Should the proposed label not prevent the home use of lin-.dane vaporizer products registered only for use in commercial establishments, the Agency would be justified in again canceling or suspending.”
Under the record, the Judicial Officer’s determination that canceling is warranted by the record finds support in the record as a whole.
Petitioners rights are in no way infringed by the additional opportunity afforded them to comply with the registration restriction against sale for home use through the revised labeling proposed by the Judicial Officer.
The record fully supports the registration cancellation relating to Southern’s one-shot fumigator. Unlike the vaporizers, the fumigator was authorized for home use. What has heretofore been said with respect to the safety of continuously operating vaporizers for home use applies with greater force to the one-shot fumigator. Petitioner’s own key expert witness testified that the one-shot fumigator is not safe for home use. In light of the stronger evidence regarding the one-shot lindane devices, the Judicial Officer reached the permissible conclusion that the mis-branding problem should be rectified by an unconditional' registration cancellation.
II.
A second issue in this case is raised by petitioners contention that the label ordered by the Judicial Officer is vague, ambiguous and beyond the powers conferred by the FIFRA legislation. There is some merit to petitioners’ claims regarding ambiguity, particularly in reference to the use of the word “consumer” in the proposed label. Petitioners argue that a prohibition on distribution to “establishments that sell insecticides to consumers” might be construed to prevent permissible sales to commercial establishments. We agree that the ordered label might have been better phrased.
There is possible merit to petitioners contention that the Judicial Officer was acting beyond the powers granted by FI-FRA in mandating the label he directed to the extent the label proscribes conduct by the retailer and the home owner. EPA in its supplemental brief, filed at the request of the court, states:
“2. The FIFRA is designed to accomplish its central purpose of protecting the public from hazardous use of pesticides indirectly, by sanctions which place the burden on the manufacturer to encourage safe use by adopting appropriate labeling, rather than directly, by punishing the user for improper use. There are no penalties imposed upon pesticide users who ignore label directions. In other words, the householder who uses a product in a manner inconsistent with its label cannot be subjected to punitive action. Similarly, a retailer who purchases lindane vaporizers in disregard of the Judicial Officer’s proposed label (which states, in effect, ‘not for sale to retailers for resale purposes’) cannot be prosecuted for that conduct. . . .”
The brief goes on to say:
“If a product bearing an approved label were nonetheless distributed by manufacturers and wholesalers to retailers and householders, the sanctions available would be: (1) a declaration that, since there were no directions for use which could prevent this improper ‘commonly recognized practice, the products’ registration must be cancelled (this would require further administrative proceedings under 7 U.S.C. 135z(2)(g) and 135(c)); (2) seizure of the offending products (see 135b(c)); and (3) criminal prosecutions against the manufacturers and distributors for making implied claims that differed from the registered claims (see 7 U.S.C. 135a(a)(l).”
It is questionable whether EPA in mandating the proposed strengthened label seeks to regulate sales by retailers or whether it merely seeks to incorporate a strengthened warning in the label. For the purposes of this appeal, we construe the strengthened labeling as a warning.
It is within the power of the EPA to correct misbranding under 2(z)(2)(g). The Judicial Officer under his finding of misbranding, which is supported by substantial evidence, had authority to cancel the registrations. Petitioners certainly are in no position to complain that the EPA instead of canceling the registrations attempted to cure the misbranding by strengthening the labeling. As stated by the Seventh Circuit in Stearns Electric Paste Co. v. Environmental Protection Agency, 461 F.2d 293, 310 (1972):
“A statute which is primarily a regulation of labels necessarily assumes that the general public does heed warnings. We believe a fair respect for the statute requires rejection of a test of misbranding predicated on total illiteracy or universal disregard of instructions.”
It is premature for us to here consider what remedy should be pursued and the effect thereof in event the labeling changes do not accomplish FIFRA objectives. Such effects can best be determined when and if they are squarely presented.
III.
Petitioners raise a third issue in this case which involves the Judicial Officer’s consideration of evidence unfavorable to petitioners subsequent to its exclusion at the hearing. Petitioners urge that the consideration of EPA Exhibit No. RX-34 subsequent to the termination of the hearing unfairly denied them the opportunity to present other contradictory evidence. 7 C.F.R. § 2764.-29(h) (1971) provides that “[w]henever evidence is excluded from the record [at the hearing], the party offering such evidence may make an offer of proof. ... If the evidence consist of an exhibit, it shall be inserted in the record in toto”. The evidence is thus preserved in the record for review by the Judicial Officer. The Judicial Officer, in turn, is granted power to reverse decisions made at the hearing as to the admissibility of evidence. See 7 C.F.R. §§ 2764.29(d), .33(a), .34 (1971). These provisions for agency review gave adequate advance warning to petitioners that excluded unfavorable evidence might later be admitted to their detriment. If petitioners wished to contradict the evidence contained in the EPA exhibit, they should have done so at the hearing. Furthermore, even if petitioners could be excused in their failure to attack the EPA exhibit at the hearing, their claim of unfairness would still be without merit. This is so because the EPA regulations clearly permit the reopening of a hearing to take further evidence if there is “a good reason why such evidence was not adduced at the hearing.” 7 C.F.R. § 2764.37(a)(2) (1971). See also id. §§ 2764.29(h) .37(a) (1), (3), .38. Since petitioners chose to ignore this remedy, they should not be heard to complain of prejudice in this appeal.
IV.
The final contention raised by petitioners concerns the alleged prejudice caused by the Judicial Officer’s reliance on FIFRA subsection (2) (z) (2) (d) subsequent to its stipulated exclusion as an issue at the hearing. It is true, as petitioners repeatedly point out, that 2(z)(2)(d) is not specifically cited as one of the statutory grounds for cancellation in the original cancellation notices. In spite of this fact, however, the original notices clearly stated that “[t]he caution statement on the label against the use of vaporizers in the home has not been effective in preventing home use and is not a safeguard to [sic] public protection.” The language in this statement parallels that which appears in 2(z)(2)(d); 2(z)(2)(d) is the only misbranding provision which involves “caution statements.” In light of these considerations, adequate notice of the 2(z)(2)(d) violation was given.
Another factor in evaluating petitioners’ 2(z)(2)(d) argument is the Judicial Officer’s reliance on other statutory provisions as grounds for his determinations. Regarding the continuously operating vaporizers, the Judicial Officer in his “Conclusions” did not refer to any particular misbranding subsection but rather cited subsection 2(z)(2) generally as support. It is crystal clear, however, that primary reliance was placed on subsection 2(z) (2) (g) to sustain the label-modification order. This reliance is further substantiated by the entire tenor of the prior hearing which implicitly assumed that the major misbranding issue arose under the 2(z)(2)(g) commonly-recognized-practiee provision. Although the Judicial Officer was less specific in stating his statutory basis for the cancellation of Southern’s one-shot device, it is again apparent that the 2(z) (2) (g) commonly-recognized-practiee provision was the most prominent consideration. Additional support was drawn from subsection 2(z)(2)(c). In light of the misbrand-ing established under 2(z)(2)(g) and 2(z)(2)(c), it is suggested that even if 2(z)(2)(d) were erroneously injected as an issue by the Judicial Officer, petitioners have suffered no prejudice as a result of that action.
As pointed out in Division III, the applicable regulations made liberal provision for reopening the hearing for reception of further evidence. Petitioners made no request for reopening to permit them to offer evidence on the 2(z) (2)(d) issue. No showing has been made that petitioners could produce any evidence which would change the result.
The final decision of the Judicial Officer is affirmed in all respects.
. Subsequent to the commencement of the administrative proceedings here involved, the Administration of FIFRA was transferred from the Secretary of Agriculture to the Administrator of the Environmental Protection Agency by the 1970 reorganization plan No. 3 effective December 2, 1970. Such transfer of the administrative functions has no effect upon the validity of these proceedings.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.0625, Costs: 0.3125
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POSNER, Chief Judge.
Harley-Davidson, the plaintiff in this CERCLA suit (the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., commonly known as the Superfund statute), owns a manufacturing plant in York, Pennsylvania. Its predecessor had bought the plant from a predecessor of Minstar, Inc. and AMF Inc., related corporations that are the defendants-appellants. The buyer had agreed to indemnify the seller against all liabilities relating to the division of the seller (called the AMF York Division) that owned the plant. Later the land on which the plant was located was found to be contaminated and Harley-Davidson was forced to incur clean-up costs. CERCLA entitles the owner of contaminated land to seek contribution from other persons who are responsible in whole or part for the contamination, so Harley-Davidson brought this suit against Minstar, AMF, and others. Minstar and AMF set up the indemnity agreement in defense, but the district judge ruled that the agreement was invalid under CERCLA and therefore was not a defense to Harley-Davidson’s claim for contribution. 837 F.Supp. 978 (E.D.Wis.1993). Although this was an interlocutory ruling, the district judge certified it for an immediate appeal under 28 U.S.C. § 1292(b), and we accepted the certification.
Section 107(e) of CERCLA states, in subsection (1): “No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from ... any person who may be liable ... under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.” 42 U.S.C. § 9607(e). Harley-Davidson, directs our attention to the first sentence, which appears to invalidate indemnification agreements made by “responsible parties” (in the lingo of CERCLA), such as Minstar and AMF, while Minstar and AMF direct us to the second sentence, which appeal’s to authorize precisely such agreements. The subsection taken as a whole is notably obscure, but we agree with every other appellate court that has been called on to interpret it that it does not outlaw indemnification agreements, but merely precludes efforts to divest a responsible party of his liability. E.g., John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 405 (1st Cir.1993); United States v. Hardage, 985 F.2d 1427, 1433 (10th Cir.1993). The first sentence speaks of “transfer[ring] ... liability,” that is, of shifting liability from one person to another. Indemnification does not do that. The indemnified party remains fully liable to whomever he has wronged; he just has someone to share the expense with. The second sentence clearly permits sharing, just as the first forbids shifting.
It would be extraordinary if the draftsmen had wanted to bar insurance against CERCLA liability (insurance is just a form of indemnification). Public policy does on occasion demand that a wrongdoer be forbidden to shift the cost of liability to another through insurance or some other form of indemnification, but that is in cases of deliberate wrongdoing. Truck Ins. Exchange v. Ashland Oil, Inc., 951 F.2d 787, 790 (7th Cir.1992); Western Casualty & Surety Co. v. Western World Ins. Co., 769 F.2d 381, 385 (7th Cir.1985). Individuals and firms are normally allowed to insure against the consequences of their negligence; what else is automobile liability insurance? Proof of CERCLA liability does not require proof even of negligence, let alone of deliberate wrongdoing; CERCLA liability is strict. In re Chicago, Milwaukee, St. Paul & Pacific R.R., 974 F.2d 775, 779 (7th Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985); see Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325-26 (7th Cir.1994). Harley-Davidson flinches from the implications of its position, and, fastening on the word “insure” in the subsection’s second sentence (it does not appear in the first sentence), argues that contracts of insurance are the one and only form of indemnification that the statute allows. But what sense would that make? Why would rational draftsmen allow a polluter to shift the cost of his liability to an insurance company but not to another polluter? Even the semantic argument is weak, since “insure” does not stand alone; the words are “to insure, hold harmless, or indemnify.” Harley-Davidson wants us to strike words from the statute, and it had better have compelling reasons for such disfiguring surgery.
It points out that if indemnification (we would add, in the form of insurance as otherwise) is allowed, potential polluters will have less incentive to take steps to avoid CERC-LA liability, since they will be able to hand off all or part of the cost to the indemnitor. That of course is a problem with any form of insurance or indemnification. It is what is called moral hazard. When the problem is especially acute, insurance companies will not write insurance. Western Casualty & Surety Co. v. Western World Ins. Co., supra, 769 F.2d at 385. The law may even, as we noted, bar indemnification, as in eases of deliberate wrongdoing. The venerable requirement that an insured have an “insurable interest,” the requirement that for example prevents a person from buying life insurance on the life of a stranger, Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U.S. 457, 460, 24 L.Ed. 251 (1877), illustrates the concern with moral hazard. One can imagine, if barely, a decision by Congress that pollution is such an awful menace to society that polluters — even involuntary polluters — should be forbidden to insure. But there is no evidence of such a decision and it would be inconsistent with the second sentence, as well as with Harley-Davidson’s concession that Minstar and AMF could have protected themselves with an insurance contract.
That leaves the first sentence unexplained. And it is mysterious. Indemnification does not, as we have already explained, “transfer” liability from the person indemnified. The latter remains fully liable to the victims of his wrongdoing. If a person buys automobile liability insurance and later is sued for damages arising out of an automobile accident, he cannot defend by saying, “I have insurance, so am not liable to you; go sue the insurance company.” In most states the victim could not sue the insurance company if he wanted to. National Union Fire Ins. Co. v. Baker & McKenzie, 997 F.2d 305, 308 (7th Cir.1993); Truck Ins. Exchange v. Ashland Oil, Inc., supra, 951 F.2d at 789. But in the legislative process leading up to the enactment of CERCLA, Congress considered allowing defendants in some cases to transfer liability to other responsible parties. S.Rep. No. 848, 96th Cong., 2d Sess. 44 (1980); Thaddeus Bereday, Note, “Contractual Transfers of Liability under CERCLA Section 107(e)(1): For Enforcement of Private Risk Allocations in Real Property Transactions,” 43 Case W. Reserve L.Rev. 161, 178-79, 204-07 (1992). The idea was dropped, and the first sentence of section 107(e)(1) may have been intended to make clear beyond any possibility of doubt that it was indeed dropped, that there is no transferring CERCLA liability. This is conjecture, but it is more plausible conjecture than anything that Harley-Davidson has offered us.
It has urged on us, however, an alternative ground for upholding the district judge’s ruling barring Minstar and AMF from enforcing the indemnification agreement: that despite the breadth of the agreement, it is not in fact applicable to the cleanup costs that Harley-Davidson incurred at the York, Pennsylvania site. This ground was not considered by the district court, but that is no bar to our considering it. Any nonwaived ground may be urged on appeal in defense of a judgment. Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976) (per curiam). This precept is as applicable to orders of which we have jurisdiction by virtue of 28 U.S.C. § 1292(b) as it is to any other orders. Edwardsville National Bank v. Marion Laboratories, Inc., 808 F.2d 648, 651 (7th Cir.1987); cf. Miller v. Bolger, 802 F.2d 660, 666-67 (3d Cir.1986). Normally, it is true, we review only final judgments (final “decisions” in the language of 28 U.S.C. § 1291). But if an interlocutory order is properly before us, the reason for considering alternative grounds for affirmance of a final judgment is equally present. It is pointless to reverse the district court if it is apparent that when the case is remanded, that court will have to reinstate its order because the party that obtained it in the first round is indeed entitled to it, albeit on a different ground from the one initially adopted by that court.
The question that Harley-Davidson asks us to answer regarding the scope of the indemnification agreement depends simply on the wording of the agreement interpreted in light of applicable state law governing indemnification agreements; there is no question of federal law. E.g., Beazer East, Inc. v. Mead Corp., 34 F.3d 206, 212-15 (3d Cir.1994); Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 14-15 (2d Cir.1993); American Policyholders Ins. Co. v. Nyacol Products, Inc., 989 F.2d 1256, 1263-64 (1st Cir.1993). Harley-Davidson argues that the agreement is not broad enough to cover the contamination of the York site. But it could not be more broadly worded. It says that “[Harley-Davidson] shall ... indemnify AMF INCORPORATED against all debts, liabilities, and obligations, without any limitation, relating to AMF INCORPORATED’s AMF York Division, its operations and products, whether known or unknown, ... and whether existing on the date of this agreement or coming into existence hereafter.” The arguments that Harley-Davidson makes against taking the words in their natural meaning are makeweights, illustrated by its argument that other divisions of the defendants’ predecessor may have been responsible for the contamination — the York Division merely owned the site, and the agreement refers to York’s “operations and products.” Yes, but the operative wording is “relating to ... [the] York Division, its operations and products,” and liability arising from the contamination of land owned by the York Division “relat[es]” to the York Division. The applicability of the agreement is supported by decisions construing similar agreements in other CERCLA cases. Olin Corp. v. Consolidated Aluminum Corp., supra, 5 F.3d at 15-16; Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1461-63 (9th Cir.1986).
The indemnification agreement is enforceable and applicable, and bars Harley-Davidson’s claim against these defendants.
REVERSED.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.03846153846153846, Costs: 0.07692307692307693
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TORRUELLA, Circuit Judge.
This case concerns the oft-litigated pollution exclusion clause commonly found in general liability insurance policies. Insurance coverage under this clause, or the lack thereof, has engendered bitter and frequent disputes between insurance companies and policyholders facing some form of environmental liability. We enter the fray secure in the knowledge that, regardless of our holding, we will have followed a sizeable number of the courts that have considered the issue. Upon our own consideration of the pollution exclusion clause as applied to the specific facts of this case, we cast our lot with those courts narrowly construing the breadth of coverage afforded under the clause. We thus affirm the district court’s order of summary judgment in favor of plaintiff-appellee.
I. BACKGROUND
Plaintiff-appellee, St. Paul Fire and Marine Insurance Company (“St. Paul”), brought this action in the district court to obtain á declaratory judgment that St. Paul had no obligation under an insurance contract issued to the defendant, Warwick Dyeing Corporation (“Warwick”), to defend or indemnify Warwick for claims arising from environmental damages at the Landfill & Resource Recovery Superfund Site in North Smithfield, Rhode Island (the “L & RR landfill” or the “Site”). St. Paul asserted in its complaint that, among other things, the pollution exclusion clause of the insurance policy barred coverage for contamination at the L & RR landfill after Warwick arranged for the disposal of its waste materials at the Site.
A. The Claims
Warwick is in the business of dyeing, finishing and coating synthetic and synthetic-natural fiber blend fabrics. In July of 1979, Warwick hired ACME Services, Inc. (“ACME”), a duly licensed waste hauler, to collect, haul away, and dispose of various waste materials generated by Warwick’s West Warwick plant. The waste contained certain hazardous substances. ACME hauled the waste to the L & RR Site, also duly licensed, and disposed of it in the landfill. One ACME truck driver stated in an affidavit that he discharged waste directly into the landfill by opening a drain valve on his truck and letting the waste pour onto the ground. There is no evidence, however, that Warwick knew where or how ACME disposed of its waste materials. Furthermore, no party or governmental agency has alleged that Warwick or ACME improperly discharged Warwick’s waste materials.
On September 18, 1989, the United States Environmental Protection Agency (“EPA”) notified Warwick that it had determined Warwick was a “potentially responsible party” (“PRP”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., with respect to contamination at the L & RR Site. The EPA stated that the L & RR Site experienced releases and threatened releases of hazardous substances requiring the EPA to undertake cleanup activities for which the PRP’s could be held liable pursuant to Sections 104, 106(a) and 107(a) of CERCLA. 42 U.S.C. §§ 9604, 9606(a) & 9607(a).
The EPA noted that “responsible parties” include “persons who arranged for disposal of hazardous substances found at the site.” Under CERCLA, a person that generates hazardous substances and arranges for their disposal is strictly liable, regardless of whether the person was at fault or whether the substance actually caused or contributed to any damage, for all costs of remediating environmental damages at the site where the substances ultimately are disposed. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150-56 (1st Cir.1989); O’Neil v. Picillo, 883 F.2d 176, 177-83 (1st Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990).
The EPA alleged that Warwick was a “responsible party” at the L & RR Site because it had arranged, “by contract agreement, or otherwise,” for the “disposal” of hazardous substances at the L & RR Site. The EPA demanded reimbursement of the response costs, mainly for investigation and monitoring, that it had incurred and planned to incur at the Site.
On June 29, 1990, the EPA issued an administrative order, pursuant to §§ 104(e) & 106(a) of CERCLA, 42 U.S.C. §§ 9604(e) & 9606(a), against twenty-five respondents, including Warwick, demanding that the respondents perform certain remedial activities at the L & RR Site. The order alleged that Warwick “arranged for the disposal of water soluble dye and fibers containing acids and VOCS [volatile organic compounds], which were disposed of at the Site.” According to the EPA, the hazardous substances at the L & RR Site had been poured directly into the landfill or deposited in drums into the landfill. The EPA’s order documented the results of an investigation showing that “the landfill continues to release Hazardous Substances to the environment.” The EPA made no allegations, however, that waste was improperly disposed of or discharged at the Site or that the landfill was improperly maintained. In fact, no specific cause of the contamination was mentioned beyond the fact that the named respondents disposed of waste at the Site. The EPA ordered that respondents undertake various remedial activities to monitor and prevent the further release of hazardous substances and to reimburse the EPA for its previous and future actions at the Site.
On July 25, 1991, a group of fourteen plaintiffs that were also named by the EPA as PRPs at the L & RR Site filed suit against Warwick and forty-six others for recovery of past and future response costs incurred at the Site. The suit asserted that Warwick was jointly and severally liable for having “arranged for the disposal of hazardous substances” at the site. Subsequent to the filing of this suit, Warwick entered into a settlement agreement with the plaintiffs under which Warwick paid $40,000 and assigned its rights under the St. Paul insurance policies to the plaintiffs.
During the EPA’s actions and the private lawsuit, Warwick notified St. Paul, its general liability insurance carrier, that it was seeking defense costs, and possibly, indemnity coverage for the claims made by the EPA and the private plaintiffs. St. Paul.denied that coverage existed under the applicable insurance policies for the claims against Warwick and eventually brought this action to obtain an enforceable declaration of noncov-erage.
B. The Insurance Contract
St. Paul issued a series of “Comprehensive General Liability Policies” (“CGL” policies) to Warwick that provided Warwick with continuous coverage from 1971 through 1985 for general commercial risks.
The insurance policies provided:
The Company [St. Paul] will pay on behalf of the Insured [Warwick] all sums which the Insured shall become legally obligated to pay as damages because of:
Coverage A.: bodily injury or
Coverage B.: property damage
to which this insurance applies, caused by an occurrence, and the- Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage even if any of the allegations of the suit are groundless, false or fraudulent,
The policies thus provided coverage for property damage caused by an “occurrence” which the policies defined as:
an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
Following this insuring clause was a list of exclusions from coverage, including the pollution exclusion at issue here (the “exclusion”). Although the policies varied from year to year, the following is representative of the language of the exclusion:
It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.
The exclusion contained an exception (the “exception”) which stated:
This exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
St. Paul filed its action on January 27, 1991. In response to motions for summary judgment made by both parties, the federal magistrate recommended that the district court enter a judgment in favor of St. Paul. The magistrate held that the pollution exclusion barred coverage for Warwick’s claims because the discharge of pollutants at the L & RR Site was neither “sudden” nor “accidental” as required by the exception to the exclusion. The district court initially issued an order on March 18, 1993, adopting this recommendation. On the same day, Warwick moved for reconsideration in light of “newly discovered evidence” regarding representations made to state insurance regulatory authorities about the meaning of the pollution exclusion clause. The district court responded by recalling its order and vacating the judgment. After additional briefing, however, the court again adopted the magistrate’s recommendation and, on June 4,1993, entered a judgment for St. Paul.
II. CONSTRUCTION OF THE INSURANCE CONTRACT
We review the district court’s interpretation of St. Paul’s insurance contract de novo, LaSorsa v. UNUM Life Ins. Co., 955 F.2d 140, 146 (1st Cir.1992); CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77, 91 (1st Cir.1992), to determine if Warwick’s claims are excluded from coverage as a matter of law.
Rhode Island law governs the construction of the insurance policy in this case. To interpret contested terms of an insurance policy under Rhode Island law, the “policy must be examined in its entirety and the words used must be given their plain everyday meaning.” McGowan v. Connecticut Gen. Life Ins. Co., 110 R.I. 17, 289 A.2d 428, 429 (1972); see also Textron, Inc. v. Aetna Casualty and Surety Co., 638 A.2d 537, 539 (R.I.1994); Malo v. Aetna Casualty and Surety Co., 459 A.2d 954, 956 (R.I.1983). “[W]hen the terms of an insurance policy are found to be clear and unambiguous, judicial construction is at an end. The contract terms must be applied as written and the parties bound by them.” Amica Mut. Ins. Co. v. Streicker, 583 A.2d 550, 551 (R.I.1990) (citing Malo, 459 A.2d at 956); Hughes v. American Universal Ins. Co., 423 A.2d 1171, 1173 (R.I.1980). Language that is found to be ambiguous or capable of more than one reasonable interpretation will be construed liberally in favor of the insured and strictly against the insurer. Bartlett v. Amica Mut. Ins. Co., 593 A.2d 45, 47 (R.I.1991) (citing Streicker, 583 A.2d at 552); Pressman v. Aetna Casualty and Surety Co., 574 A.2d 757, 759-60 (R.I.1990). However, a “policy is not to be described as ambiguous because a word is viewed in isolation or a phrase is taken out of context. A court should not, through an effort to seek out ambiguity when there is no ambiguity, make an insurer assume a liability not imposed by the policy.” McGowan, 289 A.2d at 429; see also Textron, 638 A.2d at 539, 541; Bartlett, 593 A.2d at 47; Streicker, 583 A.2d at 552.
To our knowledge, no Rhode Island court has interpreted or discussed the pollution exclusion clause at issue in this case. We therefore decide this case according to the aforementioned principles of contract construction under Rhode Island law with guidance from the collected wisdom of other courts applying similar principles of insurance contract interpretation.
Finally, although the parties agree that insurance companies bear the burden of proving that a policy exclusion bars coverage of a claim, the parties disagree over who bears the burden of proving whether or not an exception to the exclusion, such as the “sudden and accidental” exception at issue here, affords coverage in a particular ease. Warwick argues that because the exception is part of the exclusionary clause, St. Paul must prove that the exception applies as well. See New Castle County v. Hartford Accident & Indemnity Co., 933 F.2d 1162, 1182 (3d Cir.1991) (finding that the burden of proof is on the insurer under Delaware law), cert. denied, — U.S. -, 113 S.Ct. 1846, 123 L.Ed.2d 470 (1993). The last time we considered this issue, we stated that the insured bears the burden of establishing that an exception to a pollution exclusion provision has been satisfied. A. Johnson & Co. v. Aetna Casualty & Surety Co., 933 F.2d 66, 76 n. 14 (1st Cir.1991) (citing 19 G. Couch, Couch on Insurance § 79:385 (2d ed. 1983)) (applying Maine law).
We think that the Supreme Court of Rhode Island would agree with our position in A Johnson. Once the insurer has established that the pollution exclusion applies, coverage depends on the applicability of the exception. Because the insured bears the burden of establishing coverage under an insurance policy, it makes sense that the insured must also prove that the exception affords coverage after an exclusion is triggered. Northern Insurance Co. v. Aardvark Assocs., Inc., 942 F.2d 189, 194-95 (3d Cir.1991); Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F.Supp. 1317, 1328-29 (E.D.Mich.1988); Borg-Warner Corp. v. Insurance Co. of N. Am., 174 A.D.2d 24, 577 N.Y.S.2d 953, 957 (1992). We find, therefore, that Warwick bears the burden of establishing that the discharge of its waste was “sudden and accidental” under the exception to the pollution exclusion.
III. THE POLLUTION EXCLUSION
The pollution exclusion clause of the St. Paul-Warwick insurance policies bars coverage for “property damage arising out of the discharge, dispersal, release or escape” of pollutants of waste materials unless the discharge is “sudden and accidental” (emphasis added). The issue before us is whether the district court erred in finding that the discharge of Warwick’s wastes at the L & RR landfill was neither sudden nor accidental and thus not covered under the policies.
State and federal courts are fairly evenly divided over the meaning and application of the “sudden and accidental” exception to the pollution exclusion clause. See, e.g., CPC Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77, 92 (1st Cir.1992) (reprinting two footnotes from New Castle, 933 F.2d at 1195, listing 24 cases holding that the pollution clause bars coverage and 26 cases holding the opposite). Most courts part company on the issue of whether the term “sudden” is ambiguous — in which case the policy is construed in the insured’s favor to provide coverage — or unambiguous, in which case insurance coverage is usually barred. Because most cases involve some kind of gradual release of pollutants into the environment over an extended period of time, courts finding a bar to coverage under the exclusion have construed “sudden” as unambiguously meaning “abrupt” or “immediate.” E.g., Hartford Accident & Indem. Co. v. U.S. Fidelity & Guar. Co., 962 F.2d 1484, 1487-90 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 411, 121 L.Ed.2d 335 (1992); Aetna Casualty & Surety Co. v. General Dynamics Corp., 968 F.2d 707, 710 (8th Cir.1992); A. Johnson, 933 F.2d at 72-74; Aardvark, 942 F.2d at 191-94; Ogden Corp. v. Travelers Indemnity Co., 924 F.2d 39, 42 (2d Cir.1991); FL Aerospace v. Aetna Casualty & Surety Co., 897 F.2d 214, 219 (6th Cir.), cert. denied, 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990); Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700, 701-05 (Fla.1993); Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657, 597 N.E.2d 1096, 1100-03 (1992), cert. denied, — U.S. -, 113 S.Ct. 1585, 123 L.Ed.2d 152 (1993); Upjohn Co. v. New Hampshire Ins. Co., 438 Mich. 197, 476 N.W.2d 392 (1991); Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc., 407 Mass. 675, 555 N.E.2d 568, 572-73 (1990); Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 340 S.E.2d 374, 381-83 (1986); Borg-Warner, 577 N.Y.S.2d at 957; Mays v. Transamerica Ins. Co., 103 Or.App. 578, 799 P.2d 653, 657 (1990). Courts construing the exception to the exclusion as affording coverage for gradual discharges of pollutants have found that “sudden” could reasonably mean “unintended and unexpected.” E.g., New Castle, 933 F.2d at 1193-1203; Morton Int’l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 629 A.2d 831, 847-876 (1993); Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 697, 704-08, 607 N.E.2d 1204, 1210, 1217-21 (1992); Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1091-92 (Colo.1991); Claussen v. Aetna Casualty & Surety Co., 259 Ga. 333, 380 S.E.2d 686, 688-89 (1989). Even this Circuit has split over the meaning of “sudden and accidental” in the application of different state laws. Compare CPC Int’l, 962 F.2d at 91-98 (finding “sudden” ambiguous), with Lumbermens Mut. Casualty Co. v. Belleville Indus., Inc., 938 F.2d 1423, 1429-30 (1st Cir.1991) (finding “sudden” unambiguous), cert. denied, — U.S. -, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992); A. Johnson, 933 F.2d at 72-74 (same); Great Lakes Container Corp. v. National Union Fire Ins. Co., 727 F.2d 30, 33-34 (1st Cir.1984) (same).
This ease, however, can be decided without determining whether “sudden” is ambiguous or unambiguous. Despite the deep divisions in their holdings, almost all courts agree, and the parties to this ease agree as well, that the term “sudden and accidental,” means, at the very least, “unintended and unexpected.” E.g., CPC Int’l, 962 F.2d at 91-98; Hartford, 962 F.2d at 1488; New Castle, 933 F.2d at 1192-99; Upjohn, 476 N.W.2d at 392; Hecla, 811 P.2d at 1091-92. In other words, intentional and expected discharges of pollutants are not covered under policies with the standard pollution exclusion. Because we agree with the district court that the discharge of pollutants was not unintended and unexpected in this case, we uphold the summary judgment order on that ground without reaching the issue of whether the term “sudden,” as used in the policy, is ambiguous.
Certain facts of this case are not in dispute. Warwick purposefully arranged to have its waste materials collected and hauled off its property. Those materials were disposed of in the L & RR landfill. At the same time, Warwick presumed that its wastes were disposed of lawfully and properly. It neither expected nor intended that contamination of the environment would result from the disposal of its wastes.
The district court found that Warwick’s arrangement for ACME to dispose of its waste in the regular course of business was sufficient to establish that the relevant discharge was “intentional and expected” and thus not “accidental.” On appeal, Warwick argues that the district court erred in attributing Warwick’s act of generating the waste and arranging for its disposal with ACME’s act of discharging the waste at the L & RR Site. Additionally, Warwick contends that the court erred in finding the relevant discharge to be the disposal of waste at the landfill instead of the subsequent escape of pollutants from the landfill into the surrounding environment. We reject both arguments.
A. Arranging for discharge versus making the discharge
Warwick maintains that the pollution exclusion does not apply when the discharges are made by a third party, such as a waste hauler like ACME. Rather, Warwick argues, the relevant discharge must be one by the insured itself. Because ACME, and not Warwick, discharged this waste in this case, Warwick concludes that no discharge has occurred that would trigger the pollution exclusion to begin with. This argument has previously been rejected by a number of courts. See Aardvark, 942 F.2d at 194; United States Fidelity & Guar. Co. v. George W. Whitesides Co., 932 F.2d 1169, 1170-71 (6th Cir.1991); Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 610 N.E.2d 912, 916 (1993); Powers Chemco, Inc. v. Federal Ins. Co., 74 N.Y.2d 910, 549 N.Y.S.2d 650, 651, 548 N.E.2d 1301, 1302 (1989); Borg-Warner, 577 N.Y.S.2d at 958; see also A. Johnson, 933 F.2d at 72 n. 9 (noting that the pollution exclusion “does not by its terms take account of an insured’s status as a passive polluter”).
While it is true that the act of arranging for a third party to haul away one’s waste is not in and of itself any kind of discharge upon land, that fact is irrelevant to the question of whether the discharge from which the pollution damage arose was expected or intended. The plain and unambiguous language of the pollution exclusion concerns “property damage arising out of the discharge,” not “its discharge” or “the insured’s discharge.” We thus see nothing in the policy to indicate that the exclusion is limited to discharges by the insured. See, e.g., Park-Ohio Indus., Inc. v. Home Indemnity Co., 975 F.2d 1215, 1222 (6th Cir.1992); Aardvark, 942 F.2d at 194; Borg-Warner, 577 N.Y.S.2d at 958.
Contrary to Warwick’s assertions,' there is no meaningful distinction in this case between arranging for waste to be hauled off for disposal and actually disposing of the waste in a landfill. For purposes of the exclusion, neither action was unexpected or unintended by Warwick. Although Warwick did not know the particular site where its waste would be disposed, and, indeed, the record does not reveal whether Warwick actually knew that its waste would be deposited in a landfill to begin with (presumably, Warwick intended and expected that its wastes were being “taken care of’ without knowing any specific details of their disposal), we think this case provides every indication that the disposal of waste in the L & RR landfill was, at the very least, not unexpected or unintended.
The relevant inquiry is not confined to whether Warwick actually knew or planned that the discharge would occur. Instead, the relevant inquiry, according to the language of the exception to the pollution exclusion — “this exclusion does not apply if such discharge ... is sudden and accidental” — is whether the discharge is “accidental,” meaning “unexpected or unintended.” Coverage is only afforded if the discharge is neither expected nor intended. “The courts are practically agreed that the words ‘accident’ and ‘accidental’ mean that which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen.” Aetna Casualty & Surety Co. v. General Dynamics Corp., 968 F.2d 707, 710 (8th Cir.1992) (quoting St. Paul Fire & Marine Ins. Co. v. Northern Grain Co., 365 F.2d 361, 364 (8th Cir.1966)).
We think it would strain common sense to find that ACME’s disposal of Warwick’s waste in a landfill was unexpected or unintended by Warwick. A landfill is a sufficiently common, if not likely, destination for the disposal of waste. We see no error in presuming that a party arranging to have its waste disposed of by a licensed hauler would not find it fortuitous, unforeseen, unusual, or otherwise contrary to its expectations that its waste was disposed of at a landfill. This is not a case where ACME did something surprising or out of the ordinary with the waste after collecting it from Warwick. ACME did not dump the waste in a river or at an illegal dumping ground. Despite the affidavit from an ACME driver stating that waste was poured directly onto the ground, the EPA and private party suits against Warwick allege no wrongdoing or improper dumping at the Site. The essence of the EPA’s letter and order is that the property damage at the Site arose as a result of hazardous substances being placed in the landfill to begin with; there is no intermediate event of discharge that Warwick can point to as being unexpected or unintended from its standpoint.
. B. The Relevant Discharge at the L & RR Landfill
Warwick argues that even if the disposal of its wastes at the L & RR Site was intended and expected, this was not the relevant discharge under the pollution exclusion clause. Warwick claims that after the disposal of its waste, some subsequent unexpected and unintended release of hazardous substances at the Site occurred which led to the damage in this case. The issue of whether the proper object of Warwick’s intentions and expectations is the disposal of waste materials at the Site or some other discharge of pollutants is resolved by reference to the contract. The language of the pollution exclusion is clear that coverage does not exist for “property damage arising out of the discharge” of waste materials or other pollutants “into or upon land” unless “such discharge ... is sudden and accidental.” Clearly, the occurrence that must be sudden and accidental— or, for our purposes, unintentional and unexpected—is the discharge of pollutants “into or upon land” from which the property damage arose.
It is well established that whether the damages were intended or expected is irrelevant; the pollution exclusion plainly refers to the discharge and not to the environmental damages themselves. A. Johnson, 933 F.2d at 72 (1st Cir.1991); Patz v. St. Paul Fire & Marine Ins. Co., 15 F.3d 699 (7th Cir.1994); Anaconda Minerals Co. v. Stoller Chemical Co., 990 F.2d 1175, 1179 (10th Cir.1993); Liberty Mutual Ins. Co. v. Triangle Industries, Inc., 957 F.2d 1153, 1157-58 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 78, 121 L.Ed.2d 42 (1992); Broderick Investment Co. v. Hartford Accident & Indem. Co., 954 F.2d 601, 606-07 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 189, 121 L.Ed.2d 133 (1992); New Castle, 933 F.2d at 1169, 1199-1202 & n. 68; Morton Int'l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 629 A.2d 831, 847-48 (1993); Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc., 407 Mass. 675, 555 N.E.2d 568, 571 (1990); Technicon Electronics Corp. v. American Home Assurance Co., 74 N.Y.2d 66, 544 N.Y.S.2d 531, 533-34, 542 N.E.2d 1048, 1050-51 (1989). On the facts before us, the relevant discharge is the disposal of the waste into the landfill, not some other unspecified occurrence.
The EPA and the private complainants allege that Warwick is liable for cleanup and other response costs at the L & RR Site because Warwick arranged for the disposal of waste at the Site. In essence, the EPA’s order, as well as the subsequent lawsuit based upon the EPA’s actions, state that waste containing hazardous substances was placed in the L & RR landfill and, as a result, the environment surrounding the landfill was contaminated and faced the risk of continued contamination unless remedial measures were taken to shore up the landfill. No cause of the contamination, other than the fact that hazardous substances were placed in the landfill, is mentioned in the order or in the complaint.
According to these facts, the “property damage” at issue is the contamination of the environment at the L & RR Site as well as the condition of the landfill itself, which threatens future contamination. As a result, the relevant discharge from which the damage arose is clearly the disposal of waste containing hazardous substances into the landfill. There is no intermediate discharge onto the land causing the damage to the environment. This is not a case involving ruptured or exploding tanks, leaking drums, or even some sort of improper dumping of waste after its arrival at the Site. Although the record contains an affidavit from one of ACME’s drivers stating that he dumped waste directly onto the ground, the EPA and the other claimants make no allegation that any improper disposal of wastes occurred at the L & RR Site that might have been unexpected or unintended. In sum, because there is no evidence of any intervening discharge between the disposal of waste on the landfill and the actual damage that eventually resulted, the initial disposal of waste at the Site was the relevant discharge which must be sudden and accidental for coverage to exist under the exception to the pollution exclusion. See, e.g., Broderick, 954 F.2d at 607; Hartford, 962 F.2d at 1490-92; Aardvark, 942 F.2d at 194-96; A. Johnson, 933 F.2d at 72; Triangle Indus., 957 F.2d at 1157-58; Oklahoma Pub. Co. v. Kansas City Fire & Marine Ins. Co., 805 F.Supp. 905, 910 (W.D.Okla.1992); G. Heileman Brewing Co. v. Royal Group, Inc., 779 F.Supp. 736, 740 (S.D.N.Y.1991), aff'd, 969 F.2d 1042 (2d Cir.1992); Hybud, 597 N.E.2d at 1103; Liberty Mutual Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 588 N.E.2d 1346, 1350-51 (1992); Borg-Warner, 577 N.Y.S.2d at 957-58; Mays, 799 P.2d at 657.
Warwick argues that the damage in this case arose from the release of pollutants from the landfill into the surrounding environment — a discharge that was neither expected nor intended. To put it another way, the relevant discharge for purposes of the pollution exclusion was the escape of hazardous substances from a state of containment at the L & RR landfill into or upon the land outside the confines of the landfill. Warwick highlights the EPA statement that “the landfill continues to release Hazardous Substances to the environment.” At the very least, Warwick asserts, the language of the pollution exclusion is ambiguous as to the meaning of “discharge” in this context where several possible releases exist. See, e.g., Patz v. St. Paul Fire & Marine Ins. Co., 15 F.3d 699, 703-05 (7th Cir.1994); F.L. Aerospace v. Aetna Casualty & Surety Co., 897 F.2d 214, 220 (6th Cir.1990); Nestle Foods Corp. v. Aetna Casualty & Surety Co., 842 F.Supp. 125, 131-32 (D.N.J.1993); Pepper’s Steel & Alloys, Inc. v. United States Fidelity & Guar. Co., 668 F.Supp. 1541, 1549 (S.D.Fla.1987); Queen City Farms, Inc. v. Central Nat’l Ins. Co., 64 Wash.App. 838, 827 P.2d 1024 (1 Div.1992); United States Fidelity & Guar. Co. v. Specialty Coatings Co., 180 Ill.App.3d 378, 129 Ill.Dec. 306, 310-12, 535 N.E.2d 1071, 1075-77 (1 Dist.1989).
We reject Warwick’s argument as merely an attempt to recast the damages in this case as a separate discharge. As previously noted, the contract is clear that what must be sudden and accidental is the discharge and not the resulting damages. The damage in this case is the contamination of the environment by hazardous substances disposed of in the landfill. This environmental damage is essentially coterminous with the so-called “release” of hazardous substances from the landfill to the environment. To describe such releases as a separate event constituting an independent discharge would eviscerate the important distinction established between intentional and expected damages and intentional and expected discharges. See Broderick, 954 F.2d at 607 (“[The insured] tries to shift the focus to the second discharge and attempts to graft an intent requirement related to damages onto the unambiguous language of the policy’s exclusion clause. However, whether [the insured] intended the waste to seep into groundwater and cause damage after the initial discharges into the land is not relevant.”) (emphasis in original). Thus, the fact that Warwick did not intend or expect the environmental damage at the L & RR Site is irrelevant. What matters is whether the initial discharge “into or upon land” that led to the damage is expected or intended; “only the initial release is relevant to the ‘sudden and accidental’ inquiry.” A. Johnson, 933 F.2d at 72 & n. 9; see, e.g., Hartford, 962 F.2d at 1491; Oklahoma Pub., 805 F.Supp. at 910; Heileman, 779 F.Supp. at 740.
Warwick and its amici insist that the landfill is some type of container, like a storage tank, which did not discharge its contents into the environment until some unforeseen, unexpected releasing event occurred. Nothing in the record supports this contention that the L & RR landfill was a containment vessel such that discharges into it would not constitute a discharge “into or upon land.” The EPA did state that the landfill “releases” hazardous substances “to the environment,” but this simply describes the property damage resulting from the discharge of waste into the landfill. There is no indication the EPA considered the landfill to be a containment vessel from which hazardous substances escaped. To the contrary, the object of the EPA’s concern in its 87 page order is the fact that hazardous substances were placed in the L & RR landfill to begin with, not the failure of the landfill to contain wastes or the failure of some party to properly operate and maintain the landfill.
We are not presented with a situation like the one recently discussed by Judge Posner in Patz, where the insured intended its disposal pit to serve as a containment vessel due to its clay bottom. Patz, 15 F.3d at 703-05. In that case, Judge Posner found cause to believe there may have been a separate unexpected discharge of pollutants subsequent to the placement of waste into the pit. The waste in this case, however, was removed from its containers on Warwick’s premises and placed into the landfill — literally onto the land — where it later caused contamination. We presume all parties involved expected this to be an acceptable practice, but we see no evidence that the landfill itself was expected to act as a containment vessel. See Broderick, 954 F.2d at 607 n. 5 (rejecting contention that “containment ponds” that may have been lined with cement could serve as a container preventing the discharge of waste into them from being a discharge “into or upon land” such that the pollution exclusion applied only when substances were subsequently released from the ponds into the surrounding environment). We therefore reject Warwick’s contention that there exists some unexpected and unintended discharge of its wastes triggering the exception to the pollution exclusion. Instead, we agree with the district court to the extent it found the pollution exclusion applicable because Warwick’s discharge of waste was expected and intended and thus not “accidental.”
IV. REGULATORY ESTOPPEL ARGUMENT ESTOPPED
Warwick argues that St. Paul should be estopped or barred from applying the pollution exclusion to the facts of this case because of alleged representations that were made by various parties to state insurance regulatory authorities. See Morton Int’l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 629 A.2d 831, 870-76 (1993). This argument was never made before the district court. “It has long been the rule of this circuit that arguments not made initially to the district court cannot be raised on appeal.” Kale v. Combined Ins. Co., 861 F.2d 746, 755 (1st Cir.1988); see, e.g., VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 4-5 (1st Cir.1993).
Warwick claims that it raised the estoppel issue when it argued:
In short, the insurance industry was able to obtain approval of the pollution exclusion clause by labelling it merely a “clarification” that would not change coverage for pollution claims. This Court should treat the clause accordingly.
This statement hardly raises the issue of estoppel for the district court’s consideration. Warwick’s statement was made in conjunction with Warwick’s submission to the court of various materials relating to representations made before the state insurance regulatory board. The submissions and motions all related to the argument that the insurance contract was ambiguous and should be interpreted in favor of Warwick. No claim of estoppel was made at the time. Consequently, the issue is waived.
We find no “egregious circumstances” or “miscarriages of justice” that would allow us to transgress our rule against raising issues for the first time on appeal. Kale, 861 F.2d at 755. Furthermore, this case presents no other special circumstances, such as an issue which “the district court expressly and unequivocally addressed” or “an ongoing injunction, constraining part of a governmental program,” that might otherwise give us the authority to decide the issue. Trailer Marine Transport Corp. v. Rivera Vázquez, 977 F.2d 1, 6 (1st Cir.1992).
Y. MOTIONS DELAYED AND MOTIONS DENIED
Apparently unsatisfied with the argumentation presented in their briefs and in the briefs of various amici, the parties in this case have filed a huge batch of additional motions and materials in this case. As a consequence, we received more paperwork after the case was briefed and argued than we did before argument. Because the majority of this deluge is either superfluous, moot, or flaunts even a liberal application of our rules concerning page limits and the proper subject matter for motions and other filings, we deny most of the motions and strike many of the other filings.
For the record, we deny the motion for certification and grant St. Paul’s motion to strike Warwick’s supplemental brief in support of certification. St. Paul’s motions to strike extrinsic materials or alternatively expand the record are moot as we found no cause to consider the extrinsic materials. Warwick’s motion to strike St. Paul’s effusive filing on the Nestle case is granted. We deny St. Paul leave to file responses and replies to various reply briefs and to Warwick’s opposition to St. Paul’s motion to strike extrinsic evidence. In the alternative, we grant Warwick’s motion to strike St. Paul’s responses and replies. Lest we neglect the amici, we deny amicus Textron’s motion to file a reply to several other amicus briefs and we find that St. Paul’s motion to strike material in Textron’s brief is moot. Finally, we deny Mid-America Legal Foundation permission to file an amicus brief and we grant Warwick’s motion to strike Aetna’s amicus brief.
We affirm the district court’s order of summary judgment and dispose of all other motions as described above.
. We hereinafter employ the term "discharge” to refer to the phrase, "discharge, dispersal, release or escape” in the pollution exclusion.
. Amicus for St. Paul, Insurance Environmental Litigation Association, provides a list of 74 state and federal cases holding that the term "sudden" in the pollution exclusion clause clearly has a temporal meaning that favors insurers. We do not doubt for a minute that there are another 74 cases holding that the term is ambiguous, which favors the insureds.
. There is strong disagreement among the parties and, not surprisingly, among the courts, over the issue of whether the discharge must be unintended and unexpected from the standpoint of the insured or from the standpoint of some other party who is more closely connected to the actual discharge of the waste. As this issue does not affect our holding, we proceed under the assumption that the relevant point of view is that of the insured, Warwick. We do not decide, however, whether this is in fact the proper construction of the contract.
. In a September 14, 1988, letter to the EPA, Warwick's President stated: "It was believed by the writer that the liquid waste was to be carried to a waster-water [sic] sewage treatment facility since the waste was acceptable to the West Warwick Sewer System.” The language of this statement indicates that Warwick never bothered to find out, or even to inquire about, where its waste was going. It does not indicate that Warwick was told that ACME would bring its waste to a sewage treatment facility or that disposing of its waste in a landfill was against Warwick’s intentions. Moreover, this statement indicates that Warwick did not intend for its waste to be handled in any particular fashion beyond merely dumping it down the sewer. Notations on the L & RR manifests, recording ACME's disposal of Warwick's waste at the landfill, state that, "this product normally goes to [the] sewer. This is the sludge that collects on the bottom [of Warwick's waste pit]." The disposal of the waste into a landfill was consistent with Warwick’s normal treatment of the waste — a general disposal into the normal sanitation infrastructure. In light of this fact, ACME's discharge of Warwick’s waste into the landfill could not be viewed as unexpected or unintended.
. For the same reason, it is not relevant whether or not Warwick actually knew that its waste materials contained hazardous substances. Independent Petrochemical Corp. v. Aetna Casualty & Surety Co., 781 F.Supp. 9, 16-17 (D.D.C.1991), aff'd, 995 F.2d 305 (D.C.Cir.1993), same finding on this issue in later proceeding, 842 F.Supp. 575, 584-85 (D.D.C.1994); Anaconda Minerals Co. v. Stoller Chemical Co., 773 F.Supp. 1498, 1506 (D.Utah 1991), aff'd, 990 F.2d 1175 (10th Cir.1993). The exclusion bars coverage so long as the discharge of “waste materials” was expected and intended and as long as the property damage is "arising out of” this discharge. On this latter point, the EPA’s claim that Warwick's waste contained acids and volatile organic compounds which contributed to the contamination of the Site was sufficient to trigger the pollution exclusion.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1818181818181818, Costs: 0.1363636363636364
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SCHROEDER, Circuit Judge:
This is a case arising out of the multimillion gallon crude oil spill which occurred when the Exxon Valdez ran aground in Prince William Sound in 1989. The plaintiffs in this case seek to represent a class of those who purchased gasoline in California during a specified period following the spill. They seek to recover damages representing what they claim was the increased price they were required to pay as a result of the spill. They brought this action originally in state court against Exxon, Exxon Shipping (the owner of the Exxon Valdez), Alyeska (which operates the pipeline and is responsible for clean-up procedures following spills), and the Trans-Alaska Pipeline Liability Fund (the “TAPAA Fund”), established pursuant to section 204(c)(4) of the Trans-Alaska Pipeline Authorization Act (TAPAA), 43 U.S.C. § 1653(c)(4). The defendants removed to federal district court. The district court dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Because the case arose out of a disaster at sea, the district court applied the maritime rule set forth in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), which requires physical injury for recovery of economic damages. Since the plaintiffs’ losses are wholly economic, the district court held that plaintiffs had failed to state a claim upon which relief could be granted.
The plaintiffs appeal claiming, first, that the case should never have been removed to district court because the plaintiffs do not intend to pursue a federal claim. Alternatively, they contend that the district court erred in applying the rule of Robins Dry Dock.
We deal first with the contention that the case was improperly removed. Defendants may remove a case over which the district court would have original jurisdiction “founded on a claim or right arising under the Constitution, treaties or laws of the United States.” 28 U.S.C. § 1441(b). For purposes of this case, it is enough to observe that the basis for federal question jurisdiction was pleaded on the face of the plaintiffs’ complaint, which alleged, among other things, that “[s]trict liability, without regard to fault, is imposed by TAPAA” and that defendants are liable “[i]n accordance with the TAPAA provisions.” Although plaintiffs now deny any intention to pursue a claim pursuant to TAPAA, the complaint itself, reasonably read, sets forth such a claim and the defendants were entitled to remove.
A more interesting issue is whether the physical damage limitation applicable in admiralty applies in this case after passage of TAPAA. TAPAA provides for the abrogation of certain limits on the liability of transporters of Trans-Alaska Pipeline oil:
Notwithstanding the provisions of any other law, if oil that has been transported through the trans-Alaska pipeline is loaded on a vessel at the terminal facilities of the pipeline, the owner and operator of the vessel (jointly and severally) and the [TAPAA] ... shall be strictly liable without regard to fault in accordance with the provisions of this subsection for all damages, including clean-up costs, sustained by any person or entity, public or private, including residents of Canada, as the result of discharges of oil from such vessel.
43 U.S.C. § 1653(c)(1). The plaintiffs now maintain that this subsection, while not itself establishing a federal cause of action, does repeal all “provisions of any other law,” including limitations on liability such as the Robins Dry Dock rule.
We do not need to reach the specific issue of Robins Dry Dock abrogation, for we are confident that Congress in enacting TAPAA did not intend to abrogate all principles of proximate cause. The Act provides for strict liability for damages that are the “result of discharges.” In discussing the need for stricter liability, Congress observed that spills of Alaska North Slope oil “could result in extremely high damages to property and natural resources, including fisheries and amenities, especially if the mishap occurred close to a populated shoreline area.” House Conference Report, H.R.Rep. No. 924, 93rd Cong., 1st Sess. (1973), reprinted in 1973 U.S.Code Cong. & Admin.News 2417, 2523, 2530. Congress envisioned damages arising out of the physical effects of oil discharges. The remote and derivative damages of the type claimed by plaintiffs here fall outside the zone of dangers against which Congress intended to protect when it passed TAPAA.
This conclusion is consistent with uniformly accepted principles of tort law which require a plaintiff to prove more than that the defendant’s action triggered a series of other events that led to the alleged injury. See Restatement (Second) of Torts §§ 431, 433, 440-453 (1965). Whether conduct is a “substantial factor in bringing about harm” depends in part on whether the “actor’s conduct ... has created a situation harmless unless acted upon by other forces for which the actor is not responsible.” Restatement (Second) of Torts § 433(b).
In this case, the spill itself did not directly cause any injury to the appellants. Rather, plaintiffs alleged the spill triggered a series of intervening events, including the decision of the United States Coast Guard to close the Port of Valdez to facilitate clean-up efforts; the alleged decision by refineries in the western United States to raise prices rather than to use their own oil reserves to make up any shortage; and the decision of wholesalers, distributors and retailers to pass on these price increases.
Indeed, the plaintiffs’ own complaint alleged that “Exxon, and the other oil companies with refineries in California” maintain sufficient reserves of crude oil such that the closure occasioned by the spill from the Exxon Valdez “should not have caused gasoline prices to increase in California.” Thus, plaintiffs themselves alleged the existence of at least one intervening act causing the price hike: the alleged decision of California oil refiners to exploit the supposed shortage.
While proximate or legal causation normally presents an issue for the trier of fact to resolve, both California and federal law recognize that where causation cannot reasonably be established under the facts alleged by a plaintiff, the question of proximate cause is one for the court. Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir.1981); Rexall Drug Co. v. Nihill, 276 F.2d 637, 645 (9th Cir.1960); Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 860, 665 P.2d 947, 950 (1983); Weissich v. County of Marin, 224 Cal. App.3d 1069, 1084, 274 Cal.Rptr. 342, 352 (1990). Because the facts plaintiffs here alleged present such a case, the complaint was properly dismissed.
AFFIRMED.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.06521739130434782, Costs: 0
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MANION, Circuit Judge.
The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq., allows private parties to recover the costs they incur in cleaning up hazardous wastes. NutraSweet and Monsanto (collectively “NutraSweet”) sued X-L Engineering and its president and principal shareholder, Paul Prikos (collectively “XL”), for improperly disposing of hazardous compounds which contaminated NutraSweet’s property. The district court entered partial summary judgment in favor of NutraSweet, finding X-L to be at least partly responsible for the hazardous wastes on NutraSweet’s property. After a bench trial, the district court found that X-L was in fact 100% liable for these wastes and awarded NutraSweet the full amount of its requested damages. X-L raises numerous issues concerning the proceedings below. We affirm in all respects.
I. Background
NutraSweet (a subsidiary of Monsanto) owned a food manufacturing facility in Niles, Illinois. Its neighbor to the east was X-L Engineering, a machine shop. In October 1990, NutraSweet thought about expanding its Niles facility on vacant land on the east side of its property (which bordered the west side of X-L’s shop), so it ordered soil testing of that area. The tests revealed high levels of hazardous volatile organic compounds (“VOCs”) near XL’s property. That month NutraSweet hired another company to perform a “phase one” assessment of the problem; the assessment concluded that spills at XL could have caused the contamination.
In the spring of 1992, NutraSweet employees began observing an X-L employee dumping out wastewater from a mop-bucket on the west side of X-L’s property near NutraSweet’s property. NutraSweet sampled the wastewater and found that it contained a VOC called “trichloroethene” (or “TCE”). It also took a soil sample from X-L’s property where the mop-bucket dumping was observed. This sample also contained TCE. NutraSweet began video surveillance of X-L’s dumping, and after one month, it recorded 82 occasions where an X-L employee had dumped wastewater onto X-L property next to NutraSweet’s property, and four occasions in which the standing wastewater had spilled onto NutraSweet’s property.
At NutraSweet’s request, the Illinois EPA and State Police also began surveillance of X-L. On two occasions, state officials observed X-L dumping wastewater on its own property but near NutraSweet’s property. On the second occasion they sampled the wastewater; it contained TCE, another VOC called perchloroetylene (or “PCE”), and several other hazardous compounds, including trichloroethane (or “TCA”). The dumping ended in July 1992, when the officials returned to X-L for a third inspection, wherein they confronted Prikos, X-L’s owner. At the beginning of this inspection, the officials repeatedly observed the same X-L employee again dumping wastewater onto X-L property that was adjacent to NutraSweet’s property. The inspectors sampled the wastewa-ter just before it was dumped; TCA was again present.
NutraSweet hired an environmental consulting firm, Geraghty and Miller (“G & M”), to investigate and plan for the “remediation” (or clean-up) of its property. G & M tested the soil and designed and implemented a plan with Illinois EPA approval and under its supervision. NutraSweet cleaned up the property until the agency told it that the remediation had succeeded to the maximum extent possible. NutraSweet then sued X-L under CERC-LA and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (with common law claims for nuisance, trespass and negligence). See NutraSweet Co. v. X-L Eng’g Corp., 938 F.Supp. 1409, 1412 (N.D.Ill.1996).
II. The Proceedings Below
NutraSweet moved for summary judgment as to both liability and damages. It produced considerable evidence to establish that X-L was responsible for at least some of the contaminates on its property, such as:
1. the videotape of X-L’s mop-bucket dumping;
2. eyewitness accounts of this dumping (from NutraSweet employees, Illinois EPA officials, and Illinois State Troopers);
3. NutraSweet’s 1992 soil and water samples which revealed the same VOCs in the mop-bucket wastewater as were present in the area of NutraSweet’s property onto which the wastewater had spilled, and as were present in an immediately adjacent area of X-L’s property where the dumping was observed;
4. test results from Illinois officials of the contents of the wastewater which showed the same VOCs as were found on NutraSweet’s property;
5. an affidavit from G & M stating that the highest level of VOCs on NutraSweet’s property were near X-L’s property where the dumping was observed and that the groundwater flowed away from X-L’s property to NutraSweet’s property;
6. records from X-L showing its use of a TCA-based solvent; and
7. an affidavit stating that NutraSweet did not use chlorinated solvents in its manufacturing process, and it never used such solvents at its facility except for a self-contained parts cleaner that was returned to the manufacturer for recycling and which never had any releases during the two years that NutraSweet used it.
In response, X-L admitted that it used chemical solvents in its business, and it did not establish that prior to 1992 it had properly disposed of spent solvents (X-L stated that “in the 1992 time frame” it disposed of spent solvents through licensed waste haulers). Also, Prikos stated that to “the best of his knowledge” no X-L employee “has ever dumped or otherwise discarded any item on the NutraSweet property.” But as to the X-L employee caught on video “mopbucket dumping,” Prikos stated that he was unaware “of the specifics as to how [that employee] went about his duties and how he disposed of the mop water.” Prikos added that after Illinois officials told him about the mopbucket dumping, he “issued orders directed to ensure that [the employee] would no longer dump mop water on or about [the area in question],” and that although Prikos had “no personal knowledge that [the employee] ever did dump mop water in or near [the area in question], it is my understanding that, after I indicated that this [dumping] should not be done, that it was never done again.” X-L’s only other affidavit was from its expert, Richard Shepherd, an environmental engineer, who opined that NutraSweet had failed “to prove, through a degree of scientific certainty, that X-L Engineering Company was the cause of contamination found on the NutraSweet Property, much less the sole cause.” Shepherd’s conclusion was based on the lack of a “chemical fingerprint” which, in turn, was based on his assumption that TCA was the only VOC that X-L ever used. Shepherd also concluded that the groundwater flowed away from NutraSweet’s plant, thus showing (he believed) that any solvents dumped on X-L property could not have “migrated” onto NutraSweet’s property.
In reply, NutraSweet’s experts used Illinois EPA reports to show that all twelve of the VOCs on NutraSweet’s property were found on X-L’s property where the dumping had occurred, thus showing, NutraSweet contended, a “chemical fingerprint.” A NutraSweet expert also disputed Shepherd’s analysis of groundwater migration. He opined that Shepherd’s conclusion was faulty because it reflected rainwater recharging of the soil — a condition where rainwater briefly alters the “normal” direction of flow. NutraSweet’s experts stated that they measured the groundwater flow in the winter when the ground was frozen, thus minimizing the effect of rainwater recharging and indicating the usual direction of groundwater migration, which was away from X-L’s property to NutraSweet’s property. Finally, a NutraSweet expert stated that based upon his review of the surveillance tapes, X-L’s dumping along a railroad ditch to the north of its property sometimes created a 50-foot wide pond of wastewater that would extend onto NutraSweet’s property. Soil samples from this area of NutraSweet’s property revealed the presence of VOCs.
The district court found that there was no genuine dispute that X-L was responsible under CERCLA for at least some of the VOCs on NutraSweet’s property and that it was liable to NutraSweet under state law for nuisance, trespass and negligence. NutraSweet, 933 F.Supp. at 1422-25. Because X-L did not respond at all to NutraSweet’s evidence of its clean-up costs (about $560,000), the district court found that its costs were those NutraSweet put forth. Id. at 1415. The court entered partial summary judgment for NutraSweet on X-L being at least partially liable for NutraSweet’s costs. It ordered a trial on the remaining issue: the amount of VOCs for which X-L was responsible (which would determine its liability). Id. at 1423-25.
In preparing for trial, X-L repeatedly missed deadlines. It first failed to make Shepherd available for a deposition or to produce its expert witness report on time. As a result, NutraSweet moved under Fed. R.Civ.P. 37(c) to bar Shepherd from testifying at trial. The district court struck the trial date and ordered the parties to brief whether Shepard should be barred. X-L then filed Shepherd’s report, one week after the deadline. This late filing prejudiced NutraSweet’s ability to examine Shepherd on his theory as to why X-L was not liable for the VOCs. NutraSweet therefore requested that the court bar Shepherd from testifying or in the alternative, that it be allowed to take soil samples from X-L’s property to rebut the factual assumptions and theories in Shepherd’s report. The district court again declined to bar Shepherd from 'testifying, but agreed to allow each side to take soil samples from the NutraSweet and X-L sites, which the parties completed in October 1997.
The district court set a new trial date for July 14, 1998 and directed the parties to disclose their reports of the site work by March 4, 1998. NutraSweet complied with the March 4 deadline, but X-L did not. One week after the deadline, X-L sought another extension for filing its report of the site work, an extension for filing its supplemental expert witness report on the site work, and an extension for other pretrial deadlines. To support its motion, XL noted that because of the extensive field work that was done, NutraSweet would probably be supplementing its theories of the case, and for that reason X-L would need additional time to respond to NutraSweet’s supplemental expert report. The district court granted X-L’s motion and set pretrial deadlines as X-L had proposed.
NutraSweet filed the supplemental expert report of its rebuttal expert, Dr. Roy Ball, a week early on March 20, 1997. XL’s supplemental report was due on April 10, 1997, but it did not meet this deadline. A week later, X-L moved for an extension of time until May 5, 1998. The district court did not act on this motion, but it was just as well that it didn’t because that proposed deadline also came and went, with X-L still not filing a supplemental report. NutraSweet again moved to bar expert testimony that went beyond Shepherd’s initial expert report. Finally, about six weeks after the April 10, deadline, X-L responded by complaining that Ball’s report was not sufficiently specific and that it expanded NutraSweet’s theory of the case. X-L argued that it should not be required to file a supplemental report until NutraSweet filed a more complete report. The district court granted NutraSweet’s motion, limiting Shepherd’s trial testimony to his initial report and precluding him from testifying on the results of the site work.
At trial, NutraSweet called Prikos to establish that X-L had used cleaning solvents containing TCA and PCE from 1973 (when Prikos acquired the company) until the fall of 1992. He also testified that X-L used PCE in its “hot degreaser,” it used a TCA-based solvent in its “cold degreaser” beginning in the mid to late 1970s, and XL cleaned parts a third way by dropping them into a bucket (he did not know whether PCE was used in cleaning parts this way). G & M’s supervising hydrologist testified that the soil and groundwater samples from X-L’s property showed concentrated solvent dumping. Dr. Ball, NutraSweet’s expert, testified that laboratory chromatograms of the PCE found on both NutraSweet and X-L’s property indicated that the PCE was from essentially the same source but was disposed of at different times. Various methodologies that Ball used — such as the degree of degradation or “speciation” of the VOCs at each site, the rate of groundwater flow on the NutraSweet site, and aerial photographs— supported his theory that the dumping of solvents began on X-L property when its shop was built in the mid-1960’s but moved over to NutraSweet’s property in the early 1980’s (probably once X-L had paved over part of its property, thereby making dumping impracticable). Finally, NutraSweet rebutted X-L’s argument that it had been properly disposing of its VOCs: it introduced X-L’s shipping manifests and Illinois EPA records that showed that it was not until December 1990 at the earliest (ten years after federal regulations required proper disposal of VOCs) that X-L began to dispose properly of VOCs. In its case, X-L did not introduce any evidence or proffer a theory as to who besides X-L could have been responsible for the VOCs on NutraSweet’s property. The district court found X-L 100% responsible and entered damages in favor of NutraSweet equal to 100% of its costs (with $113,000 in prejudgment interest, the total award was thus $673,000).
X-L appeals the partial summary judgment in favor of NutraSweet that X-L was at least partly liable for the VOCs on NutraSweet’s property. It also appeals the district court’s decision not to allow it further time to file a supplemental expert report and in limiting its expert’s testimony at trial. Furthermore, X-L contends that the district court abused its discretion in admitting the testimony of NutraSweet’s expert, and it contends that the court erred in denying X-L’s motion for a directed verdict. Finally, X-L appeals the district court’s finding at trial that it was the source of all the VOCs on NutraSweet’s property and the determination of damages.
III. Discussion
Under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), an owner of land is strictly liable for hazardous wastes that are contaminating his property. See Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325 (7th Cir.1994) (“A responsible person includes the current owner and any person who formerly owned and operated the facility in question at a time of actual or threatened release of a hazardous substance.”); id. at 326 (owners “are strictly liable under CERCLA § 107”). But under § 113(f) of CERCLA, 42 U.S.C. § 9613(f), the landowner “may seek contribution from another person who is liable or potentially liable under § 107.” Kerr-McGee, 14 F.3d at 326. Thus, under “the CERCLA statutory scheme, § 107 ... governs liability, while § 113(f) creates a mechanism for apportioning that liability among responsible parties.” Town of Munster, Ind. v. Sherwin-Williams Co., Inc., 27 F.3d 1268, 1270 (7th Cir.1994).
In Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994), we noted that subpart (B) of § 107(a) “permits any ‘person’ — not just the federal or state governments — to seek recovery of appropriate costs incurred in cleaning up a hazardous waste site.” As a result, we indicated that a landowner who, although technically strictly liable for hazardous wastes on its property was innocent of the contamination, would not have to bring a contribution action under § 113(f) (because he did not “contribute” to the contamination); he could instead bring “a direct cost recovery action” under § 107(a) against the responsible party. Id. A few years later we held that an innocent landowner could indeed use the “Akzo exception” to pursue a § 107 “direct cost action.” AM Int’l, Inc. v. Datacard Corp., DBS, Inc., 106 F.3d 1342, 1347 (7th Cir.1997); Rumpke of Ind., Inc. v. Cummins Engine Co., Inc., 107 F.3d 1235, 1241 (7th Cir.1997); see also PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 617 (7th Cir.1998) (noting availability of § 107 action for innocent landowners). Such an action is available if “a landowner [is] forced to clean up hazardous materials that a third party spilled onto its property or that migrated there from adjacent lands.” Akzo, 30 F.3d at 764; see also Rumpke, 107 F.3d at 1240 (“the Akzo exception” certainly applies to “the landowner who discovers someone surreptitiously dumping wastes on its land”). To establish the Akzo exception under § 107(a), a plaintiff must establish that: (1) the defendant is a covered person under § 107(a); (2) there is a release or threatened release of a hazardous substance from a “facility” as defined by § 101(9); (3) the release caused the plaintiff to incur response costs that are consistent with the national contingency plan, Kerr-McGee, 14 F.3d at 325; Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989); and (4) the plaintiff “did not pollute the site in any way.” Rumpke, 107 F.3d at 1241. In this case, the major issue is whether the hazardous wastes on NutraSweet’s property were released from the X-L facility.
A. Summary Judgment
We review a grant of summary judgment de novo. Miller v. American Fam. Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). To ward off summary judgment by showing that there is a genuine dispute on a material fact, the non-moving party must do more than raise a “metaphysical doubt” as to the fact’s existence. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir.1997). The evidence must be “such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
X-L contends that a genuine issue existed as to whether it caused the hazardous wastes on NutraSweet’s property (whether there was a release from X-L’s facility). It argues that the district court’s determination that X-L was partially responsible was based on the expert testimony of G & M engineers Robert Smith and James Hill because this testimony was the only evidence that linked the “mop-bucket dumping at X-L to the contamination at the NutraSweet site.” Basing summary judgment on this testimony was erroneous, X-L contends, because its expert, Shepherd, had a contrary opinion as to the source of the VOCs.
We disagree. The summary judgment concludes that X-L caused some of the VOCs on NutraSweet’s property, not necessarily all of them. Regardless of the “battle of the experts,” there is not a genuine dispute that this limited holding was correct. X-L used solvents in its business that broke down into the type of VOCs that were found on NutraSweet’s property. In one month alone, video surveillance captured an X-L employee dumping waste water eighty-two times on X-L’s property in an area adjacent to NutraSweet’s property. On at least four of these occasions, the standing wastewater clearly spilled over onto NutraSweet’s property, sometimes forming a fifty-foot wide pond. NutraSweet tested this wastewater, soil samples from its property onto which the wastewater had spilled, and soil samples from X-L’s property where the dumping had occurred. These tests all revealed the presence of TCE. With this evidence alone, there is not even a “metaphysical doubt” that X-L caused at least some of the VOCs on NutraSweet’s property.
Further, contrary to X-L’s assertion, the expert opinions are not genuinely in conflict. Shepherd’s conclusions, as to both a lack of a “chemical fingerprint” for the VOCs and “groundwater migration,” were based on faulty assumptions. He mistakenly assumed that only one VOC that X-L used in its business, TCA, was found on NutraSweet’s property. But NutraSweet’s expert showed that all twelve of the VOCs that were found on NutraSweet’s property were also found on X-L’s property. Shepherd also used a problematic method in analyzing groundwater flow: his calculations were based on the time' of year when rainwater recharge would give misleading results on the direction of the flow. By contrast, NutraSweet’s expert minimized the effect of rainwater recharge. On appeal, X-L does not dispute these problems with Shepherd’s assumptions and analyses. These defects result in an expert opinion that is substantially incomplete if not inaccurate. In any event, because it does not address (much less contradict) several matters asserted by NutraSweet’s expert, it cannot create a genuine issue on whether X-L caused at least some of the VOCs on NutraSweet’s property. See Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (summary judgment may be granted if the evidence “is not significantly probative”).
B. Limiting Shepherd’s Trial Testimony Under Fed.R.Civ.P. 37(c)
The Federal Rules of Civil Procedure require' parties to file reports of expert witnesses they intend to use at trial. See Fed.R.Civ.P. 26(a)(2). If a party does not timely file his reports, the district court may exclude the party’s expert from testifying at trial on the matters the party was required to disclose. See Fed.R.Civ.P. 37(c)(1). The sanction of ex-elusion is “automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless.” Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996). We review the district court’s exclusion of testimony for abuse of discretion. See Salgado v. General Motors Corp., 150 F.3d 735, 739 (7th Cir.1998).
Because X-L did not file a supplemental expert witness report on the site work at X-L’s property, the district court excluded Shepherd from testifying about this work and limited his testimony to his initial expert witness report. X-L attempts to explain its failure to file a supplemental expert report by complaining that NutraSweet used a new expert (Dr. Ball) in its supplemental report and changed (more accurately, supplemented) its theory of the case. Assuming NutraSweet did so (on that, more later), X-L still fails to explain why this justified its failure to file a supplemental expert report. The site work occurred in early October 1997; NutraSweet filed its test results by the March'4, 1998 deadline (XL did not); and NutraSweet filed its supplemental expert witness report of Dr. Ball ahead of schedule on March 20, 1998. Even though Ball’s report contained new theories, X-L does not explain why it could not file its supplemental expert report by the April 10, 1998 extended deadline it requested and received. Nor does it explain why it could not meet its proposed, revised May 5 super-extended deadline. By the time of these deadlines, X-L had had Ball’s report for three weeks and five and one-half weeks, respectively. Even if Ball’s report was not sufficiently specific (an argument X-L made below but not here), it should have at least filed a preliminary supplementál report or told the court of its concerns with Ball’s report by the April 10 deadline (or certainly by its proposed May 5 deadline). There was no reason for it to just sit by for six weeks after the April 10 deadline and do nothing while the trial date was fast approaching. There appears to be no justification for X-L’s failure to file some sort of a supplemental report that would have enabled Shepherd to expand his testimony. See Salgado, 150 F.3d at 741 (“Salgado never offered — indeed, does not offer to this date — a satisfactory explanation for its failure to comply with the directive of the district court”).
X-L’s failure to file a supplemental report also was not harmless. The district court granted NutraSweet’s Rule 37(c) motion on May 22. At that time, the court had already postponed the trial date once. The trial was in less than two months (on July 14), and the pretrial order was due in about three weeks (on June 15). Without even a preliminary or draft supplemental expert witness report from Shepherd, NutraSweet was greatly hampered in its ability to examine him about his analysis of the site work. See Salgado, 150 F.3d at 742. In these circumstances, the use of the “automatic” sanction of exclusion was not an abuse of discretion. Id.
C. The Trial
X-L raises numerous issues regarding the trial. It first argues that NutraSweet “sandbagged” it and violated Fed.R.Civ.P. 56(d) by changing its theory of liability from summary judgment to trial, where NutraSweet relied on Ball’s additional theories. X-L fails to support its Rule 56(d) argument with a single case citation and thus has not properly presented this issue for appellate review. See Fed. R.App. P. 28(a)(9)(A); United States v. Mason, 974 F.2d 897, 901 (7th Cir.1992) (failure to cite case law in support of argument waives appellate review). Furthermore, X-L did not object below to Ball’s expert witness report, even though it was on file for months before the trial, and XL was fully aware that the report contained new theories (X-L complained about the new theories in the report, but it did not move to bar NutraSweet from using them). Moreover, X-L cannot complain that it was duped when prior to the filing of Ball’s report, it acknowledged that it knew the report would likely contain additional theories, but far from objecting, X-L simply requested that NutraSweet file its supplemental report first. Thus, X-L waived the issue of Ball’s supplemental theories. Consolidated Bearings Co. v. Ehret-Krohn Corp., 913 F.2d 1224, 1232 n. 9 (7th Cir.1990) (failure to raise arguments below waived them on appeal).
Even if X-L had properly presented this issue, we would disagree that NutraSweet had pulled a “bait and switch.” Recall that at summary judgment, NutraSweet argued that X-L was at least partially responsible for the VOCs on its property due to mop-bucket wastewater ponding over to its property or leaching into the soil and then traveling to its property. After summary judgment, X-L’s expert opined in his report that: 1) the amount of VOCs in diluted mop-bucket wastewater was too small to account for the substantial deposits of VOCs on NutraSweet’s property; and 2) the type of soil did not allow the wastewater to migrate in groundwater to NutraSweet’s property. To rebut these theories, NutraSweet tested the soil on X-L’s property. In doing so, it realized the environmental problem was much bigger than it had thought: the testing indicated that concentrated solvents had been dumped directly onto XL’s property near NutraSweet’s property. NutraSweet also discovered that concentrated solvents had been dumped onto its own property. In response to these findings, Ball conducted tests (discussed later) which led him to opine that: 1) the type of soil allowed solvents to migrate in groundwater from the X-L site to the NutraSweet site and; 2) direct dumping of eon-centrated VOCs had begun on the X-L site but moved to the NutraSweet site after X-L had paved its property with a parking lot in the mid-1970’s. Based upon his analyses, Ball concluded that X-L’s activities were the cause of the VOCs on NutraSweet’s property. It was not inappropriate for NutraSweet to supplement its theory of the case due to newly-discovered evidence, and X-L was not unfairly surprised by NutraSweet doing so (indeed, because NutraSweet filed Ball’s supplemental report months before the trial, X-L was able to move to bar Ball from testifying on grounds that his testimony would be based on speculation, and it objected at trial on the same ground). Because X-L not only failed to object that Ball’s rebuttal theories would prejudice it, but stated that all it wanted was NutraSweet to file its new theories first (note 2, supra), X-L in effect agreed to NutraSweet proceeding at trial with these theories. See Fed.R.Civ.P. 15(b); Walton v. Jennings Community Hosp., Inc., 875 F.2d 1317, 1320 n. 3 (7th Cir.1989) (Rule 15(b) “allows great latitude in amending complaints to conform with subsequent changes as the case develops”).
X-L next complains that Ball’s testimony did not satisfy the standards for admissibility for expert witnesses. “In deciding whether to admit the proffered expert testimony, a district court must be guided by the instructions of Daubert.” Walker v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir.2000) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Under the so-called Daubert framework, a district court must determine whether: (1) the expert would testify to valid scientific, technical, or other specialized knowledge; and (2) his testimony will assist the trier of fact. Fed.R.Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999); Walker, 208 F.3d at 586. “The admission of expert testimony from technical fields is governed by the same concerns and criteria as the admission of scientific expert testimony”, but with respect to technical testimony, the “Supreme Court in Kumho Tire explained that the Daubert ‘gatekeeper’ factors had to be adjusted to fit the facts of the particular case at issue, with the goal of testing the reliability of the expert opinion.” United States v. Brumley, 217 F.3d 905, 911 (7th Cir.2000) (citing Kumho Tire Co., 119 S.Ct. at 1175). “We review de novo whether the district court properly followed the framework set forth in Dau-bert.” Id. If the district court properly applied the Daubert framework, we review its decision to admit or exclude expert testimony only for an abuse of discretion. Kumho Tire Co., 119 S.Ct. at 1176; Brumley, 217 F.3d at 911.
X-L does not argue that the district court failed to follow the two-part Daubert framework; rather, it disputes the court’s application of it. Specifically, X-L argues that Dr. Ball’s opinions were not based on reliable methods and techniques, the first part of the framework. X-L does not challenge the reliability of solvent degradation (speciation), chemical chromatography, or Darcy’s equation for groundwater migration; these are all tested, well-accepted, and frequently used methodologies or technologies in the fields of hydrology and environmental engineering. See Kumho Tire Co., 119 S.Ct. at 1175 (testing and acceptance of technique in the relevant field may indicate reliability). But XL argues that it is speculation to look at a sequence of aerial photos to determine the history of chemical dumping.
Initially, it must be noted that Ball used these photographs in conjunction with his other tests as a means of confirming his hypothesis. Ball first used chromatography to determine that the same type of VOCs were on the NutraSweet and X-L sites. The relative stages of decay of the VOCs on the respective sites, which he determined by soil degradation or speciation, showed that the VOCs on the X-L site were much older than those on the NutraSweet site. And the rate of groundwater migration of ,VOCs on the NutraSweet site, determined by using Darcy’s equation, confirmed their approximate ages. Ball then analyzed historical photographs of the sites to further confirm the dumping sequence: the photos showed that X-L paved over a large part of its property in the area where concentrated solvents had been dumped on its property about the time the other tests (degradation and groundwater migration) had indicated that concentrated solvent dumping began on NutraSweet’s property. To Ball, the photographic analysis confirmed his hypothesis because in his experience people do not dump solvents on asphalt or concrete (e.g., on parking lots) because they eat away at the material.
Furthermore, the district court did not abuse its discretion in concluding that photographic analysis is a well-accepted technique in this area so as to bear a sufficient indicia of reliability. Nor did it abuse its discretion in concluding that Ball could interpret the aerial photos based on his own experiences and expertise. As noted, “the test of reliability is ‘flexible’ ” when examining an expert’s technical knowledge and the techniques he employs. Id. at 1171. The district court enjoys “the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. (emphasis in original). Ball testified that historical analysis of aerial photographs is an accepted tool in his field and that in fact the EPA requires the historical analysis of such photos and has its own team for doing this. The district court did not abuse its discretion in concluding that the common and official acceptance of photographic analysis made it sufficiently reliable. Id. (“ ‘acceptability’ in the relevant scientific community” is a factor “which might prove helpful in determining the reliability of a particular scientific ‘theory or technique’ ”). Dr. Ball also testified that he had been interpreting aerial photos for about twenty years and that he had developed an expertise in that area. His work experience made his interpretation of the photos in this case sufficiently reliable. See Brumley, 217 F.3d at 911-12 (witness’s seven years of experience working in the area gave his opinion sufficient indi-cia of reliability even though it was not based upon an underlying methodology).
X-L’s second criticism of Dr. Ball’s opinion is that he did not have essentially “direct” evidence that X-L was the source of the concentrated dumping on its and on NutraSweet’s property. Nor, X-L argues, did he have “specialized knowledge” that X-L was the source of this dumping. True, unlike with the mop-bucket dumping, Dr. Ball could not point to videotape directly connecting the contamination to X-L’s activities. But as an expert witness, Dr. Ball was not required to have direct evidence or a personal observation that X-L was illegally dumping VOCs. Contrast Fed.R.Evid. 701 (discussed in United States v. Santos, 201 F.3d 953, 963 (7th Cir.2000) (rule governing testimony by lay witnesses does not interdict all inference drawing by such witnesses, but the inferences must be tethered to perception, to what the witness saw or heard)). As an expert witness, Dr. Ball could use his “specialized knowledge” of reliable techniques and methods (as opposed to “specialized knowledge” of the incident in question) to form an opinion. Specifically, he could use the chromatography results to determine that the solvents on NutraSweet’s property were of the same type (were from the same source) as those on X-L’s property. Through groundwater migration test results, he could trace some of the concentrated solvents on NutraSweet’s property as migrating from X-L’s property. Through soil degradation, he could determine the relative ages of the solvents on the two sites. He could then combine this information, the aerial photographs, and the fact that X-L used solvents that would produce the VOCs found on both properties (and NutraSweet did not) and come up with a theory (or opinion) as to where the solvents came from and how they got there: X-L’s activities. See Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (“Individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts.”). By using the test results and his experience, Ball could infer that X-L was the source of the VOCs, even though he did not have “specialized knowledge” that it was. Fed.R.Evid. 704(a) (expert opinion can be based on an inference and can embrace an ultimate issue); Walker, 208 F.3d at 587 n. 2 (noting that subject to an exception in criminal matters, experts can testify to ultimate issue); cf. Brumley, 217 F.3d at 912 (expert’s opinion was proper because it was based on his experience, not on representing to jury that he possessed any “special knowledge”). This did not render his opinion speculative. See Brumley, 217 F.3d at 911.
X-L’s other arguments concern the weight to be given Ball’s testimony, rather than its admissibility. For example, X-L complains that in calculating soil degradation, Ball used the data that G & M’s hydrologists obtained from their testing of the X-L site, rather than using data that he himself generated. X-L does not, however, challenge the reliability of the underlying data, and Ball’s use of G & M’s data is perfectly permissible. Fed. R.Evid. 703 (“The facts or data in a particular case upon which an expert bases his opinion or inference may be those perceived by or made known to the expert at or before the hearing.”) (emphasis added); see also Walker, 208 F.3d at 588 (expert testimony may rely on the opinions or data of others unless the testifying expert’s opinion is too speculative or the underlying basis is faulty). X-L also complains that Ball only visited the site once. In some circumstances a brief or solitary examination might indicate a lack of reliability, see Kumho Tire Co., 119 S.Ct. at 1177 (expert inspected the tire for the first time on the morning of this deposition), but an expert is not always required to personally perceive the subject of his analysis. See Fed. R.Evid. 703; Walker, 208 F.3d at 591 (physician was allowed to render expert opinion even though he did not personally examine the subject). The reliability of Ball’s opinion was largely dependent upon the data gathered by others, rather than his personal observation of the site. This data was verifiable, and Dr. Ball used reliable methodologies in reaching his opinion. While “shoddy preparation by an expert might evidence a lack of professional qualifications,” in this case we are not prepared to say “that the district court’s decision to admit [Ball’s] testimony was an abuse of discretion.” Walker, 208 F.3d at 590-91.
X-L next disputes the district court’s finding that it was 100% responsible for the wastes on NutraSweet’s property. It first complains that the district court should have granted its motion for a directed verdict under Fed.R.Civ.P. 50. XL does not, however, develop this argument, and therefore it is waived. See Fed. R.App. P. 28(a)(9)(A); John v. Barron, 897 F.2d 1387, 1393 (7th Cir.1990) (“An appellant must not only raise issues in his brief, he must present them in a professional fashion. This court is not obligated to research and construct legal arguments open to parties, especially when they are represented by counsel as in this case.”).
We also disagree with X-L that the district court’s findings were clearly erroneous and that it should have entered judgment in its favor after the trial. See Fed.R.Civ.P. 52(a). Under the “clearly erroneous” standard, a district court’s findings of fact should be affirmed unless we are “left with the definite and firm conviction that a mistake has been committed.” R.L. Coolsaet Const. Co. v. Local 150, Int’l Union of Operating Eng’rs, 177 F.3d 648, 654 (7th Cir.1999). We have no such conviction here. In addition to Dr. Ball’s opinion and multiple analyses, the evidence showed that NutraSweet did not use chlorinated solvents (except for those in a self-contained parts cleaner that never leaked), while X-L admitted that it did use solvents that contained the same VOCs (TCA, PCE, and their degradation products) that had contaminated NutraSweet’s property. A G & M investigating engineer testified that there was no evidence of any other source of the VOCs besides X-L. Moreover, NutraSweet rebutted X-L’s “alibi” that it had been properly disposing of hazardous wastes: shipping manifests showed that X-L did not off-site its spent solvents until December 1990, and X-L did not even proffer a theory as to who else could have been responsible for the VOCs on its and NutraSweet’s property.
X-L also argues that post-remediation (or cleanup) test results indicated that NutraSweet did not effectively clean up its property, and therefore it violated the EPA’s “national contingency plan” (NCP). See 42 U.S.C. § 9607(a)(4)(B); 40 C.F.R. § 300.700(c); PMC, 151 F.3d at 616. NutraSweet’s compliance with the NCP is required for X-L to be liable. See County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1512 (10th Cir.1991) (“Section 107 provides that a person is only liable for private party response costs to the extent that these costs were incurred ‘consistent with the national contingency plan.’ Proof of response costs incurred ‘consistent with’ the NCP is, therefore, an element of the prima facie private cost recovery action under CERCLA.”) (quoting 42 U.S.C. § 9607(a)(4)(B)). At the summary judgment stage, the district court determined that X-L was liable to NutraSweet. NutraSweet, 933 F.Supp. at 1423 (“The court rules as to the liability prong, but finds a genuine issue of material fact as to the attributable damages.”). X-L therefore should have contested the effectiveness of NutraSweet’s clean-up at summary judgment, for if NutraSweet did not comply with the NCP, then X-L would not have been liable for any of NutraSweet’s cleanup costs. 42 U.S.C. § 9607(a)(4)(B); County Line, 933 F.2d at 1512 (“Evaluation for conformity with the NCP at [summary judgment] is proper, in order to determine whether Plaintiffs are entitled to recover any of their response costs and to avoid useless trial of the case at a later juncture, should Plaintiffs fail to show the requisite consistency.”) (emphasis added). Because X-L did not raise the NCP issue at summary judgment, it has waived it. See Bruner Corp. v. R.A. Bruner Co., 133 F.3d 491, 497 (7th Cir.1998) (defendant waived right to dispute damage amount because it failed to raise argument during summary judgment when issues of liability and damages were being considered).
But even if X-L had preserved that issue, the district court did not clearly err in concluding that NutraSweet had satisfied the NCP. The Illinois EPA approved NutraSweet’s clean-up plan, and the agency monitored the progress of the remediation. NutraSweet remediated its property until the Illinois EPA advised it that it could stop because NutraSweet’s efforts had succeeded to the maximum extent possible. In light of this evidence, we are satisfied that NutraSweet met this requirement for a CERCLA recovery.
Lastly, X-L contests the amount of damages that the district court awarded NutraSweet, claiming that there is insufficient documentation to support the costs NutraSweet incurred in investigating and remediating its property. The amount of NutraSweet’s clean-up costs was also litigated at summary judgment. See NutraSweet, 933 F.Supp. at 1415. There, X-L did not contest these costs (indeed, X-L did not do so until after trial when the parties were litigating the question of pre-judgment interest). As a result, NutraSweet was entitled to partial summary judgment on the issue of its costs. X-L cannot now dispute the accuracy of the amount of remediation costs; it can only dispute the percentage of them for which it is responsible. See id. at 1423 (“X-L is liable for the amount of response costs attributable to the VOCs originating from the X-L facility. The extent of liability, and the resulting amount of recoverable costs, must be left for trial.”). And as stated, the district court did not clearly err in finding X-L to be 100% responsible for them. Therefore, X-L loses on this issue as well.
IV. Conclusion
Because there is no genuine issue that X-L was responsible (and hence liable) for some of the hazardous wastes on NutraSweet’s property, the district court did not err in granting partial summary judgment to NutraSweet on the issue of liability. The district court did not abuse its discretion in excluding X-L’s expert from testifying on the results of the October 1997 site work due to X-L’s failure to timely file its supplemental expert report. The district court also did not abuse its discretion in determining that the techniques and methods upon which NutraSweet’s expert based his opinion were sufficiently reliable. Furthermore, the district court did not clearly err in finding after trial that X-L was in fact 100% responsible for the VOCs on NutraSweet’s property and in finding that NutraSweet complied with the NCP in remediating (or cleaning up) its property. Lastly, because X-L did not oppose at summary judgment NutraSweet’s evidence of its clean-up costs, it waived this issue, and the consequent issue of the amount of damages.
For the foregoing reasons, the judgment of the district court in favor of the plaintiff is AffiRmed in all respects.
. CERCLA defines a "facility” as, among other things, "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise came to be located.” See § 101(9)(B), 42 U.S.C. § 9601(9)(B). At the summary judgment stage, the district court noted that this case was unusual in that the contamination of the NutraSweet site was allegedly due to hazardous wastes being improperly disposed of on the X-L site and then migrating over to NutraSweet's property (at trial, NutraSweet theorized that the wastes were also due to X-L directly dumping them onto NutraSweet’s property, infra). Because hazardous wastes had been "deposited,” or "otherwise came to be located” on both NutraSweet and X-L's property, the district court held that both sites were "facilities.” NutraSweet, 933 F.Supp. at 1417-18 & n. 3. Whether or not the district court was correct to consider both sites as "facilities," it is indisputable that X-L owned a facility, because it was its land or business “from which there [was] a release, or a threatened release which cause[d] the in-currence of response costs.” See CERCLA Section 107(a). We therefore consider it irrelevant whether NutraSweet also had a "facility,” because the hazardous substances eventually came to rest on its land.
. See Defendants’ Motion to Revise Scheduling Order at 2, ¶ 4 ("Plaintiffs’ initiation of substantial field investigating work after their first expert opinion reports were filed strongly suggests an effort to change and/or add to the prior-stated opinions.... [Plaintiffs] should first produce any amended or supplementary expert opinion reports. Defendants will then be in a position to understand plaintiffs’ opinion evidence (if it has changed in any way as a result of the later field investigation) and be able to respond to it with any needed supplementary expert reports of their own.”) (emphasis in original).
. According to X-L, the "bait” was the expert opinions of the G & E engineers used at summary judgment and the "switch” was the expert opinion of Dr. Ball used at trial.
. X-L cites various district court decisions that say that, by itself, evidence that a defendant generated or used hazardous substances that contained the same chemical constituents that were found at a contaminated site does not meet a plaintiffs burden of proving that the defendant caused the contamination, nor does the proximity of the defendant’s site to the contaminated site, nor does the defendant’s failure to account for all of its hazardous waste disposal during the relevant time frame. But here of course the district court did not have just a category of such evidence; it had all these types of evidence, plus considerably more, to support its findings. And while, as X-L points out, there was no "smoking gun” connecting all the VOCs directly to X-L's activities, there was sufficient evidence to support the district court inferring that XL’s activities were the cause of the contamination.
. Because the district court found that X-L was 100% liable for the VOCs on NutraSweet’s property, it awarded NutraSweet its costs under § 107. X-L argues that because Dr. Ball indicated that some of the VOCs migrated off NutraSweet's site, NutraSweet is not an innocent landowner and therefore must recover under § 113(f), and that under the evidence, X-L's share of responsibility would be zero. We reject as disingenuous this attempt by X-L to exonerate itself of any responsibility. This one brief comment in Ball's testimony does not show that the district court clearly erred in finding X-L to be 100% responsible for the VOCs on NutraSweet's property and that NutraSweet was innocent of the release of any hazardous wastes. Even if there were a release of VOCs off NutraSweet's property, we cannot tell on this record if it was de minimis, in which case NutraSweet would still be able to recover under § 107 as an innocent landowner. See PMC, 151 F.3d at 616 (§ 113(f) action) (“PMC's spills may have been too inconsequential to affect the cost of cleaning up significantly, and in that event a zero allocation to PMC would be appropriate.”), and Rumpke, 107 F.3d at 1241 (possible to view a § 107 action as an innocent landowner proceeding under § 113(f) with an “implied claim for contribution, where the landowner is alleging that its share should be zero.”). Furthermore, if a release of hazardous materials occurred off of NutraSweet's property, NutraSweet still might be “innocent” as to the hazardous wastes that X-L released onto its property (which is the subject of NutraSweet's § 107 action), and such a release would not relieve X-L of its liability to NutraSweet, although it might give another party a right to recover from either NutraSweet or XL or both.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05102040816326531, Costs: 0.1020408163265306
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BERZON, Circuit Judge:
The issue before us presents a question of statutory interpretation: Under the Comprehensive Environmental Response, Compensation and Liability Act (CERC-LA), when does the limitations period for suing to collect remedial action costs from a party responsible for hazardous substances begin? One would expect a fairly straightforward answer to that question in the statute. Potential 'plaintiffs need to know when to file suit, and potential defendants would surely prefer clear notice as to when their legal liability, if any, lapses. True, in the “maze”-like structure and “baffling language” of CERCLA, clarity is rare. Carson Harbor Vill. Ltd. v. Unocal Corp., 270 F.3d 863, 880, 883 (9th Cir.2001) (en banc). The provision we grapple with today appears at first blush to be no exception. But as one works one’s way through the statute as a whole, a fairly definite answer emerges. As will appear, we conclude that the limitations period for bringing an initial suit for recovery of remedial action costs under CERCLA cannot accrue until after the final adoption of the remedial action plan required by the statute.
FACTUAL BACKGROUND
For 35 years, Neville Chemical Company (Neville) manufactured at its industrial facility in Santa' Fe Springs, California, various chemical compounds for use in insecticides, solvents, metal working lubricants, and flame retardants. These activities contaminated the groundwater and soil at the facility. In 1986, the California Department of Toxic Substances Control (the Department) issued a Remedial Action Order, directing Neville to (1) begin the process of cleaning the site; (2) conduct a remedial investigation and feasibility study; (3) submit a draft remedial action plan (RAP); and, once the draft RAP was finalized, (4) implement the plan.
The Department sent Neville a letter on September 29, 1989, informing Neville of its obligation to pay an “activity fee” to the Department. The letter explained that the activity fee — $46,636.38—was “to partially cover the Department’s cost of overseeing [Neville’s] actions to characterize and satisfactorily remediate this site.” At that time, the Department had a formal policy of “only collect[ing] direct program expenditures (generally laboratory or contract expenditures) beyond activity fees in cases where the responsible parties are being cooperative.” In 1992, the Department rescinded this policy in favor of pursuing the full cost recovery of overseeing a clean-up, regardless of whether the responsible party was recalcitrant or cooperative.
In August 1991, Neville presented the Department with preliminary findings from the Remedial Investigation. In October 1991, the Department directed Neville to prepare a Groundwater Removal Action Proposal (the Proposal), in which Neville was to propose an expedited response to the contamination. The Department stated that the Proposal “should be consistent with a final cleanup strategy for groundwater as it may ultimately become the final remedy presented in the Remedial Action Plan.” Neville submitted its Proposal on September 1, 1992. It included “three major components: an extraction system, a temporary on-site treatment system, and an effluent disposal system.”
The Department reviewed the Proposal and, in January 1993, directed Neville to implement the extraction and treatment system. In a letter to Neville, the Department stated: “The proposed system will potentially become part of the final remedial alternative for the site,” and “[t]he ground water extraction and treatment system is envisioned as part of the final remedial alternative.... [H]owever, the Department may order the discontinuation of its use in the event it is not effective or if it enhances the migration of contaminants from the Site.”
Neville submitted a Feasibility Study Technical Memorandum in August 1993, listing alternative possible remedies. In response to this memorandum, the Department stated that it:
has not gathered sufficient information and public comment to require any of the alternatives to be implemented as of yet. Part of this remediation process requires that all feasible alternatives be scrutinized carefully and thoroughly pri- or to actual selection of the remedial alternative. The Feasibility Study is the tool that allows the Department to weigh the technical and substantial issues for all possible alternatives in order to make a sound and fair decision in protecting the public health and the environment.
Additionally, the letter stated:
The department reviewed and approved of the [Groundwater] Removal Action as an interim measure to prevent further migration and to protect the public health and the environment. The [Groundwater] Removal Action is not a Department-approved final Remedial Action, and cannot be construed to be such. The [Groundwater] Removal Action, may be included as part of the final Remedial Action depending on the results and conclusions of the Health Risk Assessment and the Remedial Action itself, which has yet to be prepared. Therefore, whether the [Groundwater] Removal Action constitutes the groundwater portion of the final Remedial Action cannot be determined at this point.
Neville began to excavate three extraction wells at the site in April 1994. A month later, Neville submitted a Draft Feasibility Study, again proposing several alternative remedies. The Department responded with comments to this draft in June of 1994, including the following: “The Department has never stated that the Ground Water Removal Activity ... is the final ground water remedy, but has to be tested to determine the efficiency of the system.” In October of the same year, the Department sent Neville a letter expressing concern because Neville had not started construction of the Groundwater Removal System. The Department also noted, “Neville will need to compare several sample results to determine the effectiveness of the System. Neville will use the information to determine whether this or a modified System will be incorporated into the draft Remedial Action Plan.”
Neville submitted a final Feasibility Study, discussing seven alternative groundwater remedial options, in December of 1994. Later that month the Department approved it.
Neville then submitted a draft remedial action plan. On May 8, 1995, after having circulated the draft for public review and comment and holding a public meeting to discuss the plan, the Department approved the final remedial action plan. The groundwater containment and treatment system originally designed as an interim removal action remained part of the final RAP.
ANALYSIS
I. Accrual of Cause of Action
Neville first argues that the district court erred in denying Neville’s summary judgment motion because the statute of limitations for bringing a cost recovery action under CERCLA barred California’s suit. A party may appeal a denial of summary judgment once a final judgment has been entered in the suit. Comsource Indep. Foodservice Cos. v. Union Pac. R.R. Co., 102 F.3d 438, 442 (9th Cir.1996). We review a denial of summary judgment de novo. Id. (citing Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), and Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1290 (9th Cir.1982)).
California brought suit on behalf of the Department under § 107 of CERCLA, 42 U.S.C. § 9607. This statute provides that the owner and operator of a facility “shall be held liable for — (A) all costs of removal or remedial action incurred by ... a State ... not inconsistent with the national contingency plan....” An “initial action” for recovery of costs “must be commenced ... for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action.” 42 U.S.C. § 9613(g)(2). The present suit was brought on September 21, 2000. Therefore, the suit is time-barred if and only if the “initiation of physical on-site construction of the remedial action” occurred on or before September 21,1994.
The facts of the case are not in dispute. The only question is which of the enumerated events constitutes the “initiation of physical on-site construction of the remedial action,” thereby triggering the limitations period. Neville maintains that the statute of limitations began to run in April 1994, when it started excavating the extraction wells. California argues that no remedial action could have occurred until the final remedial action plan was approved by the Department on May 8, 1995. This Court has yet to decide when an action is remedial for the purpose of triggering the statute of limitations in cost recovery suits under 42 U.S.C. § 9613(g)(2).
A. Statutory Interpretation
The purpose of a limitations period is to “clearly define the time period in which suit must be commenced.” United States v. Colvin, 204 F.3d 1221, 1226 (9th Cir.2000). Here, the statute of limitations is invoked to bar the government from collecting the costs it expended in cleaning up a hazardous waste site, a situation in which we have been specially instructed by the Supreme Court to construe limitations periods in favor of the government. See Badaracco v. Comm’r, 464 U.S. 386, 391-92, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) (“Statutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government.”) (citing E.I. Dupont De Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 68 L.Ed. 788 (1924)). Additionally, if at all possible, the statute should be interpreted to provide a clear accrual date, so that each party — but especially the State as plaintiff — knows when the time to bring suit runs out. The text of the statute, read as a whole rather than in pieces, specifies that ascertainable date.
Title 42 U.S.C. § 9613(g)(2) provides that the “initiation of physical on-site construction of the remedial action” triggers the statute of limitations. CERCLA defines “remedial action” in section 9601(24):
The terms “remedy” or “remedial action” means [sic] those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.
42 U.S.C. § 9601(24) (emphasis added). “Removal,” in turn, is defined thus:
The terms “remove” or “removal” means[sic] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary [sic] taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, [and] temporary evacuation and housing of threatened individuals not otherwise provided for....
42 U.S.C. § 9601(23). The plain meaning of the definition of “remedial,” read together with the statute of limitations in § 9613(g)(2) and the use of that same term in the rest of the statute, supports the conclusion that “the initiation of physical on-site construction of the remedial action” can only occur after the final remedial action plan is adopted.
The first half of the definition of “remedial action” provides a general description of how such an action fits into the entire scheme of the clean-up required by the statute. Remedial actions, the statute provides, must be “consistent with permanent remedy taken instead of or in addition to removal actions.” The second half of the definition lists some activities that could constitute remedial actions. These examples, however, must be read in light of the more general description of the first half.
For example, the “provision of alternative water supplies” is listed as both a type of “remedial action” and as a type of “removal.” The provision of alternative water supplies will only be “remedial,” therefore, if it is done “consistently] with permanent remedy....” On the other hand, if alternative water supplies are provided on a more temporary basis, the very same activity would be a “removal” action. That is, “removal actions generally are immediate or interim responses, and remedial actions generally are permanent responses.” Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917, 926 (5th Cir.2000). In this case, therefore, even if the completed extraction wells do fall under one of the types of activities listed in the second half of the definition of “remedial action” (e.g., “onsite treatment”), the excavation of those wells must still be “consistent with permanent remedy” to have triggered the statute of limitations.
For an action to be “consistent with permanent remedy,” a permanent remedy must already have been adopted. Neither party can know for sure whether a given action is consistent with permanent remedy until that permanent remedy is determined. The first point at which both parties can be certain that any construction is consistent with a permanent remedy is when the permanent remedy is actually selected. In this case, as in most cases, the permanent remedy was selected when the final RAP was approved.
Until after the adoption of the RAP, then, California could not have brought suit to recover remedial costs. “The standard rule [is] that the limitations period commences when the plaintiff has a complete and present cause of action.” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)) (internal quotation marks omitted). “[U]ntil the plaintiff can file suit and obtain relief,” a limitations period ordinarily does not commence. Bay Area Laundry, 522 U.S. at 201, 118 S.Ct. 542; see also Reiter v. Cooper, 507 U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (“While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute.”).
The Department could not have brought suit for costs of remedial action at the time Neville began excavating the extraction wells. At that time, neither party could have known if the wells would eventually be “consistent with permanent remedy,” because no final remedial action plan had been decided upon at that point. As we must assume that the limitations period did not begin to run until at least the time California could have brought suit to recover remedial costs, that period could not have been triggered by the excavation of the wells. To rule otherwise would be to hold, as a practical matter, that California was required to bring suit before April 19, 2000, less than five years after its action for recovery of remedial costs first accrued, even though the statute specifies a six-year limitations period.
In the ease at hand, neither party could have known before the final RAP was approved whether any particular construction projects would be “consistent with the final remedy”: Before the final remedial action plan was approved, the letters from the Department emphasized and re-emphasized that it did not know whether any of the measures already taken by Neville would or would not be consistent with the final remedial plan. See Letter from the Department to Neville, January 1993 (stating that the Department may discontinue the use of the groundwater extraction and treatment system “in the event it is not effective or if it enhances the migration of contaminants from the Site”); Letter from the Department to Neville, August 1993 (stating that the Department “has not gathered sufficient information and public comment to require any of the alternatives to be implemented as of yet”); id. (stating that the Department “reviewed and approved of the[Groundwater] Removal Action as an interim measure” but that the Groundwater Removal Action “is not a Department-approved final Remedial Action, and cannot be construed as such.... Therefore, whether the [Groundwater] Removal Action constitutes the groundwater portion of the final Remedial Action cannot be determined at this point.”).
Section 9617 of CERCLA, which provides for public participation in selection by the President or a State of a remedial action plan, reinforces our interpretation of “remedial action” as action taken after the final remedial action plan has been approved. After .mandating a public notice and comment period and a public meeting regarding the proposed remedial action plan, 42 U.S.C. § 9617(a)(1) & (2), the statute provides: “Notice of the final remedial action plan adopted shall be published and the plan shall be made available to the public before commencement of any remedial action.” 42 U.S.C. § 9617(b) (emphasis added). So, under the statute, remedial action may not commence — and therefore, the “initiation of physical on-site construction of the remedial action” cannot begin — until after a final remedial action plan is adopted.
The statutory provision limiting the time in which a party may commence a suit for natural resource damages also supports this interpretation of “remedial action.” Title 42 U.S.C. § 9613(g)(1) states, “In no event may an action for damages under this chapter with respect to [a. facility at which a remedial action is scheduled] be commenced ... before selection of the remedial action if the President is diligently proceeding with a remedial investigation and feasibility study....” The reason for this limitation was illuminated in the House Report issued by the Committee on the Judiciary: Congress sought to integrate cost recovery and damages actions. H.R. Rep. 99-253(III), reprinted in 1986 U.S.C.C.A.N. 3038, 3044. The premise behind the Report’s reasoning is clear: natural resource damages actions and cost recovery actions could not be integrated if damages actions were brought before a remedy was selected, because cost recovery suits could not be brought before that point.
Some courts have raised the concern that if one reads the statute,' as we do, to provide that “initiation of physical on-site construction of the remedial action” can only take place after the final remedial action plan is approved, much of the definition of “remedial action” would become superfluous. See, e.g., United States v. Navistar Int’l Transp. Corp., 152 F.3d 702, 712 (7th Cir.1998); California v. Hyampom Lumber Co., 903 F.Supp. 1389, 1392-93 (E.D.Cal.1995); Advanced Micro Devices, Inc. v. Nat’l Semiconductor Corp., 38 F.Supp.2d 802, 811 (N.D.Cal.1999) (citing Hyampom, 903 F.Supp. at 1393). This concern is unwarranted. First, the definition of “remedial action” has roles in the statute other than defining the onset of one limitations period. The functional aspects of the definition are critical, for example, in apportioning the percentage of the costs of any clean-up between States and the Fund. See 42 U.S.C. § 9604; see also 42 U.S.C. § 9621 (requiring that certain standards be met when implementing remedial actions).
Second, even though an action can only be remedial if it is taken after the final remedial action plan is approved, that does not mean that all actions taken after the final remedial action plan is approved are remedial. In Colorado v. Sunoco, Inc., 337 F.3d 1233 (10th Cir.2003), for example, the Tenth Circuit was faced with the task of classifying certain actions, all of which took place after the EPA chose its permanent remedy, as either “remedial” or “removal” actions. After discussing the character of the various actions in light of the definitions of “remedial” and “removal,” the court determined that two of the actions were, in fact, removal actions, both because they were interim rather than permanent measures, taken in response to the threat of release of contaminated water, and because similar activities had been denominated “removal action” by the EPA in previous clean-ups. Id. at 1244-45. Thus, as Sunoco illustrates, our interpretation of the statute of limitations does not render any part of the definition of “remedial” superfluous.
B. Decisions of Other Circuits
Our conclusion that no action can be “remedial” until a final remedial action plan is in place is consistent with the results reached by every court of appeals that has considered the onset of the limitations period for recovery of remedial action costs under CERCLA, if not with all the reasoning of those cases.
In Geraghty, the Fifth Circuit held that the installation of monitoring wells could not have triggered the statute of limitations because it occurred before the government agency overseeing the clean-up had issued its final approval of the remedial plan. See Geraghty, 234 F.3d at 927. The Seventh Circuit also reached the same result as we do, although some of its reasoning differed from ours. See Navistar, 152 F.3d at 711-12. In Navistar, although the final remedial design was not approved until 1990, the final remedial action plan, selecting a permanent clay cap as part of the permanent remedy, was apparently approved before that. Id. at 704 (“At the conclusion of this process[, which ended before February 1989], the EPA determined that, among other things, the landfill needed to be covered with a permanent clay cap to isolate the hazardous materials from the rest of the environment.”). Thus, although the Seventh Circuit rejected a bright-line rule in which the final remedial design had to be formally approved before an action could be considered remedial, the action that it found to be remedial—installing the clay cap—occurred after the final remedial action plan was chosen. Because our holding finds the pivotal event for defining the initiation of remedial action is the adoption of a remedial action plan—not a final remedial design—the facts in Navistar would have led us to find the suit barred by the limitations period as well.
Finally, the Tenth Circuit, while not expressly rejecting a bright-line rule, has distinguished “remedial actions” from “removal actions” based solely on the more “descriptive” parts of their definitions. See Sunoco, Inc., 337 F.3d at 1244-45; see also Pub. Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir.1999) (distinguishing “remedial actions” from “removal actions” in a context other than the triggering of the statute of limitations). In both the Tenth Circuit cases, however, it appears that the actions in question took place after a remedial action plan was in place. See Sunoco, 337 F.3d at 1237, 1244-45; Pub. Serv. Co., 175 F.3d at 1179, 1182-84. Were we faced with the same facts, we, too, would have to turn to the descriptive aspects of the definitions to determine whether the actions at issue in Sunoco Inc. and Public Service Co. were remedial or removal. For the same reasons the result in Navistar is not in conflict with our holding, then, these Tenth Circuit cases do not conflict, either.'
In sum, we conclude that the “initiation of physical on-site construction of the remedial action” can only occur after the final remedial action plan is adopted, and that, in this case, the statute of limitations, therefore, could not have begun to run until the final remedial action was approved on May 8,1995. The Department’s suit was brought within six years of the approval of the remedial action plan and is not, thus, barred by the statute of limitations.
II. Neville’s Defenses on the Merits
Neville raised an affirmative defense — waiver and estoppel — in the district court. The argument was that Neville cannot be liable under CERCLA for the costs of overseeing the clean-up incurred by the Department because the Department had promised that it would not sue Neville for full recovery costs if Neville conducted the research, planning, and clean-up of the. site. The district court ruled that Neville could not assert equitable defenses to a CERCLA recovery action. We review the grant of summary judgment de novo. United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir.1998).
CERCLA section 107(a) and (b), 42 U.S.C. § 9607(a) and (b), allow for only three defenses to CERCLA liability. A covered person is liable under the statute “subject only to the defenses set forth in subsection (b) of this section.” 42 U.S.C. § 9607(a). Subsection (b) lists three defenses “(1) an act of God; (2) an act of war; [and] (3) an act or omission of a third party....” 42 U.S.C. § 9607(b)(1)-(3). In Levin Metals Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1316-17 (9th Cir.1986), we suggested that these defenses were exclusive.
Congress imposed strict, but not absolute, liability under CERCLA. It provided defenses to liability for causation solely by an act of God, an act of war, or acts or omissions of a third party.... Consequently, in order to state a claim for declaration of nonliability, the declaratory judgment plaintiff must base its claim of nonliability on one or more of the statutory affirmative defenses.
Id. (emphasis added) (internal quotation marks and citations omitted).
Every court of appeals that has considered the precise question whether § 9607 permits equitable defenses has concluded that it does not, as the statutory defenses are exclusive. See Gen. Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1418 (8th Cir.1990) (holding that CERCLA does not provide an “unclean hands” defense) (questioned on other grounds in Key Tronic Corp. v. United States, 511 U.S. 809, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)); see also Blasland, Bouck & Lee, Inc. v. City of North Miami, 283 F.3d 1286, 1304 (11th Cir.2002) (holding that CERCLA bars equitable defenses); Velsicol Chem. Corp. v. Enenco, Inc., 9 F.3d 524, 530 (6th Cir.1993) (same); Town of Munster v. Sherwin-Williams Co., 27 F.3d 1268, 1270 (7th Cir.1994) (same). Following the implication of Lev-in Metals and the express holdings of these cases from other circuits, we conclude that the three statutory defenses are the only ones available, and that traditional equitable defenses are not. The district court was correct, therefore, in holding that Neville could not raise equitable defenses to liability under CERCLA.
Neville argues separately that equitable defenses are at least relevant to the amount of recovery that the Department receives. Even if it is liable for some of the oversight costs, Neville asserts, that amount is limited by equitable consideration that the Department’s implied promise to pursue recovery of only a limited “activity fee,” rather than the Department’s actual recovery-oversight costs. Neville cites as support for this argument numerous cases in which courts considered equitable factors in allocating costs in suits for contribution. See, e.g., Alcan-Toyo Am., Inc., v. N. Ill. Gas Co., 881 F.Supp. 342, 346-47 (N.D.Ill.1995); Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1161-62 (N.D.Ind.1995); New York v. Almy Bros., 971 F.Supp. 69, 73 (N.D.N.Y.1997).
Suits for contribution, however, are entirely distinct under the statute from suits for recovery of costs. The former is governed by 42 U.S.C. § 9613(f)(1), which explicitly states, “In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” The provisions of CERCLA governing suits for recovery of costs, 42 U.S.C. §§ 9607(a) and 9613(g)(2), make no such reference to equitable factors. Also, “the critical distinction between [suits for contributions and suits for cost recovery] is that under § 107 [42 U.S.C. § 9607(a)], the court merely determines whether the party is jointly and severally liable, without regard to the amount of fault; but under § 113 [42 U.S.C. § 9618(f)(1)], the court also divides the fault of the parties, using equitable factors.” Catellus Dev. Corp. v. L.D. McFarland Co., 910 F.Supp. 1509, 1514 (D.Or.1995). California is not bringing suit here for contribution, so the specific language allowing the court to consider equitable factors when apportioning contribution is inapplicable.
Neville makes one last defensive argument: The Department may not sue for its recovery costs, Neville contends, because those costs were not consistent with the national contingency plan. Whether a party can recover certain costs under § 9607 depends on whether or not those costs were incurred consistently with the “national contingency plan.” 42 U.S.C. § 9607(a)(4)(A) (providing that a covered person who violates CERCLA “shall be liable for ... all costs of removal or remedial action incurred by the ... State ... not inconsistent tvith the national contingency plan”) (emphasis added). The national contingency plan is promulgated by the EPA and “provide[s] the organizational structure and procedures for preparing and responding to ... releases of hazardous substances.” 40 C.F.R. § 300.1. See also Wash. St. Dep’t of Transp. v. Wash. Natural Gas Co., 59 F.3d 793, 799 (9th Cir.1995) (“WSDOT”). To show that the Department’s actions were inconsistent with the national contingency plan, the burden is on Neville to show that the Department acted in an arbitrary and capricious manner in choosing a particular response action. See id. at 802 (citing United States v. Hardage, 982 F.2d 1436, 1442 (10th Cir.1992)). When a state is seeking recovery of response costs, consistency with the national contingency plan is presumed. Id. at 799-800.
Neville has provided no evidence that the Department acted “arbitrarily and capriciously in choosing a particular response action to respond to a hazardous waste site.” Hardage, 982 F.2d at 1442 (emphasis added). Accord WSDOT, 59 F.3d at 802 (“To prove that a response action of the EPA was inconsistent with the NCP, a defendant must prove that the EPA’s response action was arbitrary and capricious.”) (emphasis added). In fact, Neville does not challenge any response action taken by the Department. Neville challenges instead the Department’s attempt to recover the full oversight costs after suggesting that, should Neville cooperate and conduct the clean-up itself, the Department would only require Neville to pay an “activity fee.” This change in policy and pursuit of the full costs of oversight cannot be “inconsistent with” the national contingency plan, as the national contingency plan does not direct the state to limit its recovery of response costs in any way. See 40 C.F.R. §§ 300.1 et seq. The district court, therefore, did not err by finding that Neville was responsible for all the Department’s response costs.
III. Motion for Leave to Amend
Finally, Neville appeals the district court’s denial of its motion for leave to amend its counterclaim. We review the district court’s denial of Neville’s motion for leave to amend for an abuse of discretion. See Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir.1999).
Generally, leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). “[T]he grant or denial of an opportunity to amend is within the discretion of the District Court,” and denial of leave to amend is appropriate if the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). “[F]utility includes the inevitability of a claim’s defeat on summary judgment.” Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir.1987).
Neville moved to amend its complaint to allege a violation of due process and equal protection under the California Constitution. The district court denied Neville’s motion for leave to amend because the court determined that amendment would be futile. The district court held that, even if Neville were to amend its complaint and allege a violation of equal protection, Neville could not point to a triable issue of material fact to support such an allegation. On appeal, Neville argues only that the district court erred by (1) holding that the California Constitution requires a showing of “invidious discrimination” to prove selective prosecution, and (2) refusing to compel discovery on the issue of selective prosecution.
The district court did not abuse its discretion. First, the court was correct in its interpretation of California constitutional law in holding that Neville had to allege discrimination based on an “invidious” criterion. Baluyut v. Superior Court, 12 Cal.4th 826, 50 Cal.Rptr.2d 101, 911 P.2d 1, 5 (1996), on which Neville exclusively relies, holds that a defendant must show that “he has been deliberately singled out for prosecution on the basis of some invidious criterion” in order to prove discriminatory prosecution. Id. (citation and internal quotation marks omitted). That case goes on to define “invidious” as “unrelated to legitimate law enforcement objectives.” Id. at 6. Additionally, Baluyut states that “[ujnequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement.” Id. at 5.
Neville fails to allege, first, that other similarly situated parties were excused from paying the full oversight costs and thus that it was “deliberately singled out for prosecution.” Even if Neville could show this, it would have to allege also that the reason for this discrepancy was not simply laxity of enforcement, but was in fact a result of invidious discrimination, i.e., unrelated to law enforcement purposes. As the record now stands, Neville has shown that the Department changed its policy about collecting oversight costs. However, this change was explained by the Department: the agency determined that the non-enforcement policy was inconsistent with state statutes. Thus, the Department has provided a non-arbitrary, law enforcement rationale for the change in policy. On the basis of this record, the district court did not abuse its discretion by denying leave to amend, or by denying discovery when no actionable injury was alleged.
AFFIRMED.
. The Department of Toxic Substances Control was a division of the California Department of Health Services until it became a separate department in 1991. We will refer to this entity simply as "the Department" throughout this opinion.
. The statute divides actions for recovery of costs into initial and subsequent. The parties do not dispute that this is an "initial action."
. In cases where private, non-governmental parties conduct the clean-up of a site without governmental or agency oversight and then pursue response costs under CERCLA, there will most likely still be a remedial action plan in place. See 40 CFR § 300.700 (providing that private parties should follow the public notice and comment procedures required of government actors). As no non-governmental response cost suit is before us, however, we do not address the limitation period applicable to such suits.
. This is not to say that the Department was unable to bring any suit to recover any costs at the time Neville began excavating the extraction wells. Under 42 U.S.C. § 9613(g)(2), "an action may be commenced under section 9607 of this title for recovery of costs at any time after such costs have been incurred." As soon as the Department expended its first dollar, it could have sued Neville for this dollar and sought a declaratory judgment of Neville's liability for future response costs. However, the availability of the option to bring suit earlier, and thereby obtain a declaratory judgment as to liability, should not confound Congress's clear intention that an initial action to recover remedial costs may be brought "within 6 years after initiation of physical on-site construction of the remedial action." A suit to recover the costs of particular remedial actions, as opposed to a suit to recover removal costs and obtain a declaratory judgment on liability, can only be brought once those remedial actions have been completed.
. The legislative history of the Superfund Amendments and Reauthorization Act of 1986 (SARA), which added the statute of limitations provision to CERCLA, is consistent with our interpretation of § 9613(g)(2). When we can interpret a statute by its plain meaning, we only look to the congressional history to "ensure that there is no clearly contrary legislative intent.” Carson Harbor Village, Ltd., 270 F.3d at 884. There is none here. The House Report from the Judiciary Committee states: "The statute of limitations provided by this amendment for the initial cost recovery action for a remedial action is three years from the commencement of physical on-site construction of the remedial action, that is, after the [Remedial Investigation/Feasibility Study] and after design of the remedy." H.R. Rep. 99-253(111), reprinted in 1986 U.S.C.C.A.N. 3038, 3044 (emphasis added) (referring to one version of the predecessor bill, H.R. 2817, which provided a three-year statute of limitation but was otherwise identical to the final Act with regard to the pertinent limitations provision). The design of the remedy can only occur after the final remedy has been selected in the final remedial action plan.
. Because of the temporal aspect of our interpretation of "remedial action," we do note that the government can only recover costs as "remedial” if those costs were incurred after the cause of action for such costs accrues. Any costs incurred before the remedial action plan was finally designated (such as the construction of the extraction wells in this case) may be recovered, however, as “removal" costs, and are subject to the statute of limitations for removal actions. See 42 U.S.C. § 9613(g)(2)(A) ("An initial action for recovery of the costs referred to in section 9607 of this title must be commenced ...[,] for a removal action, within 3 years after completion of the removal action...."); 42 U.S.C. § 9613(g)(2)(B) ("[I]f the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subpara-graph.”).
. A remedial design is a term of art in CERC-LA, and differs both substantively and temporally from a final remedial action plan. While there is no explicit definition of "remedial action plan” in either the statute or the regulations implementing it, the regulations do provide a detailed description of the process whereby a final remedy is selected by the agency. In this process, the lead agency must present a proposed plan, which fits the description of the "remedial action plan” of CERCLA’s Section 9617, to the public. 40 CFR § 300.430(f)(2). The “proposed plan” must "briefly describe! ] the remedial alternatives analyzed by the lead agency, propose! ] a preferred remedial action alternative, and summarize!] the information relied upon to select the preferred alternative.” Id. The regulation continues, "The purposes of the proposed plan is to supplement the RI/FS and provide the public with a reasonable opportunity to comment on the preferred alternative for remedial action, as well as alternative plans under consideration, and to participate in the selection of remedial action at a site.” Id. The remedy chosen in the remedial action plan is only generally described in that document, leaving for a subsequent date the actual design of the plan’s physical implementation. See 40 CFR § 300.430(f)(1)-(6) (describing the process by which the lead agency chooses a final remedy and documents its selection in a record of decision); see also 42 U.S.C. § 9617 (providing publication requirements in the event that the remedial action differs from the adopted final remedial action plan).
The final remedial design, on the other hand, while based on the remedy adopted in the RAP, is distinct: it is "the technical analysis and procedures which follow the selection of remedy for a site and result in a detailed set of plans and specifications for implementation of the remedial action.” 40 CFR § 300.5.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1517857142857143, Costs: 0
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O’SCANNLAIN, Circuit Judge.
“Bitter tears were shed over the slaugh-
ter
of the oyster, but as usual,
crying didn’t help.”
In this case, involving the destruction of oyster beds which allegedly occurred as a result of an oil spill on the Oregon coast, we must determine the admissibility of expert testimony on the issue of causation.
I
Our story begins on February 3, 1999, when the M/V New Carissa, a Panama-registered and Japanese-owned freighter carrying 400,000 gallons of bunker and diesel fuel, bound for Coos Bay, Oregon, to pick up a load of wood chips, anchored two miles off the Coos Bay North Spit because the bar was too rough to cross. The next day, the ship’s anchor began to drag, and while its crew attempted to raise the anchor and move the ship to deeper water, rough weather pushed the ship toward shore, and it ran aground. The Coast Guard airlifted the twenty-three crew members and a bar pilot from the ship the next day. The vessel began to leak oil as pounding waves widened cracks in its hull. With an approaching storm threatening to tear the ship asunder with seventy mile-per-hour winds, federal and state authorities responding to the crisis feared an environmental catastrophe. They decided to try a maneuver never previously attempted in the contiguous forty-eight states — to burn the vessel and its fuel, rather than risk trying to bring the ship out intact. On February 12, using plastic explosives and napalm, United States Navy and Coast Guard demolition crews detonated an explosion that cracked the fuel tanks and ignited the fuel oil as it spilled into cargo holds. The daring attempt worked, the fire consumed approximately 200,000 gallons of the ship’s fuel and the blast ripped the ship into two pieces, which listed about 100 feet apart in the sea.
While a major environmental disaster was averted, the ship nonetheless spilled 70,000 gallons of oil, and oil from the New Carissa was soon detected inside Coos Bay. In addition to being a wood products port, Coos Bay, with its cool waters that reduce the risk of disease and sloughs that provide ample space for growing, is the richest oyster growing area in Oregon. Oyster farming plays a major part in the economic life of Oregon’s south coast, and at the time of the spill, the four largest oyster farms had approximately $10 million worth of young oysters' seeded in Coos Bay. Sure enough, oil was soon detected in the oyster beds themselves, prompting the Oregon Department of Agriculture to close Coos Bay’s commercial oyster farms. Within weeks, approximately 3.5 million oysters died. A subsequent report prepared by federal and state agencies responding to the spill- concluded that oil from the New Carissa was present in the tissues of every Coos Bay oyster that had been tested.
The plaintiffs in this action are Max and Lilli Clausen, owners and operators of Clausen Oysters, a commercial oyster farm located in Coos Bay. The Clausens brought suit against the New Carissa and its corporate owners and operators in federal district court, alleging claims under the Federal Oil Pollution Act, 33 U.S.C. § 2701, and the Oregon Oil Spill Act, Or.Rev.Stat. § 468B.300. Under the Oregon Spill Act and the Federal Oil Pollution Act, parties responsible for oil spills are strictly liable without regard to fault for damages caused by the spill, subject to certain exceptions not at issue here. See 33 U.S.C. § 2702(a)(“[E]ach responsible party for a vessel ... from which oil is discharged ... is liable for the ... damages ... that result from such incident.”); Or.Rev.Stat. § 468B.310(1) (“Any person owning oil or having control over oil which enters the waters of this state ... shall be strictly liable, without regard to fault, for the damages to persons or property, public or private, caused by such entry.”). Thus, the only disputed issue in this litigation was the cause of the 3.5 million oyster deaths, and the jury was ultimately presented with a murder mystery worthy of Hercule Poirot himself: who, or what, killed the oysters?
A
The case quickly boiled down to a classic battle of the experts, involving two heavyweights in the field of shellfish disease. In presenting their case, the Clausens relied on Dr. Ralph Elston, a distinguished marine biologist with considerable expertise in the field of aquatic toxicology and the study and diagnosis of shellfish disease. He laid the blame for the oyster deaths squarely at the feet of the ship owners, his theory being that the oysters had died as a result of coming into contact with New Carissa oil particulates, which caused lesions in the gills of the shellfish, leading to bacterial infection, ultimately resulting in their deaths.
The ship owners relied on a similarly renowned and well credentialed expert in this field, Dr. Jerry Neff. Dr. Neff testified that the oysters did not die due to their contact with oil. According to Dr. Neff, the villain of the piece was mother nature — the oysters were killed by low salinity levels (salt per thousand parts of water) in Coos Bay, which was caused by heavy rainfall leading to increased freshwater streamflow into the estuary. Dr. Neff rejected Dr. Elston’s theory of contact toxicity because, at relatively low levels of oil exposure, where there was no bioaccumulation of petroleum hydrocarbons in the tissues of the oysters, the theory had no support in the scientific literature.
While the experts in this case would reach differing conclusions with respect to the ultimate cause of the oyster deaths, the area of agreement between Drs. Neff and Elston was nevertheless quite large. Both experts agreed that the deaths were caused by bacterial infection, and both agreed the infection was a direct result of gill lesions the oysters had developed. Both experts agreed that the possible causes of the gill lesions were finite and identifiable, and in conducting their diagnostic evaluations, both identified six possible suspects: (1) infectious disease; (2) freezing trauma; (3) acute toxic effects of non-oil contaminants; (4) acute toxic effects of oil; (5) low salinity; and (6) low-level toxic effects of oil. As they gathered and evaluated the available data, both of the experts ruled out suspects one through four as the ultimate cause of the oyster deaths.
1
Dr. Neff ultimately pointed to suspect number five, low salinity. He explained at trial that the natural environment for oysters is the ocean, where salinity levels are approximately 34-35 parts per thousand (ppt). The ocean is no good for farming however, since the oysters’ natural predators — oyster drills, rock shells, whelks, starfish, and the like — would ravage the beds. Hence, farming takes place for the most part in estuaries like Coos Bay that experience, influxes of ocean water through tidal action as well as fresh water from rivers and streams flowing into the bay. The idea is to plant the oyster beds where the salinity level is such that the oysters are safe from their natural predators, but the oysters will nonetheless thrive.
According to Dr. Neff, oysters do quite well in water that has a salinity level of 20 ppt or above. At lower than 20 ppt, oysters will become slightly stressed and their filtration rate — their ability to pump water and feed through the gills — decreases. At 13 ppt or lower, severe stress occurs, and at prolonged, exposure to salinity levels at 8 ppt or below, oysters will die. Dr. Neff further explained that oysters can tolerate low salinity levels for extended periods of time. When salinity levels fall below safe levels, oysters will clam up — pun intended — and cease to feed and to filter water. This way, the oyster protects itself from dangerously low salinity levels, but the disadvantage is that it deprives its tissues of needed oxygen, and eventually it will use up its natural resources and die. When so-called anaerobic low-salinity mortality occurs, the oyster’s tissue putrifies, and the oyster emits a rotting odor. Additionally, the tissue, depleted of oxygen, turns acidic, resulting in an etching on the inside of the shell.
The oysters at the Clausen farm did not present the strong odor or the etching that are the salient characteristics of anaerobic low salinity mortality. Rather, Dr. Neffs theory was that the oysters were exposed to low salinity, “not sufficiently low to cause this anaerobic response, but sufficiently low to stress the oysters and over a long period of time to cause the histopa-thological lesions in the gills that Dr. El-ston reports.”
2
Dr. Elston, on the other hand, pointed to suspect number six — low-level toxic effects of oil — as the most likely culprit. He explained that oysters, like all shellfish, are filter feeders. Because there are lots of particles in water not suitable as food, oysters have developed an elaborate system for sorting useful material from debris and other particles which are not nutritious or which might be toxic. When the concentration of a toxicant like oil becomes sufficiently large, the oil overwhelms the oyster’s feeding mechanism, resulting in death, essentially by its choking on the oil. He further explained that the concentration of oil found in the water at Coos Bay was not sufficiently great to result in the acute toxic effect of oil described above. Rather, Dr. Elston’s theory was that, while there were insufficient quantities of oil to overwhelm the oysters, the contact with the oil in the water caused the oysters to develop gill lesions, which in turn led to the bacterial infections that would ultimately cause their deaths. In other words, the oysters were able successfully to weed out the oil particulates, preventing ingestion, but that contact itself caused the lesions which in turn led to their deaths.
B
It is worth noting that both experts ruled in so-called contact toxicity — low-level toxic effects of oil — as a possible cause of the oyster mortalities in this case. In deciding to include contact toxicity in the lineup of suspects, Dr. Elston relied on a number of factors. First, there was the geographic and temporal proximity between the spill and the 3.5 million deaths. He also relied on his own field studies of the oyster beds, as well as his histopatho-logical examinations of several Coos Bay oysters. He further testified that he relied on government reports summarizing data collected during the response to the oil spill, which concluded that New Carissa oil had circulated within Coos Bay, and that every oyster tested during that time was found to have come into contact with New Carissa oil. While he acknowledged that the literature on the subject of contact toxicity was sparse, he explained that this was mostly due to the limited opportunities for such study. He rejected Dr. Neffs assertion that contact toxicity was wholly without support in the literature, and pointed to a paper written by Dr. Neff himself which concluded that “petroleum hydrocarbons, and particularly the more toxic aromatics and heterocyclics, accumulated by marine animals interact with cells and tissues to produce a variety of lesions.” He also relied on the fact that contact toxicity was, generally speaking, well established in scientific literature, and while the literature specific to shellfish was sparse, “we certainly know that contact toxicity is a mechanism that occurs in virtually every animal system in which it’s been studied.”
Dr. Elston disagreed with Dr. Neffs ultimate conclusion that low salinity levels were the cause of the oyster deaths, and articulated several reasons for doing so. He found it significant that the oysters did not exhibit the characteristics associated with anaerobic low salinity mortality. He also based his decision to rule out low salinity as the cause of death on historic rainfall data, which indicated that the Clausen’s oyster farm had been exposed to higher rainfall totals, and hence lower salinity levels, in prior years without experiencing significant fatalities. Dr. Elston also noted that the data Dr. Neff relied on was insufficient to establish actual salinity levels during the relevant times. He explained . that saltwater concentrations change along with the ebb and flow of the tide, and that an oyster can endure long periods of low salinity by “shutting down,” and by periodically opening back up to feed and filter whenever the tides raised salinity levels to acceptable levels, thereby reestablishing its equilibrium. He explained that in order to gather accurate data on salinity levels, one would have to take salinity readings approximately every fifteen minutes. The data Dr. Neff relied on was collected several times per month, and therefore, in Dr. Elston’s opinion, it was inadequate. Consequently, he ruled out low salinity as the cause of the oyster deaths, and by process of elimination, came to the conclusion that low level toxic effects of oil were to blame. As he testified at trial: “If we take the New Carissa oil exposure out of the equation, there is no other explanation for the oyster mortality.”
C
Prior to trial, the ship owners moved in limine to exclude Dr. Elston’s proffered testimony on the basis that it failed to pass muster under the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Because causation was the only disputed issue for trial, and because the Clausen’s case rested on Dr. Elston’s testimony, the ship owners also asked the trial court for summary judgment. After conducting an evi-dentiary hearing, the magistrate judge denied the motion to exclude Dr. Elston’s testimony and the motion for summary judgment. The ease proceeded to trial, whereupon Drs. Elston and Neff presented their competing theories of the case to the jury. The jury believed Dr. Elston, and returned a jury verdict in favor of the Clausens for approximately $1.4 million. The ship owners subsequently filed a motion for judgment as a matter of law, once again arguing that Dr. Elston should not have been permitted to testify on the basis of Daubert. The trial court denied that motion. See Clausen v. M/V New Carissa, 156 F.Supp.2d 1192 (D.Or.2001). The Clausens then asked the trial court to award them their reasonable attorney fees and costs — including expert witness fees— pursuant to the Oregon Oil Spill Act, Or. Rev.Stat. §§ 468B.310(1), 300(6). The trial court granted the motion, and awarded the Clausens attorney fees in the amount of $651,382.30, and expenses, including expert witness fees, in the amount of $149,170.05. See 171 F.Supp.2d 1138 (D.Or.2001). The ship owners timely appeal.
II
We review the district court’s decision to admit Dr. Elston’s testimony for an abuse of discretion. See Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.2001). We may only reverse the district court if we are left with a definite and firm conviction that the district court committed a clear error of judgment in admitting that testimony. See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001).
A
Federal Rule of Evidence 702 governs the admissibility of scientific evidence in federal district court. In Daubert, the Supreme Court charged district courts with the responsibility of ensuring that proferred scientific evidence is both relevant and reliable. See 509 U.S. at 589-95, 113 S.Ct. 2786. Scientific evidence is deemed reliable if the principles and methodology used by an expert are grounded in the methods of science. Id. at 592-95, 118 S.Ct. 2786; Domingo v. T.K., 289 F.3d 600, 605 (9th Cir.2002). In Daubert the Supreme Court set forth a non-exclusive list of factors to determine whether scientific testimony is sufficiently reliable: (1) whether the scientific theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential error rate; and (4) whether the theory or technique is generally accepted in the scientific community. Daubert, 509 U.S. at 593-95, 113 S.Ct. 2786.
In determining whether a proffer of scientific evidence is sufficiently reliable, we have previously held that “[o]ne very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir.1995) (“Daubert II ”). If the testimony is not based on independent research then what is required is “proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.” Id. at 1318.
B
We note at the outset that neither of Daubert II’s two primary criteria for establishing the reliability of expert testimony is met in this case. Dr. Elston’s research was not “conducted independent of the litigation.” Id. at 1317. Rather, his opinion was developed “expressly for purposes of testifying.” Id. Nor was that research “subjected to 'normal scientific scrutiny through peer review and publication.” Id. at 1318. This does not mean, however, that his testimony was improperly admitted; a proffer of scientific testimony may still be deemed reliable enough to be admitted if neither of these two criteria is met. We recognized in Daubert II that “[tjhere may well be good reasons why a scientific study has not been published. For example, it may be too recent or of insufficiently broad interest.” Id. at 1318 n. 9. Where peer review and publication are absent, “the experts must explain precisely how they went about reaching their conclusions and point to some objective source — a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like — to show that they have followed the scientific evidence method, as it is practiced by (at least) a recognized minority of scientists in their field.” Id. at 1319. The Clausens argue that this is exactly what happened here; Dr. Elston explained precisely how he went about reaching his conclusions as to the ultimate cause of the oysters’ gill lesions, and in reaching that conclusion, they argue, Dr. Elston followed a universally accepted method for establishing the root cause of the oyster deaths — differential diagnosis.
l
A whole sub-body of Daubert law has developed with respect to the reliability, and admissibility, of differential diagnosis. Differential diagnosis is “the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings.” Stedman’s Medical Dictionary 474 (26th ed.1995) (hereinafter “Sted-man’s”). As described by the Fourth Circuit,
Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. A reliable differential diagnosis typically, though not invariably, is performed after “physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests,” and generally is accomplished by determining the possible causes for the patient’s symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262(4th Cir.1999) (citation and internal quotation omitted).
Differential diagnosis is a common scientific technique, and federal courts, generally speaking, have recognized that a properly conducted differential diagnosis is admissible under Daubert. See, e.g., Westberry, 178 F.3d at 262-66 (4th Cir.1999); Heller v. Shaw Indus., Inc., 167 F.3d 146, 154-55 (3d Cir.1999); Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252-53 (1st Cir.1998); Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir.1998); Ambrosini v. Labarraque, 101 F.3d 129, 140-41 (D.C.Cir.1996).
2
The first step in the diagnostic process is to compile a comprehensive list of hypotheses that might explain the set of salient clinical findings under consideration. See Clinical Reasoning, swpra n. 2, at 112. The issue at this point in the process is which of the competing causes are generally capable of causing the patient’s symptoms or mortality. Expert testimony that rules in a potential cause that is not so capable is unreliable. See Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387, 1418 (D.Or.1996) (“[I]t is ... important to recognize that a fundamental assumption underlying [differential diagnosis] is that the final, suspected ‘cause’ ... must actually be capable of causing the injury.”). Similarly, expert testimony that neglects to consider a hypothesis that might explain the clinical findings under consideration may also be unreliable. Including even rare entities in the list “ensures that such disorders are not overlooked.” Clinical Reasoning, supra n. 2, at 112; see also Westberry, 178 F.3d at 265(“A differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation.”).
After the expert rules in all of the potential hypotheses that might explain a patient’s symptoms, he or she must then engage in a process of elimination, eliminating hypotheses on the basis of a continuing examination of the evidence so as to reach a conclusion as to the most likely cause of the findings in that particular case. A district court is justified in excluding evidence if an expert “utterly fails ... to offer an explanation for why the proffered alternative cause” was ruled out. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4th Cir.2001). The expert must provide reasons for rejecting alternative hypotheses “using scientific methods and procedures” and the elimination of those hypotheses must be founded on more than “subjective beliefs or unsupported speculation.” Claar v. Burlington N. R.R. Co., 29 F.3d 499, 502 (9th Cir.1994).
While we have not previously used the magic words “differential diagnosis,” we recognized in Kennedy v. Collagen Corp., 161 F.3d 1226 (9th Cir.1998), that a reliable differential diagnosis passes muster under Daubert. See Westberry, 178 F.3d at 263(citing Kennedy for the proposition that the Ninth Circuit has held that “a medical opinion on causation based upon a reliable differential diagnosis is sufficiently valid to satisfy” Rule 702); Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1210-11 (10th Cir.2002) (noting that Kennedy permitted the admission of a reliable differential diagnosis); see also Gary Sloboda, Differential Diagnosis or Distortion?, 35 U.S.F. L.Rev. 301, 315 (2001) (“Although the Ninth Circuit has never explicitly rejected or validated expert causation testimony based on a differential diagnosis, in Kennedy ... it effectively recognized its use as a rehable methodology”).
Kennedy involved a product liability action for injuries sustained by the plaintiff following injections of the defendant’s medical product, Zyderm. 161 F.3d at 1227. The plaintiff claimed that she developed “atypical systemic lupus erythemato-sus (SLE), a debilitating and incurable autoimmune disease, as a result of the Zyderm injections.” Id. The plaintiff sought to introduce the affidavit of an expert that established causation. Id. at 1228. In forming his opinion, the expert relied “upon a variety of objective, verifiable evidence,” including an examination of the plaintiff, the plaintiffs medical history, her medical laboratory tests, and her medical reports. Id. The district court rejected the expert’s testimony because he had not relied on specific epidemiological or animal studies proving Zyderm causes SLE and because there existed no consensus in the medical community on the issue. Id.
We reversed the district court, and held that the proffered evidence was reliable, and therefore admissible, because it was “based on [the expert’s] knowledge of the connection between collagen and various autoimmune disorders, combined with [the expert’s] observation of [the plaintiffs] injuries and her medical history and laboratory tests.” Id. at 1229-30. We noted that the lack of studies linking Zyderm and SLE was not fatal to its admissibility: “The fact that a cause-effect relationship between Zyderm and lupus in particular has not been conclusively established does not render [the expert’s] testimony inadmissible.” Id. at 1230. Accordingly, the district court “abused its discretion in excluding [the expert’s] testimony.” Id. at 1227.
3
The ship owners’ primary argument on appeal is not that differential diagnosis is itself unreliable, but that Dr. Elston’s particular use of the methodology was unreliable because he should never have ruled in low-level toxic effects of oil as a potential cause of the oyster mortality. The ship owners argue that the quantity of oil necessary to cause harm to gill feeding organisms has not .been established with any degree of certainty, and therefore Dr. Elston’s decision to include low-level toxic effects of oil as a possible cause of the mortality was mere guesswork on his part, unsupported by “scientific knowledge.” The ship owners also point out that low-level toxic effects of oil have not been established as a potential cause of gill lesions in shellfish in the scholarly literature.
Dr. Elston’s testimony was not unsupported by “scientific knowledge.” The principles and methodology he employed in conducting his research and reaching his conclusions were “grounded] in the methods and procedures of science.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Dr. El-ston’s decision to rule in contact toxicity as a possible cause of the oyster mortality was based on a number of factors. He first conducted histopathological examinations in the lab, and concluded that the oysters had developed gill lesions, and those lesions were the ultimate cause of the oysters’ death. His decision to rule in contact toxicity as a possible cause of death was based, on a detailed history of the oyster site; the government reports concluding that New Carissa oil entered into and circulated within the Coos Bay oyster farms; the fact that every oyster tested by the government was found to contain oil from the New Carissa; and the temporal and geographic proximity with the New Carissa oil spill. While the mere fact that two events correspond in time and space does not necessarily mean they are causally related, “a temporal relationship between exposure to a substance and the onset of a disease ... can provide compelling evidence of causation.” Westberry, 178 F.3d at 265; Heller, 167 F.3d at 154; Zuchowicz, 140 F.3d at 385, 390. Indeed, the geographic and temporal proximity between the spill and the onset of the gill lesions led the ship owners’ own expert, Dr. Neff, to rule in contact toxicity as a possible cause of the oyster deaths. Dr. Elston’s decision to rule in contact toxicity is based “upon a variety of objective, verifiable evidence,” Kennedy, 161 F.3d at 1228, and compares favorably to the quantum and quality of evidence found sufficient in Kennedy.
The fact that the minimum threshold level of oil necessary to cause harm to shellfish has not yet been established with any degree of certainty does not render Dr. Elston’s evaluation mere guesswork, as the shipowners argue. While “precise information concerning the exposure necessary to cause specific harm [is] beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic ... and need not invariably provide the basis for an expert’s opinion on causation.” Westberry, 178 F.3d at 264; Heller, 167 F.3d at 157(“even absent hard evidence of the level of exposure to the chemical in question, a medical expert could offer an opinion that the chemical caused plaintiffs illness”).
In addition, while the case for contact toxicity has not been specifically established in the relevant scholarly literature, it is nonetheless not wholly without support in such publications. Contact toxicity is a mechanism that occurs in every animal system in which it has been studied, and the ship owners’ expert himself, Dr. Neff, wrote a paper which indicated that gill lesions can occur in shellfish when exposed to oil. Even were we to put Dr. Neffs paper aside, we have held that a lack of specific scholarly support does not prevent the admission of differential diagnosis testimony: “The fact that a cause-effect relationship ... has not been conclusively established does not render [the expert’s] testimony inadmissible.” Kennedy, 161 F.3d at 1230. Furthermore, there are good reasons why there is a paucity of literature with respect to the particular scientific theory at issue here — the causal relationship between low level toxic effects of oil and shellfish disease. Oil spills, fortunately, are a rare enough occurrence, and the opportunities for scholarly research are few. In such a situation, a lack of published studies should not bar otherwise scientifically valid testimony. The Supreme Court itself has recognized that “[publication ... is not the sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions ... are too particular, too new, or of too limited interest to be published.” Dauberb, 509 U.S. at 593, 113 S.Ct. 2786 (citations omitted); see also Dauberb II, 43 F.3d at 1318 n. 9 (“There may well be good reasons why a scientific study has not been published. For example, it may be too recent or of insufficiently broad interest.”); Kennedy, 161 F.3d at 1229 (“[I]t is scientifically permissible to reach a conclusion without [specific] studies.”).
The case law specific to differential diagnosis recognizes that the absence of peer-reviewed studies does not in itself prevent an expert from ruling in a diagnostic hypothesis that might explain the patient’s symptoms. As the Eighth Circuit explained,
We do not believe that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness. The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims’ condition and the toxic substance, has not yet been completed. If a properly qualified medical expert performs a reliable differential diagnosis through which, to a reasonable degree of medical certainty, all other possible causes of the victims’ condition can be eliminated, leaving only the toxic substance as the cause, a causation opinion based on that differential diagnosis should be admitted.
Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208-9 (8th Cir.2000) (quotations and internal citations omitted); see also Heller, 167 F.3d at 155; Hollander, 289 F.3d at 1211-12; Westberry, 178 F.3d at 262 (reliable differential diagnosis alone may provide a valid foundation for a causation opinion, even when no epidemiological studies, or laboratory data are offered in support of the opinion).
In short, contrary to the ship owners’ argument, Dr. Elston could permissibly include low-level toxic effects of oil as a possible cause of the oyster mortality without supporting peer-reviewed literature specific to that subject, so long as he relied “upon a variety of objective, verifiable evidence.” Kennedy, 161 F.3d at 1228. Dr. Elston did that here. The record indicates that he surveyed the oyster beds, conducted clinical examinations of the diseased and dead oysters, relied on reports from the government response teams showing that New Carissa oil was in the oyster beds, and in the oysters themselves, and on the fact that contact toxicity is a mechanism that occurs in every animal system studied thus far. Under the circumstances, we cannot say it was “junk science” for Dr. Elston to rule in contact toxicity as a possible cause of the oyster deaths.
4
Dr. Elston’s reasons for reaching the conclusion, by process of elimination, that contact toxicity was the specific cause of the oyster deaths were similarly reliable. Specifically, his decision to rule out low salinity levels — the culprit the ship owners point to — was based on Dr. Elston’s examination of data relating to historic rainfall patterns in the Coos Bay area, as well as finalized chemistry data from the government response team. He provided specific reasons for ruling out low salinity levels as the cause of the oyster deaths, including the fact that the oysters did not exhibit any of the characteristics associated with anaerobic low salinity mortality; that Coos Bay was previously exposed to higher rainfalls without significant oyster deaths; and that the salinity testing conducted by the government, and on which Dr. Neff relied, was too infrequent to provide for an accurate assessment of the actual salinity levels during the relevant time period. After eliminating low salinity levels as the ultimate cause of the oyster deaths, Dr. Elston was left to conclude that low level toxic effect of oil was the most probable explanation for the oyster deaths. As he explained, “if we take the New Carissa oil exposure out of the equation, there is no other explanation for the oyster mortality.” This is not a case, therefore, where the expert “utterly fails ... to offer an explanation for why the proffered alternative cause” was ruled out, Cooper, 259 F.3d at 202, nor were Dr. Elston’s stated reasons for ruling out low salinity as the specific cause of the deaths based upon “subjective beliefs or unsupported speculation.” Claar, 29 F.3d at 502.
Presented with the Clausen’s proffer of expert scientific testimony in this case, the trial judge engaged in a thorough preliminary assessment of whether 'the reasoning or methodology underlying Dr. Elston’s testimony was scientifically valid, as required by Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. We conclude that trial judge’s conclusion that the proffered testimony was sufficiently reliable to go to the jury was not an abuse of discretion.
Ill
Under the Oregon Oil Spill Act, persons “owning oil or having control over oil which enters the waters ... [are] strictly liable, without regard to fault, for the damages ... caused by such entry.” Or. Rev.Stat. § 468B.310(1). Damages means “damages, costs, losses, penalties or attorney fees of any kind for which liability may exist under the laws of this state resulting from, arising out of or related to the discharge or threatened discharge of oil.” Id. § 468B.300(6). The trial court found that these provisions were “most appropriately viewed as including an extensive fee-shifting award that allows a prevailing plaintiff to recover attorney fees and litigation costs according to traditional principles of reasonableness.” 171 F.Supp.2d at 1141. Accordingly, the district court awarded attorney fees and expenses, including expert witness fees, to the Clausens. See id. at 1138. We review that decision de novo. See Kona Enters, v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000).
A
The ship owners argue that, contrary to the district court’s interpretation, the Spill Act does not contemplate an award of attorney fees in an action brought pursuant to the Act itself. Rather, they argue that the Spill Act provides only for those attorney fees incurred at some time prior to an action brought under the Act. They put forth three separate, but related, arguments in support of this interpretation.
First, the ship owners point out that the general rule in Oregon is that attorney’s fees are not considered damages when sought in the same action in which the services were rendered. However the cases they cite stand for a rather narrower proposition: “The general rule is that attorney fees are not recoverable in a breach of contract action unless authorized by statute or by the agreement.” Raymond v. Feldmann, 124 Or.App. 543, 546, 863 P.2d 1269 (1993) (emphasis added). This is not a breach of contract action, and of course, the argument that there is a general rule against the recovery of attorney fees as damages begs the question whether that rule has been changed by statute in the instant case. The damages provisions of the Spill Act are written in extremely broad terms, see Portland Gen. Elec. Co. v. Bureau of Labor & Ind., 317 Or. 606, 610, 859 P.2d 1143 (1993) (“[T]he text of the statutory provision itself is ... the starting point for interpretation arid is the best evidence of the legislature’s intent.”), defining damages as “damages, costs, losses, penalties or attorney fees of any kind for which liability may exist....” See Or.Rev. Stat. § 468B.300(6) (emphasis added). This is no ordinary damages provision, and the plain language of the provision indicates that the Oregon legislature contemplated a broad potential recovery for losses incurred as a result of an oil spill.
Second, the ship owners argue that the district court’s interpretation of the damages provision fails to give effect to all of the words in the statute. They point out that if the provision is interpreted to include attorney fees incurred in the same action in which the services are rendered, the phrase “attorney fees of any kind for which liability may exist under the laws of this state” is rendered meaningless, and that such a result is contrary to the basic tenets of statutory construction. See Tabor v. Ulloa, 323 F.2d 823, 824 (9th Cir.1963) (“a legislature is presumed to have used no superfluous words”).
The ship owners neglect to take account of the remaining language in the sentence on which they rely, however. Damages “include[ ] attorney fees of any kind for which liability may exist under the laws of this state resulting from, arising out of or related to the discharge or threatened discharge of oil.” Or.Rev.Stat. § 468B.300(6) (emphasis added). The liability must “result[ ] from ... the discharge or threatened discharge of oil.” id., and the only Oregon law governing liability for the discharge or threatened discharge of oil is the Spill Act itself. Thus, contrary to giving effect to all the language in the provision, the ship owners’ interpretation would have the effect of rendering the language relating to attorney fees a nullity, and the canon of construction on which the ship owners rely actually cuts against their argument.
While the damages provision in the Oregon Oil Spill Act is not exactly a model of clarity, we agree with the learned trial judge that the phrase “for which liability may exist under the laws of this state” refers to the fact that attorney fees “can only be charged to the purported polluter upon a finding of liability under the Oregon Oil Spill Act or other Oregon statute. Once liability has been found, the polluter is responsible for damages and fees ‘of any kind,’ including fees incurred in a prior action, but hardly limited to only such fees.” 171 F.Supp.2d at 1140 n. 3. Contrary to the ship owners’ argument, this interpretation gives effect to all of the language in the provision, and makes sense in light of the non-traditional definition of damages in the Spill Act.
Finally, the ship owners point out that the Oregon legislature has shifted fees in other statutes, and they did so in clear and explicit terms. See, e.g. Or.Rev.Stat. § 646.638(3) (unlawful trade practices act); id. § 742.061(l)(insuranee disputes); id. § 20.080(1) (minor tort claims). Construing the damages provision here to provide for fee-shifting makes no sense in light of these examples, they argue. But the Oregon legislature is hardly limited to a single method of providing for attorney fees. While we accept the proposition that attorney fees are not traditionally included as “damages,” the ship owners argument simply fails to take account of the non-traditional definition of damages adopted by the Oregon legislature in this instance. To be sure, attorney fees are not normally included as “damages,” but neither are “costs, losses, [or] penalties,” Or.Rev.Stat. § 468B.300(6), yet nonetheless the legislature saw fit to provide for the recovery of those items. It appears that the Oregon legislature, in its own somewhat idiosyncratic fashion, simply wanted to make whole those parties damaged by an oil spill.
The legislative history, such as it is, supports our conclusion that the damages provisions of the Spill Act were intended to provide for an award of reasonable attorney fees to prevailing plaintiffs. See Portland Gen. Elect. Co., 317 Or. at 611—12, 859 P.2d 1143 (“[I]f ... the intent of the legislature is not clear from the text and context ... the court will then ... consider legislative history_”). The provision at issue here was enacted in 1991 as an amendment to the Spill Act. See H.B. 3348, 66th Leg., Reg. Sess. (Or.1991). In the course of considering the proposed amendments, the Oregon House Committee on the Judiciary heard testimony from a representative of the Marine Spill Response Corporation (“MSRC”). See Hearings on H.B. 33J¡,8 Before the House Comm, on the Judiciary, 66th Leg., Reg. Sess., Exhibit A (April 15, 1991) (statement of Mr. Stephen Duca, Vice President, Readiness and External Affairs, Marine Spill Response Corp.). The MSRC is an oil industry task force formed after the Exxon Valdez oil spill whose task it is to build a national response organization to deal with oil spills. The MSRC urged the Oregon legislature to adopt a provision limiting liability for oil spill responders that mirrors the regime established by the Federal Oil Pollution Act of 1990. Significantly, the model provision proposed by the MSRC defines damages as “damages of any kind for which liability may exist under the laws of this state resulting from, arising out of or related to the discharge or threatened discharge of oil.” It says nothing about attorney fees, and the fact that the Oregon legislature adopted a definition of damages broader than the one urged by the MSRC supports our reading of the statute, and also helps to explain the unusual wording of the damages provision. The Oregon legislature appears simply to have slotted in the provision relating to “damages, costs, losses, penalties or attorney fees” before the “of any kind” language proposed by the MSRC.
In short, we agree with the trial court that the Spill Act provides for an award of reasonable attorney fees to prevailing plaintiffs, and there was no error in the court’s decision to award such fees.
B
In addition to awarding attorney fees, the trial court also held that the language of the damages provision “costs ... of any kind” allowed for the recovery of reasonable expert witness fees to prevailing plaintiffs. See 171 F.Supp.2d at 1144.
1
The shipowners contend that the district court erred in permitting the Clausens to recover expert witness fees under Oregon law, because the recovery of costs in federal court is governed by federal law. Whether state or federal law should apply in federal court is a de novo question of law. Torre v. Brickey, 278 F.3d 917, 919 (9th Cir.2002).
Title 28 U.S.C. § 1920 provides that a federal court “may tax” specified items, including witness fees, as costs against the losing party, and § 1821(b) states that a witness “shall be paid” a fee of $40 per day for court attendance. In Aceves v. Allstate Ins. Co., 68 F.3d 1160 (9th Cir.1995), the district court, sitting in diversity, awarded the prevailing party costs, including expert witness fees, under section 998(c) of the California Code of Civil Procedure. Id. at 1167. Presented, as we were in that case with a “choice of law issue ... between state and federal expert witness cost provisions,” id. at 1168, we reasoned that the district court had erred in applying California law:
California law controls the substance of this lawsuit, but federal law controls the procedure by which the district court oversaw the litigation. See Hanna v. Plumer, 380 U.S. 460, 473, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Because reimbursement of expert witness fees is an issue of trial procedure, federal law should have controlled this costs issue, unless one of two factors indicated otherwise. State procedure would only have applied if the pedigree of the federal rule could not be traced back to a federal statute or a Federal Rule of Civil Procedure, duly enacted pursuant to the Rules Enabling Act, see id. at 470-71, 85 S.Ct. 1136, or if the federal rule created an incentive to shop for the federal forum, see id. at 467-68, 85 S.Ct. 1136. See also Olympic Sports Prods., Inc. v. Universal Athletic Sales Co., 760 F.2d 910, 914-15 (9th Cir.1985).
Id. at 1167-68.
Our holding that “federal law should control the reimbursement of expert witnesses in federal courts sitting in diversity jurisdiction,” id. at 1168, accorded with several other circuits to have considered the issue. See, e.g., Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1291-92 (10th Cir.1988); Kivi v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1289 (11th Cir.1983); Bosse v. Litton Unit Handling Sys., 646 F.2d 689, 695 (1st Cir.1981).
We think there is a critical distinction between Aceves and the present case, however. In Aceves, the “choice of law issue [was] between state and federal expert witness cost provisions.” 68 F.3d at 1168 (emphasis added). In other words, we faced a choice between a state rule of procedure and a federal rule of procedure. See id. at 1167 (“reimbursement of expert witness fees is an issue of trial procedure”). In the present case, however, we are presented with a choice between a federal cost provision, and a state damages provision that permits prevailing plaintiffs under,the Oil Spill Act to recover “costs of any kind” as one element of its compensatory damages. Once a prevailing plaintiff proves his case, he becomes entitled under the Oil Spill Act to recover damages, and those damages “include[ ] ... costs ... of any kind.” Or.Rev.Stat. § 468B.300(6) (emphasis).
The question is whether the right to damages which accrues to prevailing plaintiffs under, the Oil Spill Act is substantive in nature. If it is, then it cannot be trumped by § 1821(c), for it is long since settled that “federal courts sitting in diversity apply state substantive law and federal procedural law.” Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir.2003) (citing Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). We think that such a right is substantive, for “the question of the proper measure of damages is inseparably connected with the right of action,” Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117 (1916), and numerous cases have held as much. See, e.g. Browning-Ferns Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (“In a diversity action, or in any' other lawsuit where state law provides the basis of decision, the propriety of an award of ... damages for the conduct in question ... [is a] question! ] of state law.”); Barbier v. Shearson Lehman Hutton Inc., 948 F.2d 117, 122 (2d Cir.1991) (“the measure of damages is a matter of state substantive law”); Carota v. Johns Manville Corp., 893 F.2d 448, 450 (1st Cir.1990) (“The law of damages ... is substantive since it prescribes what, if any, money a plaintiff will receive as compensation for injury. Damages are an element of plaintiffs case.”) (internal quotation marks omitted); In re Air Crash Disaster Near Chicago, Ill., 701 F.2d 1189, 1194 (7th Cir.1983) (“[T]he state’s view of the measure of damages, which is inseparable from the substantive right of action, ... binds a federal court sitting in diversity.”); cf. Garcia & Maggini Co. v. Washington Dehydrated Food Co., 294 F. 765, 767 (9th Cir.1924) (holding in conflict of laws analysis that it was “proper to apply the law of the state of Washington as to the measure of damages which involved the substantive rights of the parties”).
Our holding today, that the Oregon Oil Spill Act’s measure of damages provision trumps § 1821(b) under Erie and its progeny is in accord with several other circuit court decisions. In Henning v. Lake Charles Harbor and Terminal District, 387 F.2d 264 (5th Cir.1968), the trial court awarded expert costs under Louisiana law in an eminent domain case, and the Fifth Circuit affirmed, holding that the “reimbursement ... is a substantive requirement of Louisiana law, a substantive right of the [plaintiffs], and binding upon this Court.” Id. at 267. The Fifth Circuit later explained that the Henning rule applied in only limited circumstances, and that “absent an express indication from the Louisiana legislature, or its courts, of Louisiana’s special interest in providing litigants with recovery of expert witness fees in a personal injury action, federal law controls the award of such fees as costs.” Chevalier v. Reliance Ins. Co. of Ill., 953 F.2d 877, 886 (5th Cir.1992); see also Freeman v. Package Machinery Co., 865 F.2d 1331, 1347-48 (1st Cir.1988) (Massachusetts cost-shifting provision “constitutes part of the substantive remedy created by state law” and as such, trumps § 1821 under Erie); Bright v. Land O’Lakes, Inc., 844 F.2d 436, 443-44 (7th Cir.1988) (while “the general rule .... is that the prevailing party can only recover amounts prescribed in § 1821,” because the Wisconsin Fair Dealership Law authorized “fee shifting of actual costs to a prevailing plaintiff,” then Wisconsin law applies).
As was the case in Henning, we are here presented with an “express indication” of a state legislature’s “special interest in providing litigants” with full compensation for reasonable sums expended in pursuit of an Oil Spill Act claim. Chevalier, 953 F.2d at 886. Because “the measure of damages is a matter of state substantive law,” Barbier, 948 F.2d at 122, it would do violence to the principles enunciated in Erie to disregard Oregon law in favor of § 1821(b). See Erie, 304 U.S. at 78, 58 S.Ct. 817 (“Congress has no power to declare substantive rules of common law applicable in a State ..-..”); see also Freeman, 865 F.2d at 1348(“It would turn things topsy-turvy to saddle [Oil Spill Act] claimants — no matter how galling their deprivations or how vindicatory the outcome of their suits — with whopping fees for the services of expert witnesses.”).
The trial court did not err in its application of Oregon law.
2
The ship owners second argument with respect to the district court’s award of costs is based on the Supreme Court’s decision in West Virginia University Hospitals v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991); The question presented in that case was whether expert fees in civil rights litigation may be shifted to the losing party pursuant to 42 U.S.C. § 1988, which permits the award of “a reasonable attorney’s fee.” The Court found that where Congress had intended to provide for the recovery of expert fees, it specifically provided for such recovery. See, e.g., 15 U.S.C. §§ 2618(d), 2619(c)(Toxic Substances Control Act); 15 U.S.C. §§ 2060(c), 2072(a) (Consumer Product Safety Act); 42 U;S.C. § 6972(e) (Resource Conservation and Recovery Act of 1976). This record of statutory usage, the Court reasoned, demonstrated that attorney fees and expert fees are separate elements of litigation costs. See 499 U.S. at 88, 111 S.Ct. 1138. Therefore, the Court concluded, § 1988’s provision for a “reasonable attorney’s fee” did not allow for the recovery of expert witness fees.
Casey is not on point. The district court did not permit the Clausens to recover expert fees pursuant to the provision in the Spill Act for “attorney fees,” but rather because the Spill Act allows for the recovery of “costs ... of any kind.” (emphasis added). There is no such equivalent language in the federal statutes discussed in Casey. As the district court noted, “[t]he [Oregon] legislature did not authorize merely the shifting of attorney fees to the losing party, as in Casey; rather, its intent was clearly to allow a prevailing plaintiff to be made whole. This is the only rational explanation behind including fees, costs, losses, etc. as damages. When expert witness fees are reasonable in pursuing a claim under the OSA, the act would appear to include them as recoverable damages.” 171 F.Supp.2d at 1144. We agree.
AFFIRMED.
Eleanor Clark, The Oysters of Locmariaquer 50 (Harper Perennial ed.1992).
. The Clausens' also charged the ship owners with negligence, but that claim was struck prior to trial.
. With the consent of the parties, Magistrate Judge Coffin presided at trial. See 28 U.S.C. § 636(c)(1). We have jurisdiction pursuant to 28 U.S.C. §§ 636(c)(3) and 1291.
. Rule 702 provides, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
. Courts that have discussed differential diagnosis have come to use the term in ways that differ slightly from its dictionary definition, and from its usage in the medical community. See Federal Judicial Center, Reference Manual on Scientific Evidence 443 (2d ed.2000) (hereinafter “Scientific Evidence”). Whereas most physicians use the term to describe the process of determining which of several diseases is causing a patient's symptoms, see id.; Stedman’s at 474, courts have used the term in a more general sense to describe the process by which causes of the patient’s condition are identified. See e.g., Westberry, 178 F.3d at 262.
While some wag might surmise that the disjoint in usage is an unforeseen consequence of requiring us poor federal judges to grapple with scientific and medical concepts that oftentimes are beyond our ken, the discrepancy may be explained by reference to the fact that actual usage of the term in the medical community is quite varied. The term differential diagnosis is somewhat imprecise, and the dictionary definition notwithstanding, no universal definition of differential diagnosis exists and it is often used to mean different things. See Jerome P. Kassirer & Richard I. Kopelman, Learning Clinical Reasoning 112 (1991) (hereinafter "Clinical Reasoning”). For example, environmental and occupational health physicians use the term in the same way courts have, to describe the process of determining whether an environmental exposure caused the patient’s disease. See Scientific Evidence at 443 (citing Mark R. Cullen et al., Clinical Approach and Establishing a Diagnosis of an Environmental Medical Disorder, in Environmental Medicine 217, 220 (Stuart M. Brooks et al., eds., 1995)). Both of the experts in this case used the term in this more general sense, and lest we muddy the waters any further, we will do the same.
. Of course, the state substance/federal procedure distinction applies in any case in federal court where, as here, state law provides the basis of decision. See Crowe v. Wittel Communications Sys., 103 F.3d 897, 899 (9th Cir.1996).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.08333333333333333, Costs: 0.08333333333333333
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CANBY, Circuit Judge:
Hyundai Merchant Marine Co. appeals from a $1,702,553.51 damage award to the United States pursuant to the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. §§ 2701-2761. The OPA provides that a party responsible for a vessel that discharges or threatens to discharge oil into navigable waters is liable for “removal costs and damages,” id. § 2702(a), including removal costs incurred by the United States. Id. § 2701(b)(A). This appeal concerns the permissible scope of the United States’ recovery under the OPA for its response to a private party’s threatened (and to a limited degree, actual) oil spill, a question of first impression in this and all circuits. With but one exception, we agree with the district court that the United States is entitled to recover the amounts it claimed.
I. Facts
On October 2, 1991, the bulk carrier M/V Hyundai No. 12 ran aground in the Shumagin Islands of Alaska, an environmentally sensitive area approximately 260 miles west of Kodiak. The freighter was carrying almost 200,000 gallons of bunker oil in its bottom fuel tanks. This type of oil has a molasses-like consistency and must be heated to be pumped. It evaporates slowly, if at all, and disperses poorly when exposed to the elements.
Hyundai’s crew soon discovered that each of the ship’s tanks was fractured and open to the sea. On the fifth and sixth days after the grounding, a gale force storm twisted and swung the ship more than 100 degrees around the rocks on which it was perched, leading to oil leakage visible in a sheen over 2000 feet long. This oil spill threatened several species of wildlife.
The Coast Guard responded to the initial emergency at once. For eleven days immediately following the grounding, it stood ready with men and equipment to contain a major spill and monitored Hyundai’s efforts to free the ship. Hyundai, however, performed the actual work of containing the spill and freeing the ship, at great expense to itself. It consulted with the Coast Guard, and the Coast Guard approved its plan of operation. Fortunately, only minor spillage occurred before Hyundai was able to free the ship and tow it to repair docks.
The United States sued under the OPA to recover its costs from Hyundai for the Coast Guard’s response to the emergency. The district court awarded the United States $1,702,553.51. Hyundai and its insurer, although recognizing a duty to reimburse the United States for certain limited costs, appeal several aspects of that award. The crux of Hyundai’s argument is that a responsible party that spends millions of dollars in a successful prevention and cleanup operation should not have to reimburse the United States for efforts that were duplicative and unnecessary. In this vein, Hyundai contends that (1) the United States was not entitled to recover monitoring costs; (2) only “necessary” costs are recoverable; and (3) “base” costs are not recoverable. Hyundai also argues that (4) penalties should not have been assessed under the Debt Collection Act, 31 U.S.C. § 3717; (5) the United States was not entitled to attorneys’ fees; and (6) the Coast Guard improperly applied a later-imposed rate schedule when calculating its costs. We agree with Hyundai that the Debt Collection Act and its penalties do not apply in this case. We reject, however, all of Hyundai’s remaining contentions.
II. Costs of Monitoring
Hyundai contends that the OPA does not allow the United States to recover the Coast Guard’s cost of monitoring Hyundai’s salvage operation, as opposed to the cost of actual removal of oil. According to Hyundai, costs of monitoring do not constitute “removal costs.” We reject Hyundai’s interpretation of the statute; the definition of “removal” costs under 33 U.S.C. § 2702(a) includes monitoring costs.
OPA § 2702(a) provides:
[E]ach responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters ... is liable for the removal costs and damages specified in subsection (b) that result from such incident.
(Emphasis added.)
Subsection (b) then provides:
The removal costs referred to in subsection (a) of this section are-
(A) all removal costs incurred by the United States ... under subsection (c), (d), (e), or (1) of section 1321 of this title
33 U.S.C. § 2702(b). The reference to section 1321 is to the Federal Water Pollution Control Act, 33 U.S.C. §§ 1321(c)-(e) and (1). Section 1321(c) of that Act is of particular relevance here. It directs the President to “ensure effective and immediate removal of discharge, and mitigation or prevention of a substantial threat of discharge, of oil” into United States waters. 33 U.S.C. § 1321(c)(1)(A). It further provides that, in carrying out those duties, the President may:
(i) remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time;
(ii) direct or monitor all Federal, State, and private actions to remove a discharge ....
33 U.S.C. § 1321(e)(1)(B)(i),(ii) (emphasis added). Finally, subsection (c) provides that, when a “discharge or substantial threat of a discharge” of oil is of a size or character to be a substantial threat to the health or welfare of the United States (including a threat to fish or wildlife), then:
The President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge.
33 U.S.C. § 1321(c)(2)(A).
As we read these cross-referenced provisions of the OPA and the Federal Water Pollution Control Act, they entitle the United States to recover the costs incurred by the Coast Guard in monitoring Hyundai’s removal of its stranded and leaking vessel holding 200,000 gallons of bunker fuel. The Coast Guard’s actions were an attempt to “mitigate or prevent a substantial threat of a discharge,” § 1321(c)(1)(B), it was “monitoring ... private action to remove a discharge,” § 1321(c)(l)(B)(ii), and its monitoring was a means of “directing] private actions to remove the discharge or to mitigate or prevent the threat of discharge” of oil, § 1321(e)(2)(A).
In addition to the cross-references to the Federal Water Pollution Control Act, the general definition section of the OPA supports our conclusion. That section defines “removal costs” as:
the costs of removal that are incurred after a discharge of oil has occurred or, in any case in which there is a substantial threat of a discharge of oil, the costs to prevent, minimize, or mitigate oil pollution from such an incident.
33 U.S.C. § 2701(31) (emphasis added). We reject Hyundai’s contention that this definition excludes monitoring; the Coast Guard’s monitoring activities are part of its effort to prevent or minimize a threatened oil discharge. Hyundai’s reliance on the narrower definition of “removal” in § 2701(30) is of no avail;' that definition does not include prevention. The broader definition of “costs of removal” in § 2701(32) includes costs of prevention. Hyundai’s emphasis on actual removal unduly minimizes the importance of the Coast Guard’s emergency stand-by operation, which qualifies as an act of “prevention,” the cost of which is clearly recoverable under the terms of the definition as it applies to the liability imposed by § 2702.
Finally, Hyundai challenges the assessment of monitoring costs on the basis of National Cable Television Ass’n. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). There, the Court reminded Congress that it may not delegate away its taxing power to an executive agency, see id. at 342, 94 S.Ct. 1146. See also Union Pacific R.R. v. Public Util. Comm’n, 899 F.2d 854, 860 (9th Cir.1990). These cases do not apply here. The OPA authorizes recovery of costs, not taxation. Cf. United States v. Lowe, 118 F.3d 399, 401 (5th Cir.1997) (recovery of CERCLA clean up costs is neither a fee nor a tax).
III. “Necessary” Costs
Hyundai contends that the United States may not recover costs unless the district court determines they were “necessary” to mitigate or prevent a discharge of oil. It bases its argument on § 2701(30), which defines “remove” and “removal” for the OPA as follows:
“Remove” or “removal” means containment and removal of oil or a hazardous substance from water and shorelines or the taking of other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches.
(Emphasis added.) Hyundai concludes that actions other than actual removal must be deemed “necessary” before they are compensable. We reject this contention.
First, the words “as may be necessary” do not purport to be a limitation on reimbursement. They are more naturally read as an acknowledgment of executive discretion in determining the steps a particular situation requires. In any event, as we explained above, the relevant term in § 2702(a) is “removal costs,” not “removal.” The former is defined at subsection (31) as the “costs to prevent, minimize, or mitigate oil pollution.” The word “necessary” is nowhere to be found in this more pertinent definition.
Finally, if Congress were to establish a standard for establishing which actions of the Coast Guard were reimbursable, one would expect to find it in the liability portion of the statute, not in the definitions section. The liability section, § 2702(b), specifies what removal costs are recoverable under § 2702(a). It defines them as “all removal costs incurred by the United States.” (Emphasis added.) Nothing in the liability section limits the United States to recovery of “necessary” removal costs.
Hyundai argues that the United States should not have a blank check permitting it to undertake all kinds of unnecessary and unreasonable actions at Hyundai’s expense. It is worth pointing out in passing, however, that many of the actions that Hyundai now regards as unreasonable or unnecessary appear so, if at all, only by hindsight. The grounding of the Hyundai No. 12 contained the seeds of a major ecological disaster. In the circumstances, it was only prudent for the government to rush personnel and equipment to the scene and maintain them there until the threat was over. Be that as it may, the OPA does not restrict the recovery of the United States to costs that were prudent, or necessary, or reasonable.
Recovery under the OPA is not wholly unlimited, however. The government concedes that the general standard of the Administrative Procedure Act applies to its actions in seeking to prevent or contain an oil-spill disaster: the United States may recover its costs unless its actions were arbitrary or capricious. See 5 U.S.C. § 706(2)(A). The district court held that the actions of the United States for which it awarded recovery were not arbitrary or capricious. Hyundai does not challenge these rulings. The OPA does not authorize the imposition of any higher standard.
IV.Base Costs
Hyundai contends that the Coast Guard’s base costs, as opposed to its incremental costs, are not recoverable. Base costs are those costs, such as the salaries of personnel, that the Coast Guard would have incurred even were it not responding to the Hyundai No. 12’s distress. Hyundai relies on the OPA’s language to the effect that the government may recover costs that “result from” an oil spill. 33 U.S.C. § 2702(a). It thus contends that paying the personnel who respond to an incident, for example, is not a cost that “results from” the incident.
We reject this interpretation of the OPA. The Coast Guard’s allocable base costs did “result from” the incident. If personnel must be sent to monitor a potential spill, they must be paid. The fact that, if this near-disaster had not occurred, the personnel would have been paid to perform some other task does not alter the reality that the mishap did occur and Coast Guard personnel were paid to monitor a potential spill. While they were monitoring operations for the Hyundai No. 12, Coast Guard personnel could not carry out their other duties, such as safety inspections and drug interdiction. The same point may be made with regard to other assets employed by the Coast Guard in responding to this accident. Base costs represent real costs to the United States and are recoverable to the extent they are allocable to a response to an oil spill. Nothing in the OPA provides to the contrary.
V.Debt Collection Act Penalties
The district court awarded the United States interest prescribed by the OPA and penalties prescribed by the Debt Collection Act, 31 U.S.C. § 3717. Hyundai contends that when a statutory cause of action sets its own rate of interest, the Debt Collection Act does not apply. We agree.
It is undisputed that the OPA provides for interest, but not penalties. 33 U.S.C. § 2705. On the other hand, the Debt Collection Act provides for both interest and penalties on a claim due the United States, 31 U.S.C. § 3717(a)(1),(e), but it also specifies that the section containing those provisions “does not apply if a statute ... explicitly fixes the interest or charges.” Id., § 3717(g)(1) (emphasis added). We apply as written the disjunctive “interest or charges.” Because the OPA fixes interest, § 3717 “does not apply” and neither interest nor penalties may be collected under it. We therefore reverse this portion of the district court’s award, and remand for modification of the judgment accordingly.
VI.Attorneys’ Fees
Funds recovered for removal costs are paid to the Oil Spill Liability Trust Fund, which is available to the President for the payment of removal costs. See 33 U.S.C. §§ 2706(f), 2712(a)(1). Fees were awarded here pursuant to § 2715(c), which provides in relevant part:
At the request of the Secretary, the Attorney General shall commence an action on behalf of the Fund to recover any compensation paid by the Fund to any claimant pursuant to this chapter, and all costs incurred by the Fund by reason of the claim, including ... attorney’s fees.
Although Hyundai does not dispute that the recovery in this case will be paid into the Fund, it contends that the government cannot recover fees because it is not clear that the Fund itself is suing as a subrogee. Hyundai latches onto the phrase “compensation paid by the Fund,” arguing that no attorneys’ fees are due to the United States unless the Coast Guard first was compensated by the fund for its removal costs.
The Coast Guard and the Fund are both part of the federal government. This action is necessarily brought on behalf of the Fund because the recovery will go to the Fund. It was clearly Congress’s purpose that the United States be reimbursed its attorneys’ fees when it must sue for such a recovery. That purpose would be frustrated if recovery of fees was defeated by the happenstance that, as a matter of accounting, the Fund paid for the removal costs after, rather than before, the claim against the responsible party was litigated. The district court did not misread the statute in awarding the United States attorneys’ fees.
VIL The Rate Schedule
The Coast Guard first billed Hyundai pursuant to Commandant Instruction 7310.1D, but later applied the higher rates of Commandant Instruction 7310.1E. The government asserts that Instruction E superseded Instruction D on July 13, 1991, over two months before the Hyundai No. 12’s grounding on October 2.
Instruction E is stamped July 13, 1991, and it indicates that it supersedes Instruction D. Hyundai points to § 4(a) of Instruction E, which states that “[t]he enclosed rates are effective upon receipt.” Hyundai contends that there is no proof that Instruction E actually was received before the Hyundai No. 12 ran aground.
The Coast Guard argues that the routing block and matrix at the bottom of the first page of Instruction E proves that it was sent to the Juneau Coast Guard Station (which responded to the Hyundai No. 12 accident) on or about July 13. This documentation was sufficient to support the district court’s ruling that Instruction E was in effect by the time of the grounding of Hyundai No. 12. Cf. In re Bucknum, 951 F.2d 204, 206 (9th Cir.1990) (properly addressed and dispatched mail is presumed to be delivered).
VIII. Conclusion
The district court did not err in awarding the United States its removal costs, including both incremental and base costs of monitoring the threatened and actual oil spill of the Hyundai No. 12, calculated in accord with Instruction E. The district court also properly awarded the United States its attorneys’ fees. The district court did err, however, in assessing penalties under the Debt Collection Act. We therefore affirm all of the award except the penalties under the Debt Collection Act, which we reverse. The matter is remanded to the district court for correction of its judgment in that respect.
The United States is awarded its costs on appeal.
In No. 97-35820, the district court’s order awarding attorneys’ fees is AFFIRMED.
In No. 97-35538, the judgment is AFFIRMED in part; REVERSED in part; and REMANDED.
. We reject Hyundai’s contention that denial of reimbursement for monitoring costs is supported by H.R. Conf. Rep. No. 101-653, 101st Cong., 2d Sess. 145 (1990). That report states:
With respect to removal of any discharge or mitigation or prevention of any substantial threat of a discharge, the President may assume responsibility and costs of these actions subject to reimbursement from the responsible party; (i.e., "federalize the effort”); direct or monitor all Federal, State and private actions; and remove and, if necessary, destroy a vessel discharging or threatening to discharge.
Hyundai contends that "subject to reimbursement” applies only to the first clause. We do not read the statement that way; it is more reasonable to apply the clause to the entire sentence. It is doubtful, for example, that Congress intended not to permit reimbursement for the removal or destruction of a vessel by the United States.
. We reject Hyundai's contention that the explicit reference to removal and monitoring costs in § 2712(a)(1) indicates that removal cost ordinarily does not include monitoring cost. Section 2712(a)(1) authorizes use of the Oil Spill Liability Trust Fund for "the payment of removal costs, including the costs of monitoring removal actions." This section does not refer to removal and monitoring as separate activities; indeed the term "including” suggests that monitoring cost is a removal cost.
. Under the Federal Water Pollution Control Act, incorporated in part by OPA § 2702(b), the government has been held to be entitled to recover all of its costs of removal, with no requirement of necessity or reasonableness. See Puerto Rico v. SS ZOE COLOCOTRONI, 456 F.Supp. 1327, 1347 (D.P.R.1978), aff'd in part, vacated in part on other grounds, 628 F.2d 652 (1st Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1350, 67 L.Ed.2d 336 (1981); Union Petroleum Corp. v. United States, 228 Ct.Cl. 54, 651 F.2d 734, 744 (1981).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.09375, Costs: 0.0625
|
HARTZ, Circuit Judge.
Plaintiff Ralph Rogerson, a licensed pest-control applicator in Kansas, challenges a regulation of the Kansas Department of Agriculture, Kan. Admin. Regs. § 4-13-26 (2003), on the ground that it requires excessive pesticide treatment in preconstruction applications. He filed suit for declaratory and injunctive relief against the Secretary of the Department, claiming that the regulation (1) is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, because it conflicts with pesticide labels approved by the Environmental Protection Agency -(EPA), and (2) is preempted by the Sherman Antitrust Act, 15 U.S.C. § 1, because it limits consumer choice and competition through retail price maintenance. The United States District Court for the District of Kansas rejected both claims, and Plaintiff appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Kansas regulation is neither expressly nor impliedly preempted by FI-FRA. And Plaintiff has conceded the absence of an essential element of his Sherman Act claim.
I. DISCUSSION
The Kansas regulation requires both horizontal and vertical application of termite pesticides in preconstruction areas. It states in full:
In addition to the requirements of the label, each preconstruction application of pesticide for the control of termites shall consist of establishing both horizontal and vertical chemical barriers, as specified in this regulation.
(a) Horizontal chemical barriers shall be established in areas intended to be covered, including the soil beneath slab floors and porches, footing trenches for monolithic slabs, and the soil beneath stairs.
(b) Vertical chemical barriers shall be established in the soil around the base of foundations, plumbing fixtures,' foundation walls, support piers, and voids in masonry, and any other critical areas where structural components extend below grade.
Kan. Admin. Regs. § 4-13-26 (emphasis added). According to Plaintiff, however, pesticide labels approved by the EPA under FIFRA do not require both horizontal and vertical application, nor do they require application to as many areas as the regulation requires. For example, as Plaintiff put it, an approved “label for I Maxx Pro [a pesticide used by Plaintiff] ... gives the applicator discretion to ... conduct either vertical or horizontal or both treatments,” and “states that only construction objects such as pipes which penetrate the slab need treatment.” Aplt. Br. at 13-14. Also, he points out that the label, in accordance with the command of 40 C.F.R. § 156.10(i)(2)(ii), states: “It is a violation of Federal law to use this product in a manner inconsistent with its labeling.” Pis.’ Resp. to Def.’s Mot. to Dismiss at Ex. 3, Aplt. App. at 71. He complains that the Kansas regulation (1) endangers humans and the environment because it requires unnecessary use of dangerous pesticides, and (2) stifles competition by requiring all applicators to apply too much pesticide when some applicators could reduce their prices by applying only necessary. pesticide.
Plaintiff raises two legal challenges to the regulation. Under FIFRA he contends that the regulation is preempted by federally approved labels for pesticides because it imposes stricter use requirements on pesticide applicators. And under the Sherman Antitrust Act he contends that the regulation is preempted because it is a covert price regulation that forces consumers to pay for unnecessary treatments and prohibits applicators from ' competing against each other (since all are required to offer the same unnecessary services).
A. FIFRA Claims
FIFRA is a “comprehensive regulatory statute” that regulates the sale, labeling, and use of pesticides. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 437, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (internal quotation marks omitted).' When a manufacturer wants to register a pesticide, FIFRA requires that a proposed label and supporting information be submitted to the EPA. See id. at 438, 125 S.Ct. 1788 (citing 7 U.S.C. § 136a(c)(1)(C), (F)). The EPA will register the pesticide if the manufacturer meets certain conditions, such as showing that the product is effective and “will not cause unreasonable adverse effects on humans and the environment.” Id. (citing § 136a(c)(5)(A), (C), (D); § 136(bb)). The States, within limits, can also play a role. See id. at 439, 125 S.Ct. 1788. “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.” 7 U.S.C. § 136v(a). Further, “A State [under certain circumstances] may provide registration for additional uses of federally registered pesticides.... ” 7 U.S.C. § 136v(c)(1). For labeling, however, the statute requires national uniformity: “[A] 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.” 7 U.S.C. § 136v(b); see Indian Brand Farms, Inc. v. Novartis Crop Prot. Inc., 617 F.3d 207, 214 (3d Cir. 2010) (“the states have joint control with the federal government in regulating the sale and use of pesticides with only the exception of the EPA’s exclusive supervision of labeling”). The reason for requiring uniformity in labeling, but not in other subjects of regulation, is a pragmatic one. State-by-state variation in how a pesticide is sold or used does not create any significant inconvenience. But not so for labeling requirements. As the Supreme Court expressed the point, “[I]magine 50 different labeling regimes prescribing the color, font size, and wording of warnings — that would create significant inefficiencies for manufacturers.” Bates, 544 U.S. at 452, 125 S.Ct. 1788.
Plaintiff appears to raise two preemption arguments. One is based on the prohibition in § 136v(b) against “any requirements . for labeling or packaging in addition to or different from those required under [FIFRA].” Plaintiff contends that this prohibition applies to the Kansas regulation because it is a labeling requirement, see Aplt. Br. at 16 (the Kansas regulation “is in essence a labeling requirement, since it controls the areas and structures to be treated in a manner which is inconsistent with the labels approved by the EPA”), and requires variations from the federal requirements. We disagree. The prohibition in § 136v(b) does not apply here. The Supreme Court has described the limits on “labeling or packaging” preemption:
For a particular state rule to be preempted, it must satisfy two conditions. First, it must be a requirement “for labeling or packagingrules 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.”
Bates, 544 U.S. at 444, 125 S.Ct. 1788. Though Plaintiff devotes most of his attention to the second condition, the first is not satisfied.
FIFRA defines label as “the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.” 7 U.S.C. § 136(p). And it defines labeling as “all labels and all other written, printed, or graphic matter — (A) accompanying the pesticide or device at any time; or (B) to which reference is made on the label or in literature accompanying the pesticide or device, except to [various described] current official publications.” Id.
Under these definitions — or common usage for that matter — the Kansas regulation does not govern labeling. It governs use. It instructs termite-pesticide applicators how and where to apply the pesticide. It does not say a word about what to put in any “written, printed, or graphic matter” connected with a pesticide. The Supreme Court in Bates provided examples of rules not affected by § 136v(b):
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.
Bates, 544 U.S. at 444, 125 S.Ct. 1788 (emphasis added). The Kansas regulation is even further removed from the mandate of § 136v(b) because the regulation is addressed to those who apply pesticides — not to the manufacturers who package or label them. Recall that the need for national uniformity in labels and labeling is to avoid the “significant inefficiencies” if a manufacturer had to produce a different label on its product for each State. Id. at 452, 125 S.Ct. 1788. There is no need for such stringent uniformity with respect to applicators, who can readily adjust their operations for each State.
Alternatively, Plaintiff appears to argue that, apart from the express preemption language in § 136v(b), the state regulation is impliedly preempted. State law can be impliedly preempted when it conflicts with federal law. See Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). “This includes cases where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (citation and internal quotation marks omitted). Preemption is not lightly inferred. See id. at 400, 132 S.Ct. 2492.
Plaintiffs argument is quite limited, contending only that the Kansas regulation is preempted by FIFRA because it “requires more pesticide use than the [EPA-approved] label,” Aplt. Br. at 18, and its “requirements ... are ... in fact inconsistent with the uses approved by the EPA,” id. at 21. Though somewhat unclear, he also may be arguing that the regulation is preempted because it requires “additional uses” that have not been approved by the EPA. Id. at 19. All these arguments fail for a common reason: every use required by the regulation is permitted by the label that Plaintiff relies on.
Even assuming that an EPA-approved label could preempt state law, the conflict alleged by Plaintiff does not exist. As mentioned earlier, Plaintiff argues that the Kansas regulation conflicts with, a label for I Maxx Pro, because it (1) limits the discretion of the applicator in applying vertical and horizontal treatments and (2) requires the treatment of additional surfaces. But the label does not forbid both vertical and horizontal treatments. Rather, as Plaintiff himself describes the label, it “gives the applicator discretion to ... conduct either vertical or horizontal or both treatments.” Id. at 13. And although the label directs the applicator to treat “construction objects such as pipes which penetrate the slab,” id. at 14, it does not forbid application to other objects. Thus, even though the regulation and label are not congruent, the applicator can comply with both. We therefore reject Plaintiffs claim of preemption by FIFRA.
B. Sherman Act Claim
The Sherman Act provides in relevant part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. The Act has not been construed literally. As the Supreme Court has explained: “[A] judicial gloss on this statutory language has established the ‘rule of reason’ as the prevailing standard of analysis. Under this rule, the fact-finder weighs all of the circumstances of the case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (citation omitted). A rule-of-reason analysis is unnecessary, however, for limited categories of “per se” violations of the Act. These “are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Id. at 50, 97 S.Ct. 2549 (internal quotation marks omitted).
Although the Sherman Act contains no express preemption language, the Supreme Court has held that a state law is preempted if, and only if, it is the type of restriction on economic freedom that always violates the Act:
[A] state statute should be struck down on pre-emption grounds only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute.
Fisher v. City of Berkeley, 475 U.S. 260, 265, 106 S.Ct. 1045, 89 L.Ed.2d 206 (1986) (internal quotation marks omitted). That is, “[s]ueh condemnation will follow under § 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation.” Rice v. Norman Williams Co., 458 U.S. 654, 661, 102 S.Ct. 8294, 73 L.Ed.2d 1042 (1982). This standard reflects ordinary conflict-preemption principles. See id. at 659, 102 S.Ct. 8294 (“As in the typical pre-emption case, the inquiry is whether there exists an irreconcilable conflict between the federal and state regulatory schemes”). And it “[r]ec-ogniz[es] that the function of government may often be to tamper with free markets.” Fisher, 475 U.S. at 264, 106 S.Ct. 1045.
Our analysis of Plaintiffs claim can be brief. He acknowledges the per se requirement for preemption. And he concedes that in light of recent Supreme Court authority, “even if the effect of the proposed regulation is to reduce consumer choice and maintain retail prices, such conduct is no longer a per se violation.” Aplt. Br. at 23-24. There is nothing left for us to decide. Plaintiff raises a rule-of-reason challenge to the regulation; but, to repeat, analysis of that challenge requires “weigh[ing] all of the circumstances of the case,” Continental T.V., 433 U.S. at 49, 97 S.Ct. 2549, and that is a process not available in a preemption challenge to state law, see Fisher, 475 U.S. at 265, 106 S.Ct. 1045. We affirm the district court’s dismissal of Plaintiffs claim under the Sherman Act.
II. CONCLUSION
We AFFIRM the judgment of the district court.
. Two other plaintiffs, Mary Ann Schoenhofer and Autumn L. Johnson, were dismissed by the district court for lack of standing. They do not challenge that ruling on appeal.
. Regarding horizontal and vertical application, the label states: “The purpose of chemical soil treatment for termite control is to establish a continuous chemical treated zone (horizontal and/or vertical as needed) between the wood and other cellulose material in the structure and the termite colonies in the soil.” Pls.' Resp. to Def.'s Mot. to Dismiss at Ex. 3, Aplt. App. at 72 (emphasis added). As for what areas to treat, the label states:
Apply an overall treatment to the entire surface of soil or other substrate to be covered by the slab including areas to be under carports, porches, basement floor, and entrance platforms.... In addition, apply 4 gallons of solution (see APPLICATION VOLUME) per 10 linear feet to provide a uniform treated zone in soil at critical areas such as along the inside of foundation walls, and around plumbing, bath traps, utility services, and other features that will penetrate the slab.
Id.
. In addition, Plaintiff may be arguing that the presence of the Kansas regulation has somehow resulted in an independent violation of -FIFRA by "causing misbranding of the product.” Aplt. Br. at 19. But he has not sufficiently developed the argument to require our review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (undeveloped arguments insufficient to preserve appellate review). He utterly fails to tie the regulation to FIFRA’s definition of misbranded in 7 U.S.C. § 136(q).
. It is not clear that EPA-approved labels can preempt state laws on their own; if anything, Bates suggests the opposite. It identified only two sources of preemption: FIFRA itself and any implementing regulations. See Bates, 544 U.S. at 452, 125 S.Ct. 1788 (“[Section 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.”). Indeed, the Court remarked: "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).” Id. at 453 n.28, 125 S.Ct. 1788 (emphasis added). It gave no indication that state rules could be preempted by federal labels alone. Accordingly, some lower courts have stated that EPA approval of a product label likely does not carry preemptive force. See Indian Brand Farms, 617 F.3d at 222 (“[T]he remand [in Bates] established that mere inconsistency between the duty imposed by state law and the content of a manufacturer’s labeling approved by the EPA at registration did not necessarily mean that the state law duty was preempted.”); see also Hernandez v. Monsanto Co., No. CV 16-1988-DMG (EX), 2016 WL 6822311, at *6 (C.D. Cal. July 12, 2016) ("In noting that the 'relevant EPA regulations that give content to FIFRA's misbranding standards’ have preemptive effect, the Bates Court appears to have been referencing the EPA-promulgated regulations themselves, not the administrative determinations made in approving a registration.” (quoting Bates, 544 U.S. at 453, 125 S.Ct. 1788)); Hardeman v. Monsanto Co., 216 F.Supp.3d 1037, 1038 (N.D. Cal.2016) ("Of course, if the EPA's approval of Roundup's label had the force of law, it would preempt conflicting state-law enforcement of FI-FRA .... But there's no indication that the EPA's approval of Roundup’s label had the force of law.” (citation omitted)).
. We also note that the statutory provisions governing pesticide use permit state departures from the applicable federal regulations. Both § 136v(a) and § 136v(c)(1) expressly allow States to authorize, under certain circumstances, uses that deviate from those approved by the EPA. See Bates, 544 U.S. at 450, 125 S.Ct. 1788 (."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).”).
. In addition, the Maxx Pro label deferred to local law. One section of the label begins: "Treatment standards for subterranean termite control may vary due to regulations, treatment procedures, soil types, construction practices and other factors.” Pis.’ Resp. to Def.’s Mot. to Dismiss at Ex. 3, Aplt. App. at 72 (emphasis added). And the label further directs the applicator to "[flollow all federal, state, and local regulations and treatment standards for protection of a structure from termites.” Id.
. Plaintiff may be making two final arguments under state law. He asserts that Kansas law does not grant the Kansas Department of Agriculture a license to engage in economic regulation. He also asserts that the Department did not prepare, as required by Kansas statutory law, either an economic or an environmental impact study before promulgating the regulation at issue in this case. We do not consider these arguments because he does not advance any state-law claims. And he fails to explain how the federal claims that he has brought can be construed to reach these issues.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05454545454545454, Costs: 0
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KING, Circuit Judge:
This appeal arises from the multi-dis-trict litigation spawned from the disaster on the Deepwater Horizon drilling rig and the resulting massive oil spill that occurred at the Macondo well site in the Gulf of Mexico. Plaintiff Center for Biological Diversity appeals from the district court’s dismissal of its action brought under the citizen-suit provisions of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a)(1), the Comprehensive Environmental Response, Compensation, and Liability Act (“CERC-LA”), 42 U.S.C. § 9659(a), and the Emergency Planning and Community Right-to-Know Act (“EPCRA”), 42 U.S.C. § 11046(a). The district court dismissed the suit for lack of standing, mootness, and failure to state a claim for relief. We agree that most of the plaintiffs claims for relief have become moot because the Ma-condo well has been capped and sealed. We conclude that, at least on the current record, the EPCRA claim remains viable. We therefore AFFIRM IN PART and REVERSE IN PART the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Center for Biological Diversity (“the Center”) is a non-profit environmental organization with over 40,000 members, including over 3,500 members living in the Gulf of Mexico region. Defendants BP, P.L.C. and its corporate subsidiaries BP America Production Co. and BP Exploration & Production, Inc. (collectively “BP”) conduct exploration and drilling operations in the Gulf of Mexico. As part of those operations, BP leased the mobile offshore drilling unit known as Deepwater Horizon from Defendants Transocean, Ltd. and its subsidiary companies in order to drill the Macondo well, which is located on the sea floor at Mississippi Canyon Block 252.
On April 20, 2010, an explosion on Deep-water Horizon tragically killed eleven people and accompanied an oil spill that caused an environmental disaster of immense proportion. Millions of gallons of oil spewed from the well site over the course of several months as the defendants and government authorities sought to stop it.
In the face of an extensive oil spill, federal law directs the President to ensure the effective and immediate removal of the oil in accordance with a National Contingency Plan and to direct all federal, state and private actions in that regard. See 33 U.S.C. § 1321(c)(1)(A), (2)(A). Consistent with the National Contingency Plan, the President must also create a National Response System, which establishes multiple levels of federal contingency plans for addressing a discharge of oil and hazardous substances. 33 U.S.C. § 1321(j); see also 40 C.F.R. § 300.210. Pursuant to these plans, a Federal On-Scene Coordinator (“FOSC”) will direct and coordinate all efforts at the scene of the discharge. 40 C.F.R. § 300.120(a). When a discharge occurs in a coastal zone of the United States, the Coast Guard provides the FOSC, and if the spill is especially complex the Coast Guard can name a National Incident Commander to assume the role of the FOSC. See 40 C.F.R. §§ 300.120(a)(1), 300.5, 300.323.
In the case of the Deepwater Horizon disaster, the federal government’s response to the spill involved monumental efforts. Almost 50,000 people, including over 17,000 National Guard members, and over 4,000 vessels were deployed in the Gulf of Mexico and the coastal region. Federal oversight of the matter spanned multiple governmental agencies, with the President dispatching to the Gulf region the Secretaries of the Interior and Homeland Security, the Administrator of the EPA, the President’s Assistant for Energy and Climate Change Policy, and the Administrator of NOAA. BP participated in the response activities at the direction of the federal authorities to stop the oil spill. On July 15, 2010, a permanent cap was put in place at the well site to halt the flow of oil. On September 19, 2010, the National Incident Commander announced that a relief well had been completed, which effectively “killed” the Macondo well.
Meanwhile, as the response efforts were ongoing, the Center filed suit against BP and Transocean on June 18, 2010, alleging that the defendants violated CWA because of the discharged oil and toxic pollutants from the ruptured well. In August 2010, the Center filed a second action against BP and Transoeean asserting additional claims under CWA, CERCLA, and EP-CRA. The Center asserted the following counts of statutory violations: discharge of pollutants, in violation of CWA, 33 U.S.C. § 1311 (Count 1); discharge of oil and hazardous substances, in violation of CWA, 33 U.S.C. § 1321 (Count 2); discharge of toxic pollutants, in violation of CWA, 33 U.S.C. § 1317 (Count 3); discharge of pollutants, in violation of national standards of performance for offshore drilling operations under CWA, 33 U.S.C. § 1316 (Count 4); gross negligence or willful misconduct pursuant to CWA, 33 U.S.C. § 1321(b)(7)(D) (Count 5); failure to report to the National Response Center the release of hazardous substances, in violation of CERCLA, 42 U.S.C. § 9603(a) (Count 6); and failure to report the release of hazardous substances to the emergency coordinator for the local emergency planning committee, in violation of EPCRA, 42 U.S.C. § 11004 (Count 7).
In its prayer for relief, the Center sought the following: (1) a declaratory judgment that the defendants had violated, continued to violate, or were reasonably likely to continue to violate CWA, CERC-LA, and EPCRA; (2) an injunction enjoining the defendants from operating their offshore facility in a manner that would result in further violation of CWA, CERC-LA, and EPCRA, specifically from discharging any further pollutants or from releasing any hazardous substance without full and complete reporting under CERC-LA and EPCRA, and requiring full and complete reporting for hazardous substances already released; (3) an order that the defendants divulge the complete list and amounts of toxic pollutants contained in the oil and other releases from the Deepwater Horizon rig and well; (4) civil penalties pursuant to CWA, CERCLA, and EPCRA; (5) an order authorizing the Center to sample any discharge of pollutants from the well for a period of ten years; (6) an order requiring the defendants to provide the Center with copies of all reports and other documents that defendants submit to regulatory authorities for a period of five years; and (7) an injunction requiring the defendants to pay the cost of any environmental restoration or remediation deemed necessary by the district court.
The Multidistrict Litigation (“MDL”) Panel transferred the Center’s complaints to MDL-2179 in the Eastern District of Louisiana (Judge Barbier). The MDL case before Judge Barbier consists of hundreds of cases, with over 100,000 individual claimants, all in connection with the Deep-water Horizon disaster. In order to manage this complex litigation, the district court issued Pretrial Order No. 11 establishing several “pleading bundles” into each of which claims of similar nature would be placed for the purpose of filing a master complaint, answers, and any Rule 12 motions. The Center’s complaints were placed into Pleading Bundle Dl, which was for claims by private parties for injunctive relief and provided as follows:
D. Injunctive and Regulatory Claims. These claims brought by private parties challenging regulatory action or authority and/or seeking injunc-tive relief will each be pled pursuant to Master Complaints as delineated below, and will include the following types of claims.
Dl. Claims Against Private Parties. These claims will be pled separately and uniformly in a Master Complaint.
For purposes of answering or otherwise responding to the complaints in Pleading Bundle Dl, the allegations and prayers for relief contained in the Master Complaint were deemed to amend and supersede allegations and claims contained in the preexisting individual complaints. The Center’s individual complaints were not eliminated, however, but rather were stayed until further order of the court.
Consistent with the pretrial order, the Dl plaintiffs, including the Center, filed a Master Complaint that was in most respects similar to the Center’s individual complaints. The Dl Master Complaint alleged the same violations of CWA, CERC-LA, and EPCRA that had been alleged in the Center’s complaints, as well as additional claims under the Endangered Species Act (“ESA”), state law, and general maritime law. The Master Complaint also sought essentially the same declaratory and injunctive relief that was sought in the Center’s individual complaints. Unlike the Center’s individual complaints, however, the Dl Master Complaint contained no prayer for civil penalties.
The district court’s Pretrial Order No. 11 provided that civil penalties requested in separate suits by governmental entities were to be placed in Pleading Bundle C. The order also provided that civil penalties would not be included in any other pleading bundles or master complaints. In Pretrial Order No. 25, the district court later clarified that “[a]ny case currently pending in the MDL that does not fall within pleading bundles A or C is deemed to fall within one or more of the following: Pleading Bundle Bl, Pleading Bundle B3, and/or pleading Bundle Dl, as may be applicable.” The Center’s civil penalty claims did not fall within Pleading Bundles A or C, and the Center unsuccessfully moved on three occasions in the district court to have all of its claims moved into Pleading Bundle C.
BP and Transocean separately moved to dismiss the Dl Master Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court conducted a hearing, during which it also considered motions to dismiss other pleading bundles. The district court granted the motions to dismiss the Dl Master Complaint, finding that (1) the Dl plaintiffs lacked standing because their alleged injuries were not redressable by a favorable decision, (2) the Dl claims were moot, and (3) the Dl claims were not actionable because the defendants were not “in violation” of the alleged statutes.
The court took judicial notice that the Macondo well had been capped on July 15, 2010, thereby stopping the uncontrolled flow of oil, and that the well had been permanently killed on September 19, 2010, when a relief well was used to pump cement into the Macondo well. The court reasoned, therefore, that the Dl plaintiffs’ claims were not redressable for two reasons. First, an injunction would be useless because there was no longer an ongoing release from the well, and there was no viable offshore facility from which any release could possibly occur. Second, because cleanup activities were ongoing under the direction of the National Incident Commander, the FOSC, and the Unified Area Command, any order from the court would implicate parties not before the court, and the plaintiffs could not show that an order would resolve any potential deficiency in the cleanup effort. The court further held that the plaintiffs lacked standing to bring their failure-to-report claim under EPCRA “[i]n light of the fact that there is no on-going release of oil and that data regarding the spill and its cleanup are easily accessible.”
Similarly, the court held that the claims for injunctive relief were moot. The court reasoned that because the Macondo well was dead and no longer discharging oil, an injunction could not provide meaningful relief in terms of stopping discharges that had already ceased. The court further noted that because Pretrial Order No. 11 had limited the D1 Master Complaint to injunctive relief, the D1 plaintiffs were not seeking the kind of civil penalties that otherwise might prevent mootness.
Finally, the court held that CWA, CERCLA, and EPCRA require plaintiffs to show a reasonable likelihood of an ongoing violation in order to have an actionable claim. But because there was no longer a viable facility from which a release could occur, there was no reasonable possibility for a future release and no ongoing violation. The district court dismissed the D1 Master Complaint in its entirety.
Following the district court’s written order, the Center filed an unopposed motion for clarification pursuant to Federal Rule of Civil Procedure 59(e), asking that the district court make explicit that the order dismissing the D1 Master Complaint was a final judgment that also dismissed the Center’s underlying individual complaints. Any confusion about the finality of the judgment with respect to the Center presumably existed because the district court’s order had adjudicated only claims for injunctive relief and did not mention the Center’s individual claims for civil penalties. Indeed, the Center’s motion advised that the Plaintiffs’ Steering Committee (“PSC”) believed the court’s order was not a final judgment under Federal Rule of Civil Procedure 54(b) but that the PSC did not oppose such a designation by the district court.
Thereafter, the Center filed a Notice of Non-Opposition, indicating that no party had opposed the motion for clarification. The Center again asked the district court to enter a final judgment. Approximately two months after filing the Notice of Non-Opposition, the Center filed a renewed motion for clarification, which had been temporarily withdrawn, yet again asking that an explicit final judgment be entered within 30 days. When the district court did not enter such an order, the Center’s counsel wrote a letter to the district court further raising the issue of a final judgment. Counsel asked that the court enter a final judgment in order to “allow the Center to exercise its right of appeal in this matter.” Counsel stated that “[without an entry of final judgment, the Center is in the untenable position of not being able to participate in the ongoing MDL while also not being clear that it is able to appeal the Court’s ruling.” None of the Center’s pleadings or correspondence suggested or requested that any of the Center’s claims would remain live following entry of the final judgment.
The district court then entered a final judgment “for the reasons stated in the Court’s Order Dismissing the Bundle DI' Master Complaint ... as that Order relates to [the Center’s individual complaints].” The Center now appeals.
II. STANDARD OF REVIEW
A district court’s dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or for failure to state a claim pursuant to Rule 12(b)(6) is reviewed de novo. Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir.2012); Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir.2011). Legal questions relating to standing and mootness are also reviewed de novo. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir.2008); Ctr. for Individual Freedom, v. Carmouche, 449 F.3d 655, 659 (5th Cir.2006).
III. STATUTORY PROVISIONS
The CWA was intended “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As a general matter, its provisions prohibit the unauthorized discharge of pollutants, including oil and other hazardous substances, into the waters of the United States, and set standards for evaluating discharges from various sources. See 33 U.S.C. §§ 1311, 1316, 1317, 1321. The CWA authorizes citizen suits to obtain injunctions and civil penalties, “payable to the United States Treasury, against any person found to be in violation of ‘an effluent standard or limitation’ under the Act.” Envtl. Conservation Org., 529 F.3d at 526 (quoting 33 U.S.C. § 1365(a)). The district court has jurisdiction to enforce such effluent standard or limitation regardless of the amount in controversy. § 1365(a).
CERCLA and EPCRA require, inter alia, that discharges of certain pollutants and hazardous substances be reported to the National Response Center, see 42 U.S.C. § 9603(a) (CERCLA), or to state and local emergency planning personnel. See 42 U.S.C. § 11004(b)(1) (EPCRA). Both statutes authorize citizen suits to enforce their requirements and also permit both injunctive relief and civil penalties. See 42 U.S.C. §§ 9659(a), (c) (CERCLA), 11046(a), (c) (EPCRA). Pursuant to CERCLA, the district court may “order such action as may be necessary to correct the violation.” § 9659(c).
IV. DISCUSSION
The Center challenges the district court’s dismissal of its claims, contending that the court failed to accept the well-pleaded facts of its complaint as true. It contends that the court improperly found that injunctive relief would be moot because the Center alleged that the defendants were reasonably likely to continue to discharge pollutants from the well site. According to the Center, because jurisdiction is determined at the time of filing the complaint, and the complaint alleged that there were continuing discharges of pollutants, it set forth plausible claims for relief. The Center further argues that the district court erroneously focused on the claim for injunctive relief enjoining the defendants from operating the offshore facility in violation of CWA, CERCLA, and EPCRA, while ignoring the Center’s other claims. It contends that because all of its claims for relief are redressable by the district court, it has standing and the suit should be reinstated.
Upon review of the briefs, the applicable law, and the record in this case, we conclude that the district court correctly dismissed most of the Center’s claims as moot. But before considering mootness with respect to the Center’s individual claims and prayers for relief, we first consider the district court’s taking of judicial notice that the Macondo well was capped in July 2010 and killed in September 2010, which was of central importance to the court’s decision.
A. Judicial notice
Pursuant to Federal Rule of Evidence 201, a court is “entitled to take judicial notice of adjudicative facts from reliable sources ‘whose accuracy cannot reasonably be questioned.’ ” Sosebee v. Steadfast Ins. Co., 701 F.3d 1012, 1018 n. 1 (5th Cir.2012) (quoting Fed.R.Evid. 201(b)). A district court’s application of judicial notice under Rule 201 is reviewed for an abuse of discretion. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011).
Here, the district court noted at the hearing on the defendants’ motions to dismiss the D1 Master Complaint that the Macondo well was dead. The court did not, either at the oral hearing or in its written decision, indicate the source or sources upon which the court relied for this information. Nevertheless, the record bears out the district court’s statement.
For example, on September 19, 2010, National Incident Commander Admiral Thad Allen issued a formal announcement that, due to BP’s completion of the relief well and cementing, the Macondo well was “effectively dead” and “poses no continuing threat to the Gulf of Mexico.” Admiral Allen indicated that the relief well was completed by BP under the direction and authority of the federal government’s science and engineering teams, and that the well’s killing had been confirmed by the Department of the Interior’s Bureau of Ocean Energy Management. Furthermore, on September 28, 2010, the Federal On-Scene Coordinator, Rear Admiral Paul Zukunft, also stated that the well had been killed on September 19, 2010, and that there had been no new oil introduced since July 15.
The Center argues that the district court was bound to accept the well-pleaded facts of the complaint concerning alleged future discharges from the well, essentially contending that the court improperly took judicial notice of the well’s closing. The district court was not bound by the pleadings in order to decide the Rule 12(b)(1) motion, however; rather, it was empowered to make factual findings that were determinative of jurisdiction. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981).
The Center further complains that it requested prior notice of any facts to be judicially noticed but received no advance warning. Ordinarily, a party should be given notice that the court intends to judicially notice facts and, when appropriate, should be given an opportunity for discovery germane to a jurisdictional dispute implicated by the noticed facts. See id. at 414; see also Fed.R.Evid. 201(e). We are not persuaded, however, that the district court’s procedure was erroneous under the circumstances of this case.
The court’s taking of judicial notice before notifying a party is not alone improper, as the rule specifically contemplates such a possibility but allows the party an opportunity to be heard if the party so requests. See Fed.R.Evid. 201(e) (“If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.”). Here, the Center had notice from the defendants’ motions to dismiss that the court was being asked to take judicial notice. BP specifically argued that the capping and killing of the well were judicially noticeable facts and that the Center’s claims were moot because the well was dead. The Center therefore had an opportunity to be heard and actually did-—albeit minimally— respond to BP in its opposition. Cf. In re Eckstein Marine Serv., L.L.C., 672 F.3d 310, 316 (5th Cir.2012) (holding that defendant’s pleadings gave adequate notice to plaintiff that defendant was challenging the district court’s jurisdiction under Rule 12(b)(1)); see also Amadasu v. The Christ Hosp., 514 F.3d 504, 508 (6th Cir.2008) (noting that Rule 201(e) “does not require ‘under all circumstances, a formal hearing’ ” and finding no error because the plaintiff had an opportunity to be heard on judicial notice by filing objections to the magistrate judge’s report and recommendations (quoting Am. Stores Co. v. Comm’r of Internal Revenue, 170 F.3d 1267, 1271 (10th Cir.1999))). At the hearing on the motions to dismiss, the district court then asked the Center what evidence it had that the well was not indeed dead. The Center did not indicate that it had at that time any evidence to refute that fact, nor did it state that discovery was necessary.
More importantly, even after the district court took judicial notice in its written decision, the Center could have moved for reconsideration or a further hearing but it did not do so. See MacMillan Bloedel Ltd. v. Flintkote Co., 760 F.2d 580, 587 (5th Cir.1985) (holding that party “did not properly challenge the district court’s procedure, for there is nothing in the record to indicate that it filed a motion after the district court took notice seeking an opportunity to be heard concerning the propriety of taking judicial notice”); see also 21B CHARLES AlaN Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5109 (2d ed. 2005) (“[T]he party must request a retrospective hearing in order to preserve the error for appeal.”). The Center fails to show even on appeal that a different result could have been obtained through discovery. The Center points to allegations and evidence that there may have been some minimal additional discharges from the well site after the well was capped on July 15, 2010, but it fails to show or even argue that there were discharges after the well was killed in September 2010. Instead, the Center concedes in its brief that the completion of the relief well in September 2010 was the only way to effectively kill the well. We therefore see no reason to believe that the Center would have been able to make different or more persuasive arguments in opposition to the judicial notice had it been given additional notice or an opportunity for discovery.
Moreover, our conclusion is informed by the atypical circumstances of this case. As part of the MDL, the district court was receiving regular status updates about the situation in the Gulf and was kept apprised of the well’s condition and the ongoing efforts to shut it down. It is clear that the Government, which was in charge of the situation, acted to force BP to stop the discharge, kill the well, and abandon the site. Under all of the above circumstances, we conclude that there was no error in the district court’s taking of judicial notice of the well’s status. Therefore, we must next consider whether the district court, after taking judicial notice, correctly concluded that the Center’s individual claims are moot.
B. Mootness
Federal court jurisdiction under Article III of the Constitution is limited to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1; see City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In order to have standing to assert federal jurisdiction, a plaintiff “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks and citation omitted). A plaintiff that has sufficiently alleged an injury or a threatened injury to invoke federal jurisdiction may nevertheless lose the ability to maintain the suit. See Envtl. Conservation Org., 529 F.3d at 526 (“[Developments subsequent to the filing of a citizen suit may moot the citizen’s case.”). “[A]ny set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot.” Ctr. for Individual Freedom, 449 F.Sd at 661.
“[M]ootness can be described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted); see also Spencer, 523 U.S. at 7, 118 S.Ct. 978 (“This case-or-controversy requirement subsists through all stages of federal judicial proceedings.”) (internal quotation marks and citation omitted). “If a case has been rendered moot, a federal court has no constitutional authority to resolve the issues that it presents.” Envtl. Conservation Org., 529 F.3d at 525. Mootness applies when intervening circumstances render the court no longer capable of providing meaningful relief to the plaintiff. See Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir.1998); see also Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir.1994).
As noted above, the district court held that the Center’s case became moot after BP successfully killed the Macondo well because that event meant that any injunctive order to cease the discharge would be useless. The Center argues that the court’s reasoning was flawed because under the stringent test for mootness there must be absolutely no possibility for recurrence of the alleged violations. It points out that it alleged that the defendants were reasonably likely to continue to violate the environmental statutes. In cases dealing with alleged polluters it is often appropriate to place a “heavy” burden on defendants to prove that “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (internal quotation marks and citations omitted). This standard “protects plaintiffs from defendants who seek to evade sanction by predictable protestations of repentance and reform” after a lawsuit is filed but who then continue their unlawful conduct upon dismissal of the suit. Id. at 67, 108 S.Ct. 376 (internal quotation marks and citation omitted).
We have explained, however, that this standard applies when a defendant’s voluntary conduct is claimed to have mooted the plaintiffs suit. Envtl. Conservation Org., 529 F.3d at 527. For example, we explained that this standard would be necessary if an alleged polluter asserted that CWA claims became moot when it “voluntarily hired the requisite number of compliance and monitoring staff or voluntarily set aside funds for supplemental environmental projects” because otherwise “there would no impediment to the [polluter’s] laying off the new hires or reallocating the funds” after the suit is dismissed. Id. In other words, when a defendant has taken voluntary measures to stop a statutory violation because it is facing litigation but could otherwise revert to the offending conduct once litigation has ended, the defendant must bear the heavy burden of showing the impossibility of that result in order to prove mootness.
In this case, however, the defendants did not act voluntarily in a feigned effort to comply with the environmental statutes and stave off litigation. The killing of the Macondo well occurred at the insistence of the federal government acting pursuant to the extraordinary powers granted to the President to oversee and direct the emergency response to the oil spill. By all accounts in the record before us, the well site is now effectively dead. This is not the typical case where defendants may claim repentance and reform through voluntary action only to revert to their old ways upon dismissal of the suit. We therefore must analyze mootness by asking whether the citizen-suit plaintiff has proven “that there is a realistic prospect that the violations alleged in its complaint will continue notwithstanding” government-mandated corrective action. Id. at 528. If not, the case is moot. As we have previously explained, this “realistic prospect” standard is consistent with “Congress’s intent that citizen suits ‘supplement rather than ... supplant government action.’ ” Id. (citation omitted). We therefore turn now to the Center’s individual claims for relief.
1. Injunctive relief to stop violating CWA CERCLA and EPCRA
The Center first requested declaratory and injunctive relief declaring that the defendants violated CWA, CERCLA, and EPCRA, and enjoining them from operating the offshore facility in a manner that would result in further violations. As the district court found, however, the record shows that the Macondo well has been effectively killed and cemented shut, and there is no offshore facility at the site being operated by the defendants. Therefore, because there is no realistic prospect that further discharges will occur, there can be no meaningful relief granted by an injunctive order enjoining the defendants from operating the site in violation of CWA, CERCLA, and EPCRA. The district court correctly held that this claim is moot. See Harris, 151 F.3d at 189 (“[A] request for injunctive relief generally becomes moot upon the happening of the event sought to be enjoined.”); see also Gwaltney, 484 U.S. at 66, 108 S.Ct. 376 (the mootness doctrine “prevents] the maintenance of suit when there is no reasonable expectation that the wrong will be repeated”) (citations and quotation marks omitted); cf. S.F. BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1160 (9th Cir.2002) (suggesting that complete dismantling of a polluting facility could result in mootness of civil penalty claims).
The Center argues that its claims for civil penalties keep the case alive and preclude a finding of mootness. The Center’s individual complaints requested civil penalties of up to $4,300 per barrel or $37,500 per day of violation pursuant to CWA, and up to $37,500 per day of violation for each hazardous substance not reported under CERCLA and EPCRA. It is true that the potential deterrent effect of civil penalties may in some cases prevent mootness even where injunctive relief has become moot. See Friends of the Earth, 528 U.S. at 185-86, 120 S.Ct. 693; Envtl. Conservation Org., 529 F.3d at 530; see also Powell v. McCormack, 395 U.S. 486, 496 n. 8, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (“Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests.”). The Center’s civil penalty claims do not save its complaint, however, because the Center abandoned those claims when it sought a final judgment from the district court for purposes of appeal.
As noted above, the district court’s Pretrial Order No. 11 placed the Center’s complaints into Pleading Bundle Dl. The district court’s order dismissing the Dl Master Complaint did not address civil penalties, however. The district court’s opinion noted that the Dl pleading bundle was limited to injunctive claims. In an action involving multiple claims, a judgment that fails to resolve all of a party’s claims is not a final appealable order. See Fed.R.CivP. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties.”); Thompson v. Betts, 754 F.2d 1243, 1245 & n. 1 (5th Cir.1985). When the Center sought a final judgment for purposes of appeal, it even stated the position of the Plaintiffs’ Steering Committee that a final order had not been entered. Yet, the Center took no action to ensure that its civil penalty claims remained live. For example, it could have asked for a certification of final judgment for purposes of an interlocutory appeal. See 28 U.S.C. § 1292(b); Fed. R.Crv.P. 54(b). Instead, it sought an immediate final judgment ordering that its individual complaints be dismissed in their entirety along with the Dl Master Complaint.
The Center acted at its own peril and may not now complain when the district court did what it asked the court to do. See United States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th Cir.1991) (“A party generally may not invite error and then complain thereof.”). Indeed, the Center apparently acted strategically in order to pursue its appeal to this court. As the Seventh Circuit has explained, however, “if plaintiff loses on A and abandons B in order to make the judgment final and thus obtain immediate review, the court will consider A, but B is lost forever.” Fairley v. Andrews, 578 F.3d 518, 522 (7th Cir.2009). We conclude, therefore, that the Center abandoned its civil penalty claims in order to obtain a final appealable judgment, and those claims may not now prevent a finding that the adjudicated claims in the complaint are moot.
2. Authorization to sample discharge
The Center next requested as relief an order authorizing it to sample or arrange for sampling of any discharge of pollutants from the well for a period of ten years after the defendants come into compliance with CWA, CERCLA, and EP-CRA. Because the well site is now dead there is no reasonable prospect for continued discharges, and thus nothing to sample. This claim for relief is therefore moot for the same reasons that the request for injunctive relief discussed above is moot.
3. Copies of reports
Next, the Center sought an order requiring the defendants to provide, for a period of five years, copies of all reports that the defendants submit to regulatory authorities. This requested relief “cannot conceivably remedy any past wrong but is aimed at deterring” future statutory violations. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 108, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). In Steel Company, the Supreme Court considered a similar request for relief under EPCRA and found it insufficient to confer Article III standing. See id. The Court reasoned that in order for such requested relief to provide the basis for Article III standing, there must be the prospect for continuing violations. See id. (“If respondent had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested would remedy that alleged harm.”). Here, the Center did allege in its individual complaints that the defendants were likely to continue violating EPCRA by failing to report future discharges from the well site. But as already noted, the district court correctly noticed that the well has been killed and there is no competent record evidence of continued discharges from the site. Therefore, on the facts of this case, the issue of standing is not implicated, but because there is no longer a basis for the Center to seek copies of the defendants’ future reports, the requested relief has become moot.
4. Reporting under CERCLA and EPCRA for substances already released
The Center further sought injunctive relief ordering the defendants to provide a complete reporting in accordance with CERCLA and EPCRA “for all hazardous substances already released.” The Center alleged first that the defendants’ failure to report the substances released violated Section 103 of CERCLA, 42 U.S.C. § 9603(a). That provision states, in relevant part, that the owner of an offshore facility “shall, as soon as he has knowledge of any release ... of a hazardous substance from such ... facility in quantities equal to or greater than those determined pursuant to section 9602 of this title, immediately notify the National Response Center ... of such release.” See also 40 C.F.R. § 302.6. The purpose of CERCLA’s reporting requirement is to ensure “the Government’s ability to move quickly to check the spread of a hazardous release.” United States v. Laughlin, 10 F.3d 961, 966 (2d Cir.1993) (internal quotation marks and citation omitted). It is undisputed that BP notified the National Response Center of the explosion on Deep-water Horizon and the oil spill soon after they occurred, which resulted in an immediate governmental response. The Center’s allegations and request for relief with respect to § 9603(a) are therefore moot. See Harris, 151 F.3d at 189.
The Center’s complaint further alleged that the defendants did not report the types and quantities of pollutants released in the spill, which the Center contends was required by EPCRA, 42 U.S.C. § 11004. The district court held that the Center lacked standing to bring its EPCRA claim because it was “unclear how the data collected under EPCRA can remedy the injury alleged by Plaintiffs.” We conclude that the district court’s conclusion was incorrect.
Pursuant to EPCRA, the owner or operator of a facility is required to provide notice of a release of certain extremely hazardous substances or substances covered under CERCLA to the “emergency coordinator for the local emergency planning committees ... for any area likely to be affected by the release and to the State emergency planning commission of any State likely to be affected by the release.” 42 U.S.C. § 11004(a), (b)(1). The purpose of the EPCRA framework is “to inform the public about the presence of hazardous and toxic chemicals, and to provide for emergency response in the event of [a] health-threatening release.” Steel Co., 523 U.S. at 86, 118 S.Ct. 1003; see also 42 U.S.C. § 11023(h). Like CERCLA, EPCRA thus ensures that appropriate government authorities are informed about the release of hazardous substances, but EPCRA also ensures that the public is given access to important health-related information.
The defendants argue that EPCRA requires no particular form of notice that a release has occurred, and they assert that the information the Center seeks about the oil spill is readily available on various government web sites. They contend, therefore, that the Center’s claim is moot because it has been overtaken by the presence of information, including health and safety information, available on the Internet. The defendants’ argument essentially challenges the redressability of the Center’s claimed injury, but we are not persuaded.
Under EPCRA, the initial notice to state and local emergency planners may be oral and given by “telephone, radio, or in person.” 42 U.S.C. § 11004(b)(1). But the owner or operator must also provide written emergency followup notice “[a]s soon as practicable after a release.” § 11004(c); see 40 C.F.R. § 355.41. Both the initial notice and the written followup emergency notice are required to include, inter alia, the name and estimated quantity of any substance involved in the release, the medium or media into which the release occurred, any known or anticipated acute or chronic health risks associated with the release, and precautions to take as a result of the release. § 11004(b), (c); see also 40 C.F.R. §§ 355.11, 355.40. The written notices must be maintained by the state emergency response commission and must be made available to members of the general public. See §§ 11001(a), 11044(a). The statute specifically authorizes “any person” to commence an action against an owner or operator for failing to submit the written emergency followup notice. § 11046(a)(l)(A)(i).
The Center provided affidavits from its members averring that they had been exposed to substances emanating from the disaster either through direct physical contact in the Gulf and on the shore or through contact with fish and other wildlife. Those members averred that they were concerned about breathing air or ingesting water exposed to the substances and wanted to know what types of substances were involved in the Deepwater Horizon release so that they could assess the possible health effects of the exposure. At least one member specifically averred that he had not seen any reports from BP documenting the substances that were released in the spill despite his search for such reports. This is the kind of concrete informational injury that the statute was designed to redress. See FEC v. Akins, 524 U.S. 11, 21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly-disclosed pursuant to a statute.”); see also Sierra Club, Inc. v. Tyson Foods, Inc., 299 F.Supp.2d 693, 703-06 (W.D.Ky.2003) (holding that denial of right to be informed of releases from defendant’s facility afforded plaintiff standing to assert EPCRA claim for failure to report release of chemicals).
BP suggests in its brief that the Center’s informational injury claim is moot because there is no continuing discharge from the well, and it cites the Supreme Court’s decision in Steel Company. In that case, the Court did hold that the plaintiff could not maintain its EPCRA suit based solely on past violations of the statute. See Steel Co., 523 U.S. at 109, 118 S.Ct. 1003. But in that case, the defendant had complied with EPCRA’s reporting requirements before the plaintiff filed suit, and the issue was whether the plaintiff could sue for a violation based on the untimely reporting. See id. at 88, 118 S.Ct. 1003. The Court held that the plaintiff lacked standing because the requested relief would not redress its claimed injury by remedying past wrongs. See id. at 105-09, 118 S.Ct. 1003. Here, however, BP has never claimed that it has at any time complied with EPCRA’s reporting requirement for a written notice. The Center’s suit specifically sought relief based on a release of substances that had already occurred but remained unreported under EPCRA, namely the spill from the ruptured well. The defendants’ failure to submit the required written emergency notice is thus a continuing violation of EPCRA’s provisions. An order from the district court that the defendants comply with EP-CRA’s reporting requirement for that release could therefore redress the Center’s claimed informational injury.
The defendants’ insistence that the claim is moot because information about the spill is already publicly available is unavailing, at least on the current record. First, the claim that information about the disaster may be found by hunting on the Internet ignores the fact that EPCRA places an affirmative statutory duty on the owner or operator of the facility to report the information. Second, it ignores the EPCRA requirement that reports provided by owners or operators be maintained by state emergency planning authorities and be made available to the public at a designated location. See 42 U.S.C. §§ 11001(a), 11044(a). The obvious advantage of this requirement is to have vital health information available in one easily accessible place. Finally, although the defendants claim that the information is otherwise readily available, their citation to several government web sites is unconvincing. Our review of those web sites reveals a voluminous amount of information about the spill and the Government’s response, but the specific information required by EPCRA is not immediately apparent. To be sure, the district court held that “data regarding the spill and its cleanup are easily accessible,” but it cited no sources of information and made no findings as to where the information specifically required by EPCRA may be found. If the information required by EPCRA’s reporting provisions may indeed be easily located from alternate sources, it may be that a further order from the district court would provide no meaningful relief to the Center and its members. Such a conclusion, although not affecting the Center’s standing, might render the claim moot. See Harris, 151 F.3d at 189. But we are simply unable to decide that question on this record, and the case therefore must be remanded to the district court for further proceedings.
5. Remediation
Finally, the Center also sought injunctive relief ordering the defendants to remove the pollutants from the water and affected coastal areas, and to pay the costs of any environmental restoration or remediation that the court deemed necessary and proper. The district court held that because cleanup efforts by the defendants and by agencies from the federal government’s Unified Area Command were already underway in the Gulf of Mexico there was no further relief that it could order. The court further reasoned that it could not second-guess the Government’s remediation decisions. We agree with the district court.
The question when assessing whether a case is moot is whether any effective relief can be granted. See Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown, 948 F.2d 1436, 1446 (5th Cir.1991). The Center argues here that the district court erroneously dismissed its claim for an injunction addressing remediation because a full remedial plan for the Gulf was not yet in place. It asserts that the district court should not have dismissed the complaint on the basis of the Government’s cleanup efforts before the Center could develop its own proposed remediation plan. But the Center offers nothing more than speculative and conclusory assertions about remediation efforts and the existence of “vast amounts of oil” still in the Gulf rather than a coherent assertion of what effective relief could be ordered by the district court. The Center does not dispute that cleanup efforts are and have been ongoing in the Gulf, and it identifies no deficiency in those efforts. Instead, the Center would have the district court oversee remediation without identifying why or how it should do so. As noted above, the Executive Branch is charged with the responsibility to oversee the cleanup. See 33 U.S.C. § 1321(c)(1)(A), (2)(A). Because those efforts have been ongoing, and absent a clear reason from the Center to find them deficient, we see no error in the district court’s conclusion that it could grant no further relief to the plaintiff beyond what is already being done. See, e.g., 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F.Supp.2d 1215, 1219 (S.D.N.Y.2002) (declining to order injunctive remedial relief for oil spill because “plaintiff has been unable to describe a single action that defendant could be ordered to take to reduce or eliminate any risk its past actions may have caused, that is not already being undertaken by [the state environmental agency]”). The Center asserts that it sought injunctive relief beyond that which any government actor has already undertaken, but it cites only to its general prayers for relief in the complaint, which we have already discussed above. We conclude that the district court properly dismissed this claim as moot.
C. Case management
The Center also challenges the district court’s case management of the MDL, specifically the district court’s use of pleading bundles and the separation of the Center’s claims for injunctive relief and civil penalties. The Center argues that the district court’s failure to place its civil penalty claims into a pleading bundle (1) was contrary to the citizen-suit provisions of CWA, CERCLA, and EPCRA, which permit federal courts to impose both injunctive relief and civil penalties, and (2) resulted in a de facto dismissal of those claims.
A district court’s decisions relating to case management are reviewed for an abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 558 n. 1, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1013 (5th Cir.1977). “The trial court’s managerial power is especially strong and flexible in matters of consolidation.” In re Air Crash Disaster, 549 F.2d at 1013; see also Manual fob Complex Litigation (Fourth) § 10.1 (2004) (“Although not without limits, the court’s express and inherent powers enable the judge to exercise extensive supervision and control of litigation.”). The Federal Rules of Civil Procedure specifically contemplate that in complex matters the district court may adopt “special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.” Feb.R.CivP. 16(c)(2)(L). Moreover, the district court is empowered to order separate trials of any “claim, counterclaim, crossclaim, third-party claim, or particular issue.” Fed.R.Civ.P. 16(c)(2)(M); see also Fed.R.Civ.P. 42(b).
To say the least, the instant case presents an exceedingly complex matter, consisting of hundreds of individual cases and tens of thousands of claimants. In the face of this daunting litigation, and given the “broad grant of authority” to the district court, we perceive no error in those aspects of the court’s management of the MDL that are involved in this ease. In re Air Crash Disaster, 549 F.2d at 1013. The decision to create pleading bundles or to separate claims for relief was well within the district court’s discretion. This managerial framework did not cause a de facto dismissal of the Center’s civil penalty claims. Rather, as noted above, those claims were dismissed at the Center’s own insistence by demanding a final judgment for purposes of appeal. We therefore find no merit in the Center’s challenge to the district court’s case management orders.
V. CONCLUSION
For the reasons stated above, we conclude, with one exception, that the district court did not err by dismissing the Center’s claims as moot. We further conclude that, on the present state of the record, the Center has standing to assert its claim for relief based on the defendants’ alleged failure to comply with the reporting requirements of EPCRA, and that the EP-CRA claim is not moot. We therefore AFFIRM IN PART and REVERSE IN PART the district court’s judgment and REMAND the case for further proceedings. Each party shall bear its own costs.
. The district court’s resolution of the claims under ESA, state law, and general maritime law are not part of the instant appeal.
. The Center's written opposition requested an opportunity to conduct discovery only if the court took judicial notice of any facts, but when the district court asked about evidence at the hearing, the Center apparently changed tracks and argued only that the court could still order injunctive relief in the form of appropriate cleanup measures. The Center indicated that at some unspecified future time hearings could be held and "experts” could educate the court, but it did not indicate a need for, nor did it request, immediate discovery on the well’s status or continued discharge of pollutants from the site.
. The Center suggests that the case is not moot because BP retains its National Pollutant Discharge Elimination System ("NPDES”) permit and could return to the well site. In support, the Center cites San Francisco BayKeeper and Puerto Rico Campers' Association v. Puerto Rico Aqueduct and Sewer Authority, 219 F.Supp.2d 201 (D.P.R.2002). In both of those cases, however, the alleged polluting facility was still in operation; therefore, the possibility for future violations to recur was entirely reasonable even though the unlawful discharges had ceased from the specific source. See S.F. BayKeeper, 309 F.3d at 1160 (holding that even though defendant had sold the facility and was no longer operating it, claims were not moot because facility was still operating and civil penalties imposed on defendant could also have deterrent effect on new or future owners); Puerto Rico Campers' Ass’n, 219 F.Supp.2d at 220 (holding that claim was not moot even though source of effluent had been sealed because defendant was still operating the facility, retained its NPDES permit, and was actually diverting effluent from that facility to another facility). In this case, it is undisputed that there is no facility operating at the Macondo well site and that the relief well, which was completed under the supervision and approval of the federal government, was the only way to kill the well. See also Friends of the Earth, 528 U.S. at 193, 120 S.Ct. 693 (recognizing that defendant’s closure of its facility could moot the case but noting that disputed issues of fact remained). We are not persuaded that the speculative possibility that BP could some day return to this site, after the tremendous time, energy, and manpower expended to close it, saves the Center’s current claims from a finding of mootness.
. The defendants make an alternative argument that the Center's CERCLA claim fails on the merits because of the so-called _ "petroleum exclusion,” which excludes "petroleum, including crude oil or any fraction thereof” from the definition of hazardous substances to be reported under CERCLA. See 42 U.S.C. §§ 9601(14), 9603(a); Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 805 (9th Cir.1989). We do not decide the question in light of our conclusion about mootness, and the fact that the district court made no findings with respect to the petroleum exclusion.
. Some of the web pages cited in the defendants' briefs lead to links to documents comprising thousands of pages of information. We do not think that the intent of EPCRA is met by requiring the public to search for a needle in a cyberspace haystack.
. The Center asserts that the D1 plaintiffs raised concerns about the nature of the cleanup efforts in the district court, but it cites without further discussion to the master complaint and to its opposition to the motions to dismiss. The problem with this argument is two-fold. First, an appellant may not incorporate by reference arguments made in the district court. See Turner v. Quarterman, 481 F.3d 292, 295 n. 1 (5th Cir.2007). Second, the arguments to which the Center refers concerned only whether the government cleanup efforts would resolve the D1 plaintiffs' ESA and state law trespass claims, but those claims are not before us.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2261904761904762, Costs: 0
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JOHN R. GIBSON, Circuit Judge.
The chief issue before us is whether the Secretary of the Interior is authorized by the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1982), to issue regulations permitting the sport trapping of the Eastern Timber Wolf. Also in question are the legality of certain additional regulations expanding the predation control program of the wolf in northern Minnesota and the propriety of attorneys’ fees awarded the Sierra Club. The district court concluded that public hunting of a threatened species such as the Eastern Timber Wolf is prohibited by the Act except in the extraordinary case where population pressures within the animal’s ecosystem cannot otherwise be relieved. As the government had made no such showing, a motion for summary judgment that the sport trapping regulations violate the Endangered Species Act was granted. The district court also concluded that the additional regulations expanding the predation control program of the wolf were illegal, as they were made without explanation. It awarded the Sierra Club $55,369.45 under the attorney fee provision of the Endangered Species Act. We affirm the judgment of the district court as to the sport trapping of the wolf, reverse and remand as to the predation control regulations, and affirm the attorneys’ fee award.
The ease was submitted by stipulation, so the facts are not in controversy. There are approximately 1,000 to 1,200 Eastern Timber Wolves, commonly called gray wolves, in northern Minnesota. This population has remained stable since 1976, despite illegal kills estimated at as much as 25% of the population. There is no information that indicates that the wolf population has exceeded its carrying capacity or that population pressures exist that cannot be relieved other than by a sport season.
Minnesota’s gray wolf population was originally listed as “endangered” under the Act. However, after the Eastern Timber Wolf Recovery Team, a body of experts created pursuant to the Act and charged with the development of plans for the conservation and survival of the gray wolf, recommended that “depredation control” be used where wolves were killing domestic animals, in 1978 the Fish and Wildlife Service reclassified the gray wolf as “threatened” in Minnesota and allowed trapping of depredating wolves. The implementing regulations were litigated in Fund for Animals v. Andrus, 11 Env’t.Rep.Cas. (BNA) 2189 (D.Minn.1978). The district court enjoined the Fish and Wildlife Service from trapping wolves unless such action was necessary and was directed to the removal of specific wolves reasonably believed to have committed significant depredation upon livestock. Id. at 2200-01. The court later amended its order to restrict trapping to within one-quarter mile of the place where the predation occurred. Id. at 2203.
Several times following the litigation in Fund for Animals, the Minnesota Department of Natural Resources (DNR) requested that the Fish and Wildlife Service transfer control of the wolf to it and allow a public sport season. These requests were rejected both because of the failure of the requests to conform to the order in Fund for Animals, and because of the Service’s position that the Endangered Species Act prohibits public sport trapping of threatened species unless there exists an extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved.
In July 1982, however, the Service published proposed regulations granting the DNR’s request for public sport trapping of the wolf. Comments were accepted, and public hearings were held in August 1982. On August 10, 1983, regulations were promulgated allowing public trapping of wolves with certain restrictions. The regulations also modify the existing livestock predation control program: wolves may be taken within one-half mile of the farm where predation occurred; taking is not limited to individual predator wolves; there is no express requirement that wolves be taken in a humane manner.
Shortly after the publication of the new regulations, the Sierra Club, along with numerous other organizations, filed this action. The case was submitted by both parties on motions for summary judgment. On January 5, 1984, the district court entered an order in which it concluded that the regulations were illegal. The court stated:
The plain language of the Act requires that before the taking of a threatened animal can occur, a determination must be made that population pressures within the animal’s ecosystem cannot otherwise be relieved. In the present case, the government does not even attempt to argue that such an “extraordinary case” exists. Rather, the novel argument is asserted that the declaration of a sport season is within the Secretary’s discretion.
Sierra Club v. Clark, 577 F.Supp. 783, 787 (D.Minn.1984).
The court, however, found the notion of such discretion inconsistent with the Secretary’s express statutory duties:
In the case of a threatened species such as the wolf, the Secretary may permit a limited taking, but only in the extraordinary ease where population pressures within the wolf’s ecosystem cannot otherwise be relieved. This language means that there must be strong evidence that the wolf is exceeding the population limits of its ecosystem before the Secretary can permit any taking of the animal. The Secretary has not so much as whispered that this may be the case. Upon review of the record, the court finds the reason for the Secretary’s position to be obvious. The wolf population has indeed been stable since 1975; there is no evidence to indicate that the wolf population has exceeded its limits. It is therefore clear that the Secretary has breached his statutory duty to conserve the wolf, within the meaning of the Endangered Species Act, by declaring that a sport season on the wolf will be allowed.
Id. at 789-90.
The court also concluded that the changes in the livestock predation control program were made without explanation. It determined that they were not designed in accordance with Fund for Animals and could only expand the unnecessary taking of wolves. Therefore, these regulations also were determined to be illegal under the Endangered Species Act. Finally, in a related action, the court awarded the Sierra Club $55,369.45 under the attorneys’ fee provision of the Endangered Species Act.
I.
The Secretary argues that in denying him discretion to allow public sport trapping of the wolf the district court has destroyed the distinction made in the Act between endangered and threatened species. The Secretary claims that while Congress imposed in 16 U.S.C. § 1538(a)(1) a set of mandatory prohibitions regarding endangered species, including the taking of such species, it sought to protect threatened species by providing that “the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species,” further clarifying and particularizing the directive by providing that “the Secretary may by regulation prohibit * * * any act prohibited under section 1538(a)(1).” 16 U.S.C. § 1533(d). Thus, argues the Secretary, Congress granted him discretion to determine whether to impose section 1538(a)(1) prohibitions, including the prohibition on taking, for a threatened species.
The extent of the Secretary’s discretion, however, is limited by the requirement that the regulations he is to issue must provide for the conservation of threatened species. The term is defined in 16 U.S.C. § 1532(3):
The terms “conserve”, “conserving”, and “conservation” mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. (Emphasis added.)
In interpreting these provisions, our starting point must be the plain language of the statute. Kosak v. United States, — U.S.-, 104 S.Ct. 1519, 1523, 79 L.Ed.2d 860 (1984); United States v. Weber Aircraft Corp., — U.S. -, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984). Further, we bear in mind that statutory definitions of words used elsewhere in the same statute furnish such authoritative evidence of legislative intent and meaning that they are usually given controlling effect. See Walling v. Portland Terminal Co., 330 U.S. 148, 67 S.Ct. 639, 91 L.Ed. 809 (1947). “Such internal legislative construction is of the highest value and prevails over * * * other extrinsic aids.” 1A C. Sands, Statutes and Statutory Construction § 27.02, at 310 (4th ed. 1972). Here the plain language of the statute, including its definitional provisions, compels us to agree with the district court “that before the taking of a threatened animal can occur, a determination must be made that population pressures within the animal’s ecosystem cannot otherwise be relieved.” 577 F.Supp. at 787. Otherwise, such taking would not constitute an act of conservation under the Act and would fall without the scope of authority granted to the Secretary.
In reaching this conclusion, we are mindful that the Endangered Species Act is a law of limited scope whose provisions must be read together. In carrying out our duty of ascertaining and applying the intent of Congress, we must “interpret language in one section of a statute consistently with language of other sections and with the purposes of the entire statute considered as a whole.” Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982). The provision under examination, section 1533(d), looks in two directions in the Act: first, as we have already observed, toward the definition of “conservation” in section 1532(3); second, by specific reference, toward section 1538(a)(1). If we turn to section 1538, we find that it prohibits, among other acts, the taking of any endangered species. Once again, we must turn to section 1532(19) for a statutory definition of taking. Further, we note that the terms “endangered species” and “threatened species” are also defined in section 1532(6) and (20) respectively. Thus, as we trace out the meaning of the provisions of section 1533(d), it becomes abundantly clear that the interrelationship of the various sections of the Act is crucial to the task of proper discernment. Congress declared as its policy in the Act “that all Federal departments and agencies shall seek to conserve endangered species and threatened species.” 16 U.S.C. § 1531(c)(1) (emphasis added). This underscores the significance of the term “conservation” which appears so frequently in the Act. To fail to use Congress’ definition of this key term would be to refuse to give effect to a crucial part of the enacted statutory law. See 1A C. Sands, supra, at 310.
The government argues that the district court’s holding depends upon the use of a general definitional provision to nullify a specific provision of the Act and, in support of its contention, points to Clifford F. Mac- Evoy Co. v. United States ex reí. Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944) (specific terms and language prevail over general terms and language). MacEvoy dealt with a statute that in one section generally required government contractors to furnish surety bonds, but then in another section limited the right to bring suit on such bonds. The case turned on the meaning of the term “subcontractor”; it is clear from the Court’s comments that had Congress defined the term, that definition would have been controlling. See id. at 108, 64 S.Ct. at 894. We think it obvious that in the case before us there is no nullification involved in utilizing Congress’s definition of “conservation.” Rather, in applying the statutory definition of “conservation” to all portions of the Act in which it appears we have amplification and clarification of the meaning of the Act.
The argument that the district court has eliminated the distinction between the two categories of threatened and endangered species is without merit. The district court made clear that two levels of protection would remain under its interpretation of the statute:
Section 1538(a)(1) strictly forbids the taking of an endangered animal under any circumstances. Only with regard to a threatened species may the Secretary exercise his discretion by ordering the taking of an animal. This discretion, however, is limited by that language found in the Act — only in the extraordinary case where population pressures within the ecosystem cannot otherwise be relieved can the Secretary permit the regulated taking of a threatened species.
577 F.Supp. at 788 (emphasis in original).
The Secretary argues that this interpretation is incorrect and instead that the proper scheme is one in which “endangered species can be taken under strictly controlled circumstances only when their numbers exceed the carrying capacity of their ecosystems” while “threatened species can be taken pursuant to regulatory measures which address the problems contributing to the species’ decline.” He bases this scheme solely on the definition of “conservation” in section 1532(3). In that definition the methods and procedures of conservation, including regulated taking where population pressures within an ecosystem cannot otherwise be relieved, are stated to be applicable to both endangered species and threatened species. The Secretary, retreating from the thrust of his earlier argument, argues that the section 1532(3) definition allows the taking of endangered species and should prevail over the prohibitions of section 1538(a)(1). Thus, while both the district court and the Secretary find two levels of protection in the Act, the Secretary argues that the 1532(3) definition affords him a discretionary base that the district court has ignored.
Once again, however, the Secretary has ignored the interrelations of the Act. Section 1533(d), when read in conjunction with the definition of “conservation” in section 1532, limits the Secretary’s discretion as to threatened species. Section 1538(a)(1), when read in conjunction with the definition of “taking” in section 1532, further limits the Secretary’s discretion as to endangered species. The definition of “conservation” in section 1532 does not nullify the provision of section 1538 that prohibits taking an endangered species, for the term “conservation” does not appear in section 1538. The Secretary simply ignores the language of the Act and .the statutory definitions that Congress adopted to give it force. When we read sections 1533 and 1538 in light of their statutorily defined terms and in conjunction with each other, we find they clearly support the district court’s interpretation of the two levels of protection provided.
The Secretary apparently seeks to justify his interpretation of the statute by asserting that “the labyrinthian contortions of its language have generated confusion and controversy for years.” He overstates his case. We note that Chief Justice Burger in his consideration of section 1536 of the Act in Tennessee Valley Authority v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978), found that the “ordinary meaning of plain language” in the statute was controlling. Similarly, we believe the language of the statutory provisions at issue here is clear. We conclude that the statute on its face limits the discretion of the Secretary to allow public sport hunting of threatened species.
II.
The Secretary argues at length that legislative history reveals a congressional intent to give the Secretary discretion to allow taking of threatened species. We must interpret the statute in light of the purposes Congress sought to serve, Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979), and legislative history may play an important part in discerning these purposes. However, contrary to the Secretary’s position, we find that the legislative history supports our interpretation of the Act.
As the district court pointed out, the conference report submitted with the Act clearly indicates an intent to limit the Secretary’s discretion to permit taking of threatened species:
In view of the varying responsibilities assigned to the administering agencies in the bill, the term [conservation] was redefined to include generally the kinds of activities that might be engaged in to improve the status of endangered and threatened species so that they would no longer require special treatment. The concept of conservation covers the full spectrum of such activities: from total “hands-off” policies involving protection from harassment to a careful and intensive program of control. In extreme circumstances, as where a given species exceeds the carrying capacity of its particular ecosystem and where this pressure can be relieved in no other feasible way, this “conservation” might include authority for carefully controlled taking of surplus members of the species. To state that this possibility exists, however, in no way is intended to suggest that this extreme situation is likely to occur — it is just to say that the authority exists in the unlikely event that it ever becomes needed.
Conf.Rep. No. 740, 93rd Cong., 1st Sess. 23, reprinted in 1973 U.S.Code Cong. & Ad.News 2989, 3001, 3002 (emphasis added). Because a “conference report represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent.” Demby v. Schweiker, 671 F.2d 507, 510 (D.C.Cir.1981). The unambiguous language of this conference report must be given great weight.
The Secretary, however, argues that this report is unpersuasive evidence of intent and, indeed, misleading, since it reflects “an unarticulated and in fact nonexistent House view that regulated taking would occur only where extraordinary population pressures existed.” Rather, argues the Secretary, the House in its report had explicitly endorsed secretarial discretion as to taking of threatened species.
The Secretary’s view depends largely on the statement in the House report that:
The Secretary is authorized to issue appropriate regulations to protect endangered or threatened species: he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species.
H.R.Rep. No. 412, 93rd Cong., 1st Sess. 12 (1973) (emphasis added).
It is clear from the remainder of the report, however, that such options were to be exercised only in the promulgation of regulations that “would serve to conserve, protect, or restore the species concerned in accordance with the purposes of the Act” which were, inter alia, “to provide a means for protecting the ecosystems upon which we and other species depend” and “to provide a specific program for the protection of endangered [and threatened] species.” H.R.Rep. No. 412, supra, at 10, 11. The “almost infinite options,” then, had to serve the purpose of protection and conservation of the threatened species.
In contrast, the Senate bill that went into the Conference Committee did grant the Secretary discretion to authorize a sport season for threatened species:
4(e) PROTECTIVE REGULATIONS.— Whenever the Secretary lists a species of fish or wildlife as a threatened species, pursuant to subsection (a) of this section, he shall issue such regulations as he deems necessary and advisable to provide for the conservation and management of such species. With respect to any threatened species, the Secretary may by regulation prohibit any act prohibited with respect to an endangered species under section 10(a) of this Act.
* sf: 5k * * *
3(1) “Conservation” and “management” mean the collection and application of biological information for the purposes of increasing and maintaining the number of animals within species and populations of endangered and threatened species at the optimum carrying capacity of their habitat. Such terms include the entire scope of activities that constitute a modern scientific resources program, including, but not limited to, research, census, law enforcement, and habitat acquisition and improvement. Also included within these terms when and where appropriate, is the protection, propagation, conservation and restoration of such species, including regulation and taking necessary to these ends.
S.1983, 93rd Cong., 1st Sess. §§ 4(e) & 3(1) (1973) (emphasis added).
As the Sierra Club points out, the terms “management” and “optimum carrying capacity” are terms of art in the field of wildlife management. These terms are used to describe approaches to “manipulation [of species] ... to produce ‘harvestable surpluses’ ... for the benefit of hunters and fisherman who pay for the management programs.” Coggins & Ward, The Law of Wildlife Management on the Federal Public Lands, 60 Or.L.Rev. 59, 66 (1981). Therefore, the Senate bill envisioned management of threatened species in order to allow public sport taking of the animals.
Thus, the Senate and House bills were in conflict when they reached the Conference Committee. The Conference Committee eliminated the terms “management” and “optimum carrying capacity.” “Conservation” was redefined “to include the full spectrum of” activities “that might be engaged in to improve the status of endangered and threatened species so that they would no longer require special treatment.” Conf.Rep. No. 740, supra, at 23, U.S.Code Cong. & Admin.News 1973, p. 3002. It was in conjunction with these changes in the bill that the Committee stated that controlled taking should be limited to “extreme circumstances, as where a given species exceeds the carrying capacity of its particular ecosystem and where this pressure can be relieved in no other feasible way.” Id. We cannot agree with the Secretary that these changes and comments merely reflect an “unarticulated” or “nonexistent House view.” Rather, they appear to have been a deliberate response to the concept of “management” in the Senate bill and an intentional limitation of the Secretary’s discretion to allow the regulated taking of threatened species.
The Secretary makes much of the opinions expressed by various officials of interested federal agencies at hearings on the bill. These opinions need not detain us, given the evolution of congressional intent we have traced out above. Testimony given at congressional hearings should not be accorded undue weight as an indication of legislative intent since the views expressed by witnesses at congressional hearings are not necessarily the same as those of the legislators ultimately voting on the bill. Austasia Intermodal Lines, Ltd. v. Federal Maritime Commission, 580 F.2d 642, 645 (D.C.Cir.1978).
Finally, the Secretary argues that subsequent legislative history confirms an intent to grant him broad discretion. We first generally observe, as the Supreme Court has pointed out, that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 117-18, 100 S.Ct. 2051, 2061, 64 L.Ed.2d 766 (1980), (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334 (1960)). As the Court also stated in Consumer Product Safety Commission:
Petitioners invoke the maxim that states: “Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.” * * * With respect to subsequent legislation, however, Congress has proceeded formally through the legislative process. A mere statement in a conference report of such legislation as to what the Committee believes an earlier statute meant is obviously less weighty.
447 U.S. at 118 n. 13, 100 S.Ct. at 2061 n. 13 (citations omitted) (emphasis in original); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2072, 60 L.Ed.2d 609 (1979) (whatever evidence concerning Congress’ intent in enacting a certain provision might be provided by a committee report written eleven years later was plainly insufficient to overcome clear and convincing evidence concerning congressional intent at the time of the enactment).
The legislative history relied on by the Secretary involves the 1982 amendments to the Act, in which Congress included a new section, 10(j), dealing with experimental populations of endangered or threatened species purposely introduced into areas outside their current range to further their conservation. The Senate Committee Report regarding the amendment states that the Secretary may regulate conservation of such populations, including, where appropriate, direct taking. The Secretary argues that the language of the report “flatly contradicts” the district court’s interpretation of permissible taking. We think it significant, however, that the report was concerned with regulation of experimental populations. It may well be that the discretion given the Secretary in section 1539 would extend to the taking of animals in experimental populations in the case described in the report. It does not follow that the report authorizes or approves of sport taking of threatened species. We must conclude that the legislative history of the Act supports the conclusions we reached above regarding the statutory language.
We view the issue before us as one primarily of interpretation of the statute. Much of the factual background concerning the wolf, a major part of the discussion in the briefs and of the oral arguments of the amicus parties, and much of the colorful language in the district court’s opinion, although of substantial interest, simply do not reach the issue that we are required to decide.
III.
The district court also considered the changes the regulations made in the livestock predation control program:
In addition to the regulations allowing a sport season, * * * the Secretary has sought to expand the current livestock predation control program beyond its present limits. The area in which the wolves may be trapped has gone from one-quarter mile, as previously ordered, to within one-half mile of the farm where the depredation occurred. More than that, there would no longer be a requirement that the trapper determine with reasonable cause the identity of the predating wolf or wolves. In addition, there would not be a requirement that the wolf or wolves be taken in a humane manner. These changes in the law are made without explanation. Certainly this court would encourage any changes in the predation control program that would help the government trapper along with taking as few wolves as possible. These new regulations, however, are not justified on that basis. This court has no choice but to conclude that these new regulations only go toward expanding the unnecessary taking of wolves, rather than being designed in accordance to the previous rulings of this court. Accordingly, these regulations concerning the predation control program are also determined to be illegal under the Endangered Species Act.
577 F.Supp. at 790.
In its promulgation of the regulations, the Fish and Wildlife Service stated that the distance limitation had been expanded to one-half mile because “topography occasionally eliminates the possibility of effective trapping.” Regulations Governing the Gray Wolf in Minnesota, 48 Fed.Reg. 36,-256, 36,258 (1983). It further stated it would allow the killing of any wolf caught within the one-half mile distance since farmer outrage over the release of a trapped wolf “cannot serve the cause of wolf conservation” and since “[ajlthough immature animals may themselves be unable to kill livestock, their existence and their need for food probably are major reasons for the occurrence of depredation, and they probably are learning to commit depredations.” Id. Finally, while the regulations authorize the use of steel traps, the Service stated that “the steel trap when properly used is an effective and humane method of taking wolves.” Id. at 36,263.
The Secretary argues on appeal that these statements were explanations, that finding an explanation inadequate is not identical to finding it nonexistent, and that “for all practical purposes, no analysis was conducted by the district court of whether the Service decision was reasonably based and reached after consideration of all relevant factors.” The Sierra Club argues in reply that brief conclusory assertions do not rise to the level of explanations, that the expression of a need to take wolf pups did not explain the general taking of wolves permitted near farms where predation occurs, and that the elimination of the “humane manner” requirement was not specifically explained.
The parties agree that an agency must provide explanations when its rule-making reflects significant changes in policy. As the regulations were promulgated under the informal rulemaking procedures of section 553 of the Administrative Procedures Act, the standard of review is whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1982) . The rescission or modification of rules is subject to this standard, and “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).
We can find no indication in the district court’s opinion that this standard was applied. There is a vast difference between a failure to explain and a failure to explain adequately. The argument that brief assertions do not rise to level of explanations is, essentially, an argument of adequacy, requiring an explicit test of such assertions. Similarly, once statements purporting to explain particular rules are made, the question becomes the extent to which they actually do so. The presence of the statements means that the necessary condition of their existence has been met. The next task of the reviewing court is to address the sufficiency of these statements under the “arbitrary and capricious” standard. Accordingly, we reverse the district court’s conclusions as to the regulations involving predation control and remand for further consideration in light of our discussion above.
IV.
The remaining issue is the propriety of the fees awarded Sierra Club’s counsel by the district court. The district court made the following findings as to lodestar figures and other costs:
Hourly
Rate Hours Total
Attorneys:
Brian O’Neill $115 221 ' $25,415.00
Amy Bromberg 60 124 7,440.00
Other costs:
Legal Assistants 213.75
Disbursements and Expenses 5,244.20
Student Interns 10 720 7,200.00
$45,512.95
A 30% upward adjustment was then applied to the lodestar figures for the two attorneys, making the total fees and expenses awarded $55,369.45.
The Endangered Species Act provides that in suits brought by private parties to enforce the terms of the Act, the court may award the costs of litigation (including reasonable attorney and expert witness fees) to any party when the court determines such an award is appropriate. 16 U.S.C. § 1540(g)(4). In Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 3281, 77 L.Ed.2d 938 (1983), the Supreme Court interpreted an identical provision in the Clean Air Act as allowing fees only when the petitioner achieves “some success on the merits” of its claims. Here the Sierra Club clearly has achieved such success. While we are reversing and remanding for further consideration of the predation control regulations, both parties treated this question as a relatively minor issue (for example, in his main brief the Secretary devoted but two of the eighteen pages of his argument to the issue). The Sierra Club has otherwise prevailed and is eligible for the award.
The Secretary argues, however, that the upward adjustment is not justified. The district court found that the multiplier of 30% was appropriate “due to both the contingent nature of the success attained by plaintiffs, and the public importance of that success.” Sierra Club v. Clark, No. 5-83-254, slip op. at 7 (D.Minn. June 25, 1984). It further found that the issue was a “novel one” and a “difficult one which could not have been easily predicted.” Id. at 8. The court found these extraordinary circumstances and the importance of the case to the management of all threatened species justified the enhancement.
The Secretary argues in response that Blum v. Stenson, — U.S.-, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891 (1984), held that “[njeither complexity nor novelty of the issues * * * is an appropriate factor in determining whether to increase the basic fee award,” since such factors will be reflected in the numbers of hours devoted to the matter and the determination of a reasonable hourly rate. While the point is well taken, Blum also cites with approval the recognition in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983), that “in some cases of exceptional success an enhanced award may be justified.” While the issue is close, after carefully considering the case as a whole and the various factors enunciated by the district court, we cannot conclude that the court abused its discretion in enhancing the award or that such enhancement is contrary to the principles of Blum.
We affirm the judgment of the district court as to the illegality of the regulations permitting sport trapping of the gray wolf, reverse and remand for further consideration of the expanded predation control regulations, and affirm the award of attorneys’ fees.
. The Honorable Miles W. Lord, Chief Judge, United States District Court for the District of Minnesota.
. An "endangered species” is defined as "any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6).
. A “threatened species” is "any species which is likely to become an endangered species within the foreseeable future.” 16 U.S.C. § 1532(20).
. The regulations provide:
The Minnesota Department of Natural Resources may permit persons to take a gray wolf in zones 3, 4, and 5, as delineated in paragraph (d)(1) of this section: Provided that
(1) Such taking shall be permitted not more than 5 miles inside the boundary of zone 3, in areas of recurring wolf depredation on lawfully present domestic animals; and the extent of such taking shall be adjusted periodically to maintain an average population density of not less than 1 wolf per 10 square miles (the Minnesota Department of Natural Resources shall determine population density on the basis of generally accepted wildlife census techniques);
(2) In zone 4, such taking shall be permitted primarily in areas of recurring depredation, and the extent of such taking shall be adjusted periodically to maintain an average population density in the zone of not less than 1 wolf per 50 square miles (the Minnesota Department of Natural Resources shall determine population density on the basis of generally accepted census techniques); and
(3) During the first year after the effective date of these regulations, not more than 50 gray wolves may be taken by the public in zone 4.
50 C.F.R. § 17.40(d)(2)(i)(C) (1983).
. The regulations provide:
Designated employees or agents of the Service or the Minnesota Department of Natural Resources may take a gray wolf without a permit in Minnesota, in zones 2, 3, 4, and 5, as delineated in paragraph (d)(1) of this section, in response to depredations by a gray wolf on lawfully present domestic animals: Provided, that such taking must occur within one-half mile of the place where such depredation occurred.
50 C.F.R. § 17.40(d)(2)(i)(B)(4) (1983).
. As the disposition of this case turns upon the relationship of several provisions of the Endangered Species Act, Appendix A sets out in sequence the relevant sections.
. In fact, no fewer than nine terms defined in section 1532 — "person," "United States,” "endangered species,” "import,” “take,” "fish or wildlife,” “species,” “commercial activity,” and "Secretary” — appear in section 1538(a)(1).
. The levels of protection afforded threatened and endangered species are, of course, subject to the provisions of 16 U.S.C. § 1539(a)(1)(A):
The Secretary may permit, under such terms and conditions as he shall prescribe — * * * any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the affected species.
While this exception does not authorize establishment of a public sport season, it does give the Secretary discretion to permit, for example, the removal of depredating animals or the culling of diseased animals from a population, thus allaying the dissent’s concern that the Secretary would be unduly restricted if faced by such problems.
. Normally, legislative history is relied on only when the language of the statute is ambiguous. In Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), Chief Justice Burger commented on the relevance of the legislative history of the Endangered Species Act to the construction of the statute:
When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning. * * * Here it is not necessary to look beyond the words of the statute. We have undertaken such an analysis only to meet * * * [the dissent’s] suggestion that the "absurd” result reached in this case * * * is not in accord with congressional intent.
437 U.S. at 184 n. 29, 98 S.Ct. 2296-97 n. 29 (emphasis in original).
Similarly, in the instant case, given our conclusions regarding the language of the statute we have reached above, we are not compelled to examine the legislative history of the Act. Nonetheless, we do so in order to insure that we have not thwarted or distorted congressional intent.
. The report states:
All experimental populations, once determined to be such, are to be treated as though they have been separately listed as threatened species. This provision obliges the Secretary to issue such regulations as he deems necessary and advisable to provide for the conservation of the experimental population, just as he now does under subsection 4(d) for any other threatened species.
The purpose of requiring the Secretary to proceed by regulation is to.provide a vehicle for the development of special regulations for each experimental population that will address the particular needs for that population. The Secretary is granted broad flexibility in promulgating regulations to protect threatened species. These regulations may even allow the taking of threatened animals. * * Where appropriate, the regulations may allow for the direct taking of experimental populations. For example, regulations pertaining to the release of experimental populations of predators, such as red wolves, will probably allow for the taking of these animals if depredations occur or if the release of these populations will continue to be frustrated by public opposition.
S.Rep. No. 418, 97th Cong., 2d Sess. 8 (1982).
. The Court also noted that "[i]n these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." 103 S.Ct. at 1940.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0
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PER CURIAM.
In this appeal appellant, a manufacturer of boots, asks us to reverse the district court’s judgment that Cal.Penal Code § 653 o (West Supp.1981) is not preempted by current federal statutes or regulations. Appellant seeks this ruling on appeal because it wishes to engage in trade within the State of California in boots made from the hides of African elephants, Indonesian pythons, and the Wallaby kangaroo. Cal. Penal Code § 653o purports to prohibit such trade. Holding that federal laws, with respect to trade in all three species at issue, did not preempt state law the district court ruled that section 653o could be applied to appellant. See H.J. Justin & Sons v. Brown, 519 F.Supp. 1383 (E.D.Cal.1981).
For the reasons set forth in Man Hing Ivory & Imports, Inc. v. Deukmejian, 702 F.2d 760 (9th Cir., 1983), we are compelled to reverse, in part, the district court’s ruling in this case. The district court here ruled in part that section 653o would prohibit trade within California in elephant products even by a federal permittee. That part of the district court’s decision cannot stand since we held in Man Hing that section 653o could not be applied to the holder of a federal permit for import and export trade in African elephant products. See id. at 762; 50 C.F.R. § 17.40(e) (1981).
We sustain the balance of the district court’s holding that the section 653o prohibition on trade in pythons and kangaroos is not preempted by the terms of the Endangered Species Act or implementing regulations. Since the Secretary has not listed either the Indonesian python or the Wallaby kangaroo as “endangered” or “threatened” species, section 6(f) of the Act has no application to state regulations restricting or prohibiting trade in those species. 16 U.S.C. § 1585(f); see Man Hing, at 763. This aspect of the district court’s decision is consistent with principles of federal preemption, see Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903, 919 (9th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 cert. granted in companion case Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development Commission, 659 F.2d 903 (9th Cir.1981), cert. granted, 457 U.S. 1132, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982), and our decision in Man Hing, at 765.
AFFIRMED in part, and REVERSED in part.
. Cal.Penal Code § 653o provides:
(a) It is unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of any alligator, crocodile, polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish lynx, or elephant.
Any person who violates any provision of this section is guilty of a misdemeanor and shall be subject to a fine of not less than one thousand dollars ($1,000) and not to exceed five thousand ($5,000) or imprisonment in the county jail for not to exceed six months, or both such fine and imprisonment, for each violation.
(emphasis added).
Nor is section 653o as applied to Indonesian python and Wallaby kangaroo preempted by the Convention, for even if the Convention is self-executing, it creates no federal bar to section 653o. All pythons are listed in Appendix II, while the Wallaby kangaroo is not listed in any appendix to the Convention. Thus, Article XIV of the Convention specifically permits domestic measures, along the lines of Cal.Penal Code § 653o, restricting or prohibiting trade or transport of parts or derivatives of the Indonesian python or Wallaby kangaroo. See Man Hing at 762 n. 2, and accompanying test.
. Section 6(f) provides in full text:
Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined.
16 U.S.C. § 1535(f) (1976) (emphasis added).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.07692307692307693, Costs: 0
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BARRETT, Circuit Judge.
Robert Hubert Conners (Conners) appeals from a judgment of conviction that he unlawfully hunted, killed and attempted to kill migratory birds in violation of 16 U.S.C. § 703.
On May 20, 1977, the Colorado Retriever Club was conducting field trials at the Rocky Mountain Arsenal near Denver, Colorado. During the trials, a group of ducks entered the area of one of the field trial throwing stations disrupting the competition. The field trials were terminated for about an hour and a half while the participants attempted to haze the birds out of the area. Finally, in order to expedite the trials, the ducks were shot and killed.
Conners was subsequently charged in a one-count Information with violating Title 16 U.S.C. § 703. The United States magistrate assigned to the case found Conners guilty as charged and issued specific findings of fact. Conners’ conviction was affirmed on appeal to the United States District Court for the District of Colorado.
The issues presented for our review are: (1) whether 16 U.S.C. § 703 prohibits only the killing of mallard ducks which are “wild” and, if so, (2) whether the government sustained its burden of establishing that the ducks allegedly killed were “wild.”
I.
In 1916, the United States of America and the United Kingdom of Great Britain and Ireland entered into a convention “for the protection of migratory birds in the United States and Canada . . . .” Convention between United States and Great Britain for the Protection of Migratory Birds, 39 Stat. 1702 (1916). The Migratory Bird Treaty Act was enacted to give effect to that treaty in July of 1918. 16 U.S.C. § 703, et seq. The constitutionality of both the Treaty and the Act was subsequently tested and upheld in Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920).
In 1936, the United States of America and the United Mexican States entered into a similar agreement for the protection of migratory birds and game mammals. Convention for the Protection of Migratory Birds and Game Mammals, 50 Stat. 1311 (1936). The Act was amended to include the terms of that treaty.
Later, in March of 1972, the United States and the Government of Japan entered into a similar convention which was thereafter incorporated into the provisions of the Act. Convention for Protection of Migratory Birds and Birds in Danger of Extinction in their Environment. 25 U.S.T. 3329.
Conners asserts that the above-mentioned treaties, and their companion statute, apply only to mallard ducks which are “wild” and not to those which have been “captive-reared.” We agree.
Title 16 U.S.C. § 703 protects only those migratory birds “included in the terms of the conventions between the United States and Great Britain . . . , the United States and the United Mexican States . and the United States and the Government of Japan . . .” Thus, we must look to the treaties themselves to determine whether or not “captive-reared” mallards are a protected class.
Article 1 of the United States-Great Britain treaty provides in part:
Article I.
The High Contracting Powers declare that migratory birds included in the terms of this Convention shall be as follows:
1. Migratory Game Birds: (a) Anatidae or water fowl, including, brant, wild ducks, geese, and swans. 39 Stat. 1702 (1916). (Emphasis supplied.)
Similarly, the convention between the United States of America and the United Mexican States provides in pertinent part:
Article II.
The high contracting parties agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article [protection of migratory birds], including:
******
D) — The establishment of a closed season for wild ducks from the tenth of March to the first of September. 50 Stat. 1312-1313 (1936). (Emphasis supplied.)
The convention between the United States of America and the Government of Japan, however, does not delineate between “wild” ducks and “captive-reared” ducks:
Article II.
1. In this Convention, the term “migratory birds” means:
(a) The species of birds for which there is positive evidence of migration between the two countries from the recovery of bands or other markers; and
(b) the species of birds with subspecies common to both countries or, in the absence of subspecies, the species of birds common to both countries .
2. (a) The list of species defined as migratory birds in accordance with paragraph 1 of this Article is contained in the Annex of this Convention.
* * * * * %
ANNEX
No. 44, Mallard (Anas platyrhynchos). 25 U.S.T. 3332.
The failure of the United States-Japan treaty to specifically delineate between “captive-reared” and “wild” mallard ducks creates an ambiguity which must be resolved by interpretation of the three treaties.
In undertaking such an interpretation, we must attempt to ascertain the intent of the parties to the agreements in order to construe the documents in a manner consistent with that intent. Maximov v. United States, 299 F.2d 565 (2d Cir. 1962), aff’d, 373 U.S. 49, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963). In construing the meaning of specific words in the treaties, great deference should be given to the interpretation of the agency charged with the duty of carrying out their mandates. National Indian Youth Council v. Bruce, 485 F.2d 97 (10th Cir. 1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
The agency charged with the enforcement of the subject treaties, pursuant to the provisions of the Migratory Bird Treaty Act, supra, is the United States Fish and Wildlife Service. The regulation of that agency defines the term “migratory game birds” to include “[ajnatidae (wild ducks, geese, brant, and swans) . . . .” 50 C.F.R. § 20.11 (1977).
Inasmuch as two of the treaties and the controlling regulation specifically refer to “wild ducks,” and that criminal statutes must be strictly construed, with ambiguities resolved in favor of the accused, United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973), we hold that the provisions of the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., do not apply to the killing or attempted killing of “captive-reared” ducks.
In so holding, we do not question the authority of the United States Fish and Wildlife Service to promulgate reasonable regulations designed to distinguish “captive-reared” mallard ducks from “wild” mallard ducks so as to effectuate the intent of the treaties. See: e. g., 50 C.F.R. 21.13 (1977).
II.
Conners also contends that the court erred in denying his motion for judgment of acquittal on the grounds that the Government failed to prove that the mallard ducks killed were “wild.”
We have carefully reviewed the findings and conclusions of the United States magistrate in this case. There is no finding on the question of whether or not the ducks killed by Conners were “captive-reared” or “wild.” When a trial court has failed to express its views on a controlling question, it is appropriate for the appellate court to remand the case to that court, rather than deal with the merits of the question on appeal. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
On remand, the trial court is specifically directed to declare whether or not the ducks killed by Conners were “captive-reared” or “wild.”
Should the trial court find that the ducks killed by Conners were “wild,” the conviction should be sustained. On the other hand, if the trial court finds that the mallard ducks killed by Conners were “captive-reared,” the charges should be dismissed.
Remanded with instructions.
. Title 16 U.S.C. § 703 provides as follows: Taking, killing, or possessing migratory birds unlawful
Unless and except as permitted by regulations made as hereinafter provided in sections 703 to 711 of this title, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport, or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, and the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972.
. The field trials consisted of throwing mallard ducks or other birds into a pond located at the arsenal whereupon trained dogs were released to retrieve the birds. The birds used were “captive-reared” which were purchased from legitimate suppliers and were either killed or bound for use in the trials. The use of such “captive-reared” birds in bond fide dog training or field trials is specifically permitted by 50 C.F.R. § 21.13(d) (1977) and 16 U.S.C. § 703.
. The United States-Mexican convention was amended in 1972 by adding a list of protected species not included in the original agreement. See: Exchange of notes at Mexico and Tlatelolco 23 U.S.T. 260, T.I.A.S. 7302.
. We emphasize that in so holding we do not call into question United States v. Richards, 583 F.2d 491 (10th Cir. 1978). In Richards, the defendant was charged with, and found guilty of, the sale of three sparrow hawks in violation of the Migratory Bird Treaty Act, 16 U.S.C. § 703, et seq. On appeal, Richards’ primary contention was that the subject birds were raised in captivity and therefore not protected under the Act. The majority held that the statute covered migratory birds and made no exception for captive migratory birds. The conviction was, therefore, affirmed.
Richards is clearly distinguishable from the instant case. The birds involved in Richards were falconidae, migratory non-game birds sometimes known as kestrel or raptors. None of the three treaties referred to in this case, and applicable in Richards, distinguish between “wild” and “captive-reared” kestrel or raptors. Moreover, the regulations of the United States Fish and Wildlife Service do not single out kestrel or raptors for “wild” versus “captive-reared” designation, but rather classify them simply as migratory birds. Under such classification, the regulations specifically provide that the provisions of the treaty and the Act apply to such birds whether raised in captivity or not.
The unique fact that the treaties and regulations specifically refer to “wild ducks” rather than simply “ducks,” distinguishes this case from Richards. Cf. Koop v. United States, 296 F.2d 53, 59 (8th Cir. 1961.)
. We observe that 50 C.F.R. § 21.13 (1977) provides that “captive-reared” mallard ducks shall be marked prior to reaching six weeks of age by:
“(1) Removal of hind toe from the right foot.
(2) Pinioning of a wing: Provided, That this method shall be the removal of metacarpal bones of one wing or a portion of metacarpal bones which renders the bird permanently incapable of flight.
(3) Banding of one metatarsus with a seamless metal band.
(4) Tatooing of a readily discernible number or letter or a combination thereof on the web of one foot.”
We do not decide whether the establishment of a lack of such markings, either by direct or circumstantial evidence, creates a rebuttable presumption that the birds killed were “wild.” See: Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Barnes v. U. S., 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. U. S„ 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. U. S., 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1847826086956522, Costs: 0
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OPINION
FISHER, Circuit Judge:
In March 2008, the National Marine Fisheries Service (NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows “the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks” that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. § 1389(b)(1). We must decide whether the agency’s action was “arbitrary” or “capricious” within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.
Background
I. Factual Background
Like seals and walruses, California sea lions are pinnipeds — marine mammals having fin-like flippers for locomotion. The Bonneville Dam is on the Columbia River, which serves as a migration path for a number of ESA-listed salmonid populations, including five salmon and steelhead populations at issue here: the Upper Columbia River Spring run of Chinook salmon, the Snake River Spring/Summer run of Chinook salmon, the Snake River Basin population group of steelhead, the Middle Columbia River population group of steel-head and the Lower Columbia River population group of steelhead. Each of these populations is listed as threatened or endangered under the ESA. See Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed.Reg. 834, 859-60 (Jan. 5, 2006); Final Listing Determinations for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened Salmonid ESUs, 70 Fed.Reg. 37,160, 37,193 (June 28, 2005).
Before 2001, few California sea lions were observed feeding in the area of the dam. In recent years, however, sea lion predation has become more prevalent. Since 2002, the U.S. Army Corps of Engineers has observed sea lion predation of salmonids in the area below the dam each year from January to May, when sea lions are present. The Corps has observed, among other things, the number of pinnipeds present, the number of salmonids consumed and the proportion of all salmonids passing the dam that are taken by pinnipeds foraging in the area:
2002 2003 2004 2005 2006 2007
Number of California sea lions observed during the 30 106 101 80 72 69 year
Estimated salmonid predation (fish taken) by 1,010 2,329 3,533 2,920 + 3,023 3,859 pinnipeds based on the Corps’ observations
Estimated pinniped predation of salmonids as a 0.4 1.1 1.9 3.4+ 2.8 4.2 percentage of salmonid run size (%)
U.S. Dep’t of Commerce, Nat’l Oceanic & Atmospheric Admin., Nat’l Marine Fisheries Serv., Decision Memorandum Authorizing the States of Oregon, Washington and Idaho to Lethally Remove California Sea Lions at Bonneville Dam under Section 120 of the Marine Mammal Protection Act (Mar. 12, 2008). Under the Corps’ estimates, California sea lions kill between 0.4 and 4.2 percent of migrating salmonid each year, although the Corps considers these to be minimum estimates because not all predation events are observed.
NMFS has concluded that the actual number of salmonids consumed by California sea lions “is certainly larger than the numbers actually observed, since not all sea lions are observed nor are all predation events.” Pinniped Removal Authority, 73 Fed Reg. 15,483, 15,485 (Mar. 24, 2008). Accordingly, NMFS calculated the potential consumption of salmonids based on the average number of California sea lions actually observed (86) and their bioenergetic needs. See id. Applying this formula, NMFS estimated that 86 California sea lions at the dam can consume up to 17,458 salmonids annually, of which up to 6,003 salmonids would be listed spring Chinook and up to 611 would be listed steel-head. See id. “Using the observed minimum rate of predation averaged over 2005-2007, and the estimated maximum potential predation rate, yields predation rates ranging from 3.6 percent to 12.6 percent for listed spring Chinook and 3.6 percent to 22.1 percent for listed steel-head.” Id.
Sea lions are only one source of salmon-id mortality on the Columbia River. Fisheries and federal power system dams are also major contributors to mortality among listed salmonids. Consistent with the ESA, NMFS manages these other sources of mortality through a variety of recovery plans. Under these plans, commercial, recreational and tribal fisheries are authorized to take between 5.5 and 17 percent of listed salmonids, depending on the size of the run in any particular year. The dam system takes a comparable number of salmonids. Over the past several years, NMFS, the Corps and other federal agencies have issued a series of environmental and biological assessments concluding that those fishery- and dam-related takes have minimal adverse impacts on the viability of listed salmonid populations in the Columbia River. Plaintiffs contend that those assessments are incompatible with NMFS’s conclusion here, that California sea lion predation causing lesser mortality among the listed salmonid populations is having a significant negative impact on the populations’ decline or recovery.
In November 2006, the states of Washington, Oregon and Idaho applied to NMFS for authorization to lethally remove California sea lions from the Bonneville Dam area under section 120 of the MMPA, which “authorized the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which ... have been listed as threatened ... or endangered species under the [ESA].” 16 U.S.C. § 1389(b)(1). In accordance with the MMPA, NMFS appointed an 18-member task force to evaluate the application. See id. § 1389(c)(1). In November 2007, the task force delivered its formal recommendations to NMFS. Seventeen members concluded that California sea lions at Bonneville Dam were having a “significant negative impact on the decline or recovery of salmonid fishery stocks” within the meaning of the MMPA and recommended approving the states’ application. The Humane Society, a plaintiff in this action, was the sole member of the task force to dissent from that recommendation.
Once the task force completed its work, NMFS addressed the merits of the application. First, to comply with NEPA, NMFS prepared an environmental assessment. See Nat’l Marine Fisheries Serv., Nw. Region, Final Environmental Assessment (Mar. 12, 2008). The final environmental assessment resulted in a finding of no significant impact under NEPA, concluding that approval of the states’ application would not significantly affect the quality of the human environment. See 42 U.S.C. § 4332(2)(C). Accordingly, the agency determined that preparation of an environmental impact statement was not required.
Second, NMFS issued a decision partially approving the states’ MMPA application. See Pinniped Removal Authority, 73 Fed.Reg. 15,483. NMFS adopted a two-part test for determining whether “individually identifiable pinnipeds” were having a “significant negative impact on the decline or recovery” of at-risk salmonids. Id. at 15,484. NMFS would first determine “whether pinnipeds collectively are having a significant negative impact on listed salmonids” and then determine “which pinnipeds are significant contributors to that impact and therefore may be authorized for removal.” Id.
NMFS found that both parts of the test were satisfied. First, NMFS found that California sea lions collectively were having a significant negative impact on the decline or recovery of the listed salmonid populations, based on three factors: (1) “[t]he predation is measurable, growing, and could continue to increase if not addressed”; (2) “[t]he level of adult salmonid mortality is sufficiently large to have a measurable effect on the numbers of listed adult salmonids contributing to the productivity of the affected [populations]”; and (3) “[t]he mortality rate for listed salmonids is comparable to mortality rates from other sources that have led to corrective action under the ESA.” Id. at 15,485.
Second, NMFS identified the individual sea lions that were significant contributors to the impact — the animals that could be lethally removed. The significant contributors were those California sea lions that both have identifiable physical characteristics, such as natural features or brands, and can be classified as predatory. See id. at 15,486. To be deemed predatory, sea lions must meet three criteria: (1) they have been observed eating salmonids in the observation area below Bonneville Dam between January 1 and May 31 of any year, (2) they have been observed in the observation area on a total of any five days between January 1 and May 31 of any year and (3) they have been sighted in the observation area after having been subjected to active nonlethal deterrence. See id.
NMFS authorized the states to kill California sea lions meeting these criteria for an initial period of five years, with the possibility of a renewal for an additional five years. See id. at 15,487-88. NMFS limited the number of sea lions that could be killed, however, to the lesser of either 85 sea lions per year or, and particularly relevant to our analysis, “the number required to reduce the observed predation rate to 1 percent of the salmonid run at Bonneville Dam.” Id. at 15,486. The 1 percent predation target, the agency said, “is not equivalent to a finding that a one percent predation rate represents a quantitative level of salmonid predation that is ‘significant’ under section 120, and that less than one percent would no longer be significant.” Id. “Rather, it is an independent limit on the numbers of sea lions that can be lethally removed to address the predation problem and is intended to balance the policy value of protecting all pinnipeds, as expressed in the MMPA, against the policy value of recovering threatened and endangered species, as expressed in the ESA.” Id.
II. Procedural Background
On March 24, 2008, the same day NMFS published notice of its action in the Federal Register, Humane Society of the United States, Wild Fish Conservancy and two individuals (collectively, “plaintiffs”) filed this action for declaratory and injunctive relief against the Secretary of Commerce and two NMFS officials (collectively, “defendants”), alleging that NMFS’s decision violates section 120 of the MMPA, as well as NEPA. The Washington State Department of Fish and Wildlife and the State of Oregon Department of Fish and Wildlife intervened as defendants.
Plaintiffs in due course filed a motion for summary judgment. Defendants filed cross-motions for summary judgment, as well as a motion to strike the environmental assessments and biological assessment relating to the fisheries and dams to the extent they were not already part of the administrative record. The district court denied plaintiffs’ motion for summary judgment, granted defendants’ cross-motions for summary judgment and granted in part defendants’ motion to strike. The court entered judgment, and plaintiffs timely appealed. In February 2009, a motions panel of this court denied plaintiffs’ motion for a stay of NMFS’s decision pending appeal. See Humane Soc’y v. Gutierrez, 558 F.3d 896 (9th Cir.2009) (order). We now proceed to the merits of plaintiffs’ claims.
Standards of Review
We review de novo a district court’s grant or denial of summary judgment. LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir.2001). Section 120 of the MMPA does not contain a separate provision for judicial review. Accordingly, our review of NMFS’s actions under the MMPA is governed by the judicial review provisions of the APA, 5 U.S.C. §§ 701-06. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1205 (9th Cir.2004); see also Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir.2009). The APA also governs our review of an agency’s compliance with NEPA, see Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir.2005), including an agency’s decision, based on an environ mental assessment, not to prepare an environmental impact statement, High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 640 (9th Cir.2004). Under the APA, agency decisions may be set aside if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We discuss the APA standard in greater detail below. A district court’s decision to exclude extra-record evidence when reviewing an agency’s decision is reviewed for an abuse of discretion. See Partridge v. Reich, 141 F.3d 920, 923 (9th Cir.1998); Great Basin Mine Watch v. Hankins, 456 F.3d 955, 975 (9th Cir.2006) (NEPA).
Discussion
I. Marine Mammal Protection Act Claim
A. Administrative Procedure Act
Plaintiffs contend that NMFS’s application of the MMPA is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We agree with their contention, at least to the extent that we conclude that NMFS has not satisfactorily explained the basis of its decision.
Under the APA, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). “The reviewing court should not attempt itself to make up for [an agency’s] deficiencies: ‘We may not supply a reasoned basis for the agency’s action that the agency itself has not given.’ ” Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)).
Here, we hold that NMFS has not offered a satisfactory explanation for its action. First, the agency has not adequately explained its finding that sea lions are having a “significant negative impact” on the decline or recovery of listed salmon-id populations given earlier factual findings by NMFS that fisheries that cause similar or greater mortality among these populations are not having significant negative impacts. Second, the agency has not adequately explained why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of these salmonid populations. These procedural errors require us to direct the district court to vacate NMFS’s decision and remand to the agency to reconsider the action or provide a fuller explanation.
1.
In four environmental assessments prepared between 2003 and 2007, NMFS concluded that fishery takes comparable to (or greater than) takes by California sea lions would not have a significant adverse effect on the survival or recovery of many of the same listed salmonid populations involved here. In 2003, NMFS prepared, under NEPA, an environmental assessment of a fisheries plan submitted by Oregon and Washington for the Lower Columbia River and concluded that the plan, which would result' in the taking of up to 4 percent of steelhead in one area, would “adversely affect[ ]” ESA-listed salmon and steelhead in the Lower Columbia populations but “unll not appreciably reduce the likelihood of survival and recovery of Lower Columbia River steelhead, chinook salmon, and chum salmon in the wild” (emphasis added). In April 2005, NMFS prepared a NEPA environmental assessment with respect to a comprehensive plan for the management of fisheries in the Columbia River. The plan, based on an agreement between NMFS, the states of Oregon and Washington and several Indian tribes, allows fisheries to take between 5.5 and 17 percent of listed Columbia River salmonids annually, depending on the size of the run. NMFS found that implementation of the decision would be expected to result in “minimal adverse effects on Listed Salmonid [populations] in the Columbia River Basin,” and that “[cjumulative impacts from NMFS’s Proposed Action would be minor if at all measurable ” (emphasis added). In January 2007, NMFS conducted a NEPA environmental assessment addressing a fisheries plan submitted by Oregon and Washington for the Middle Columbia River. The agency found that the plan, which would result in the taking of up to “10 percent of the annual abundance of natural-origin adult and juvenile steelhead” (emphasis added), would not appreciably reduce the likelihood of survival and recovery of salmon and steelhead listed under the ESA. Finally, in March 2007, NMFS conducted a NEPA environmental assessment of a plan to provide limited ocean fishing of Klamath River fall Chinook salmon. NMFS found that the plan, which permitted fishing of 10 percent of Klamath River fall Chinook salmon, would not “jeopardize the long-term productivity” of the Klamath River fall Chinook population and would result in “no significant adverse effects to The environment.”
NMFS has not adequately explained its finding that sea lion predation is having a significant negative impact on salmonid decline or recovery in light of its positive environmental assessments of harvest plans having greater mortality impacts. The absence of an explanation is particularly concerning with respect to the 2005 fishery environmental assessment. In that assessment, NMFS found that a plan providing for fisheries to take between 5.5 and 17 percent of listed salmonids annually, depending on run size, would be expected to result in “minimal adverse effects on Listed Salmonid [populations] in the Columbia River Basin,” and that the “Cumulative impacts from NMFS’s Proposed Action would be minor if at all measurable.” Those findings are in apparent conflict with NMFS’s finding in this case that sea lions responsible for less or comparable salmonid mortality have a “significant negative impact” on the decline or recovery of these same populations, yet the agency has not offered a rationale to explain the disparate findings. Cf. FCC v. Fox Television Stations, Inc., - U.S. -, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009) (explaining that an agency must offer “a reasoned explanation” when its current course “rests upon factual findings that contradict those which underlay” a previous course). Without an adequate explanation, we are precluded from undertaking meaningful judicial review. Divergent factual findings with respect to seemingly comparable causes of salmonid mortality raise questions as to whether the agency is fulfilling its statutory mandates impartially and competently. A satisfactory explanation is therefore required.
We cannot gloss over the absence of a cogent explanation by the agency by relying on the post hoc rationalizations offered by defendants in their appellate briefs. Defendants’ briefs offer several explanations designed to reconcile NMFS’s findings: that “[t]he facile percentage-based comparisons that [plaintiffs’ brief] offers oversimplify and, in several instances, mischaracterize the complex facts addressed in those [earlier] analyses”; that the 2005 fishery take environmental assessment is not comparable to the MMPA determination here because the former “cover[s] all fishing on over 280 miles of the Columbia River, Snake, and Clearwater rivers” whereas “the decision at issue here involves mortality from a single source at a single location”; that the fishery plans reviewed under the 2003 Lower Columbia River environmental assessment “completely prohibited the retention of any unmarked wild steelhead,” limiting mortality to “incidental injuries associated with catch and release of listed steelhead”; that the fishery plans under review in the 2007 Middle Columbia River fishery environmental assessment “completely prohibited], the retention of wild listed salmon-ids”; and that, “unlike fishing, NMFS lacks the ability to regulate sea lion predation from year to year so as to reduce the effects in years when salmon and steelhead runs are low.” These distinctions might be valid, but with one exception they are raised for the first time in defendants’ briefs and were not mentioned by NMFS in the decision under review. They are therefore not part of our review. See Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 688 (9th Cir.2007) (“[W]e ‘may not accept appellate counsel’s post hoc rationalizations for agency action.’ ” (quoting Burlington Truck Lines, 371 U.S. at 168, 83 S.Ct. 239)). Defendants’ post hoc explanations serve only to underscore the absence of an adequate explanation in the administrative record itself.
Defendants also object to the very premise that an agency is obligated to address apparent inconsistencies such as those at issue here. They point out that the previous environmental assessments addressed the impact of fisheries under NEPA, whereas the present action assessed the impact of pinnipeds under the MMPA. They contend that the MMPA action here cannot reasonably be construed as a “swerve” from “prior precedent.” We agree with defendants’ argument up to a point: NMFS’s MMPA action here is not a swerve from prior precedent, as the courts have applied that principle in administrative law’ cases. But an agency’s duty to explain cogently the bases of its decisions is not limited to circumstances in which the agency departs directly from an earlier path. An agency “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found, and the choice made.’ ” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (emphasis added) (quoting Burlington Truck Lines, 371 U.S. at 168, 83 S.Ct. 239). In the circumstances of this case, NMFS’s factual findings in the earlier environmental assessments appear to be “relevant data,” such that it was incumbent on the agency to offer a “satisfactory explanation” for its decision in light of the earlier findings.
NMFS cannot avoid its duty to confront these inconsistencies by blinding itself to them. We do not suggest that an agency has a duty to identify and address any potential tension between current and earlier factual determinations in marginally related administrative actions. But in this case the agency’s seemingly inconsistent approach to, on the one hand, fishery and hydropower activities, which are deemed not to be significant obstacles to the recovery of listed salmonid populations, and, on the other hand, sea lion predation, which is deemed to be a significant barrier to salmonid recovery, has occupied the center of this controversy from the start. The issue surfaced prominently in the task force proceedings, see generally Minority Report, Final Report and Recommendations of the Marine Mammal Protection Act, Section 120 Pinniped-Fishery Interaction Task Force: Columbia River (Nov. 5, 2007), and has been raised repeatedly and forcefully by the Marine Mammal Commission, which is a federal entity possessing expertise on issues relating to the protection of marine mammals, see 16 U.S.C. § 1402, throughout the administrative decisional process, see, e.g., Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Donna Darm, Assistant Regional Administrator, Protected Resources Division, NMFS, at 3 (Apr. 2, 2007) (“[T]o put the estimated level of pinniped predation on listed stocks in context, it should be compared to other sources of mortality, including the various forms of human-related take.”); Letter from Timothy J. Ragen to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, at 1 (Nov. 23, 2007) (recommending that NMFS “compare the estimated level of removals of ESA-listed salmonids by pinnipeds with authorized levels of incidental and directed take from other sources and explain why some sources are considered significant while others are not”); id. at 3 (same); id. at 5 (noting that “the comparison of pinniped predation with authorized levels of takes from other sources is an area largely glossed over by the Task Force,” and recommending that NMFS “provide[] clear explanations to support any determinations that some are significant while others are not”); id. at 6 (noting that “this issue is at the heart of the controversy over pinniped predation” and advising NMFS to “provide a rationale to support its decisions on how to reduce a significant take level when multiple risk factors are involved”); cf. H.R.Rep. No. 103-439, at 47 (1994) (House Committee Report on the Marine Mammal Protection Act Amendments of 1994, Pub.L. No. 103-238, which added section 120 to the MMPA) (“[T]he Committee recognizes that a variety of factors may be contributing to the declines of these stocks, and intends that the current levels of protection afforded to seals and sea lions under the Act should not be lifted without first giving careful consideration to other reasons for the decline, and to all other available alternatives for mitigation.”). Under these circumstances, NMFS was required to provide some explanation for the apparent inconsistencies.
2.
We also conclude that further explanation is required for NMFS’s conclusion that California sea lion predation greater than 1 percent would have a significant negative impact on the decline or recovery or the listed salmonid populations.
NMFS said only that the 1 percent target “is intended to balance the policy value of protecting all pinnipeds, as expressed in the MMPA, against the policy value of recovering threatened and endangered species, as expressed in the ESA.” Pinniped Removal Authority, 73 Fed.Reg. at 15,486. This may be a worthy public policy goal, but the agency’s explanation does not help us to understand why this level of predation amounts to a “significant negative impact” or how this level of removal is related to the decline or recovery of listed salmonids. Without that explanation, we cannot ascertain whether NMFS has complied with its statutory mandate under the MMPA.
In this respect we once again echo the concerns of the Marine Mammal Commission, which repeatedly emphasized to NMFS the need to “identify the level at which predation of salmonids by pinnipeds no longer would be considered significant,” because “the taking authority should lapse once predation is reduced to a level where it no longer is having a significant impact.” Letter from Timothy J. Ragen to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, at 1, 6 (Nov. 23, 2007); see also Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Donna Darm, Assistant Regional Administrator, Protected Resources Division, NMFS, at 2 (Apr. 2, 2007) (imploring the task force to “take a hard look at the justification for the number of any lethal removals that it recommends be authorized”); Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, at 1 (Nov. 23, 2007) (recommending that NMFS “identify the level at which predation of salmonids by pinnipeds no longer would be considered significant and adopt that level as the goal of any authorized removal program”); id. at 6 (urging NMFS to determine “the level at which the impact would cease to be significant,” at which point the taking authority would “lapse”); id. (criticizing the task force for adopting a 1 percent predation target without engaging “in any quantitative analyses to support” it); id. at 10 (indicating that some members of the task force “appeared to be driven more by the pragmatic goal of designing the authorization they thought most likely to resolve the pinniped-fishery conflict than by whether that authorization would satisfy the requirements of section 120” of the MMPA); Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Garth Griffin, NMFS, at 3 (Feb. 19, 2008) (stating that “a justification should be provided for establishing [the 1 percent] level of predation as ... a threshold” at which predation “would no longer be considered significant”); Letter from Timothy J. Ra-gen, Executive Director, Marine Mammal Commission, to Robert Lohn, Regional Administrator, Northwest Regional Office, NMFS, at 2 (Feb. 25, 2008) (“There are two issues about which the Service should be particularly clear in its rationale. The first is the basis for determining the extent to which predation must be reduced to promote conservation and recovery of the salmonid stocks.... The second is the manner and rationale by which the Service is, in effect, allocating allowable salmonid mortality among different sources of mortality.”). The finding that predation at the 1 percent level is significant is not adequately explained.
For each of the foregoing reasons, we hold that NMFS’s explanation is incomplete and inadequate to permit meaningful judicial review. On the current record, NMFS has not explained its significance determination in light of seemingly inconsistent factual determinations in earlier environmental assessments of fishery impacts. Nor has the agency properly explained the basis of its determination that California sea lion predation of salmonids is significant at the 1 percent level. The agency’s action is therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Accordingly, we direct the district court to vacate NMFS’s decision approving the states’ MMPA application and remand to NMFS to afford the agency the opportunity either to articulate a reasoned explanation for its action or to adopt a different action with a reasoned explanation that supports it. See Local Joint Exec. Bd. v. NLRB, 309 F.3d 578, 585 (9th Cir.2002).
In so holding, we do not impose an undue burden on NMFS on remand. The APA requires only a “cogent explanation.” Nw. Envtl. Def. Ctr., 477 F.3d at 691. We recognize the challenges NMFS faces in addressing salmonid conservation and recovery in the Columbia River, the efforts it has taken to address multiple sources of mortality and the practical difficulties presented by uncertainties and changing conditions on the ground. We also recognize that sea lion predation is a serious and potentially significant problem in this location, and that Congress, in enacting section 120 of the MMPA, has authorized NMFS to give priority to ESA-listed salmonid populations over MMPA-protected pinnipeds under specific circumstances. As judges, our limited role is to ensure that NMFS has properly determined that those specific circumstances exist. To do so, we require an explanation from the agency that enables meaningful judicial review. We conclude that a remand is necessary in this case to permit us to fulfill our function.
B. Chevron Analysis
We are not persuaded by plaintiffs’ argument that NMFS’s interpretation of the MMPA is impermissible or unreasonable under the Chevron framework. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron establishes a two-step framework for reviewing agency interpretations of statutes they administer. Under the first step, we determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear,” then we “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. Under step two, “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 843, 104 S.Ct. 2778. “If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Natl Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).
Here, plaintiffs challenge NMFS’s interpretation of the MMPA’s requirement that “individually identifiable pinnipeds” are having a significant negative impact on the decline or recovery of listed salmonid populations. Following the suggestion of the Marine Mammal Commission, NMFS adopted a two-part interpretation for this requirement, in which it would first determine whether California sea lions collec tively were having a significant negative impact on listed salmonids and would next determine which sea lions were significant contributors to that impact and therefore eligible for lethal removal. Plaintiffs contend that the agency’s interpretation is contrary to the plain language and the legislative history of the statute, which, they argue, require a finding that an individual pinniped is having a significant negative impact on fishery stocks, not whether sea lions in the aggregate are having the requisite impact. The legislative history lends some support to plaintiffs’ position, see S.Rep. No. 103-220, at 524 (1994), 1994 U.S.C.C.A.N. 518, 525 (“The Secretary would be authorized to allow the lethal removal of a nuisance pinniped if it is identified as habitually exhibiting dangerous or damaging behavior that cannot be deterred by other means.” (emphasis added)), but the language and purpose of the statute as a whole do not preclude the agency’s two-part interpretation. See 16 U.S.C. § 1389(b)(1) (authorizing “the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact” (emphasis added)), (b)(2) (requiring applicants to specify “a means of identifying the individual pinniped or pinnipeds ” sought to be removed (emphasis added)), (d)(3) (requiring the agency to consider “the extent to which such pinnipeds are causing undue injury or impact to, or imbalance with, other species in the ecosystem, including fish populations” (emphasis added)). We therefore cannot say that the agency’s interpretation is an unreasonable one.
Plaintiffs also challenge NMFS’s interpretation of the phrase “significant negative impact,” arguing that the three factors relied on by the agency to make a finding of significance amount to an impermissible interpretation. Because we conclude that NMFS’s action is inadequately explained and must be remanded under the APA for reasons we have explained above, we need not resolve this question here. See Shays v. FEC, 414 F.3d 76, 97 (D.C.Cir.2005) (“[W]e need not decide whether these ... rules represent altogether impermissible interpretations ... — the Chevron step two inquiry — because in any event the [agency] has given no rational justification for them, as required by the APA’s arbitrary and capricious standard.”) (citation omitted).
II. National Environmental Policy Act Claim
We next address plaintiffs’ argument that NMFS violated NEPA by failing to prepare an environmental impact statement (EIS). Under NEPA, a federal agency must prepare an EIS for any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An agency may first prepare an environmental assessment (EA) to determine whether the effects of a proposed action are significant. If the EA establishes that the action may have significant environmental impacts, the agency must prepare an EIS. If the agency makes a finding on the basis of an EA that the action will have no significant impact (FONSI), no EIS is required. See 40 C.F.R. § 1501.4. Plaintiffs contend an EIS was required in this case on two bases, which we discuss in turn.
A. Beneficial Impact
Plaintiffs first argue that NMFS’s finding of significance under the MMPA in essence compels a finding of significance under NEPA. According to plaintiffs, NMFS’s determination under the MMPA that sea lions are having a “significant negative impact on the decline or recovery” of listed salmonid populations necessarily implies that the environmental benefits of authorizing the lethal removal of sea lions will have a significant positive impact on these salmonid populations. They contend that this significant beneficial environmental impact triggers the duty to prepare an EIS under NEPA.
As a threshold matter, plaintiffs’ argument appears to raise an issue of first impression in this circuit: whether NEPA requires an agency to prepare an EIS when an action has a significant beneficial impact but no significant adverse impact on the environment. This is a question we need not resolve, however, because even if solely beneficial impacts trigger an EIS, the record does not demonstrate a significant beneficial impact on the human environment in this instance. First, just because NMFS has concluded that sea lions are having a significant negative impact on listed salmonid populations does not mean that the agency has also determined that the removal action authorized here will have a significant positive impact on these same populations. Second, even if NMFS concluded that its action would have a “significant” positive impact on the fish populations involved, that would not necessarily translate into a finding of a significant effect on the quality of the human environment, as required by NEPA: although both statutes speak of significance, the legal standards under the MMPA and NEPA are distinct.
B. Adverse Impacts
In the alternative, plaintiffs contend that NMFS should have prepared an EIS based on significant adverse impacts. They rely on three theories of adverse impact, none of which is persuasive.
First, plaintiffs contend that an EIS was required based on the controversial and uncertain nature of the action. See 40 C.F.R. § 1508.27(b)(4) (in deciding whether an action has a significant impact, the agency should consider “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial”); id § 1508.27(b)(5) (the agency also should consider “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks”). As plaintiffs correctly point out, the lethal removal of sea lions at Bonneville Dam has been the subject of some controversy. Most significantly, the Marine Mammal Commission criticized aspects of NMFS’s decisionmaking. NMFS, however, acted reasonably in concluding that the Commission’s concerns did not make the agency’s action highly controversial within the meaning of the NEPA regulations. “The term ‘controversial’ refers ‘to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.’ ” Found, for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172, 1182 (9th Cir.1982). “A substantial dispute exists when evidence ... casts serious doubt upon the reasonableness of an agency’s conclusions.” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir.2001) (emphasis added). Here, the Commission criticized some aspects of NMFS’s draft EA, but it did not disagree with the EA’s primary conclusions that an EIS was not required, that sea lions are having a significant impact under section 120 and that some sort of lethal removal is reasonable.
Second, plaintiffs contend an EIS was required based on the action’s potentially deadly consequences for Steller sea lions that frequent the Bonneville Dam area. Plaintiffs contend that Steller sea lions, which, unlike California sea lions, are listed as threatened under the ESA, could be killed mistakenly because NMFS’s decision authorizes shooting sea lions that are in the water, where Steller sea lions can be hard to distinguish from California sea lions. See 40 C.F.R. § 1508.27(b)(9) (in deciding the question of significance under NEPA, an agency should consider “[t]he degree to which the action may adversely affect an endangered or threatened species”). Plaintiffs’ argument is unpersuasive because NMFS adopted a series of safeguards to ensure that only targeted sea lions would be killed, and concluded that, “[b]eeause of these requirements, it is highly unlikely that a marksman would shoot any sea lion other than one on the list of predatory sea lions.” The record does not demonstrate that this conclusion is in error.
Third, plaintiffs contend an EIS was required based on the impacts to local wildlife viewing opportunities if sea lions are removed from the Bonneville Dam area. Plaintiffs correctly observe that the lethal removal program will reduce or eliminate sea lion viewing opportunities in the vicinity of the dam. But their argument is unpersuasive, in part because the NEPA regulations do not treat wildlife viewing opportunities as a major factor in deciding whether an EIS is required. See 40 C.F.R. § 1508.27(b)(8). Nor does the record contain substantial evidence showing that the dam is a popular site for sea lion viewing. We therefore reject this argument.
III. Defendants’ Motion to Strike
Plaintiffs also contend that the district court abused its discretion by granting defendants’ motion to strike NMFS’s previous, fishery-related environmental assessments to the extent they were not included in the administrative record. As a general matter, judicial review of agency decisions is limited to the record considered by the agency in making its decision. See, e.g., Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). A court may consider extra-record documents, however, “if necessary to determine ‘whether the agency has considered all relevant factors and has explained its decision.’ ” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (quoting Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703 (9th Cir.1996)). As we have discussed, NMFS should have explained the apparent factual inconsistency between its significance finding here and its previous fishery assessments. Thus, supplementing the administrative record to include those earlier assessments is “necessary to determine ‘whether the agency has considered all relevant factors and has explained its decision.’ ” Id. We therefore vacate the order granting defendants’ motion to strike.
IV. NMFS’s Use of Bioenergetic Modeling
Finally, plaintiffs challenge NMFS’s use of bioenergetic modeling to supplement the Corps’ observation-based estimates of sea lion predation. Plaintiffs have not demonstrated that NMFS’s estimates are arbitrary or capricious under the APA. We therefore uphold the agency’s use of bioenergetic modeling.
As we have explained, the Corps observed pinniped predation at the Bonneville Dam between 2002 and 2007 and produced predation estimates based on those actual observations. NMFS determined that the Corps’ observation-based method underestimated the number of fish killed by sea lions at the dam and therefore supplemented the Corps’ figures with estimates produced through a bioenergetic consumption model. Although plaintiffs raise a number of objections to NMFS’s reliance on the bioenergetic estimates to augment the Corps’ predation rates, their arguments are unpersuasive.
First, there is no meaningful dispute that the Corps’ observation-based estimates lead to some undercounting. Thus, NMFS’s conclusion that “[t]he actual number of salmonids consumed is certainly larger than the numbers” reported by the Corps is not unreasonable. The Marine Mammal Commission agreed with the agency’s conclusion that the Corps understated predation, concurring in NMFS’s conclusion “that the number of pinnipeds present at the dam likely is greater than the number observed.” NMFS’s decision to look beyond the Corps’ observation-based estimates was therefore reasonable. See Lands Council v. McNair, 537 F.3d 981, 993-94 (9th Cir.2008) (en banc) (“[A]s non-scientists, we decline to impose bright-line rules on the [agency] regarding particular means that it must take in every case to show us that it has met the [statutory] requirements. Rather, we hold that the [agency] must support its conclusions that a project meets the requirements of the [statute] ... with studies that the agency, in its expertise, deems reliable”), abrogated in part on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Second, plaintiffs have not demonstrated that the bioenergetic models used by the agency produced unreliable estimates. Plaintiffs rely on a letter in which the Marine Mammal Commission questioned some of the agency’s early estimates based on bioenergetic modeling. Plaintiffs have not shown, however, that the Commission criticized the agency’s final bioenergetic calculations. Nor have they shown that the Commission asserted that modeling was an improper method of helping to estimate actual sea lion predation. Plaintiffs also rely on a declaration submitted by their expert, Dr. Andrew Trites, that challenges some of the assumptions of NMFS’s bioenergetic consumption model. Dr. Trites’ submission, however, demonstrates only that several of the agency’s factual assumptions are subject to some dispute, not that the agency’s assumptions were arbitrary or capricious. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”); see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (when an agency is “making predictions, within its area of special expertise ..., as opposed to simple findings of fact, a reviewing court must generally be at its most deferential”).
Furthermore, in measuring sea lion predation, NMFS relied primarily on the Corps’ estimates and only secondarily on the bioenergetic consumption estimates. See Pinniped Removal Authority, 73 Fed. Reg. at 15,485, 15,486. NMFS used the bioenergetic data to supplement rather than supplant the Corps’ estimates.
Finally, we observe that the bioenergetic consumption estimates do not appear to have been material to NMFS’s decision. NMFS determined that sea lion predation was “significant” under the MMPA even at the mortality levels supplied by the Corps. See id. at 15,485. The agency’s decision thus would have been the same even if the Corps’ estimates were not supplemented by the bioenergetic consumption estimates.
Conclusion
We affirm summary judgment in favor of defendants on plaintiffs’ NEPA claim. We reverse summary judgment on plaintiffs’ MMPA claim and remand to the district court with instructions to vacate the decision of NMFS and remand to NMFS. We vacate the district court’s order granting defendants’ motion to strike. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
. The last two rows in the table report data for all pinnipeds, not just California sea lions. As a practical matter, however, the numbers approximate predation by California sea lions because they are responsible for 99 percent of salmonid mortality caused by all pinnipeds collectively,
. Although the total number of individual California sea lions observed during the year declined after 2004, the overall level of predation has increased because sea lions are staying at the dam for longer periods of time. The average number of days individual sea lions were present increased from 7.6 days in 2004 to 20.3 days in 2007.
. The only one of these rationales mentioned in NMFS’s decision is that fishery takes can be reduced to adjust for a smaller run size, whereas sea lion predation cannot be. See Pinniped Removal Authority, 73 Fed.Reg. at 15,485 ("In contrast to a managed harvest regime, which can reduce mortality in response to decreased run sizes, pinniped predation has the potential to increase even when run sizes are depressed, magnifying the impact.”). We agree with defendants that this distinction could help reconcile the apparent inconsistency between the finding that sea lion predation has a significant negative impact on the decline or recovery of listed salmonid populations and the finding that comparable fishery activities do not. NMFS’s decision, however, did not adequately develop this possible rationale, so we cannot say that it resolves the apparent inconsistency. Furthermore, even at 5.5 percent, fishery takes appear to be roughly comparable to sea lion predation rates.
. We therefore reject plaintiffs’ argument that the agency's decision in this case constitutes an unexplained "swerve” from "prior precedent.” Plaintiffs are correct that an agency has a duty to explain a departure from precedent. See Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973) (plurality opinion) (describing an "agency’s duty to explain its departure from prior norms” and holding that when an agency departs from prior norms, its reasons "must be clearly set forth so that the reviewing court may understand the basis of the agency’s action and so may judge the consistency of that action with the agency’s mandate”). This principle indisputably applies when an agency rescinds an existing rule, see, e.g., State Farm, 463 U.S. at 41-42, 103 S.Ct. 2856 (holding that "an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis”), applies a legal standard inconsistently, see, e.g., W. States Petroleum Ass’n v. EPA, 87 F.3d 280, 285 (9th Cir.1996), or departs from longstanding practice "without supplying a reasoned analysis for its change of course,” Nw. Envtl. Def. Ctr., 477 F.3d at 690. In addition, at least one district court in this circuit has applied this principle to an agency’s unexplained departure from an earlier factual finding. See Defenders of Wildlife v. Hall, 565 F.Supp.2d 1160, 1170 (D.Mont.2008) (holding that the agency acted arbitrarily when it failed to explain its departure from an earlier determination that genetic exchange between wolves located in three distinct recovery areas would be a precondition to delisting the northern Rocky Mountain gray wolf under the ESA). But plaintiffs’ attempt to apply this principle here extends it too far. The factual findings contained in NMFS’s earlier environmental assessments, which the agency completed under NEPA rather than the MMPA, and which analyzed the effects of fishery activities rather than sea lion predation, do not constitute "precedents” within the meaning of the Atchison line of authority. Hall is distinguishable. There, the U.S. Fish and Wildlife Service’s factual determination that genetic exchange was unnecessary for the health of the wolf population directly contradicted its earlier determination that such exchange was required. Here, by contrast, NMFS’s factual findings are at most potentially inconsistent, not directly contradictory. NMFS’s action therefore cannot be faulted on plaintiffs’ theory that the agency has "swerved from prior precedent” without explanation.
. Plaintiffs also fault NMFS for failing to address an August 2007 biological assessment (BA) of the effects of the Federal Columbia River Power System (FCRPS) on salmonid species listed under the ESA. The FCRPS kills approximately 7.7 percent of listed juvenile salmonids, 9.9 percent of adult listed spring-run Chinook salmon and 16.8 percent of listed adult Snake River steelhead, but the BA concluded "that the net effects of the proposed actions, including the existence and operations of the dams with the proposed mitigation, meet or exceed the objectives of doing no harm and contributing to recovery with respect to the [listed salmonid populations] affected by the operation of the FCRPS” (emphasis added). Plaintiffs argue with some force that the factual findings in the 2007 dam take BA are at odds with the finding of significant negative impact in this case. The dam take BA, however, was compiled by the U.S. Army Corps of Engineers, the Bonneville Power Administration and the Bureau of Reclamation within the U.S. Department of Interior, not NMFS. The unexplained inconsistencies between NMFS's finding in this case and the findings in the dam take BA thus do not raise the same level of concern as apparent inconsistencies among NMFS's own environmental assessments. We do not, however, suggest that NMFS is necessarily free to ignore the dam take BA: to comply with the APA and provide a basis for meaningful judicial review, an agency must examine the “relevant data" and articulate a rational connection between the facts found and the choice made. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. The dam take BA may fall within the category of relevant data.
. This finding is implicit in NMFS’s decision to authorize lethal removal up to the point at which a 1 percent predation level is achieved. The MMPA authorizes the lethal removal only of “individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks.” 16 U.S.C. § 1389(b)(1). Thus, by authorizing lethal removal up to the 1 percent level, NMFS has impliedly found that this level of predation would have the requisite adverse impact.
. In rare circumstances, when we deem it advisable that the agency action remain in force until the action can be reconsidered or replaced, we will remand without vacating the agency's action. See Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C.Cir.2009) (explaining that special circumstances may justify remand without vacatur “[w]hen an agency may be able readily to cure a defect in its explanation of a decision”); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405-06 (9th Cir.1995) (holding that the court may remand without vacatur "when equity demands”). In this case, the government has not specifically requested that we remand without vacatur, and it is not otherwise apparent that the circumstances call for doing so. Accordingly, the appropriate remedy here is to direct the district court to vacate NMFS’s action and remand to the agency.
. As a threshold matter, all parties agree that Chevron deference applies to NMFS’s interpretation of the MMPA in this case. We therefore assume without deciding that Chevron deference applies. We observe, however, that in some circumstances we have suggested that agencies' one-time statutory interpretations, if lacking in precedential force with respect to future agency actions, may not warrant this deference. See High Sieira Hikers, 390 F.3d at 648 (holding that the U.S. Forest Service's interpretation of the Wilderness Act was not entitled to Chevron deference because the agency "was not acting with the force of law” when it was "granting permits,” an action that would not have "precedential value for subsequent parties”). Given the parties’ agreement that Chevron governs, we have no occasion to decide whether High Sierra Hikers would preclude Chevron deference here.
. We reject defendants’ argument that our decision in Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, 524 F.3d 938, 956 (9th Cir. 2008), addressed that issue. Bering Strait involved a permit issued by the Corps for a major gold-mining project near Nome, Alaska. We observed that the project would "favorably affect[] parts of the Nome area that suffered environmental damage from previously unconstrained resource development” and held that "the Corps was not required to prepare an EIS” because the project had "no significant detrimental effect on the environment in and near Nome.” Id. at 957. The plaintiffs in Bering Strait did not contend that an EIS was required based on beneficial environmental effects, so we did not squarely address whether significant beneficial effects alone would trigger an EIS. Bering Strait therefore left this issue unresolved.
Other circuits are divided on this question. Compare Sierra Club v. Froehlke, 816 F.2d 205, 211 n. 3 (5th Cir.1987) ("[Because] NEPA is concerned with accurate and informed decisionmaking as a general matter[, a]n environmental report that erroneously depicts positive environmental consequences poses as significant an obstacle to informed decisionmaking as one that inadequately assesses adverse circumstances.”), Natural Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1431 (D.C.Cir.1985) (stating in dictum that "both beneficial and adverse effects on the environment can be significant within the meaning of NEPA, and thus require an EIS”), Nat’l Wildlife Fed’n v. Marsh, 721 F.2d 767, 783 (11th Cir.1983) (holding that post-EIS changes required a supplemental EIS where a "Mitigation Plan involves a number of proposed project changes that are likely to have a significant, though beneficial, impact on the environment”), and Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th Cir.1981) (”[E]ven if the Corps was correct in deciding that the new land use will be beneficial in impact, a beneficial impact must nevertheless be discussed in an EIS, so long as it is significant. NEPA is concerned with all significant environmental effects, not merely adverse ones.”), with Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 504-05 (6th Cir. 1995) (concluding that only adverse impacts trigger the obligation to prepare an EIS). Although we do not reach the question, plaintiffs’ view is consistent with the weight of circuit authority and has the virtue of reflecting the plain language of the statute.
. We do not intend to suggest that the legal standards under the two statutes are unrelated. A significant impact on listed salmonids, as defined by the MMPA, certainly could constitute a significant effect on the human environment under NEPA. See 40 C.F.R. § 1508.27(b)(9) (providing that one factor an agency should consider in making the determination of whether to prepare an EIS under NEPA is ”[t]he degree to which the action may adversely affect an endangered or threatened species”). We hold only that a finding of significance under the MMPA does not ipso facto mandate a finding of significance under NEPA.
. NMFS inaccurately characterizes the predation numbers produced by the Corps as predation “actually observed.” Although the Corps' numbers are based on actual observations, they in fact are estimates that reflect not only observed kills but also kills estimated to have occurred during breaks in observation. The Corps' numbers are therefore estimates, though they are based on actual observations rather than bioenergetic consumption calculations.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.25, Costs: 0
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TORRUELLA, Circuit Judge.
The issue to be decided by this appeal is whether the hunting of deer on a Massachusetts reservation significantly affects bald eagles so as to constitute a prohibited “taking” of that endangered species as defined by the Endangered Species Act (“ESA”). 16 U.S.C. §§ 1532(19) & 1538(a)(1)(B). How we get from a deer hunt to an allegation regarding the taking of bald eagles requires considerable explanation.
I. BACKGROUND
The Massachusetts Division of Fisheries and Wildlife (“DFW’) operates a restoration project for bald eagles on Quabbin Reservation in Eastern Massachusetts (“Quabbin”). This reservation covers an area of approximately 125 square miles and contains a 25,-000 acre reservoir. According to the DFW, the bald eagle population has ranged from a low of 13 in 1982 to an all time high of 45 in 1992. In that year, the statewide population of bald eagles was estimated at 60.
In 1986, the Metropolitan District Commission (“MDC”) began to investigate the impact of deer feeding habits on the forest at Quabbin. Among other findings, the study determined that the deer population at Quab-bin far exceeded the statewide average of 6-8 deer per square mile. It was concluded that this was the result of a then existing deer hunting prohibition and the decline of natural predators at Quabbin. It was also found that deer consumption of tree seedlings was gradually eliminating the root system necessary for the soil to act as a filter for pollutants. This in turn posed a threat to the quality of water at the Reservoir. After considering a variety of alternatives, the MDC concluded that the only effective means of addressing the underlying problem was to allow controlled deer hunting at Quabbin.
Legislation was subsequently enacted by the State to permit a limited deer hunt at Quabbin under the MDC’s authority. Mass. Regs.Code tit. 350, § 8.02 (1991). Thereafter, the MDC, aided by DFW recommendations, developed a deer management plan that attempted to ensure that the eagles would not be disturbed by the deer hunt.
In the fall of 1991, appellants brought this action to enjoin the limited deer hunt on the ground that it posed a significant risk to the bald eagles at Quabbin in violation of the ESA. 16 U.S.C. §§ 1538(a)(1)(B) & 1532(19) (1985). The nucleus of their allegation was as follows: some of the deer shot by hunters during the Quabbin hunt would not be recovered but would die thereafter within the feeding area of the Quabbin bald eagles; these deer, termed “cripple-loss deer,” would contain lead in their bodies from the lead slugs used by the hunters as ammunition; and bald eagles would feed on these unrecov-ered deer carcasses, consume a portion of the lead in the deer, and be harmed by the lead.
The district court denied the preliminary injunction ruling that appellants failed to show a reasonable likelihood of success on the merits. The hunt proceeded as planned. Appellants then requested a permanent injunction which the court also denied because it concluded that the hunt did not pose a significant risk of harm to the bald eagles. This appeal followed.
II. LEGAL STANDARD
Appellants make two legal challenges to the district court’s decision. Appellants first contend that the district court applied the wrong legal standard in holding that they failed to prove that the proposed Quabbin Reservation deer hunt posed a significant risk of harm to its bald eagles. Appellants next argue that the district court erred as a matter of law by failing to define “significant risk.” This failure, they argue, under Federal Rule of Civil Procedure 52(a), violated the requirement that the court find the facts specially and state separately its conclusions of law thereon. We review these legal challenges de novo. In re: Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir.1993); Societé des produits Nestlé v. Casa Helvetia, Inc., 982 F.2d 633, 642 n. 9 (1st Cir.1992).
The ESA prohibits the “taking” of an endangered species. 16 U.S.C. § 1538(a)(1)(B). The ESA defines “take” as follows: “To harass, harm, pursue, shoot, wound, kill, trap, capture, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Appellants ask that we establish a numerical standard for determining which actions constitute a “taking” of an endangered species. They would have us establish that a one in a million risk of harm is sufficient to trigger the protections of the ESA. We reject this invitation as we find nothing in the ESA, its regulations or legislative history that supports such an arbitrary figure.
Rather than convince us to adopt a restrictive numerical standard for harm under the ESA, appellants’ analogies to other regulatory regimes demonstrate that the exact numerical standard for permissible harm or risk of harm varies according to the context. For example, while a risk of one in a hundred thousand has been thought to be appropriate in the context of regulating benzene emissions from coke by-product plants, see National Emission Standard for Hazardous Air Pollutants, 49 Fed.Reg. 23,521, 23,527 (1984), a definition of one in a million has been considered more appropriate in other circumstances, such as in the analysis of carcinogenicity data, see 45 Fed.Reg. 36,942 (Environmental Protection Agency: Proposed Guidelines for Carcinogen Risk Assessment); see also Public Citizen v. Young, 831 F.2d 1108, 1112-13 n. 4 (D.C.Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988). In the examples cited by appellants, regulatory agencies, like the EPA, adopted numerical risk standards only after consideration of extensive scientific data, publication of proposed standards for public comment, and extensive public hearings. Here, none of these procedures have occurred and appellants provide no other convincing basis for blindly applying a numerical standard developed in another context to the definition of “taking” under the ESA. Furthermore, the cases cited by appellants arise in the context of regulations involving the use of substances that have been scientifically proven to be harmful to humans. See, e.g., Public Citizen, 831 F.2d 1108 (carcinogens in food additives); International Union, UAW v. Pendergrass, 878 F.2d 389 (D.C.Cir.1989) (OSHA regulation of formaldehyde). In contrast, appellants have presented no studies that have shown that the use of lead slugs in deer hunts has been scientifically proven to cause harm to bald eagles.
The proper standard for establishing a taking under the ESA, far from being a numerical probability of harm, has been unequivocally defined as a showing of “actual harm.” The Secretary of Interior has defined “harm,” as it appears in the ESA statute, setting out what constitutes a prohibited taking, see discussion supra p. 165, as:
an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.
50 C.F.R. § 17.3 (1992). In formulating this definition, the Secretary has explained that:
Congress made its intent to protect species very clear_in the preamble to the original definition of harm: “Harm” covers actions ... which actually (as opposed to potentially), cause injury.... The purpose of the rulemaking was to make it clear that an actual injury to a listed species must be found for there to be a taking under Section 9.
46 Fed.Reg. 54,748, 54,749 (1981).
Clearly, then, for there to be “harm” under the ESA, there must be actual injury to the listed species. Accordingly, courts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species. See Defenders of Wildlife v. Administrators, 882 F.2d 1294 (8th Cir.1988) (enjoining the EPA from continuing its registration of strychnine after finding that continued registration of the substance resulted in poisonings of protected species); Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991) (enjoining the United States Forest Service from even-aged lumbering following documentation by scientists of a dramatic decline in active Red Cockaded Woodpecker colonies and findings by the court tracing the decline directly to Service’s lumbering practices). See also National Wildlife Fed’n v. National Park Serv., 669 F.Supp. 384 (D.Wyo.1987) (no “taking” where a plan was designed to reduce conflicts between man and the grizzly bear and in the first season of operation under the plan, there were no bear mortalities).
In this case, appellants have not shown that the hunt caused actual harm. Our review of the record indicates that bald eagles can be harmed by the ingestion of lead. There is, however, no evidence in the record of any harm to the bald eagles at Quabbin as a result of the 1991 deer hunt. See Pauite Tribe v. U.S. Dept. of the Navy, 898 F.2d 1410, 1420 (9th Cir.1990) (activity must cause the harm). There is no evidence that any eagles at Quabbin actually ingested lead slug or that any eagles ate deer carrion containing lead slug. After hearing all of the evidence, and considering among other factors the likelihood of the presence of lead in cripple-loss deer, the likelihood of ingestion of lead by eagles feeding on the deer, and the likelihood that if an eagle ingests lead, it will be harmed thereby, the district judge was not persuaded that the bald eagles would be harmed by the proposed hunt. We find that the record fully supports the conclusion of the trial judge.
Appellants’ challenge of the district court’s decision for allegedly failing to give specific findings under Federal Rule of Civil Procedure 52(a) is also without merit. The district court clearly stated the relevant statutory and regulatory provisions. To the extent that the district court’s decision rested upon an interpretation of these provisions that varies from that which we have established, the court employed a more liberal interpretation of the statutory requirements. Moreover, the court made clear factual findings. As such, appellants’ Rule 52(a) challenge fails. We do not find it necessary for the court to numerically define the standard it applies in order to comply with this rule. Furthermore, we find that the record adequately supports a finding that the proposed deer hunt does not constitute a “taking” within the meaning of the ESA.
III. CREDIBILITY OF WITNESSES
Appellants claim that the district court clearly erred by discounting the testimony of appellants’ experts and finding more credible the testimony of appellees’ experts regarding the effect of the deer hunt on bald eagles at Quabbin.
We review the district court’s credibility findings for clear error. Brennan v. Carvel Corp., 929 F.2d 801, 806 (1st Cir.1991) (in non-jury trials, findings of fact based on oral or documentary evidence should only be set aside for clear error). See also Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1984) (where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous). On the record presented, the district court did not err. Thus, we affirm the findings of the district court.
IV. EXCLUSION OF APPELLANTS’EXHIBITS FROM EVIDENCE
Appellants posit that the lower court erroneously excluded appellants’ exhibits 11, HA, 11B, 11C, 12 and 13 from evidence. We disagree. Appellants offered as exhibits highlighted portions of documents which the court found to contain only portions of sentences taken out of context. These exhibits were offered by appellants as either self-authenticating documents or admissions. Appellees objected to their admission on the grounds of completeness and that the statements were taken out of context and stated during trial “we only prefer ... that the entire document be admitted in evidence, as opposed to highlighted portions.”
Pursuant to Federal Rule of Evidence 106, “[w]hen a writing ... or part thereof is introduced by a party, an adverse party may require the introduction ... of any other part ... which ought in fairness be considered contemporaneously with it.” Appellants argue in their briefs that “as the defendants did not even dispute the admissibility of the entire documents, the Court was bound to accept the portions offered by the plaintiffs and allow the defendants to offer any additional portions....” The record shows that it was not appellees, but appellants who vehemently opposed admitting into evidence the entire document which would put the phrases contained in their offered exhibits into context. In essence, before making a final ruling on the admissibility of these statements, the lower court let appellants choose whether the entire documents or no portions thereof would be admitted. The court did not abuse its discretion in refusing to admit only misleading portions of documents taken out of context.
Affirmed.
. The bald eagle is listed as an endangered species. 50 C.F.R. § 17.11 (1992).
. The defendant-appellees in this case are Ilyas Bhatti in his capacity as Commissioner of the Metropolitan District Commission and Wayne McCallum in his capacity as Director of the Massachusetts Division of Fisheries and Wildlife.
. Appellants did present a study showing that the ingestion of No. 4 lead shot caused harm to bald eagles. In that study, eagles were fed ten pellets of lead shot a day for a period of ten to fifteen days. In the present case, however, appellants have not shown that eagles have eaten or will eat any lead slugs (a considerably larger caliber than No. 4 shot) as a consequence of the deer hunts. Furthermore, one of the limitations of the Quab-bin deer hunt was that hunters could use only lead slugs, no bullets and no shot.
. We note that the ESA definition of "take,” includes the term "harass.” 16 U.S.C. § 1532(19). The regulations of the United States Fish and Wildlife Service define "harass” as:
an intentional or negligent act which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include but are not limited to, breeding, feeding, or sheltering.
50 C.F.R. § 17.3 (1992).
Because appellants have not shown that bald eagles have ingested lead slugs nor fragments thereof during past hunts or will ingest lead slugs or fragments thereof during future hunts, we have no reason to consider whether the ingestion of lead slugs or fragments thereof would lead to a disturbance of the eagles' behavior pattern to the extent that it would amount to "harassment" of the bald eagles.
. The district court correctly stated that the issue to be decided was "whether the hunt will cause harm or whether it will harass, or cause the [b]ald [e]agle to be harassed.” The parties agreed that the plaintiffs had the burden of proof and that in order to prevail they must show that "the deer hunt poses a significant risk of harm to the [b]ald [e]agle." By requiring the plaintiffs to show only “a significant risk of harm" instead of "actual harm," the district court required a lower degree of certainty of harm than we interpret the ESA to require. The appellants certainly cannot meet this court's standard of "actual harm” if the district court found that they failed to prove that even a "significant risk of harm” existed.
. We are aware of the decision of National Wildlife Federation v. Hodel, 23 Env’t Rep.Cas. (BNA) 1089, 1985 WL 186671 (E.D.Cal. Aug. 26, 1985) in which a court enjoined hunting of migratory birds with lead shot, finding a "taking” of the bald eagle. We believe that the present case is easily distinguishable. In National Wildlife, the defendant had published a proposed rule stating that “there is a substantial likelihood that lead shot used by waterfowl hunters poses a threat to bald eagles” and significant evidence indicated that most lead shot that poisons bald eagles is consumed by the eagles when they feed upon other migratory birds that are themselves either ill due to consumption of lead shot, or have been wounded or killed by lead shot but not retrieved by hunters. In the present case, the defendant made no such admission and the evidence did not indicate that eagles were poisoned by feeding on deer carcasses. Id. at 1090. Furthermore, the present case concerns the use of lead "slugs” rather than lead “shot."
. We have no occasion to review the lower court’s finding that the exhibits appellants' sought to admit into evidence contained portions of sentences taken out of context. Appellants do not argue that they were in context and on appeal, they have supplied us with entire pages taken from those documents from which it is impossible to ascertain which portions they wished admitted.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.3064516129032258, Costs: 0.01612903225806452
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ROBERT P. ANDERSON, Circuit Judge:
In Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2 Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966), hereinafter cited as Scenic Hudson I, this court vacated the Federal Power Commission’s grant of a license to Consolidated Edison Company of New York, Inc., for construction of a hydroelectric pump-storage plant on Storm King Mountain in Cornwall, New York. The determinative reason underlying the decision was that the Commission had failed fully to comply with 16 U.S.C. § 803(a) in that it neither considered alternative sources of power nor did it resolve the crucial issue of whether the project was “best adapted to a comprehensive plan for improving or developing a waterway” with minimal disruption of the environment. The Commission was ordered to investigate “among other matters, costs, public convenience and necessity, and absence of reasonable alternatives,” as well as the potential danger to fish “before deciding whether the Storm King project [was] to be licensed.” 354 F.2d 624-625.
During the next six years the Commission gave detailed and comprehensive consideration to alternatives and rejected a gas turbine plant as a means of providing reserve power because of prohibitive operating costs, frequency of breakdowns and the lengthy turbine starting time. Interconnections with other electrical systems were also rejected because they could not provide sufficient power and because the connections might be terminated during emergencies.
In addition Consolidated Edison sponsored a Policy Committee to determine the extent to which the plant operation would deplete fish population. The Policy Committee’s report, entitled “Hudson River Fisheries Investigation 1965-68”, hereinafter referred to as Study Report, declared that the evidence indicated there would not be any significant adverse effect on the striped bass. Although the Committee estimated that one percent of all eggs in the River, three percent of all larvae, and over six percent of the young-of-the-year fish would be destroyed by the plant in one year of operation, it concluded that these percentages were “negligible when related to the total population of the species in the Hudson river.” The Study Report stated, however, that additional tests would be necessary and that “if these suggested studies indicate adverse effects not established in pre-constuetion surveys the plant operation schedules should be modified to produce minimal effects on fish populations.”
The Study Report was not issued until after the hearings concluded and the Policy Committee was, therefore, never subjected to cross-examination. Nonetheless, the Commission relied heavily on the report in affirming the Trial Examiner’s finding that the project posed no threat to fish. Consolidated Edison Company of New York, Inc., Federal Power Commission Opinion and Order Issuing License (1970). The Commission adopted the Policy Committee’s proposal for future studies, and, in Article 36 of the license, ordered Consolidated Edison to engage in a continuing study of the plant’s potential impact on the fish in the River. The Commission reserved the power under Article 15 to order Consolidated Edison to “coordinate the operation of the project” to protect “beneficial uses of water resources” and under Article 16 to order Consolidated Edison “for the conservation, and development of fish and wildlife resources” to construct or modify such facilities or operations as the Commission might order.
In affirming the issuance of the license in Scenic Hudson Preservation Conference v. Federal Power Commission, 453 F.2d 463 (2 Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972), hereinafter cited as Scenic Hudson II, this court relied primarily on the Study Report in finding that there was substantial evidence to support the Commission’s conclusion that fish were not endangered, 453 F.2d at 476. But it has meanwhile become apparent that the Policy Committee assumed, for purposes of its projections, that the Hudson River flows only downstream, and consequently it apparently calculated the fish mortality rate on the assumption that the eggs and larvae would only be exposed to the plant intake once. The River, however, is a tidal estuary and the water flows north on the flood and south on the ebb, changing direction four times each day. A given number of eggs or larvae, therefore, might be exposed to the plant four times in the course of a 24-hour day rather than just once on their way to the sea. Further, the Policy Committee calculated the speed of the River as the average of the downstream flow which included both the rates of the ebbing tides and the natural drift of the River during the same period. But the actual rate of speed of a given hatch of larvae is far less than the maximum downstream flow because they are pushed upstream again by the flooding tide. Therefore, the eggs and larvae do not pass the plant as quickly as the Committee estimated, and the chances for a given set of eggs or larvae to enter the plant increase accordingly.
The potential impact of the Committee’s failure to assess the effect of the tidal flow was not evident until 1972-73 when the Atomic Energy Commission held hearings on Consolidated Edison’s license to operate the nuclear power plant at Indian Point, a few miles south of Cornwall. Using the Study Report data, but correcting the Policy Committee’s assumptions, the AEC staff concluded that the Indian Point plant alone would reduce a black bass generation from 14 to 43 percent. In the Matter of Consolidated Edison of New York, Inc., Atomic Safety and Licensing Board, September 14, 1973. As a result, the Board conditioned its grant of a license upon the installation, not later than January 1, 1978, of a closed-cycle cooling system. According to a statement of Consolidated Edison’s counsel upon oral argument the Board may consent to the substitution of other suitable methods for fish protection. The Indian Point facilities utilized half the amount of water as that of Storm King, and consequently the loss of bass at Storm King could be substantially greater than the AEC projections.
On February 2, 1973, the Hudson River Fishermen’s Association (HRFA), a group of commercial and sports fishermen petitioned the Commission, pursuant to 16 U.S.C. § 803, to determine the feasibility of taking no water into the reservoir during the 49-day spawning period in May and June. The HRFA did not request a complete hearing but asked the Commission to exercise the power reserved under Articles 15 and 16 of the license to consider modification of plant operations for the protection of fish.
On March 29, 1973, the Scenic Hudson Preservation Conference, a coalition of individuals and groups interested in protecting the beauty and resources of the River valley, also petitioned, pursuant to 16 U.S.C. §§ 797 and 803, for complete reconsideration of the license based on the newly discovered danger to fish, the increased capital cost of the project, and the New York utilities’ working agreement which no longer requires the amount of reserve power that the Storm King project was designed to provide.
The FPC dismissed both petitions, stating that all the issues had been previously decided. With regard to the danger to fish, the FPC said the Trial Examiner had been aware of the tidal effects of the River, and that the evidence presented consisted of “no new basic data but only differences of opinion and interpretation by professional biologists in connection with matters already in the record.” Consolidated Edison of New York, Inc., Project No. 2338, Order Denying Petition to Reopen and- For Further Hearings, Federal Power Commission (May 31,1973).
While Scenic Hudson’s petition, based on increased costs and decreased power requirements, was denied with prejudice, the petitions concerning fish conservation were denied without prejudice to allow renewal after Consolidated Edison’s studies relating to fish spawning are completed. Consolidated Edison of New York, Inc., Project No. 2338, Order Denying Application for Rehearing, Federal Power Commission (July 26, 1973).
The Commission relies on two principles of administrative law in arguing that a reopening of these proceedings would be improper. First, it contends that it has unreviewable discretion on this issue; and, second, it states that all of the questions raised have been finally decided and are, therefore, barred from reconsideration under the Federal Power Commission Act, 16 U.S.C. § 825.
Agencies must have the power to protect themselves from “interminable delay” brought about by repeated updatings of the evidence, whether cost increases or amendments to working agreements. United States v. Interstate Commerce Commission, 396 U.S. 491, 522, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970). And a party in interest, such as Consolidated Edison, should not be forced to justify again and again in terms of costs and benefits the means which it has chosen to supply electrical energy during peak hours and emergencies. See Appalachian Power Co. v. Environmental Protection Agency, 477 F.2d 495 (4 Cir. 1973).
For these reasons, courts are reluctant to order administrative agencies to reopen and the Supreme Court has done so only once in Atchison, Topeka & Santa Fe Railway Co. v. United States, 284 U.S. 248, 52 S.Ct. 146, 76 L.Ed. 273 (1932), a rates reduction case that has been limited to its facts. United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 534, 66 S.Ct. 687, 90 L.Ed. 821 (1946). “It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.” Interstate Commerce Commission v. City of Jersey City, 322 U.S. 503, 514-515, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944). Braswell Motor Freight Lines, Inc. v. United States, 275 F.Supp. 98 (W.D.Tenn.1967), aff’d per curiam, 389 U.S. 569, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968).
The petition to review the Commission’s order denying Scenic Hudson’s petition to reopen for further study of alternative means of generating electricity is, therefore, dismissed, without prejudice, however, to its renewal if the Commission has not affirmatively found fish protection and preservation adequate by January 1,1975.
Reconsideration of fish conservation, however, does not impose on either the Commission or the utility the burdens of a reopening. The Commission, pursuant to Articles 15, 16 and 36 of the license, has assumed “continuing jurisdiction” over the issue, see 2 Davis, Administrative Law Treatise § 18.09, and will presumably conduct further investigations in this area. Furthermore, Consolidated Edison has committed itself under Article 36 to continue studies of this same issue, and it will not be prejudiced because it is asked to correct promptly a probably incorrect report previously submitted to the court.
If an administrative agency’s refusal to take new evidence clearly subverts the public interest, Brennan v. Occupational, Safety and Health Review Commission, 492 F.2d 1027, 1031-1032 (2 Cir. 1974); WMOZ, Inc. v. Federal Communications Commission, 120 U.S.App.D.C. 103, 344 F.2d 197 (1965), courts have the power to order further hearings. The Commission has a statutory duty to protect recreational and commercial uses of waterways, Namekagon Hydro Company v. Federal Power Commission, 216 F.2d 509 (7 Cir. 1954), and the Supreme Court has emphasized that the FPC must develop an adequate record concerning spawning activities of anadromous fish. Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967).
When the Commission denied the present petitions for hearings, it was not operating in a vacuum, but was refusing to correct an apparent error in a report ordered by and previously relied upon by this court. Under these circumstances the Agency’s exercise of discretion must be reviewable and “[w]here, as here, a regulatory agency has ignored factors which are relevant to the public interest,” as defined by this court in its prior decisions, “the scope of judicial review is sufficiently broad to order their consideration.” Michigan Consolidated Gas Co. v. Federal Power Commission, 283 F.2d 204, 226 (D.C.Cir.), cert. den. 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227 (1960). See also Ng Yip Yee v. Barber, 267 F.2d 206, 208 (9 Cir. 1959); Morand Brothers Beverage Co. v. NLRB, 204 F.2d 529 (7 Cir.) cert. den. 346 U.S. 909, 74 S.Ct. 241, 98 L.Ed. 407 (1953), reh. den. 346 U.S. 940, 74 S.Ct. 376, 98 L.Ed. 428 (1954).
If, after adequate hearings and expert consideration, the Commission had decided that conclusions reached in the Study Report were correct, this court would be bound by that finding, if supported by substantial evidence, but the petitioners have demonstrated such a grave probability of error that the Commission cannot excuse itself from its obligation under Scenic Hudson I by simply submitting an unsworn statement in a letter from one of the authors of the disputed report as ample evidence to rebut the claimed inaccuracy.
By “donning . . . ‘complete blinders’ . . . to a new situation,” Blue Bird Coach Lines, Inc. v. United States, 328 F.Supp. 1331, 1338 (W.D.N.Y.1971), the FPC has abused its discretion.
The Commission contends, however, that under 16 U.S.C. § 8251(b), this court finally decided all questions raised in Scenic Hudson II and, therefore, is now barred from ordering further hearings. “Finality,” in the context of administrative proceedings, usually precludes reconsideration of adjudicative facts which, with due diligence on the part of petitioners, could have been litigated in the previous proceeding. 2 Davis, Administrative Law Treatise § 18.02 (1958). Nothing in § 8251(b) suggests that Congress intended to broaden the meaning of “finality” to foreclose correction of egregious errors resulting from evidence which qould not, even with due diligence, have been subject to cross-examination. On the contrary, the section provides that the court may consider objections not raised before the Commission and order the taking of additional evidence upon a showing that there were reasonable grounds for failure to raise such claims. While this exception applies only to cases on direct appeal, it evinces Congress’ intent to assure that there is a chance to be heard on all relevant issues.
“When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose,” United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966), but there has not been “an adequate opportunity to litigate” the fish conservation issue because the disputed Study Report was presented to the Commission after the hearings were closed, and the potential impact of the flaw in the report was not evident until the data on which it was based were subjected to analysis by the AEC after this court had approved the grant of the license.
Moreover, the finality provision of § 825J(b) does not apply to a request for an evidentiary hearing pursuant to a provision in a license. This section was intended by Congress to prevent postponement of construction through repetitive ánd unnecessary inquiries, but where the Commission has already ordered further evidence to be compiled, there is no frustration of congressional intent by ordering a remand to consider that evidence promptly.
The Commission contends that the fish conservation issue was “adequately litigated” before the Trial Examiner who decided before the issuance of the Study Report that the plant posed no threat to fish. But the Examiner noted “the absence of usable data” concerning the danger to fish and, in his report deferred to some of the Study Report’s statistics. Consolidated Edison of New York, Inc., Presiding Examiner’s Initial Decision, (August 6, 1968) 101, 102. The Commission, itself, has termed the Study Report “a most comprehensive study of the problem and as definitive a development of the issues raised by the court as is ever likely to be achieved within the realm of practicality.” Consolidated Edison Co. of New York, Inc., supra, Opinion and Order Issuing License, 59. It cannot now fall back on a factual record which the Examiner admitted was inadequate.
Both the Commission and Consolidated Edison state that the tidal assumption in the Study Report have been called to the attention of the New York Court of Appeals in de Rham v. Diamond, 32 N.Y.2d 34, 343 N.Y.S.2d 84, 295 N.E.2d 763 (Crt. of App. 1973), and that the New York court’s holding that the record indicates no substantial danger to fish should be res judicata. The State court, however, was reviewing the record compiled by the State Commission of Environmental Conservation to assure the State that New York’s water quality standards were not contravened. It was not enforcing the Federal Power Commission Act, nor was it in a position to enforce the mandate of Scenic Hudson I. Its decision, furthermore, was issued six months prior to the publication of the findings by the AEC staff. “Courts often assert a reluctance to hold that a public interest is estopped by res judicata,” 2 Davis, Administrative Law Treatise § 18.03, and “a determination under one statute is not binding when the same question arises under another statute,” Id. § 18.04, especially where the question is presented to a different forum in a different factual context. See Grose v. Cohen, 406 F.2d 823, 825 (4 Cir. 1969); Old Dutch Farms, Inc. v. Milk Drivers and Dairy Employees Local Union No. 584, 281 F.Supp. 971, 974 (E.D.N.Y.1968).
The HRFA has only requested a hearing, pursuant to the license, to consider closing the plant intake system during spawning season. The Scenic Hudson Preservation Conference, however, contends that the fisheries issue alone requires a complete reconsideration of the license because the plant cannot be operated in any event without endangering the striped bass. Consolidated Edison informed the court at oral argument that it believes the plant can operate effectively, absent emergencies, without withdrawing water from the Hudson during spawning season. The mandate of Scenic Hudson I can, therefore, be met without a complete reopening of the licensing proceeding, but if the Commission concludes that the plant’s operation cannot be curtailed during spawning season or that emergency use during that time would still pose a major threat to the fish, a reopening of the entire licensing proceeding may be necessary.
The Commission says that these hearings should not be held now but should await Consolidated Edison’s initial reports on its study of spawning under Article 36. Environmental issues, however, should be considered early in the life of a project to insure that construction or operating changes will conform to environmental requirements. Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971). The environmental groups, who have so assiduously prosecuted this appeal, should not be faced with the fait accompli of an operating plant before any modifications are considered.
The Commission’s order refusing to hear the petition of the Hudson River Fishermen’s Association is vacated, and that issue is remanded for immediate hearings pursuant to Articles 15, 16, and 36 of the license.
. Within the next year, Consolidated Edison expects to begin construction of the hydroelectric plant to pump -water from the Hudson River to a reservoir to be located on the top of Storm King mountain. By storing water in the reservoir during seasons or hours of low electrical consumption, when power is likely to be less expensive, and by allowing water to flow from the reservoir during times of peak consumption, when electricity may be more highly priced, the plant is designed to equalize the demand for electricity, and, thus, reduce the chance of brown-outs due to overloads. By being able quickly to draw on a huge reserve of electrical generating powjj, the plant may also be helpful in offsetting dramatic electrical imbalances, such as the one which caused the 1965 blackout.
. The fisheries question largely concerned the potential danger to the Hudson River striped bass, Rocus saxatillis, which spawn in an 80-mile span of the River extending from Croton, 20 miles below the plant site, to Coxsackie, 60 miles north of Cornwall. This area and the Chesapeake Bay are the major spawning locations for the striped bass in the North-Atlantic states, and the commercial value of the yearly catch spawned in the Hudson River alone has been estimated by an Atomic Energy Commission Safety and Licensing Board to range from $4 million to $16 million. In the Matter of Consolidated Edison of New York, Inc., Atomic Safety and Licensing Board, September 10, 1973.
Twenty-six other species of fish spawn in the Hudson River, and some of these, notably the white perch and shad, are also likely to be affected by plant operations. It is presumed for purposes of this opinion and the resulting order that the appropriate agencies should exercise the same concern for other species as for the striped bass.
. The Policy Committee was composed of representatives from the New York Conservation Department, the New Jersey Division of Fish and Game, and the United States Bureau of Sports, Fishing and Wildlife.
. Between early May and the middle of June, the bass eggs are laid and hatch into larvae which, after a week of development, are capable of some swimming; nevertheless, both eggs and larvae tend to drift with the flow of the River. No screening device has yet been invented which can keep eggs or larvae out of a hydroelectric system without significantly damaging them. If they are drawn into the system, a substantial number of eggs and an even more substantial number of the extremely delicate larvae will be destroyed by turbulence, abrasion, and heat. By late June, most larvae have grown to an inch and a half long, and can be screened from the intake; nevertheless, many of these young-of-the-year fish can be expected to elude screens and enter the plant.
. To refute the claim that there is an error in the record, the Commission and Consolidated Edison rely on a letter from Policy Committee Chairman Hall stating that “the most critical evaluation of the potential effect” on fish life is projected in the Study Report. In light of the AEC Safety and Licensing Board’s conclusion that the plant could kill ten times as many fish as estimated in the Study Report and the obvious fact that in a slow, alternating river flow, a given number of eggs or larvae is more likely to be removed than in a fast, downstream flow, this claim is unpersuasive.
. The Assistant Secretary of the Interior has urged the Commission “to give a full and complete review of the effects ... of the Cornwall project ... on the Hudson fishery” in light of the AEC staff’s findings. Although this is not a request for a plant modification within the meaning of Article 16, the Commission was asked to use its informed discretion in reviewing the petitioners’ requests.
. This section in pertinent part provides:
“. . . the judgment and decree, of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final . . . ”
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.0875, Costs: 0.125
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BALDOCK, Circuit Judge.
The La Sal Mountain Range, located in southeastern Utah on the Colorado Plateau, encompasses the vast acreage of the Manti-La Sal National Forest. The highest elevations of the national forest support one of the rare alpine communities in the region. At these elevations, sensitive tundra vegetation grows among talus rock and rare plants find their home. To preserve this particular community, Defendant United States Forest Service (FS) in 1988 designated a 2,380 acre portion of the Manti-La Sal National Forest's highest elevations, namely the summits and ridges of Mt. Peale, Mt. Mellenthin, and Mt. Tukuhnikivatz, as the Mt. Peale Research Natural Area (RNA). According to an FS regulation, an RNA should "illustrate adequately or typify for research or educational purposes, the important forest and range types in each forest region, as well as other plant communities that have special or unique characteristics of scientific interest and importance." 36 C.F.R. § 251.23. The applicable regulation further provides an RNA "will be retained in a virgin or unmodified condition except where measures are required to maintain a plant community which the area is intended to represent." Id . According to the instant suit, "until 2013, the Forest Service adhered to its rules and preserved the [Mt. Peale RNA] in an unmodified natural state."
Now enter the State of Utah's Division of Wildlife Resources (UDWR), the "wildlife authority for Utah ... [s]ubject to the broad policymaking authority of the Wildlife Board." Utah Code Ann. § 23-14-1(1)(b), (2)(a). In June 2013, the Utah Wildlife Board approved UDWR's "Utah Mountain Goat Statewide Management Plan." Among other things, UDWR's plan anticipated the release of a target population of 200 mountain goats into the La Sal Mountains adjacent to the Manti-La Sal National Forest for the express purposes of hunting and viewing. The FS, rightly concerned the goats might adversely affect the habitat of the higher alpine regions of the national forest, responded by asking UDWR to delay implementation of its plan while the FS in coordination with UDWR
studied the plan's expected impact on the national forest and the RNA. Unfortunately, UDWR rejected the FS's request for an outright delay. UDWR indicated it would begin implementing its plan by transplanting a small number of goats into the mountains, but would work cooperatively with the FS to assess impacts and develop a strategy to prevent overutilization of the habitat. In September 2013, UDWR released twenty mountain goats on State lands adjacent to the Manti-La Sal National Forest. A year later, UDWR released an additional fifteen mountain goats on the same State lands.
At this point, Plaintiff Grand Canyon Trust (GCT) said enough. The goats, to no one's surprise, had moved into the La Sal Mountains' higher elevations. There, according to GCT, the goats were wallowing and foraging within the national forest and more particularly within the Mt. Peale RNA. Noting ongoing harm to the Mt. Peale RNA and citing 36 C.F.R. § 251.23, GCT demanded the FS (1) prohibit UDWR from introducing additional mountain goats onto State lands adjacent to the national forest, (2) regulate UDWR's occupancy and use of the national forest by requiring it to obtain special use authorization before releasing additional mountain goats on State lands, and (3) immediately remove the mountain goats already in the national forest.
The FS denied GCT any relief, at least for the time being. In a letter to GCT, the Chief of the FS explained "[t]he Forest Service does not regulate or control UDWR's activities that do not occur on NFS [National Forest Service] land, and your request that the Forest Service prevent UDWR from transplanting goats anywhere in the La Sal Mountains is beyond the control of the Forest Service." The Chief further explained UDWR was not required to seek a special use permit to use the national forest before releasing the mountain goats on State lands: "[T]he UDWR did not release the mountain goats on NFS land, and therefore was not using or occupying NFS land at the time of the mountain goats release. The mountain goats have strayed onto adjacent NFS land, including the land within the Mount Peale RNA, after they were released on non-Federal land by UDWR." Lastly, the FS Chief took a "wait and see" attitude with regard to GCT's request that the FS remove or destroy any mountain goats not only in the Mt. Peale RNA but throughout the national forest:
[T]he Forest Service is working cooperatively with UDWR to evaluate any resource impacts and to determine an appropriate action, including consideration of removal of the mountain goats from the RNA or reduction in herd numbers.
* * *
Before initiating any such action, the Forest Service will work with UDWR to gather and evaluate data sufficient to determine whether that action is warranted, and then will work cooperatively with UDWR to determine and implement the appropriate course of action.
GCT's lawsuit for declaratory and injunctive relief followed.
I.
GCT's muddled complaint alleged five "claims for relief" against the FS arising under federal law, all pursuant to the judicial review provisions of the Administrative Procedures Act (APA), 5 U.S.C. §§ 701 - 706. GCT represents that only two of its claims are before us on appeal. GCT's first claim seeks relief under APA § 706(2) and alleges the FS-knowing full well UDWR's mountain goat plan would result in goats migrating into the Manti-La Sal National Forest and the Mt. Peale RNA-acted arbitrarily, capriciously, and unlawfully by denying GCT's three demands for relief. Meanwhile, GCT's second claim seeks relief under APA § 706(1) and alleges the FS unlawfully failed to act by refusing to comply with the FS regulation mandating RNA's "will be retained in a virgin or unmodified condition." 36 C.F.R. § 251.23.
The FS moved to dismiss GCT's complaint in its entirety under Fed. R. Civ. P. 12(b)(1) for failure to allege final agency action as required by APA § 704, and thus subject matter jurisdiction over the Government, which enjoys sovereign immunity absent congressional waiver. The district court granted the motion:
Plaintiffs have cleverly amalgamated federal law in an attempt to find some pathway to judicial review. Pulling apart Plaintiffs' contortions, the court [concludes] that it has no jurisdiction to review the Forest Service's action or inaction with respect to the mountain goats' occupation of the Manti-La Sal National Forest. ... The Forest Service has not determined whether the goats' presence in the Manti-La Sal National Forest violates federal law or the existing Forest Plan. Nor has the Forest Service decided that it will never act on Plaintiffs' requests. The State acted and now the Forest Service is in the reactionary position attempting to determine what agency action, if any, is warranted. Accepting Plaintiffs' allegations as true, the court [holds] that Plaintiffs have failed to provide the court any action or inaction on behalf of the Forest Service that is reviewable under the APA.
Utah Native Plant Soc'y v. United States Forest Serv. , 2017 WL 822098, at *5 (D. Utah 2017) (unpublished). GCT appeals. Our jurisdiction arises under 28 U.S.C. § 1291. Our review of the complaint's sufficiency is de novo. See Jones v. Needham , 856 F.3d 1284, 1289 (10th Cir. 2017).
Because we consider the FS to make a facial attack on GCT's complaint, we "apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged." Garling v. Envtl. Prot. Agency , 849 F.3d 1289, 1293 n. 3 (10th Cir. 2017). We may supplement the complaint's well-pleaded facts, however, with the contents of documents referred to therein "if the documents are central to [GCT's] claim[s] and the parties do not dispute the documents' authenticity." Hampton v. Root9B Tech. , 897 F.3d 1291, 1297 (10th Cir. 2018). While we uphold dismissal of GCT's complaint under the foregoing standards, we believe the district court missed the mark when it concluded that because the FS is currently in the process of deciding what to do, if anything, about the goats' presence in the national forest and RNA, it lacked jurisdiction to review the FS's "action or inaction" in its entirety.
II.
We begin by analyzing GCT's first claim which, as we have described, alleges three instances of unlawful agency action. APA § 702 generally authorizes suit by "[a] person suffering legal wrong because of agency action." " '[A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof , or failure to act[.]" APA § 551(13) (emphasis added). APA § 704 requires the challenged "action"-or, more accurately in this case, the FS's respective denials of GCT's three demands-constitute "final agency action." In Bennett v. Spear , 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), the Supreme Court decided that before agency action becomes final, such action must meet two conditions: "First, the action must mark the 'consummation' of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow[.]' " (citations omitted). APA § 704's requirement of final agency action readily applies to GCT's first claim for relief under APA § 706(2) because subsection (2) directs a reviewing court to "hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" (emphasis added).
A.
The first instance of FS action about which GCT complains is the former's denial of any authority to prohibit UDWR from releasing mountain goats on Utah State lands adjacent to the Manti-La Sal National Forest. Such denial surely constitutes final agency action. The FS explained that because it "does not regulate or control UDWR's activities that do not occur on NFS land," it cannot "prevent UDWR from transplanting goats anywhere in the La Sal Mountains." GCT's first demand, in other words, was "beyond the control of the Forest Service." This determination was not "merely tentative or interlocutory in nature"; it was conclusive. Bennett , 520 U.S. at 178, 117 S.Ct. 1154. The FS told GCT that it did not have the legal authority to prevent the State of Utah from releasing mountain goats on State lands-first demand denied; end of discussion. The FS's denial of GCT first demand was based on a "final and binding" decision that "mark[ed] the 'consummation' of the agency's decisionmaking process" and from which " 'rights and obligations have been determined.' " Id.
Yet while the FS's denial of GCT's first demand constitutes final agency action, this demand still plainly fails as a matter of law. See Aguilera v. Kirkpatrick , 241 F.3d 1286, 1290 (10th Cir. 2001) (recognizing that where a district court dismisses a complaint for lack of subject matter jurisdiction, we may affirm dismissal of the complaint for failure to state a claim under the same standards). GCT acknowledges, as it must, that Utah has broad trustee and police powers over wildlife within its borders. See Kleppe v. New Mexico , 426 U.S. 529, 545, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976). But these powers, GCT tells us, are constrained by federal preemption principles derived from the Constitution's Supremacy Clause. See U.S. Const. art. VI, cl. 2. With this much we agree. GCT next turns to the Constitution's Property Clause, which provides: "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Id. art. IV, § 3, cl. 2. GCT tells us the Property Clause extends to activities that endanger federal lands but are initiated on non-federal lands. But as a mere grant of power "to make all needful Rules and Regulations," the Property Clause's plain language is not self-executing and does not itself grant the FS authority over Utah State lands adjacent to the Manti-La Sal National Forest.
Assuming the Property Clause reaches thus far, Congress, with the aim of preserving federal lands, might rely on it to enact legislation altering the State of Utah's authority to manage wildlife on its own lands. Federal legislation, however, does not supercede the historic police powers of the States "unless that was the clear and manifest purpose of Congress" in enacting such legislation. Puerto Rico Dept. of Consumer Affairs v. Isla Petrol. Corp. , 485 U.S. 495, 500, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988). While Congress might enact legislation respecting national forests, the "clear and manifest purpose" of which is to preempt Utah's traditional trustee and police powers as a sovereign to manage wildlife within its borders, it has not done so. GCT points us to the Organic Administration Act of 1897 (Organic Act), which provides: "The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the ... national forests ... and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction." 16 U.S.C. § 551. But the Organic Act's broad directive that the Secretary "make provisions for the protection against destruction by ... depredations upon the ... national forests," hardly evidences a "clear and manifest" purpose to encroach upon State sovereignty and override Utah's traditional management of wildlife within its borders outside the Manti-La Sal National Forest.
Nor can we say Utah's placement of mountain goats on State lands "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress" in the management of the national forest. California Coastal Comm'n v. Granite Rock Co. , 480 U.S. 572, 581, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (quoting Silkwood v. Kerr-McGee Corp. , 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) ). Legislation supplemental to the Organic Act calling for "cooperative federalism" between federal and state authorities in the area of wildlife management illustrates the point. The Multiple-Use Sustained-Yield Act of 1960 (MUSYA), identifies a range of purposes national forests should serve. But the MUSYA also provides "[n]othing herein shall be construed as affecting the jurisdiction and responsibilities of the several States with respect to wildlife and fish on the national forests." 16 U.S.C. § 528. If "nothing" in the MUSYA affects the jurisdiction of the States with respect to wildlife on the national forests, surely "nothing" therein affects the jurisdiction of the States with respect to wildlife off the national forests.
The Federal Land Policy and Management Act of 1976 (FLPMA), directs "the public lands be managed in a manner ... that, where appropriate, will preserve and protect certain lands in their natural condition[.]" The FLPMA further provides, however, that "nothing" in the FLPMA "shall be construed as ... enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife." 43 U.S.C. §§ 1701(a)(8), 1732(b). And the National Forest Management Act of 1976 directs the Secretary of Agriculture to develop, maintain, and revise land and resource management plans for the national forests "coordinated with the land and resource management planning processes of State and local governments[.]" 16 U.S.C. § 1604(a). In short, the clarity and manifestness of purpose necessary in the federal statutory scheme GCT relies on to demand the FS prohibit the State of Utah from releasing mountain goats on State lands adjacent to the Manti-La Sal National Forest is wholly lacking.
Like Congress, a federal agency by way of congressional delegation of authority also may preempt state laws and regulations. Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta , 458 U.S. 141, 153-54, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). For example, after providing notice and opportunity for comment, the FS might issue preemptive regulations implementing the Organic Act's directive that the Secretary of Agriculture make provisions to protect the national forests from depredations. 16 U.S.C. § 551. Such federal regulations preempt state law to the extent compliance with both is impossible, or "where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress 'left no room' for supplementary state regulation." Hillsborough Cty. v. Automated Med. Laboratories, Inc. , 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) ; see supra n .4. This assumes, of course, such regulations are consistent with a reasonable interpretation of the Organic Act and the Secretary reasonably exercised Congress's delegation of authority. See State of Kansas ex rel. Todd v. United States , 995 F.2d 1505, 1509 (10th Cir. 1993) (citing De La Cuesta , 458 U.S. at 153-54, 102 S.Ct. 3014 and Chevron, Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). But to say the FS may issue preemptive regulations is not to say it may do so subtly. See Isla Petrol. Corp. , 485 U.S. at 500, 108 S.Ct. 1350. Like our review of the Organic Act and related legislation, where the States have traditionally exercised trustee and police powers over a field, we assume federal regulations do not preempt the States' exercise of these historic powers unless their intent to do so is "clear and manifest." Hillsborough Cty. , 471 U.S. at 715-16, 105 S.Ct. 2371.
Notably, nothing in 36 C.F.R. § 251.23, the sole FS regulation on which all of GCT's demands rest, expresses an intent to preempt the State of Utah's management of wildlife on State lands. Recall § 251.23 is the FS regulation which provides that an RNA within a national forest "will be retained in a virgin or unmodified condition." But the FS has never proposed the sweeping interpretation of § 251.23 that GCT now endorses, perhaps because in most instances means exist to prevent depredations of the national forests and RNAs short of wholly disrespecting State sovereignty over State lands, e.g. , removing destructive wildlife from the forest. Because a federal agency may address problems in detail and speak through a number of means, we expect an agency will clearly tell us if it intends for its regulations to preempt the historic police powers of the States. Hillsborough Cty. , 471 U.S. at 718, 105 S.Ct. 2371 ; see also Granite Rock Co. , 480 U.S. at 583, 107 S.Ct. 1419 ("[I]t is appropriate to expect an administrative regulation to declare any intention to pre-empt state law with some specificity."); Integrity Mgmt. Int'l, Inc. v. Tombs & Sons, Inc. , 836 F.2d 485, 492-93 (10th Cir. 1987) ("[U]nless an agency has explicitly stated an intent to preempt state law, there is a presumption that no such intent exists.").
Here, the FS has never expressed an intent-let alone a clear and manifest one-to preempt the power of the State of Utah in its sovereign capacity to manage wildlife on its own public lands, regardless of where such wildlife wanders off. Whether the FS has the authority to do so by way of congressional delegation pursuant to the Organic Act is beside the point. We need do no more than apply the applicable law to the well-pleaded factual allegations of GCT's complaint (sans the myriad of legal arguments and conclusions contained therein) to sustain the FS's determination that it lacked the legal authority to prohibit the State of Utah, or more particularly UDWR, from releasing mountain goats on State lands adjacent to the Manti-La Sal National Forest. The FS's legal conclusion that under federal law it could not prohibit the State of Utah from releasing mountain goats on State lands was neither "arbitrary, capricious, an abuse of discretion, [n]or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
B.
The second agency action about which GCT complains is the FS's denial of the authority to regulate the State of Utah's "occupancy" and "use" of the Manti-La Sal National Forest by requiring UDWR to obtain a special use permit before releasing mountain goats on State lands. Like the FS's denial of GCT's first demand, its denial of GCT's second demand also constitutes final agency action under the APA. The FS informed GCT that because UDWR released the mountain goats on State lands, UDWR "was not using or occupying NFS land at the time of [their] release," and therefore special use authorization from the FS was not required under FS regulations-second demand denied; end of discussion. This second denial of relief, like the first, was not "tentative or interlocutory," but was "final and binding." Bennett , 520 U.S. at 178, 117 S.Ct. 1154. Once the FS decided UDWR was not required to obtain a special use permit before releasing the mountain goats on State lands nothing else was left to decide and legal rights had been determined.
Still, GCT's second demand-as novel and far-reaching as its first-also plainly fails as a matter of law. Absent "special use authorization," Forest Service regulations generally prohibit "uses [except those otherwise enumerated] of National Forest System lands ... and resources." 36 C.F.R. § 251.50. In particular, § 251.23 prohibits "occupancy [of an RNA] under a special use permit ... unless authorized by the Chief of the FS." GCT says the mountain goats' release point on State lands is irrelevant to its argument regarding UDWS's occupancy and use of the national forest. According to GCT, the FS is authorized "to regulate and prohibit the goat introductions because the State airlifted them to the La Sal Mountains knowing the goats would use and harm the Manti-La Sal National Forest and Mt. Peale RNA." Two pertinent points demonstrate the fallacy of GCT's argument-based entirely on UDWR's scienter-that the mountain goats are, in effect, instrumentalities of the State whose presence in the national forest and RNA constitute the State's occupancy and use of the forest.
Federal ownership of lands within a State does not in itself withdraw those lands from the jurisdiction of the State. Kleppe , 426 U.S. at 544, 96 S.Ct. 2285. "Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory," subject to Congress's "power to enact legislation respecting those lands pursuant to the Property Clause." Id. at 543-44, 96 S.Ct. 2285. We have already observed that Utah, not as a private property owner but in its sovereign capacity, has historically possessed broad trustee and police powers over wildlife within its borders. See id. at 545, 96 S.Ct. 2285. Just as we did in our preceding analysis regarding the State's authority to release wildlife on its own lands, we assume neither Congress nor the FS intended its enactments to alter the State of Utah's "historic police powers to manage wildlife on federal lands within its borders " unless such intent is "clear and manifest." Wyoming v. United States , 279 F.3d 1214, 1231 (10th Cir. 2002) (emphasis added). And again, at the same time, we remain mindful that we "must give full effect to evidence that Congress considered, and sought to preserve, [Utah's] coordinate regulatory role in our federal scheme." Id. (emphasis added) (quoting California v. FERC , 495 U.S. 490, 497, 110 S.Ct. 2024, 109 L.Ed.2d 474 (1990) ); see supra at 867-68.
Where the FS has never asserted exclusive jurisdiction over the management of wildlife in the Manti-La Sal National Forest, GCT's argument that the State of Utah needs a special use permit before releasing wildlife on State lands-regardless of whether everyone knew such wildlife would end up in the national forest and RNA-runs counter to Congress's determination, and the FS's obvious recognition in this case, that the State retains a measure of sovereignty over wildlife management within the national forest. See Defenders of Wildlife v. Andrus , 627 F.2d 1238, 1248 (D.C. Cir. 1980) ("Despite its ability to take control into its own hands, Congress has traditionally allotted the authority to manage wildlife to the States."); 36 C.F.R. § 241.2 (FS regulation calling for cooperation with state officials in the management of wildlife within the national forests). That the State's wildlife management responsibilities within the national forest are not exclusive and may be overridden under appropriate circumstances does not mean those management responsibilities are meaningless absent federal law to the contrary. See Baldwin v. Fish and Game Comm'n , 436 U.S. 371, 386, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978).
The next and perhaps more salient point concerning GCT's second demand is the mountain goats are ferae naturae or wild animals. See generally Pierson v. Post , 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). As a means of reducing goat populations in other mountainous areas of the State, UDWR captured the goats and then released them onto State lands adjacent to the Manti-La Sal National Forest. Because wild animals are not the private property of those whose lands they occupy, the State of Utah, at least once it released the goats back into the wild, did not own the goats in the sense that UDWS's failure to control their expected movement constituted a sort of trespass onto national forest lands requiring special use authorization from the FS. Our en banc decision in Mountain States Legal Found. v. Hodel , 799 F.2d 1423 (10th Cir. 1986) (en banc) settles the score. In that case, we rejected a private association's argument under the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 - 37, that "wild horses are ... instrumentalities of the federal government whose presence on the association's property constitutes a permanent governmental occupation." Id. at 1428. We explained:
Neither state nor federal authority over wildlife is premised on any technical "ownership" of wildlife by the government. Although older decisions sometimes referred to government "ownership" of wildlife, that language has been deemed "a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource." Toomer v. Witsell , 334 U.S. 385, 402 [68 S.Ct. 1156, 92 L.Ed. 1460] (1948). As the Supreme Court declared, "[I]t is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government ... has title to these creatures until they are reduced to possession by skillful capture." Douglas v. Seacoast Prod., Inc. , 431 U.S. 265, 284 [97 S.Ct. 1740, 52 L.Ed.2d 304] (1977)....
Mountain States Legal Found. , 799 F.2d at 1426.
The FS's conclusion regarding GCT's second demand, namely that it could not require the State of Utah to seek special use authorization to occupy and use the Manti-La Sal National Forest and Mt. Peale RNA before releasing mountain goats on State lands adjacent to the forest, was neither arbitrary, capricious, nor an abuse of discretion, but was entirely consistent with applicable law. Under a proper assessment of this case, GCT's second demand simply proves too much. The answer to the legal question of whether federal law required the State of Utah as sovereign to obtain special use authorization to occupy and use the national forest before releasing mountain goats on State lands is a resounding no.
C.
Our conclusions thus far-that the State of Utah presently has the authority to release mountain goats on State lands adjacent to the Manti-La Sal National Forest and may do so absent special use authorization from the FS-say nothing about the FS's ability to manage the mountain goats consistent with federal policies and objectives once the goats enter the national forest and more specifically the Mt. Peale RNA. "The governmental trust responsibility for wildlife is lodged initially in the States, but only in so far as its exercise may not be incompatible with, or restrained by [federal law]." Mountain States Legal Found. , 799 F.2d at 1426 (quotations omitted). And this brings us to the third demand of GCT's first claim which posits the FS remove the goats from the national forest and RNA instanter.
Lest it become too comfortable with our analysis thus far, we remind the State of Utah, who appears herein as amicus together with seven other States in support of the FS, that the Supreme Court has "repeatedly observed that the power over the public lands ... entrusted to Congress is without limitations." Granite Rock Co. , 480 U.S. at 580, 107 S.Ct. 1419 (quotations omitted). And the power of the FS under the Organic Act to protect the habitat of national forests "does not admit of doubt." Hunt v. United States , 278 U.S. 96, 100, 49 S.Ct. 38, 73 L.Ed. 200 (1928). In Hunt , deer had "greatly injured" the lands of a national game preserve inside a national forest "by overbrowsing upon and killing valuable young trees, shrubs, bushes, and forage plants." Id. at 99, 49 S.Ct. 38. The Supreme Court upheld the power of the Secretary of Agriculture under the Organic Act to order the destruction of the deer where necessary to protect the game preserve and national forest. Several years later, in New Mexico State Game Comm'n v. Udall , 410 F.2d 1197 (10th Cir.1969), we held the supervisory powers granted the Secretary of Interior over the management of national parks authorized the Secretary, without the State's approval, to direct the killing of a number of deer within a national park for an ecological study prior to any serious deterioration of habitat. Opining that "[i]n protecting the park property it is immaterial that the United States does not have exclusive jurisdiction over the land within [the park]," we rejected the State's argument that "the deer-killing program could be undertaken only after a showing or a finding that there was existing depredation caused by the deer." Id. at 1199, 1201. Given these controlling precedents, we do not question the authority of the FS under the Organic Act and related legislation-if exercised as a valid preventative or restorative measure-to remove the mountain goats from, or reduce the size of the herd now residing in, the Manti-La Sal National Forest and Mt. Peale RNA.
As the reader understands by now, however, the preliminary inquiry is whether GCT's first claim alleges "final agency action" by asserting the FS did not meet its demand to remove the goats from the national forest and RNA. GCT's complaint states that in May 2015, the Regional Forester responded to GCT's demand to remove the goats: "The Forest Service reiterated that it was developing, with the State's assistance, a five-year monitoring plan for four rare alpine plants where monitoring results would be evaluated annually." The Forester's letter explained:
The Forest Service received your Survey Report on the impacts of mountain goats on plants with special status in November of 2014. While the report suggests negative impacts to plants from mountain goat foraging, it also indicates a need for more refined data collection. In regard to your monitoring documenting trampling evidence within the Mount Peale RNA, evidence similar to that observed by GCT was documented in the area prior to goat introductions, and your trampling evidence was not clearly demonstrated to be the result of mountain goat use. In addition, your observations were not within a fixed area plot, so the density of trampling occurrences cannot be calculated, or compared to future data to establish a trend.
After the Regional Forester rejected GCT's demand to remove the goats from the national forest immediately, GCT unsuccessfully petitioned the Chief of the FS to order the goats removed. GCT's complaint represents the Chief denied its third demand and informed GCT the FS "would gather and evaluate the goats' impact and work with the State to determine whether additional actions were warranted." Referring to the Regional Forester's prior letter to GCT, the Chief reiterated, "there is no compelling evidence to show that the mountain goats introduced by UDWR are causing immediate damage to NFS land or resources."
We do not deny that reasonable minds presently may differ about the impact the mountain goats are having on the Mt. Peale RNA. In fact, some disagreement appears within the FS itself. As we have observed on multiple occasions, "habitat management is a delicate venture." Wyoming , 279 F.3d at 1239 (brackets omitted) (quoting Sierra Club-Black Hills Grp. v. United States Forest Serv. , 259 F.3d 1281, 1286 (10th Cir. 2001) ). But the present disagreement over whether the FS must send the goats packing far away from the Manti-La Sal National Forest, no matter how pressing GCT believes the situation to be, does not alone imbue with finality the FS's decision to study the matter further, such that relief upon proper proof is currently available to GCT under APA § 706(2). The FS has acknowledged the situation and informed GCT that it needs a reasonable period of time to decide how to proceed. See Oil, Chemical and Atomic Workers Int'l Union v. Zegeer , 768 F.2d 1480, 1485 (D.C. Cir. 1985) (concluding the APA indicates a congressional view that federal agencies should act within reasonable time frames). This is the bureaucratic process-like it or not. To suggest the refusal of the FS to remove the goats from the national forest and RNA this very moment is a sort of agency action "mark[ing] the 'consummation' of the agency's decisionmaking process," rather than a "tentative or interlocutory" action, is simply inconsistent with the complaint's factual allegations and the underlying documents on which those allegations rely. Bennett , 520 U.S. at 178, 117 S.Ct. 1154. The district court was correct in holding it lacked subject matter jurisdiction to review the FS's denial of GCT's third demand for want of final agency action.
III.
While the FS's "wait and see" response to GCT's demand that it remove the mountain goats from the Manti-La Sal National Forests does not constitute "final agency action" under the APA, GCT's second claim is that such response does constitute a "failure to act", redressable under APA § 706(1) as agency action "unlawfully withheld." According to GCT, 36 C.F.R. § 251.23 contains a categorical imperative the FS refuses to heed: "Research Natural Areas will be retained in a virgin or unmodified condition except where measures are required to maintain a plant community which the area is intended to represent."
APA § 704's requirement of final agency action does not square well with a definition of "agency action" that includes a "failure to act." 5 U.S.C. § 551(13). And obviously, the test the Supreme Court has set forth to determine whether agency action is final does not readily accommodate an agency's failure to act. Bennett , 520 U.S. at 177-78, 117 S.Ct. 1154. "If an agency has failed to act with respect to a matter that a complaining party seeks to compel under § 706(1), it is hard to comprehend the contested inaction as 'final action' as that term is defined in Bennett v. Spear ." Western Org. of Resource Councils v. Zinke , 892 F.3d 1234, 1247 (D.C. Cir. 2018) (Edwards, J., concurring). Indeed, we have noted the problem and observed that some courts have "implicitly recognized that unlawfully withheld actions are considered final under § 704." Southern Utah Wilderness Alliance v. Norton , 301 F.3d 1217, 1229 n.9 (10th Cir. 2002), rev'd 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (hereinafter SUWA ).
Fortunately, in SUWA the Supreme Court considered "what limits the APA places upon judicial review of agency inaction." SUWA , 542 U.S. at 61, 124 S.Ct. 2373. To "protect agencies from undue judicial interference with their lawful discretion," among other reasons, the Court held "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." Id . at 64, 66, 124 S.Ct. 2373 ; see Wyoming v. United States Dept. of Interior , 839 F.3d 938, 942 (10th Cir. 2016). The Supreme Court explained APA § 706(1) carries forward courts' traditional practice of reviewing a governmental entity's failure to act by way of writ of mandamus. "The mandamus remedy was normally limited to enforcement of 'a specific, unequivocal command,' the ordering of a 'precise act about which an official had no discretion whatever.' " SUWA , 542 U.S. at 63, 124 S.Ct. 2373 (brackets, citations and ellipses omitted). Consistent with such practice, the Court reasoned " § 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." Id. at 64, 124 S.Ct. 2373 (quotations omitted).
The language of the FS regulation at issue in this case, § 251.23, certainly is mandatory as to the ultimate objective. The regulation plainly states RNA's "will be retained in a virgin or unmodified condition[.]" The regulation, however, leaves entirely to the FS the decision of how best to achieve this objective. Indeed, GCT's complaint recites provisions of the Forest Service Manual (FSM) which suggest as much. The complaint states FSM 4063.30(4) advises the FS to " '[r ]emove exotic plants or animals [from an RNA] to the extent practicable. ' " (emphasis added). Meanwhile, FSM 4063.32 advises: "If exotic plants or animals have been introduced into an established [RNA], the Station Director and the Regional Forester exercise control measures that are in keeping with established management principles and standards to eradicate them, when practical ." (emphasis added).
So assuming the mountain goats presence within the Manti-La Sal National Forest and Mt. Peale RNA is inconsistent with § 251.23 's objective, how shall the FS proceed? FSM 4062.30(4) tells us removing the mountain goats from the national forest and RNA is one option. FSM 4063.32 tells us eradicating or destroying the goats is another option. Or perhaps a reduction in the size of the herd would suffice. Maybe a fence or other barrier to surround the goats, the habitat, or both would be feasible. Maybe a spray or other similar mean exists that would not harm the foliage within the RNA but make it less desirable to a mountain goat's palate. Section 251.23 does not foreclose any of these options. In other words, the FS regulation provides us with no discernible rules under which we may direct the FS to act in exercising its enforcement powers. Section 251.23 simply does not call for a discrete action that will assure us the RNA "will be retained in a virgin or unmodified condition[.]" See Black's Law Dictionary 565 (10th ed. 2014) (defining "discrete" as "[i]individual; separate; distinct"). We are not experts in the field of habitat management and preservation and surely have no business attempting to instruct the FS how best to achieve § 251.23 's objective. See SUWA , 542 U.S. at 66-67, 124 S.Ct. 2373. The crux of the matter is GCT's complaint does not allege the FS has failed to take a discrete agency action that FS regulations require it take. See SUWA , 542 U.S. at 66, 124 S.Ct. 2373. Therefore GCT's second claim based on the FS's failure to act is not cognizable.
* * *
As modified, the judgment of the district court dismissing GCT's complaint is AFFIRMED.
EID, J., concurring in part and concurring in the judgment in part.
I agree with the majority that the U.S. Forest Service's (USFS) refusal to remove the mountain goats does not constitute final agency action because the USFS's letter deferred agency action pending future research and data collection regarding the goats' impact. Maj. Op. at 871-74. I would conclude, however, that the USFS's "wait and see" approach also applies to the request to subject the goats to the special use permit process and to prevent future releases by the state. Contra id. at 866-72. Accordingly, I would affirm the district court's decision that final agency action is lacking in its entirety in this case, and thus would not reach the merits.
Assessing whether there is final agency action in this case rests upon how we interpret the August 7, 2015 letter sent by the Chief of the USFS, Thomas L. Tidwell, to the plaintiffs. In the letter, Tidwell states that "the Forest Service is working cooperatively with [the state] to evaluate any resource impacts and to determine an appropriate action, including consideration of removal of the mountain goats from the RNA or reduction in herd numbers." App 78 (emphasis added). In other words, the USFS is performing further evaluation of goat impact before it takes "an appropriate action." I read "appropriate action" to leave all three possible actions-removal, regulation, and prevention-on the table. In my view, simply because the sentence specifically states that an "appropriate action" might include the possibility of removal does not exclude regulation and prevention as "appropriate action[s]."
This interpretation is reinforced by the May 12, 2015 letter from Nora B. Rasure, Regional Forester, to the plaintiffs, from which they appealed to Tidwell. In that letter, Rasure expressly lays out the plaintiffs' three requests-namely, "your letter asserts that the [USFS] has authority [1] to remove the mountain goats that have been transplanted, [2] prevent transplant of more mountain goats, and [3] require [the state] to obtain 'special use authorizations' in order to transplant any more mountain goats, or maintain existing goats, that may be located on [Forest Service land]." App 75. Rasure ends the letter, in a statement echoed by Tidwell, with the following: "Based on the results [of the further research and data collection], the Forest Service will work cooperatively with [the state] to determine an appropriate course of action concerning management of the mountain goats, including whether or not removal or reduction in population objectives is warranted." App 76 (emphasis added). Again, based on the language that defers a decision on an appropriate action, the USFS is adopting a "wait and see" approach as to all options-including removal, regulation, and prevention-regarding the mountain goats.
The district court concluded that the Tidwell letter indicated "that before the agency could initiate any action," the USFS had to gather additional data "sufficient to demonstrate agency action was warranted." Dist. Ct. Op. at 6. I agree, and would find that there is no final agency action for us to review in this case. See McKeen v. United States Forest Service , 615 F.3d 1244, 1253 (10th Cir. 2010) ("Pursuant to the APA, we have jurisdiction to review only 'final agency actions' ").
In concluding that there is final action regarding permitting, the majority focuses on the second paragraph of the Tidwell letter, which states that:
In our response dated May 12, 2015, [Rasure] stated the Forest Service did not allow or in any way sanction the introduction of mountain goats by the [state]. In fact, the [state] did not release the mountain goats on [USFS] land, and therefore was not using or occupying [USFS] land at the time for the mountain goat release. The mountain goats have strayed onto adjacent [Forest Service] land ... after they were released on non-Federal land by [the state].
App 77. The majority takes from this that the plaintiffs' "demand [to use the permitting process was] denied; end of discussion." Maj. Op. at 869. But I would not take this as a rejection of using the permitting process, as the majority does. The above-quoted statement follows Tidwell's description of the plaintiffs' concerns, namely, that "the [USFS] is violating Federal law by 'allowing goats in the National Forest and Mount Peale RNA.' " App 77 (emphasis added). Tidwell's response was to deny that the USFS was "allowing goats" on Forest Service land. Granted, Tidwell did point out that goats were not released onto Forest Service land, but instead "strayed" there after their release. But again, this statement is in direct response to the plaintiffs' allegation that the USFS "allowed" goats on Forest Service land. Indeed, the next paragraph of the letter goes on at length to detail the various efforts the USFS made to object to the introduction of mountain goats by the state. Id .
More importantly, nowhere does the Tidwell letter refer to the permitting process.
This silence is perhaps explained by the fact that the plaintiffs' June 13, 2015 letter to Tidwell does not ask for action on permitting. Instead, it requests that the USFS "(1) immediately remove ... all mountain goats from the La Sal Mountains; and (2) prohibit the [state] from introducing additional goats to the La Sal Mountains." App 325. It then requests a "formal written response ... indicating that the requested actions will occur" or be denied. Id . Before this court, the USFS does not argue that the permitting claim is unexhausted or waived, but instead suggests it is subsumed in the request for removal-a request on which there is no final action. See USFS Brief at 19 (arguing that the USFS has "deferred ruling on whether the remove or destroy mountain goats or how to regulate them"). To me, this reading best comports with the Tidwell letter. I therefore would hold that the USFS has adopted a "wait and see" approach as to the goats currently on Forest Service land, studying options for action that might include removal or regulation. Permitting is simply one regulatory alternative. See Maj. Op. at 874-75 (listing others).
Whether final agency action exists regarding future releases is a closer call, but I would find it is similarly lacking. The majority finds final agency action in the last paragraph of the Tidwell letter, which states that "your request that the Forest Service prevent [the state] from transplanting goats anywhere in the La Sal Mountains is beyond the control of the Forest Service." App 78. From this statement, the majority concludes that the plaintiffs' "demand [to prevent future releases was] denied; end of discussion." Maj. Op. at 866. But the majority does not consider the sentences that follow, which state that the USFS "has not authorized, and has no plans to authorize, the release of mountain goats on [Forest Service] land in the La Sal Mountains. The [state] has not informed the [USFS] of any additional planned releases." App 78. When read in context, the Tidwell letter suggests that while the USFS believes it has no authority to broadly forbid the state from taking action "anywhere" in the La Sal Mountains, it is keeping its options open for the future. Contrary to the majority's interpretation, then, the letter does not suggest an end of discussion, but rather indicates that such action is not necessary at this time because USFS is not aware of any planned releases.
At the very least, the USFS's response-that the agency has no authority to prevent goat transplantation "anywhere" in the La Sal Mountains, but there is no immediate need for such prevention given that the state has not indicated it will be introducing goats in the near future-is unclear. The plaintiffs bear the burden of showing finality. Col. Farm Bur. Fed'n v. U.S. Forest Service , 220 F.3d 1171, 1173 (10th Cir. 2000) ("Plaintiffs have the burden of identifying specific federal conduct and explaining how it is 'final agency action' within the meaning of [the APA]."). Given the lack of clarity regarding the USFS's response, I would find that the plaintiffs have not met their burden to show final agency action regarding future releases.
In sum, the USFS informed the plaintiffs that it would have to further evaluate the impact that the goats were having before deciding to take "an appropriate action," whatever that may be. As the district court put it, the USFS "has [not] decided that it will never act on Plaintiffs' requests. The State acted and now the [USFS] is in the reactionary position attempting to determine what agency action, if any, is warranted." Dist. Ct. Op. at 10. Under the circumstances, the USFS's decision to further study the impact that the mountain goats are having on the RNA before taking any action is "tentative [and] interlocutory [in] nature," and therefore not a final agency decision. U.S. Army Corps of Eng'rs v. Hawkes Co., --- U.S. ----, 136 S.Ct. 1807, 1813, 195 L.Ed.2d 77 (2016). Accordingly, I would affirm the dismissal of the case in its entirety, and not reach the merits of the plaintiffs' claims.
The boundary of the Mt. Peale RNA runs roughly along the treeline surrounding these three major peaks but in some areas the boundary follows identifiable topographic features such as cliff bands and ridge spurs. We are told the Manti-La Sal National Forest is home to ten plant species found nowhere else in Utah and one found nowhere else in the world. The FS has listed four of these plant species, all found within the Mt. Peale RNA, as sensitive. According to the Forest Service Manual, "sensitive species" are those for which "population viability is a concern."
GCT's mission is to protect and restore the national forests and canyon country of the Colorado Plateau. GCT's Co-Plaintiff, Utah Native Plant Society, has the arguably narrower but overlapping mission of preserving native plant ecosystems within Utah and the Intermountain West. Hereinafter we refer to the two Plaintiffs collectively as GCT.
Congress unquestionably has the authority to regulate conduct on private lands that is injurious to the public domain. See United States v. Alford , 274 U.S. 264, 267, 47 S.Ct. 597, 71 L.Ed. 1040 (1927) ("Congress may prohibit the doing of acts upon privately owned lands that imperil the publicly owned forests."); Camfield v. United States , 167 U.S. 518, 528, 17 S.Ct. 864, 42 L.Ed. 260 (1897) (Congress has the "constitutional right of protecting the public lands from nuisances erected upon adjoining [private] property.").
Because most federal public land legislation calls for "cooperative federalism," express preemption of state laws and regulations is rare in public land law. But see, e.g. , 16 U.S.C. § 1535(f) (stating state endangered species laws and regulations cannot be less restrictive than federal laws and regulations). Absent express preemption, state laws and regulations still may be preempted in either of two ways:
If Congress evidences an intent to occupy a given field [i.e. , field preemption], any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law [i.e. , conflict preemption], that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objective of Congress.
Granite Rock Co. , 480 U.S. at 581, 107 S.Ct. 1419 (citations omitted).
To the degree GCT relies on the Forest Service Manual, the Manti-La-Sal National Forest Plan, and the Mt. Peale RNA Establishment Record to support its various demands-and it does so extensively throughout its complaint-we note such documents do not carry the force of law. See Christensen v. Harris Cty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (distinguishing agency adjudications and notice-and-comment rulemaking, both of which have the force of law, from opinion letters, policy statements, agency manuals, enforcement guidelines, and the like, all of which lack the force of law).
GCT's reliance on Light v. United States , 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911) to support its second demand is misplaced. In Light , a private property owner permitted his domestic cattle, a herd in the range of 500, to move from his property to a Forest Reserve and graze thereon in violation of federal regulations establishing grazing districts on which only a limited number of cattle were allowed. The Supreme Court upheld an injunction prohibiting the landowner "from pasturing his cattle on the ... Forest Reserve, because he had refused to comply with the regulations adopted by the Secretary of Agriculture, under the authority conferred by [the Organic Act], to make rules and regulations as to the use, occupancy, and preservation of forests." Id. at 534, 31 S.Ct. 485. One of among other reasons this case is unlike Light is because once the State released the mountain goats onto State lands and into the wild, any arguable ownership interest the State temporarily had in the goats upon their capture comparable to that of a chattel owner was no more.
The Regional Forester outlined the FS's intentions in her May 2015 letter:
The [FS] is continuing to work with UDWR to evaluate [habitat] impacts. We have developed a rigorous five year monitoring plan to evaluate population trends of four rare alpine plant species and track shifts in species composition and ground cover in the alpine zone, including the Mount Peale [RNA]. The monitoring protocol includes recording direct impacts by grazing animals and uses motion sensing camera[s] to determine the animal species involved. Monitoring data will be analyzed and evaluated annually relative to Forest Plan direction for rare plant species and Federal standards for protection of [RNAs]. Based on the results of each annual evaluation, the [FS] will work cooperatively with UDWR to determine an appropriate course of action concerning management of the mountain goats, including whether or not removal or reduction in population objectives is warranted.
"RNA" refers to the Mount Peale Research Natural Area. Forest Service regulations provide that an RNA "will be retained in a virgin or unmodified condition except where measures are required to maintain a plant community which the area is intended to represent." 36 C.F.R. § 251.23
The parties consented to having a magistrate judge adjudicate this case pursuant to 28 U.S.C. § 636(c).
The paragraph states:
As explained in [Rasure's] letter, before the release of the mountain goats, the Forest Service coordinated with [the state], and objected to the transplant. In July 2013, the Forest Supervisor Expressed concerns about the proposed transplant. In a letter dated August 21, 2013, the Forest Service urged the [state] Wildlife Division Board to delay its decision on the mountain goat transplant to provide additional time to coordinate on the potential impacts the mountain goats may have on the RNA, and indicated that the Forest Service did not support the transplant at that time because of the uncertainty about the potential impacts to the RNA and sensitive alpine plant species. When the Wildlife Division Board decided to move forward with the transplant, the Forest Service contacted the [state] with a letter dated August 27, 2013, to request a delay in the transplant to allow data gathering to assess the impacts of any transplant. [The state's] August 30, 2013 response stated that it intended to move forward with the transplant of a small number of mountain goats, but would work cooperatively with the Forest Service to assess impacts, and develop a strategy to prevent overutilization of the habitat.
App 77.
The Rasure letter does refer to permitting process, as well as to the fact that the mountain goats were released on state land, but it does so "[a]s noted in your letter," meaning Rasure is repeating what the plaintiffs stated in their December 24, 2014 letter to her regarding the location of the goats at the time of release. Rasure concludes the paragraph by stating that "We do acknowledge that is was reasonably foreseeable that the goats might wander onto [USFS] land from where they were released." App 75. Again, however, this a description of the challenges of releasing goats near Forest Service land, not a denial of a particular remedy to address that challenge.
I agree with the majority with regard to the second issue presented in this case, namely, that the "wait and see" approach does not constitute an actionable "failure to act." Maj. Op. at 873-75.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1604938271604938, Costs: 0.01234567901234568
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HOLMES, Circuit Judge.
The U.S. Fish and Wildlife Service (“the Service”) conveyed to a consortium of local governments a strip of land (“the corridor”) for the construction of a parkway. Its decision was challenged on various environmental grounds by several parties, including WildEarth Guardians, Rocky Mountain Wild, the Town of Superior, and the City of Golden (collectively, “Appellants”). The district court affirmed the Service’s actions, and Appellants brought their claims here. They assert that the Service violated the Rocky Flats National Wildlife Refuge Act (“the Rocky Flats Act” or “RFA”), the National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“the ESA”). With jurisdiction granted by 28 U.S.C. § 1291, we affirm the judgment of the district court.
I
Rocky Flats (at times, “the Flats”) is comprised of roughly 6,200 acres in Colorado. For a number of years the Department of Energy (“Energy”) and its predecessor agency used the central part of the Flats to manufacture components involved in nuclear weapons, while the remainder of the Flats sat idle. As a result of the weapons work, some of the land became polluted by various hazardous materials, including plutonium. In 1989, a large-scale cleanup operation began. Recognizing the progress that had been made in the cleanup effort, Congress passed the Rocky Flats Act in 2001. National Defense Authorization Act for Fiscal Year 2002, Pub.L. No. 107-107, 115 Stat. 1012, §§ 3171-82 (2001), 16 U.S.C. § 668dd note. Under the Rocky Flats Act, Energy was to manage the central area of the Flats (the locus of the earlier nuclear activity) and the balance of the Flats was to become a National Wildlife Refuge run by the Service, an arm of the Department of the Interior. See generally RFA §§ 3175-77.
The Rocky Flats Act further provided that Energy would transfer to the Service administrative jurisdiction of the land marked for refuge status as soon as the EPA determined the cleanup was complete. See id. § 3175(a). Importantly, the Rocky Flats Act set aside a piece of land along the Flats’s border to be made available for transportation improvements. See id. § 3174(e)(1)(A). To facilitate the transportation improvements, the Rocky Flats Act provided that, “[o]n submission of an application meeting” certain criteria not relevant to this appeal, “[Energy], in consultation with the [Service], shall make available land along the eastern boundary of Rocky Flats for the sole purpose of transportation improvements along Indiana Street.” Id. The transfer was to take place within a month of the EPA certifying the cleanup as complete. Id. § 3175(a)(2), (3).
Pursuant to the Rocky Flats Act, Energy transferred the Flats to the Service when the EPA issued its certification in 2007. Not long after, Energy and the Service mutually decided that the applications for the transportation improvements were the Service’s to consider, in consultation with Energy. And so it was that the Service ended up giving the green light to the exchange underlying this appeal, with Energy’s ancillary approval. In that exchange, the Service engineered a complicated deal amongst a number of different parties in which it added some land to the refuge but transferred a roughly 300-foot-wide, 100-acre strip of land to a consortium of local governments that planned to construct a parkway as part of a mostly-completed beltway encircling the Denver metropolitan area.
The Preble’s Meadow Jumping Mouse (sometimes, “the mouse”) is a threatened species with critical habitat in the corridor. Prior to its final approval of the land exchange, and pursuant to the ESA, the Service issued two biological opinions on the potential consequences of the exchange to the mouse. The product of those opinions was a determination that the exchange would not jeopardize the continued existence of the mouse or adversely modify its critical habitat.
In addition to the ESA, NEPA imposed on the Service various obligations regarding the exchange. Most relevant here, NEPA directs federal agencies to prepare an environmental impact statement (“EIS”) whenever they undertake “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). To determine whether the statutory conditions for preparation of an EIS are present, an agency generates an environmental assessment (“EA”). See 40 C.F.R. § 1501.4(b). If the EA leads to the conclusion that no EIS is necessary, the agency creates a “finding of no significant impact” (“FONSI”). See id. § 1501.4(e). The Service in this case issued an EA and a FONSI rather than an EIS. After the EA was circulated for public comment, the exchange went ahead as planned.
Displeased by the land exchange, Appellants sued in federal district court, challenging the Service’s actions on three grounds: (1) they violated the Rocky Flats Act; (2) they violated NEPA; and (3) they violated the ESA. The district court rejected all three claims and upheld the exchange. Appellants timely appealed, reviving the same three grounds.
II
We consider the appeal under the analytical rubric established by the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(2)(C) (providing that the courts will set aside agency action taken “in excess of statutory jurisdiction”); Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1008 (10th Cir.2012) (applying the APA to a NEPA claim); Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310, 1320 (10th Cir.2007) (applying the APA to an ESA claim). Under the APA, we owe the district court’s determination no deference. See Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1226-27 (10th Cir.2011). However, we may only set aside the Service’s actions if, as relevant to the arguments here, it acted arbitrarily or capriciously, not in accordance with the law, beyond its jurisdictional authority, or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
That test is met when an agency fails to consider “the relevant data” or fails to put forth “a rational connection between that data and its decision.” WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178, 1182-83 (10th Cir.2013). It is also met when the agency “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. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “Our deference to the agency is more substantial when the challenged decision involves technical or scientific matters within the agency’s area of expertise.” Nat'l Park Serv., 703 F.3d at 1183.
Ill
Appellants challenge the Service’s actions on three statutory bases: specifically, the Rocky Flats Act, NEPA, and the ESA. Because they fail to show violations of any of these Acts, we affirm.
A
Appellants first contend that the Service lacked the authority to convey the corridor under the Rocky Flats Act. Constrained by our deferential standard of review, we uphold the Service’s authority.
1
We must first ascertain the appropriate framework for assessing the Service’s power. The APA directs courts to set aside agency actions that are taken “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). Because of this provision, “an essential function of our review under the APA is determining whether an agency acted within the scope of its authority.” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 801 (10th Cir.2010). If it is otherwise appropriate, we apply the test established by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), when asking whether an agency has acted within its authority. See Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1293-94 (10th Cir.1999); see also Iowa League of Cities v. EPA, 711 F.3d 844, 876 (8th Cir.2013) (“Appellate review under APA section 706(2)(C) proceeds under the familiar Chevron framework.”).
As a preliminary matter, Appellants insist that it is not otherwise appropriate to apply Chevron because the Rocky Flats Act is not “administered” by the Service. See Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1147 (10th Cir.2013) (“When reviewing an agency’s construction of a statute it administers, we apply the well-known, two-step analysis articulated in Chevron.... ” (emphasis added)). Its argument to that effect is limited to the contention that Congress in the Rocky Flats Act did not “delegate administration” to the Service, but rather “regulate[dj” the Service’s “actions and obligations concerning Rocky Flats,” and those of Energy. Aplts.’ Opening Br. at 19.
The cases that Appellants cite do not draw any distinction between statutes that “regulate” an agency and those that are “administered” by one. Indeed, it would be odd if the law did draw such a distinction, as any statute that an agency administers necessarily regulates that agency to some extent, at least in the sense that it imposes various obligations on the agency and instructs it to take various actions. In the Rocky Flats Act, Congress imposed a number of obligations on both Energy and the Service, and provided them a wide latitude in how they fulfilled many of those obligations. That is sufficient to defeat Appellants’ false dichotomy and to apply the Chevron framework.
2
The Chevron test requires us to ask first “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If it has, “that is the end of the matter” and we do as instructed by Congress. Id. If, on the other hand, “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 843. Our inquiry must begin, then, with this question: Did Congress directly address the matter of whether the Service could convey the corridor? Focusing on the language of the statute, as we must, see Bd. of Cnty. Comm’rs v. EEOC, 405 F.3d 840, 844 (10th Cir.2005), we conclude that it did not. One provision of the Rocky Flats Act states that “[o]n submission of an application meeting” certain criteria, “[Energy], in consultation with the [Service], shall make available land along the eastern boundary of Rocky Flats for the sole purpose of transportation improvements along Indiana Street.” RFA § 3174(e)(1)(A). Another section of the Act, which falls under the heading “transfer of management responsibilities and jurisdiction over Rocky Flats,” states that, “[s]ubject to the other provisions of this section, [Energy] shall transfer administrative jurisdiction over the property that is to comprise the refuge to the [Service].” Id. § 3175(a)(1).
Collectively, these provisions leave the crucial question here unanswered. We know that Energy, at some point, has the authority to convey the land solely for transportation purposes. And we know that, at a certain point, Energy will transfer jurisdiction over the whole refuge to the Service. What we do not know from the statute’s plain language is whether the authority — indeed, the obligation — to make the land available for transportation purposes switches to the Service upon Energy’s transfer to the Service of jurisdiction over the refuge, or whether, as Appellants maintain, that authority is extinguished upon this transfer by Energy because Congress intended to vest only Energy with the authority to make the land available. Regarding this question, the Rocky Flats Act is silent; therefore, we turn to step two of Chevron.
3
Thus the question becomes “whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An agency interpretation is permissible where it “is not ‘arbitrary, capricious, or manifestly contrary to the statute.’” Berneike, 708 F.3d at 1148 (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778).
a
Most saliently, preventing Appellants from showing that the Service’s answer is not permissible are two of the oldest and most established canons of statutory construction: (1) effectuating the intent of Congress; and (2) taking the statutory language in context. See United States v. Handley, 678 F.3d 1185, 1189 (10th Cir.2012) (“It is our primary task in interpreting statutes to determine [Congressional intent..... If the statute’s plain language is ambiguous as to Congressional intent, we look to the legislative history and the underlying public policy of the statute.... When considering the language employed by Congress, we read the words of the statute in their context and with a view to their place in the overall statutory scheme.... ” (alteration in original) (internal quotation marks omitted)); see also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 56 (2012) (“[I]t can be said more generally that the resolution of an ambiguity ... that achieves a statute’s purpose should be favored over a resolution that frustrates its purpose.”); id. at 167 (“Context is the primary determinant of meaning.”). These guidelines strongly militate in favor of the Service’s authority to convey the land.
i
First, Congress clearly passed the Rocky Flats Act with the intent, in part, to relieve the burden on transportation in the area. Indeed, there is no other conceivable reason why it included the provision, and Appellants do not propose one. Keeping that congressional interest in mind, Appellants’ construction of the Rocky Flats Act clearly thwarts it. As Appellants see it, the Rocky Flats Act gives Energy the authority to convey the corridor for transportation improvements until the area is fully clean and a refuge (that is, until the area is in such a condition that administrative jurisdiction over it may be transferred to the Service), at which point no one has that conveyance authority and the corridor can never be subject to transportation improvements. But Appellants offer no reason why Congress would limit the possibility of transportation improvements to such a narrow window (before the cleanup is completed) and then close it forever thereafter. Such a system would certainly not further the congressional purpose of allowing for long-term improvements to local traffic patterns.
ii
In a related fashion, a glance at the context of the Rocky Flats Act as a whole illuminates congressional intent with re.spect to the more specific issue ' of the administrative duties and rights imposed on Energy and the Service respectively; the effect of this glance is to undermine Appellants’ reading of the statute. It reveals that in the Rocky Flats Act, Congress intended for Energy to handle energy-related matters and the Service to handle nature-related matters — a reasonable and logical division of responsibilities.
Section 3174 of the Rocky Flats Act contains the provision regarding the conveyance of the corridor. The very next section is entitled “transfer of management responsibilities and jurisdiction over Rocky Flats,” and it begins by stating that “[Energy] shall transfer administrative jurisdiction over the property that is to comprise the refuge to the [Service].” RFA § 3175(a)(1). Energy only had the land because of the nuclear facilities it once contained, the remnants of which required removal; this removal work was a core element of Energy’s operations. See United States v. Manning, 527 F.3d 828, 839 (9th Cir.2008) (discussing Energy’s role in “the nationwide management of nuclear waste”). Under the legislative scheme, it only stands to reason that the Service would take control of the land and its disposition when it becomes a refuge, because managing refuges is firmly within the Service’s bailiwick. See 16 U.S.C. § 668dd(a)(1) (directing the Service to administer federal refuges). The scheme is further elucidated by the fact that the Rocky Flats Act directs Energy to retain jurisdiction only over facilities related to the continuing cleanup efforts. See RFA § 3175(d). Put simply, the Rocky Flats Act acknowledges that Energy should take care of energy-related matters and the Service should take care of nature-related matters.
Appellants read an exception into the Rocky Flats Act that cannot be squared with this common-sense administrative allotment. For under their reading, Energy — and Energy alone — could convey the corridor for transportation improvements. Yet, Appellants fail to explain why Congress would have wanted long-lasting improvements only if a deal to effectuate these improvements could be reached before the administrative hand-off occurred between Energy and the Service. Moreover, managing such a project (and ensuring that it does not unduly impair the refuge) clearly falls squarely within the Service’s administrative responsibilities, as the Service is in charge of refuge-related matters.
b
In addition to the Rocky Flats Act, the Service argues that it had the complimentary authority to convey the land under the National Wildlife Refuge System Act (“the Refuge Act”) and the Fish and Wildlife Act. Appellants’ only response is that the Service never invoked those Acts during the administrative process and thus cannot avail themselves of them now. Although “[i]t is well-established that an agency’s action must be upheld, if it all, on the basis articulated by the agency itself,” State Farm, 463 U.S. at 50, 103 S.Ct. 2856, Appellants are simply wrong that the Service cited the Rocky Flats Act as its only authority. See Aplts.’ App. at 386 (Agreement for the Exch. of Lands) (relying on the Refuge Act); id. at 412 (Envtl. AsT sessment, prepared Dee. 8, 2011) (relying on the Fish and Wildlife Act and the Refuge Act); id. at 514 (Response 105.17) (relying on the Fish and Wildlife Act). Because Appellants’ only argument against the Service’s authority under the Refuge Act and the Fish and Wildlife Act is predicated on a misunderstanding of the record, we reject it for that reason alone. See United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir.2011) (noting that we will not “make arguments for” a litigant).
Even were we to reach the substance of Appellants’ contention, we would conclude that these additional authorities strengthen the Service’s position. A provision of the Refuge Act authorizes the Service to “[a]equire lands or interests therein by exchange ... for acquired lands or public lands, or for interests in acquired or public lands.” 16 U.S.C. § 668dd(b)(3). A similar provision of the Fish and Wildlife Act provides that the Service shall “take such steps as may be required for the development, advancement, management, conservation, and protection of fish and wildlife resources including ... acquisition by purchase or exchange of land and water, or interests therein.” Id. § 742f(a)(4). Given the ambiguity of the Rocky Flats Act’s plain language, the fact that the Service enjoys the power to enter into land exchanges like this one as a general matter bolsters the reasonableness of the Service’s view that it had the power to preside over the exchange here. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988) (“We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.”).
4
On a final point, we directed the parties to submit supplemental briefs on the potential bearing that RFA § 3175(d)(1)(B) has on the Service’s authority to convey the corridor. Having considered the additional arguments on that question, we determine that the provision does not affect the analysis set forth above.
According to this provision,
“[t]he transfer required by subsection (a) shall not include, and [Energy] shall retain jurisdiction, authority, and control over, the following real property and facilities at Rocky Flats: ... [a]ny real property or facility to be used for any other purpose relating to a response action or any other action that is required to be carried out by [Energy] at Rocky Flats.”
RFA § 3175(d)(1), (d)(1)(B) (emphasis added). Subsection (a), in turn, provides that “[s]ubject to the other provisions of this section, [Energy] shall transfer administrative jurisdiction over the property that is to comprise the refuge to the [Service].” Id. § 3175(a)(1).
Appellants submit that this catch-all clause — “or any other action” — refers to the corridor, as Energy was tasked with making it available for transportation improvements. See RFA § 3174(e)(1)(A). Thus, as Appellants see it, § 3175(d)(1)(B) indicates that Energy was never supposed to hand over the corridor to the Service. See Aplts.’ Supp. Br. at 6 (“Congress anticipated that [Energy] would not transfer the Corridor to [the Service] for inclusion in the Refuge.”). This, reason Appellants, “explains why Congress, in Section 3174(e)(1)(A), authorized only [Energy] to ‘make available’ the Corridor, and not [the Service].” Id.
Notably, Appellants take the position that Energy “did not, in fact, retain the Corridor” when it transferred to the Service administrative jurisdiction over the land allocated for the refuge. Id. And, because Energy supposedly “missed its opportunity to retain this property” by virtue of the transfer, it forfeited the authority to convey the corridor for transportation purposes that it otherwise would have had under the congressional grant of § 3175(d)(1)(B). Id.; see id. (“Had [Energy] retained jurisdiction in accordance with Section 3175(d)(1)(B), [Energy] could convey the Corridor for transportation improvements in accordance with Section 3174(e)(1)(A).” (emphasis added)). Nevertheless, according to Appellants, this transfer to the Service does not alter the fact that Congress never intended for the Service to have jurisdiction over the corridor. Id. at 7 (“The fact that [Energy] did not retain jurisdiction over the Corridor, or convey it before the 2007 transfer, does not change the fact that [the Service] never had authority under the Rocky Flats Act to engage in the 2011 Land Exchange.”). We cannot accept Appellants’ argument.
We begin by explaining Appellants’ reasoning in greater detail. They contend that “other than the various response actions and the duty to make available the Corridor, there are no required actions for [Energy] at Rocky Flats.” Aplts.’ Supp. Br. at 5. As a result, the “any other action” language “must involve [Energy’s] requirement to make available the Corridor, or else the” phrase has no significance and “that would violate the statutory construction principle to give meaning to all provisions.” Id. Appellants’ argument proves too much. As they acknowledge, “any other action” is a “catch-all clause.” Id. at 4. We find it difficult to believe that Congress would use a highly generalized “catch-all clause” to express its intent regarding a single, extremely specific issue — viz., making the corridor available for transportation improvements. Indeed, in the Rocky Flats Act itself Congress issued detailed instructions regarding the transportation improvements. See RFA § 3174(e). Consequently, it would ' be rather surprising if Congress decided to set out its intent regarding the corridor at length in one section and then in the next decided to use an abstract, amorphous phrase to refer solely to the corridor. In other words, Congress knew how to write “transportation improvements” in § 3174(e). Presumably, it knew how to write it as well in § 3175(d)(1)(B), if indeed that is what it meant there too. But it did not do so.
Contrary to Appellants’ view that making the corridor available was the only action left for Energy that could be captured by the catch-all clause, arguably another way that one might view the clause as related to the corridor is if it refers to a larger category that includes actions concerning the corridor. Recall that the “or any other action” clause is framed to cover Energy’s undertakings at Rocky Flats aside from, those related to “response- actions.” RFA § 3175(d)(1)(B). The Rocky Flats Act defines “response action” with reference to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, and with reference to the Colorado Hazardous Waste Act. See RFA § 3173(6). In its supplemental brief, the Service describes other responsibilities that Energy “has had that are not fairly characterized as ‘response actions,’ ” such as the construction of dams and possibly actions ancillary to its environmental clean-up duties. Aplees.’ Supp. Br. at 4 & Ex. 1. For our purposes, the pivotal point is not how accurate the Service’s listing of responsibilities is; rather, it is whether it is reasonable to infer that Congress could have been concerned about the possibility that Energy might have tasks to perform at Rocky Flats that were not necessarily enveloped by the term “response action,” as the RFA has defined it. And we think that inference is quite reasonable.
In that regard, the transformation of Rocky Flats from a pollution-plagued former nuclear-weapons operation into a national refuge was an enormous undertaking that lasted decades and involved extensive collaboration between numerous state and federal agencies. Energy played a major role in that effort, as it had managed the land for many years prior. Even as Congress provided for the transfer of much of the area from Energy to the Service, it obviously foresaw a continued role for Energy, for it spelled out a number of duties Energy had left to discharge. In light of these facts, the proposition that it was possible that Energy might have responsibilities relating to Rocky Flats that were not sufficiently encompassed by the term “response actions” is, in our- opinion, irrefutable.
The remaining question, then, is whether making the corridor available can be regarded as falling into this category along with any other matters outside the “response action” bucket. We do not believe that it can. The catch-all phrase makes good sense as a precautionary measure to capture any duties Congress had not specifically foreseen falling upon Energy but that Energy would need to perform. It makes far less sense as a reference to a specific issue — making the corridor available- — that Congress not only foresaw but also addressed at some length in the RFA itself. Thus, we reject Appellants’ contention that the catch-all “or any other action” clause of § 3175(d)(1)(B) refers to the corridor and, more specifically, making it available.
It is helpful to place the foregoing analysis within the context of Chevron. For § 3175(d)(1)(B) to alter the outcome, we must find .that it is either (1) an unambiguous directive prohibiting the Service from conveying the corridor; or (2) evidence of congressional intent sufficient to render the Service’s interpretation unreasonable. Neither finding is justified. Far from being unambiguous, § 3175(d)(1)(B) speaks in extraordinarily broad, vague language that has no obvious or explicit connection to the corridor, or to the Service’s powers with respect to the corridor. As for Chevron step two, given the many aforementioned reasons for concluding that the Service’s interpretation is reasonable, we do not believe that § 3175(d)(1)(B) can establish its unreasonableness.
For all of the reasons discussed above, we reject Appellants’ argument that the Service lacked the authority to convey the corridor under the Rocky Flats Act.
B
Appellants believe the Service violated NEPA with respect to three main factual areas: (1) contaminated soils; (2) air pollution; and (3) the Preble’s Meadow Jumping Mouse. They do not adequately show a NEPA violation in any of these areas.
1
In NEPA, Congress codified rules designed to “focus[ ] both agency and public attention on the environmental effects of proposed actions” and thereby “facilitate[ ] informed decisionmaking by agencies and allow[] the political process to check those decisions.” N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir.2009). The Act does so in two ways: “First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process.” Wyoming, 661 F.3d at 1236-37 (quoting Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir.2010)) (internal quotation marks omitted). The Supreme Court has made clear that “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
Under NEPA, federal agencies must prepare an EIS whenever they undertake “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). To determine whether an impact statement is warranted, an agency generates an EA, 40 C.F.R. § 1501.4(b), a “concise public document ... that serves to ... [bjriefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a [FONSI],” id. § 1508.9(a)(1). The assessment must “include brief discussions of the need for the proposal, of alternatives'..., [and] of the environmental impacts of the proposed action and alternatives.” Id. § 1508.9(b). As such, an EA must consider “the cumulative impacts of a project,” Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir.2002), as well as its “indirect effects,” Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 433 (10th Cir.1996). Distilled to its essence, “[t]he EA is a rough-cut, low-budget [EIS] designed to show whether a full-fledged [EIS] — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary.” Spiller v. White, 352 F.3d 235, 237 (5th Cir.2003) (quoting Sabine River Auth. v. U.S. Dep’t of Interior, 951 F.2d 669, 677 (5th Cir.1992)) (internal quotation marks omitted).
If the EA leads to the conclusion that no impact statement is necessary, the agency also creates a FONSI, 40 C.F.R. § 1501.4(e), “a document ... briefly presenting the reasons why an action ... will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared,” id. § 1508.13.
The Service in this case issued an EA and FONSI rather than an impact statement, a decision Appellants contest.
2
“An agency’s decision to issue a FONSI and not prepare an EIS is a factual determination which implicates agency expertise.” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004) (quoting Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002)) (internal quotation marks .omitted). We therefore ask “whether the agency acted arbitrarily and capriciously in concluding that the proposed action will not have a significant effect on the human environment.” Id. (quoting Davis, 302 F.3d at 1112) (internal quotation marks omitted). As a general principle, “the judiciary’s role in the NEPA context is merely to ensure that the federal agency takes a hard look at the environmental consequences of its actions.” Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1225 (10th Cir.2002). “[A] presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action.” Prairie Band, 684 F.3d at 1008 (quoting Richardson, 565 F.3d at 704) (internal quotation marks omitted). That said, “our review of an EA/FONSI has a substantive component as well as a component of determining whether the agency followed procedural prerequisites.” Davis, 302 F.3d at 1112. “If the plaintiffs can demonstrate substantively that the [agency’s] conclusion of non-significant effect on the environment represents a ‘clear error of judgment,’ then that conclusion must be reversed.” Id. (quoting Utah Shared Access Alliance, 288 F.3d at 1213).
3
a
Appellants first assert that the Service had an obligation to prepare an impact statement in regards to soil contaminants, and in particular plutonium. As noted, an agency is compelled to complete an impact statement where its proposed action “may significantly affect the quality of the human environment.” Norton, 294 F.3d at 1224 (emphasis added). The term “significantly” is defined in part with reference to “[t]he degree to which the proposed action affects public health or safety.” 40 C.F.R. § 1508.27(b)(2). In Appellants’ view, the parkway potentially significantly affects the quality of the human environment because its construction will release dangerous levels of plutonium. They therefore assert that the Service was compelled to conduct an EIS concerning plutonium.
In defense of its decision not to conduct a full-blown EIS with regard to plutonium, the Service relied (and continues to rely) on assurances it received from the EPA. More specifically, in 2006 the EPA certi.fied that conditions in the area where the corridor would be situated were “acceptable for unrestricted use and unlimited exposure.” Aplts.’ App. at 132 (Corrective Action Decision, prepared Sept. 2006). Five years later, at the Service’s request— and prior to its decision to enter into the land exchange — the EPA clarified that this clearance applied to the construction of the proposed parkway as well.
In their opening brief, Appellants challenge the EPA’s advice as “inapplicable,” because it was supposedly premised on the assumption that no soil disturbance would take place, and thus did not account for the construction of a parkway. Aplts.’ Opening Br. at 31. This is arguably true of the 2006 report, but quite obviously not true of the 2011. letter, which explicitly addressed the parkway construction and explicitly confirmed that such construction posed no risk of exposing anyone to an unacceptable level of radioactive material.
There is no apparent impropriety in the Service’s use of the letter. NEPA itself instructs agencies that are deciding whether an impact statement is called for to make use of the “views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards.” 42 U.S.C. § 4332(C)(v). With respect to the plutonium issue here, the EPA is undeniably such an agency. See generally Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426 (9th Cir.1998) (discussing the EPA’s role in regulating radioactive materials). Tacitly conceding these points, Appellants press two rebuttals: (1) the letter “was not subject to any of the formal procedures that accompany a CERCLA determination,” Aplts.’ Reply Br. at 11; and (2) it was based on flawed reasoning.
The first argument is unsupported by any authority or elaboration, and is thus inadequately articulated to warrant our consideration of it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). At any rate, to the extent that we can discern its substance, the argument is unconvincing. As noted, NEPA encourages agencies to rely on the “views of the appropriate Federal, State, and local' agencies, which are authorized to develop and enforce environmental standards.” 42 U.S.C. § 4332(C)(v). The statute does not limit itself to “views of requisite formality,” and we are reluctant to insert language where Congress has elected not to. See, e.g., Marchetti v. United States, 390 U.S. 39, 60, 88 S.Ct. 697, 19 L.Ed.2d 889 n.18 (1968) (noting that courts should not insert words into statutes that their drafters omitted); see also Biodiversity Conservation Alliance v. U.S. Forest Serv., 765 F.3d 1264, 1270 (10th Cir.2014) (“NEPA grants substantial discretion to an agency to determine how best to gather and assess information.”). Furthermore, the 2011 EPA letter is reasonably read as a clarification and elaboration of the 2006 report; the letter extrapolates from the 2006 findings to explain the risk to construction workers. As such, it was reasonable of the Service to regard the letter as, in essence, a continuation of the CERCLA process that the EPA had begun several years earlier. Consequently, any difference in formality between the 2011 letter and the 2006 report is not dispositive, and certainly does not demonstrate any arbitrary or capricious conduct on the Service’s part.
Appellants’ second objection to the 2011 letter — that its reasoning is flawed' — is even less substantial. They complain that the letter “equates a wildlife refuge worker ... with construction workers,” even though the two are “not comparable.” Aplts.’ Reply Br. at 12 (emphasis added). But the letter does no such thing. In the 2006 report, the EPA had considered the health risks associated with plutonium exposures of wildlife refuge workers, but had no occasion to examine such risks as to construction workers. However, in reaching its conclusion in the 2011 letter that the construction posed no risk of exposing anyone to an unacceptable level of radioactive material, the EPA explained that it took account of the difference between the two types of employees — “includ[ing] the potential for greater rates of' inhalation and ingestion of soil by the construction worker” — but determined that the “differences are likely offset by the much greater exposure duration” for refuge workers, relative to construction workers who would just be exposed for “a few months.” Aplts.’ App. at 527 (Letter from Carl Spreng to David Lucas, dated Sept. 21, 2011). The EPA’s logic is straightforward and comprehensible: although construction workers are likely to face greater exposures to plutonium than wildlife refuge workers, they will likely be exposed for much shorter periods of time and, therefore, the risks they face are essentially comparable to those of wildlife refuge workers, whom the EPA concluded faced acceptable levels of risk. We have no reason to doubt the EPA’s logic, nor to fault the Service for relying on it.
Finally, Appellants articulate a highly detailed criticism of the EPA’s conclusion based on the supposed areas that were cleaned and the supposed levels of acceptable hazardous materials. Again, its criticism cannot be squared with the contents of the 2011 letter. In the relevant section of the letter, the EPA indicated that it was addressing dangers to construction workers insofar as they would be working on a construction project related to “a future land transfer at the eastern edge of the site, as per provisions of the [Rocky Flats Act].” Aplts.’ App. at 527. In other words, the EPA specifically had in mind the project Appellants are now alleging would release a dangerous amount of radioactive material. And it specifically rejected the allegation that Appellants advance. For us to now second-guess its judgment and hold that the EPA was not in fact aware of the terms of its own analysis would be to “substitute our judgment for that of the agency’s,” and that we may not do. Ass’ns Working for Aurora’s Residential Env’t v. Colo. Dep’t of Transp., 153 F.3d 1122, 1130 (10th Cir.1998). Recognizing the EPA’s authority in the pollutants arena, the Service reasonably consulted it and was given its approval to proceed. Simply put, the Service took a “hard look” at the relevant environmental conclusions reached by an expert agency, and we are in no position to disturb its decision with regard to soil contaminants.
b
Appellants next discern NEPA violations in the Service’s failure to take “a ‘hard look’ at ozone[, i.e., smog,] and nitrogen dioxide pollution,” and in its “fail[ure] to support its conclusion that these air quality impacts will be insignificant.” Aplts.’ Opening Br. at 32. Neither contention justifies reversal.
i
Appellants believe that the Service failed to adequately consider the impacts the construction of the parkway would have on smog, despite having ample data on the issue at hand, by choosing to rely on state studies. They clarify in their reply brief that their objection to the Service’s reliance on the state studies is chiefly that the studies relied on purportedly outdated EPA air quality standards. In 2008, the EPA revisited those standards and Appellants insist that the Service should have utilized the new standards.
This argument does not survive the rig- or of an arbitrary-and-capricious review. The Service avers that the 2008 rules had not yet been implemented when the EA was being prepared and Appellants do not dispute that fact. See Implementation of the 2008 National Ambient Air Quality Standards for Ozone, 77 Fed.Reg. 30,160, 30,161 (May 21, 2012) (noting that the “EPA deferred initial designation of areas for the 2008 ozone NAAQS” and only proposed rulemaking to “address the classifications and attainment deadlines” in February 2012). Therefore, Appellants’ argument is essentially that the Service acted arbitrarily and capriciously in relying on studies predicated on then-prevailing standards promulgated by the nation’s leading environmental agency, simply because new standards were forthcoming. Not surprisingly, they have no caselaw to support that proposition. Appellants fail to overcome the “presumption of validity” that “attaches to the agency action.” Prairie Band, 684 F.3d at 1008 (quoting Richardson, 565 F.3d at 704) (internal quotation marks omitted). There was no NEPA violation with respect the Service’s reliance on the state studies.
ii
Appellants also fault the Service for not sufficiently analyzing — or disclosing — the emissions that would result from the construction of the parkway. In its EA, the Service noted that the parkway project would be required to comply with current and future air quality standards. Ultimately, Appellants have no good explanation as to why it was inadequate of the Service to rely on the fact that the parkway project would be subject to continuing environmental requirements. Appellants’ largely unsubstantiated position is also complicated by a more fundamental question regarding what the proposed federal action here is. Though Appellants’ briefing could be read to imply that the federal action being challenged is the construction of the parkway, they acknowledged at oral argument that the construction is really just a consequence of the action under attack, which is — understood in its most reasonable terms — only the land exchange. Although the distinction may be a technical one, since Appellants fairly regard the exchange and the parkway as closely related, it is nevertheless a distinction that tips the scales in the Service’s favor because we are called upon in part to determine whether the level of detail that the Service offers regarding the environmental effects of the parkway’s construction — here, effects relating to emissions — is reasonable. Seemingly, were the federal action the parkway construction itself, rather than the land exchange, the Service would have had access to a far more detailed actual construction plan than • the hypothetical plan that the Service had before it during the NEPA process. Such a plan would have provided the foundation for a more extensive environmental analysis regarding the parkway’s construction, including emissions.
All of this is enough to mean that the Service gets the benefit of the doubt in relying on future regulation and compliance for a parkway that (at least at material times) was not yet a reality. In this same vein, Intervenors’ detailed explication of the battery of state and federal environmental hoops the parkway will have to jump through before it can come into being adds even further weight to the Service’s approach here. At the end of the day, the only rejoinder Appellants have is that “[n]one of these studies or commitments were relied upon in [the Service’s] decision-making documents, none are directly enforceable by [the Service], and none were imposed ... as conditions of the land exchange.” Aplts.’ Reply Br. at 10 n. 5. But the Service did fundamentally rely on the supposition that the parkway would have to obtain environmental clearances that would ensure its compliance with the same laws and standards the Service itself would have considered if it were directly approving the construction of the parkway itself. See Klein v. U.S. Dep’t of Energy, 753 F.3d 576, 583 (6th Cir.2014) (finding an EA sufficient, in part, based on its discussion of “future requirements the [proposed action] will have to meet to secure construction and operation permits” because those permits would need to be obtained “before construction and operation (and the resulting environmental impacts) could begin”).
It is also significant that Congress imposed on the transportation improvement plan the requirement that it be “included in the regional transportation plan of the metropolitan planning organization designated for the Denver metropolitan area.” RFA § 3174(e)(2)(B)(ii). This occurred with respect to the parkway project. As required by federal law, the planning organization verified that each of its undertakings — the parkway included — would meet federal emissions standards. See 23 U.S.C. § 134(i)(3). The Service was thus on solid ground -in relying on procedures for future environmental oversight, as Congress specifically provided an important mechanism in that regard.
iii
Turning to Appellants’ next contention, they maintain that the Service’s treatment of nitrogen dioxide emissions from vehicles on the proposed parkway violated NEPA in the following respects: (1) it failed to quantify emissions; (2) it omitted “an alternative qualitative description of the public health impacts associated with” emissions; and (3) it failed to consider whether emissions would comply with a nitrogen dioxide standard adopted by the EPA in 2010. Aplts.’ Opening Br. at 32. In response, the. Service argues that the evolving nature of the EPA standards regarding nitrogen dioxide made it impractical to fully consider the matter in its EA and made it more appropriate to rely on local government to ensure that any transportation projects comply with national benchmarks.
Appellants’ attack on the Service’s explanation is twofold: (1) “agencies cannot avoid NEPA significance by claiming impacts are unclear or require additional study”; and (2) modeling of nitrogen dioxide emissions is available. Aplts.’ Opening Br. at 38. Both of these assertions imply that the Service refused to consider nitrogen dioxide impacts because of difficulties assembling the pertinent data. That is not, however, why it left the impacts out of its EA. Rather, it did so because the forthcoming legal standards had not yet been promulgated. See Aplts.’ App. at 474 (“In the absence of final standards and guidance, modeling how current, approved regional transportation plans comply with the new standards for these pollutants would be difficult at best.” (emphasis added)); see also Primary National Ambient Air Quality Standards for Nitrogen Dioxide, 75 Fed.Reg. 6474, 6520 (Feb. 9, 2010) (stating that “initial [nitrogen dioxide] designations” would be promulgated by January 2012), What Appellants need — and what they completely lack — is any authority or tenable argument on why it was arbitrary or capricious for the Service to rely on the future commitments of state and local entities in the absence of clear nitrogen dioxide guidelines from the EPA. Given that void of argument and authority, their nitrogen dioxide claim fails.
c
Appellants contend that the Service violated NEPA in its EA with respect to its treatment of the Preble’s Meadow Jumping Mouse in various ways, each of which is discussed below.
i
In Appellants’ view, the Service’s “discussion of the no action alternative was deficient.” Aplts.’ Opening Br. at 44 (capitalization removed). A no-action analysis “compare[s] the potential impacts of the proposed major federal action to the known impacts of maintaining the status quo.” Custer Cnty. Action Ass’n v. Garvey, 256 F.3d 1024, 1040 (10th Cir.2001). Appellants begin this section of their brief with the statement that “NEPA requires agencies to evaluate a ‘no action’ alternative to provide an environmental baseline.” Aplts.’ Opening Br. at 44 (citing 40 C.F.R. § 1502.14(d)). Here, though, there was no such requirement. We have explained that § 1502.14 applies only to the EIS preparation process, not to the preparation of EAs, and that a no-action analysis is therefore not automatically necessary when an agency does only the latter. See W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1274 (10th Cir.2013).
Even though “the absence of a detailed No Action analysis by itself does not render” an EA and its resulting FONSI arbitrary or capricious, id. at 1274, a plaintiff may in some circumstances demonstrate “that the absence of a No Action analysis compromised the EA so severely as to render the FONSI arbitrary and capricious,” id. at 1275.
The question of whether the Service’s no-action analysis passes muster turns on the nature of the various parcels involved in the land exchange. According to the terms of the exchange, the Service acquired the surface, sand, and gravel rights to Section 16 (acquired from the State of Colorado) and all of the land in Section 3 (acquired from Energy). With respect to these parcels, Appellants first complain that “[t]he agency failed to disclose the current status of Mouse habitat on” either section “and thus the EA omits the benchmark against which the Land Exchange can be judged.” Aplts.’ Opening Br. at 44-45. In fact, the EA noted that “section 16 contains some riparian habitat that is considered suitable for [the] mouse,” Aplts.’ App. at 457, and the draft EA that was circulated for public comment described the land acquired in the exchange — which included Section 16 — as “very important” to the mouse, Aplees.’ J. Supp. App. at 227 (Draft Envtl. Assessment, prepared Sept. 2011). Short though these discussions may be, they undermine Appellants’ insistence that the EA “failed to disclose the current status of Mouse habitat on the Section 16 property,” Aplts.’ Opening Br. at 44-45, and thus weaken the underlying premise of their position.
Taking a related tack, Appellants fault the Service for failing to disclose that the habitat within Sections 3 and 16 had been conserved; as a result, they reason, the exchange gave the mouse nothing, because it was already protected in the land acquired by the Service in the exchange. The Service responds that “[t]he fact that the Mouse habitat in Sections 3 and 16 already had some legal protections ... does not undercut the stated benefit of permanently placing the land in federal ownership.” Aplees.’ Br. at 57-58. We agree. In particular, the government notes that the conservation lease on Section 16 would have been extinguished in the event the parcel was sold. Appellants do not dispute that assertion. Thus, accepting this statement as true, the exchange did offer the mouse a greater level of protection on Section 16. An agency’s duty to “inform the public that it has indeed considered environmental concerns in its decisionmaking process,” Wyoming, 661 F.3d at 1236 (internal quotation marks omitted), cannot plausibly be read to encompass environmental concerns that it reasonably understands will not affect the bottom-line conservation calculus.
With those background points in mind, there is evidence in the administrative record that the acquisition of Section 16 brought into the federal government’s control 104 acres of suitable mouse habitat. In return, the Service gave up approximately 12.4 acres of critical mouse habitat. Utilizing the “highly deferential” standard that we must, W. Watersheds Project, 721 F.3d at 1273, and trusting the Service’s expertise, Flowers, 359 F.3d at 1274, we uphold the Service’s cost-benefit analysis.
ii
Lastly, Appellants assert that the Service violated NEPA by not specifically addressing the acquired properties as “mitigation measures” for the exchange. However, in our view, Appellants misunderstand the Service’s reasons for discussing the acquired properties in the EA. They were not mitigation measures at all. We begin by explaining the function of mitigation measures in the NEPA setting.
An agency “can decline to prepare an EIS even if it finds a potentially significant impact so long as it also finds ‘changes or safeguards in the project sufficiently reduce the impact to a minimum.’ ” Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1172 (10th Cir.2012) (quoting Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C.Cir.2008)). These “changes or safeguards” constitute “mitigation measures” in the EA context and may negate the need to prepare an EIS. Id. However, an EA need only explore mitigation measures where it acknowledges the possibility that the agency action will cause environmental harm; the EA does so as a means of determining the extent to which the harm may be balanced out. See, e.g., O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 234 (5th Cir.2007) (discussing an EA that listed mitigation measures because it also “list[ed] the potentially significant adverse impacts” of the project). This stands to reason. An EA obviates the need for an EIS when the agency finds that the action “will not have a significant effect on the human environment.” 40 C.F.R. § 1508.13. It would make no sense to demand an articulation of mitigation measures when there is no anticipated harm to mitigate.
By contrast, an EIS presupposes the existence of significant environmental effects — that is, such effects are its raison d’etre, see, e.g., Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1131 (10th Cir.2006); consequently, an EIS must include a discussion of mitigation measures, see San Juan Citizens Alliance v. Stiles, 654 F.3d 1038, 1053 (10th Cir.2011) (“[A]n EIS must ... discuss ‘steps that can be taken to mitigate [a project’s] adverse environmental consequences.’ ” (second alteration in original) (quoting Robertson, 490 U.S. at 351, 109 S.Ct. 1835)).
Applying that framework, the Service was only required to include mitigation measures in its EA if it forecast a significant impact resulting from the exchange. The EA made no such forecast. Rather, as the Service rightly observes, the EA discussed the acquisition of Sections 3 and 16 (and the other parcels transferred to the Service under the deal) as part of the proposed agency action, not as a mitigation measure to compensate for some separate action. It is therefore appropriate that the EA omitted any section with the word “mitigation” in the title, and Appellants’ mitigation arguments do not entitle them to relief.
iii
It is Appellants’ position that the Service ran afoul of NEPA when it shielded from public notice and comment the documents the EA relied upon for its statements regarding the mouse. When preparing an EA, an “agency shall involve ... the public ... to the extent practicable.” 40 C.F.R. § 1501.4(b). Plainly, this language affords an agency “considerable discretion to decide the extent to which such public involvement is ‘practicable.’ ” Brodsky v. U.S. Nuclear Regulatory Comm’n, 704 F.3d 113, 121 (2d Cir.2013); see Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 861 (D.C.Cir.2006) (observing that an agency enjoys “significant discretion in determining when public comment is required with respect to EAs”); see also Flowers, 359 F.3d at 1279 (“NEPA’s public involvement requirements are not as well defined when an agency prepares only an EA and not an EIS.”).
Our Flowers decision compels a finding that the Service acted well within the confines of this substantial discretion. There, we upheld an agency against a similar challenge where it failed to circulate for public comment various documents supporting its environmental assessment. 359 F.3d at 1279. One of those documents was. a biological opinion, the very document that Appellants focus on here. Id. Rejecting the appellants’ argument in Flowers, we emphasized that the circulated notice indicated that the project would likely affect bald eagles, the species at issue, and found that sufficient to satisfy the public-involvement aspect of NEPA under the circumstances. Id.
The logic of Flowers applies a fortiori to the instant appeal. In Flowers, the assessment itself was never circulated, id., which was not the case here. And, just as in Flowers, the circulated notice did mention the possibility of impacts on the mouse, and the notice was presumably sufficient since the comments themselves then brought the issue up. Thus, there is even more reason here to uphold the agency action than in Flowers. In sum, Appellants fail to disturb the “presumption of validity [that] attaches to the agency action.” Prairie Band, 684 F.3d at 1008 (quoting Richardson, 565 F.3d at 704) (internal quotation marks omitted).
iv
In Appellants’ opinion, the Service’s decision to conduct an intra-agency consultation regarding the potential effect of the parkway on the mouse “undermines [its] NEPA findings on the same agency action,” Aplts.’ Opening Br. at 41, because a formal consultation only occurs when an action is “likely to adversely affect” a species and that very finding required the Service to also prepare a full EIS and not just an EA, id. (quoting 50 C.F.R. § 402.13). Appellants have no authority to support the proposition that once an agency initiates the consultation process it is precluded from issuing an EA rather than an EIS. Under our binding precedent, that is clearly not the case. See Flowers, 359 F.3d at 1265, 1276 (upholding an agency’s decision to prepare only an EA despite the fact that it initiated — and reinitiated' — consultation with the Service); cf. Cold Mountain v. Garber, 375 F.3d 884, 893 (9th Cir.2004) (affirming an agency’s decision not to prepare an EIS in part becatise it engaged in consultation with the Service beforehand). Accordingly, Appellants do not demonstrate a NEPA violation on this ground.
v
Appellants contend that the Service violated NEPA by relying on the first biological opinion, when its decision to get a second opinion reveals the first to be inadequate. However, as the district court before us held, the two biological opinions reach the same ultimate conclusion: that the land exchange did not jeopardize the continued existence of the mouse. It is entirely unclear how the fact of the reinitiation and subsequent biological opinion has any bearing on the Service’s decision to forgo an impact statement, and Appellants offer no assistance in detecting such a connection.
For all of these reasons, we reject Appellants’ NEPA claim.
C
Having disposed of Appellants’ NEPA claim, we now take up their ESA argument. The entirety of Appellants’ ESA-based argument is premised on the notion that “[the Service] unlawfully failed to issue [a take statement] for the land exchange.” Aplts.’ Opening Br. at 52 (emphasis added) (capitalization removed).
An agency is-required to consult with the Service under the ESA whenever it plans to take an action that “may affect” a threatened species or its critical habitat. 50 C.F.R. § 402.14(a). As a culminating act of the consultation process, the Service “formulates a biological opinion.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1105 (10th Cir.2010); see 50 C.F.R. § 402.14(g)(4) (noting that the Service is responsible “during formal consultation” for “[f]ormulat[ing] its biological opinion”). A biological opinion is “a written statement determining whether the proposed action ‘is likely to jeopardize the continued existence of listed species.’ ” Rio Grande Silvery Minnow, 601 F.3d at 1105 (quoting 50 C.F.R. § 402.14(g)(4)).
The Service is also charged during the consultation process with “formulat[ing] a statement concerning incidental take, if such take may occur.” 50 C.F.R. § 402.14(g)(7) (emphases added); see 16 U.S.C. § 1536(b)(4)(i) (providing that the Service “shall provide the Federal Agency ... with a written statement that ... specifies the impact of such incidental taking on the species”); 50 C.F.R. § 402.14(i)(1) (noting that an incidental take statement “[sjpecifies the impact, i.e., the amount or extent of such incidental taking on the species”). “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19); accord Rio Grande Silvery Minnow, 601 F.3d at 1106 n. 4.
The take statement is “a permit authorizing the action agency to ‘take’ the endangered or threatened species so long as it respects the Service’s terms and conditions.” Bennett v. Spear, 520 U.S. 154, 170, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation marks omitted). “In those cases where the Service concludes that an action (or the implementation of any reasonable and prudent alternatives) and the resultant incidental take of listed species will not violate [the ESA],- ... the Service will provide with the biological opinion a statement concerning incidental take....” 50 C.F.R. 402.14(i)(1) (emphases added) (citations omitted); see Rio Grande Silvery Minnow, 601 F.3d at 1106 (describing the conditions under which an incidental take statement may be issued).
As noted, Appellants’ ESA argument is predicated solely on the assertion that the Service unlawfully failed to issue ah incidental take statement regarding the land exchange. We reject this contention. At the outset, we observe that arguably the Service was not legally required to issue an incidental take statement at all for the land exchange. This is because, in the course of issuing two biological opinions indicating that the exchange would not jeopardize the continued existence of the mouse or adversely modify its critical habitat, the Service expressly stated that it “anticipate^] that the proposed land exchange will not result in incidental take of the [mouse].” Aplts.’ App. at 365 (Biological Op., prepared Nov. 17, 2011).
The plain terms of the statute and regulations suggest that, at least where there is no evidence that a take may occur, the Service need not issue an incidental take statement. See Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1241 (9th Cir.2001) (endorsing the view that “the plain language of the ESA does not dictate that the [Service] issue an Incidental Take Statement irrespective of whether any incidental takings will occur”); 50 C.F.R. § 402.14(g)(7) (noting that the Service is tasked with “formulat[ing] a statement concerning incidental take, if such take may occur” (emphases added)); see also Defenders of Wildlife v. U.S. Dep’t of Navy, 733 F.3d 1106, 1122-23 (11th Cir.2013) (noting that because the “biological opinion concluded that no take of listed species is likely to occur from” the agency action at issue, “no incidental take statement was required”); cf. Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1240-41 (rejecting the Service’s argument that “it should be permitted to issue an Incidental Take Statement whenever there is any possibility, no matter how small, that a listed species will be taken”). We need not definitively opine on this interpretive point, however. Because, even if the Service was obliged for some reason to issue an incidental take statement as to the land exchange, we find evidence in this record that it sufficiently did so — evidence that Appellants do not bother to acknowledge, much less rebut.
In this regard, both biological opinions contain a section clearly labeled “incidental take statement.” See Aplts.’ App. at 364; id. at 574 (Biological Op., prepared Feb. 14, 2012). In the first biological opinion, though noting that it “anticipate^] that the proposed land exchange w[ould] not result in incidental take of [the mouse],” the Service explicitly recognized that the related “use of the 300-foot strip of land ... may result in take, and the project proponent will be required to obtain incidental take coverage ... when a project has been defined and proposed.” Id. at 365. The second opinion is of a similar stripe but provides greater detail: it indicates that the construction of the parkway, “which is interdependent upon [the] proposed land exchange, will result in the incidental take of 12.4 acres of ... mouse habitat and in the take of no more than one individual mouse.” Id. at 575 (emphasis added).
Appellants offer no reason for us to consider these passages as anything other than what they purport to be: incidental take statements pertaining to the land exchange. Consequently, we hold that even if the Service was required to issue an incidental take statement with respect to the land exchange, Appellants have not established on this record that the Service has not sufficiently done so. Accordingly, we uphold the district court’s judgment regarding Appellants’ ESA claim.
D
Appellants seek leave to file a supplemental appendix. The Service opposes the motion but asks, in the event it is granted, to be allowed to file its own supplement. We conditionally allowed both parties to file their supplemental submissions but reserved the right to exclude them. Upon further consideration, we conclude that each of Appellants’ submitted documents could and should have been included in their original appendix if they wanted to rely upon them. See 10th Cir. R. 30.1(A)(3) (“The court need not remedy any failure of counsel to provide an adequate appendix.”). We accordingly deny Appellants’ motion to file a supplemental appendix. As for the Service, its documents are only submitted in response to Appellants’, and since we are denying Appellants’ motion, we deny the Service’s as moot.
IV
For the reasons stated, we AFFIRM the judgment of the district court, DENY Appellants’ motion to file a supplemental appendix, and DENY the Service’s motion to file a supplemental appendix as moot.
. Following the lead of the parties, we refer to sections of the Rocky Flats Act, rather than the sections of the U.S. Code, and use the form “RFA § --” where a full citation is needed.
. Because the Service is the only branch of the Department of the Interior that is relevant to this appeal, we refer to the Service even where other materials relevant to this litigation refer to the Department as a whole.
. City of Arlington v. FCC, — U.S. —, 133 S.Ct. 1863, — L.Ed.2d — (2013), and Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116 (10th Cir.2009).
. If Appellants mean to suggest that Chevron is inapplicable because the case does not involve the Service’s “organic” statute, i.e., the law that actually established the agency, they are mistaken in assuming that Chevron is always limited to such circumstances. See NISH v. Rumsfeld, 348 F.3d 1263, 1267-72 (10th Cir.2003) (applying Chevron to the Department of Education's interpretation of an act that was not its organic statute). On a similar note, Appellants do not argue that the Service's conveyance of the land falls outside Chevron because it lacked the trappings of formal rule-making or adjudication, see generally United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), so we do not address that issue. They also decline to argue-that Energy, and not the Service, is entitled to deference regarding the implementation of the pertinent provisions of the Rocky Flats Act. We therefore forgo any discussion of that point.
. In their opening brief, Appellants unequivocally took the position that Congress placed the corridor within the refuge. See, e.g., Aplts.’ Opening Br. at 20 ("Congress ensured the Corridor would not become a highway once it became pan of the refuge.” (emphasis added)). We therefore undertake the following analysis on the basis of that premise.
. We recognize that there may be a third possibility: Energy retained the ability to make the corridor available for transportation purposes even, after transferring jurisdiction over the land that would constitute the refuge,' including the corridor, to the Service. However, Appellants have eschewed this option, and instead have consistently maintained that neither agency had the authority to make the corridor available for transportation improvements after jurisdiction over the land that included the corridor was transferred to the Service. See, e.g., Aplts.’ Opening Br. at 14 ("The ... authority to convey the Corridor ... was limited and has now expired.... [T]his authority existed only so long as [Energy] retained jurisdiction and the Corridor was not part of a National Wildlife Refuge."); id. at 20 ("The authority ... to convey the corridor terminated when the refuge was established.” (capitalization removed)); id. at 22 ("Now that the Corridor is part of the Refuge, it must remain so.”). Thus, we need not entertain this alternative explanation. And, in any event, the statute does not make pellucid that Energy retained authority after the transfer, so this interpretation fails step one of .Chevron.
. Appellants’ best interpretive argument is that other provisions of the Rocky Flats Act explicitly apply, to both Energy and the Service, and this one does not, thereby implying that only the former has the authority to convey the corridor. See, e.g., RFA § 3174(c) ("Neither [Energy] nor the [Service] shall allow the annexation of land within the refuge by any unit of local government.” (emphases added)). Nevertheless, at best, this point shows that there are other reasonable interpretations of the Act in addition to the Service's. It does not show that Appellants' is the only plausible alternative. Under Chevron, we must still therefore defer to the Service's interpretation.
. Appellants insist that our "interpretation would also render the language in § 3174(e)(1)(A) meaningless.” Aplts.' Opening Br. at 19. Not so. As we read it, § 3174(e)(1)(A) made clear that Energy had the power to convey the corridor before the refuge was established, whereas the Service was intended to have the power afterwards. The provision therefore served a definite role, albeit one that became irrelevant after the land was transferred from one agency to the other.
. At oral argument, Appellants averred that the Refuge Act and the Fish and Wildlife Act mandate different procedures that the Service was required to comply with if it intended to use them. Appellants did not make this argument in their briefs, so we decline to consider it. See United States v. Rutland, 705 F.3d 1238, 1247 n. 2 (10th Cir.2013) (''[W]e do not address arguments raised for the first time at oral argument.”). In any event, we are not holding that the Service did or did not follow all of the statutory prerequisites for relying on the Refuge Act and the Wildlife Act; we are holding only that the Acts establish the Service’s authority to organize similar deals, that the Service did invoke the Acts as part of its authority during the administrative process (regardless of whether it observed all of the technicalities articulated by the Acts), and that the Service is therefore now entitled to cite the Acts to support the reasonableness of its statutory interpretation of the Rocky Flats Act.
. Appellants observe that the Service earlier understood the Rocky Flats Act to endow Energy with the exclusive authority to convey the corridor. However, the Service’s statements that Appellants point to in making their case for agency inconsistency were all either made before the Flats was transferred to the Service and established as a refuge, or simply recite the indisputable fact that the Rocky Flats Act gave Energy the authority to convey the land before the establishment of the refuge. The statements are therefore entirely irrelevant to the question of whether the Service had the authority to transfer the land after it assumed administrative jurisdiction over it, and that is the only question before us. Thus, assuming arguendo that they are legally relevant, Appellants’ claims of agency inconsistency have no factual basis in the record.
. Other state and federal agencies were involved in the preparation of this report. It is not disputed that the EPA played a major role in preparing the report and, more importantly, that it issued the subsequent clarification of the report, and those are the essential facts for our purposes.
. We do not understand Appellants to argue that the 2011 letter was not part of the EA; insofar as they believe that to be the case, they have insufficiently presented the contention. See United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n. 8 (10th Cir.1997) ("[I]t is the appellant's responsibility to tie the salient facts, supported by specific record citation, to [his] legal contentions.” (second alteration in original) (internal quotation marks omitted)).
. Intervenors are comprised of Jefferson County, the City of Arvada, the Jefferson Parkway Public Highway Authority, the Colorado Natural Resource Trustees, and the Colorado State Board of Land Commissioners.
. Appellants argue in passing in their section on mitigation measures (which are discussed infra) that Section 16 contains no habitat essential to the mouse because the Service did not designate any land within it critical habitat. Because Appellants do not make this argument with respect to the no-action analysis, there is no need to address it here. In addition, we have no reason to believe that this alleged fact renders the Service's no-action analysis automatically arbitrary and capricious. The Service stated why it considered Section 16 to be suitable habitat for the mouse, and it was reasonable — for no-action purposes — for the Service to consider the acquisition of 104 acres of mouse habitat worth the sacrifice of 12.4 acres (of 35,000 total acres) of critical habitat, regardless of whether or not the 104 was critical or just suitable habitat.
. The Service does not contend that a precise assessment of how much suitable mouse habitat Section 16 contains was circulated for public comment prior to the execution of the exchange. But the draft EA that was circulated for public comment clearly indicated that the corridor had 12.4 acres of critical mouse habitat, and indicated that the land acquired in the exchange — which included Section 16 — contained land "considered very important” to the mouse. Aplees.’ J. Supp. App. at 227. Thus, the Service considered and presented to the public the essential thought process regarding the mouse that led it to accept the exchange: that it was, in the totality of circumstances, better for the mouse, not worse.
. See also Aplts.' Opening Br. at 16 (“[The Service] failed to issue the mandatory [take statement] for the Land Exchange.” (emphasis added)); id. at 53 (“As detailed below, [the Service] had a mandatory duty to issue [a take statement] for the Land Exchange.”); id. at 56 ("[The Service's] Consultation Handbook dictates that [a take statement] was mandatory in connection with the Land Exchange.”); id. (“By not issuing [a take statement], [the Service] failed to ensure the Mouse will be protected from the Land Exchange.”); Aplts.' Reply Br. at 25 ("[The Service] violated the [ESA] by not issuing an incidental take statement.” (capitalization removed)); id. (noting the Service's "failure to issue [a take statement] for the Land Exchange”); id. at 26 ("[T]he ESA requires, in no uncertain terms, that [the Service] issue [a take statement] for the Land Exchange now.”).
. In a letter of supplemental authority, Appellants endeavor to rely upon Public Employees for Environmental Responsibility v. Beaudreau, 25 F.Supp.3d 67 (D.D.C.20I4), to support their argument regarding the incidental-take-statement issue. They note that the district court in Beaudreau rejected the government's suggestion that the possibility of reconsultation mooted the need for a take statement. Here, though, the fundamental problem with Appellants' position is that the record contains two biological opinions with respective sections entitled "incidental take statement,” and Appellants have given us no reason to suppose that they are anything other than take statements. In the cited section of Beaudreau, see id. at 114-15, the court does not indicate that there were any similar documents in that record, so the case cannot help Appellants overcome this hurdle.
. Appellants assert in passing that "[The Service] failed to limit the amount of take, identify mandatory terms and conditions to minimize harm, and impose requirements for monitoring and reporting.” Aplts.' Opening Br. at 57. This argument too is explicitly tied to Appellants’ unsubstantiated claim that the Service failed to issue a take statement, as they conclude their point shortly thereafter with the following statement: "In short, [the Service] undermined the purpose of [a take statement] by not issuing one for the Land Exchange.” Id. Accordingly, because it is without footing in the record, this assertion need not be addressed. However, it is worth noting that the reason the biological opinions. omitted some of these specific terms is because the entities building the parkway "will be required to obtain incidental take coverage ... when a project has been defined and proposed.” Aplts.' App. at 575. Appellants provide no meaningful reasoning to explain why it was arbitrary and capricious for the opinions to take this approach. Cf. Defenders of Wildlife, 733 F.3d at 1123-24 (holding that "it was not arbitrary or capricious for the [agency] to postpone the issuance of an incidental take statement,” inter alia, because the "corresponding incidental take statement, which will pertain solely to operations on the [agency project], will serve no purpose while the [project] is still in the installation phase and no operations are actually occurring” (emphasis added)). See generally Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1126 (9th Cir.2012) (applying the arbitrary-and-capricious standard while evaluating the content of a take statement). Thus, to the extent Appellants could be understood to argue that the terms of the incidental take statements are insufficient, they fail to show that they are.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2627118644067797, Costs: 0.1101694915254237
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OPINION
PARKER, Senior Circuit Judge:
The Santa Ana sucker (Catostomus san-taanae) is a small freshwater fish native to several California rivers and streams, including the Santa Ana River. In 2000, the United States Fish and Wildlife Service (“FWS”), after being sued by conservation groups, designated the sucker as a “threatened” species pursuant to the Endangered Species Act (“ESA”). In 2004, the FWS promulgated a Final Rule designating particular áreas as critical habitat for the sucker. In a subsequent 2005 Final Rule and in a 2009 Proposed Rule, the FWS excluded certain areas covered by local conservation plans from critical habitat designation. But in a 2010 Final Rule, the FWS changed course and designated as critical habitat several thousand acres of land that had previously been excluded.
In August 2011, in response to this change, several municipalities and water districts sued the FWS, the Department of the Interior, and other federal officials, alleging, in essence, that the FWS (1) did not cooperate with the state in resolving water resource issues that arose from the critical habitat designation; (2) acted arbitrarily and capriciously in revising the critical habitat designation to include the previously excluded land; and (3) violated the National Environmental Policy Act (“NEPA”) by failing to prepare an environmental impact statement prior to designation. Shortly thereafter, several conservation groups previously involved in the litigation to secure critical habitat designation for the sucker successfully moved to intervene.
The parties cross-moved for summary judgment. In October 2012, the United States District Court for the Central District of California (James V. Selna, J.) granted defendants summary judgment on all claims. The court held that the FWS satisfied its statutory obligation to cooperate with state agencies, that the critical habitat designation was not arbitrary or capricious, and that any claims under NEPA were barred by this Court’s decision in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.1995), which held that the statute does not apply to critical habitat designations. This appeal followed. For the reasons set forth, we AFFIRM the district court’s judgment.
BACKGROUND
L Factual Background
A. The Santa Ana River
Appellants are municipalities and water districts that divert water from the Santa Ana River for various uses and conduct maintenance activities within its watershed. The Santa Ana River travels through southwestern San Bernardino County and Riverside County, continues through Orange County, and flows into the Pacific Ocean between Newport Beach and Huntington Beach. The Santa Ana River is prone to flooding; consequently, two. dams — the Prado and the Seven Oaks Dam — work in tandem to assist with flood control. The dams require ongoing maintenance work, some of which may be done in areas designated as critical habitat.
The Santa Ana River also serves as a source of water for. its watershed communities. Water rights are allocated to municipalities and water districts subject to two state court decisions, Orange County Water District v. City of Chino et al., No. 117628 (Super.Ct. Orange County, CA Apr. 17, 1969) and Western Municipal Water District of Riverside County et al v. East San Bernardino County Water District et al., No. 78426 (Super.Ct. Riverside County, CA Apr. 17, 1969). In 2009, the California State Water Board granted the San Bernardino Valley. Municipal Water District and the Western Municipal Water District permits to divert additional water captured by the Seven Oaks Dam “for beneficial uses.”
B. Local Conservation Plans and Partnerships
In the late 1990s, two coalitions formed to develop conservation plans for the sucker. In 1998, the first coalition, consisting of the FWS, the United States Army Corps of Engineers, the Santa Ana Watershed Project Authority, and various local agencies, including several Appellants in this case, agreed to the Santa Ana Sucker Conservation Plan (“SASCP”). Under the SASCP, the FWS allowed permittees to incidentally “take” (ie., harm or kill) a limited number of suckers, in exchange for various conservation and mitigation measures. In 1999, a second coalition of 22 parties developed the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP’), a regional, multi-jurisdictional plan that encompasses nearly 1.26 million acres and provides participating agencies with a 75 year permit for the incidental taking of 146 protected species, including the sucker, in exchange for implementing conservation measures. Several Appellants, including the City of Riverside and Riverside County Flood Control, are among the permittees covered by the MSHCP.
In 2004, the MSHCP was formally approved by the FWS. Under the terms of the Implementation Agreement (“MSHCP-IA”), the FWS stipulated that:
[T]o the maximum extent allowable after public review and comment, in the event that a Critical Habitat determination is made for any Covered Species Adequately Conserved, and unless the [Service] finds that the MSHCP is not being implemented, lands within the boundaries of the MSHCP will not be designated as Critical Habitat.
Although the MSHCP continues to be implemented, the FWS, in the 2010 Final Rule, designated additional critical habitat within the MSHCP. A crucial issue on this appeal is whether, and to what extent, this stipulation binds the FWS’s designation decisions.
C.History of Listing and Critical Habitat Designation
1. 1994-2003
Efforts to list the sucker as an endangered species date back to September 1994, when two conservation groups petitioned the FWS to consider the listing. When the FWS did not respond to the petition within the 90 days mandated by statute, the groups sued to compel a determination. In May 1996, the United States District Court for the Northern District of California found that the FWS violated the ESA and ordered the Service to make a preliminary determination as to the sucker’s status. See Cal. Trout v. Babbitt, No., Dkt. No. 30 (N.D.Cal. Nov. 7,1995).
In July 1996, the FWS published a preliminary determination that a listing of the sucker could be warranted, but took no further action. 61 Fed.Reg. 36,021 (July 9, 1996). The district court then ordered the FWS to publish a proposed rule regarding listing, as required by the ESA. In March 1997, the FWS determined that while listing the sucker as endangered or threatened was warranted, other listing actions commanded higher priority. 62 Fed.Reg. 15,872 (Apr. 3, 1997). The conservation groups then filed a new lawsuit in response to which the district court set a schedule for the FWS to publish a proposed and final listing determination. '
In April 2000, the FWS released a Final Listing Rule, listing the sucker as a “threatened” species. The FWS noted that the sucker had been eliminated from approximately 75% of its former native range, due to “habitat destruction, natural and human-induced changes in stream-flows, urban development and related land-use practices, and the introduction of nonnative competitors and predators.” 65 Fed.Reg. 19,686,' 19,691 (Apr. 12, 2000). The FWS did not, however, designate critical habitat for the sucker in the 2000 Final Listing Rule on the ground that its “knowledge and understanding of the biological needs and environmental limitations of the Santa Ana sucker and the primary constituent elements of its habitat are insufficient to determine critical habitat for the fish.” Id. at 19,696. In such circumstances, the ESA requires the FWS to conduct additional research and issue a final determination of critical habitat no later than two years after the proposed listing rule. 16 U.S.C. § 1533(b)(6)(C)(ii)(II).
The district court supervising the California Trout litigation retained jurisdiction to monitor the FWS’s compliance with the statutory deadline. ' After the FWS failed to comply, the conservation groups amended their complaint and moved for summary judgment. The district court found the FWS in violation of the ESA and ordered a final critical habitat designation by Feb: ruary 2004. Cal. Trout v. Norton, No. 97-cv-3779, 2003 WL 23413688, at *5 (N.D.Cal. Feb. 26, 2003).
2. 2004 Final and Proposed Rules
In February 2004, the FWS concurrently issued identical proposed and final critical habitat designations. The 2004 Final Rule designated 21,129 acres of critical habitat in three areas: the Santa Ana River (indicated as Unit 1, further divided into subunits 1A and IB), the San Gabriel River (Unit 2), and the Big Tujunga Creek (Unit 3). The 2004. Final Rule found that the “primary constituent elements” (“PCEs”) for the sucker are “a functioning hydrological system that experiences peaks and ebbs in the water volume and maintains a sand, gravel, and cobble substrate in a mosaic of sandy stream margins, deep water pools, riffles [and] runs; sufficient water volume and quality; and complex, native floral and faunal associations.” 69 Fed.Reg. 8,839, 8,843 (Feb. 26, 2004). Although the FWS found that Units 1A and - IB “are not known to be occupied, they are essential for the conservation of the Santa Ana sucker because they provide and transport sediment nec.essary to maintain the preferred substrates utilized by this fish ..., convey stream flows and flood waters necessary to maintain habitat conditions for the Santa Ana sucker; and support riparian habitats that protect water quality in the downstream portions of the Santa Ana River occupied by the sucker.” Id. at 8,844-45 (citations omitted).
Notwithstanding these findings, the FWS exercised its authority under Section 4(b)(2) of the ESA to exclude “essential habitat” that included areas encompassed by the MSHCP and the SASCP. The FWS concluded that “the benefits of excluding essential habitat within the boundaries of’ these agreements, such as fostering continuing cooperative spirit with local agencies, educational value, and likely changes in conservation, “outweigh the benefits of including these areas as critical habitat,” and that this exclusion “will not result in the extinction of the sucker.” Id. at 8,846-48.
3. 2005 Final Rule and Subsequent Litigation
Because the 2004 Final Rule had been promulgated without an opportunity for public review and comment in order to comply with the district court’s order, the FWS accepted review and comment on the simultaneously released 2004 Proposed Rule, which was ultimately promulgated as a new 2005 Final Rule. The 2005 Final Rule revised the PCEs for the sucker and reduced the designated critical habitat to 8,305 acres. Specifically, all portions of the habitat in the Santa Ana River and its tributaries (Unit 1) were removed from designation because they were no longer considered “essential.” However, this change rendered the 2005 Final Rule internally inconsistent, because the rationale for designating certain unoccupied portions of other river systems as essential was the same as the rationale used to reject designation for the units along the Santa Ana River. For example, while unoccupied areas in Unit 3 (the Big Tujun-ga Creek) were designated as essential because they transported sediment downstream to occupied areas, unoccupied areas in Unit 1A were now deemed “not essential,” even though they also transported sediment to downstream occupied areas. Additionally, while certain sections of the 2005 Final Rule state that Units 1A and IB are not essential, the FWS did not remove other language in the Final Rule that refers to habitat within these units as essential. See, e.g., 70 Fed.Reg. 426, 443 (Jan. 4, 2005) (“[W]e analyzed the impacts of the MSHCP ... on the Santa Ana sucker and its essential habitat within the plan boundaries.”).
Various conservation groups pressed the FWS on these inconsistencies, raising questions about the integrity of the scientific information used and whether the decision was consistent with appropriate legal standards. In response, the FWS announced in July 2007 that it would review the 2005 Final Rule. In November 2007, the conservation groups again sued the FWS, alleging that the 2005 Final Rule violated the ESA and the Administrative Procedure Act (“APA”), and that the rule making resulted from improper political influence not grounded in reliable science. The parties settled in 2009. The settlement agreement approved by the district court required the FWS to “reconsider its critical habitat designation for the Santa Ana sucker,” and to submit a proposed rule by December 2009, with a final rule due by December 2010. Cal. Trout v. U.S. Fish and Wildlife Serv., No. 08-cv-4811, Dkt. No. 41 (C.D.Cal. Jan. 21, 2009).
4. 2009 Proposed Rules and 2010 Final Rules
The FWS released a new proposed rule in December 2009, with a slight revision in July 2010, designating 9,605 acres of habitat from the three river systems, including 1,900 acres of unoccupied habitat from the Santa Ana River that was previously found not essential in the 2005 Rule (identified as new subunit 1A). 74 Fed.Reg. 65,056 (proposed Dec. 9, 2009), revised by 75 Fed. Reg. 38,441 (proposed July 2, 2010). The FWS noted that it was considering exercising its discretion to exclude 5,472 acres of designated habitat, consisting of areas within the SASCP and MSHCP (identified as new subunits IB and 1C).
In connection with the Proposed Rule, the FWS held two open 60-day comment periods, hosted two public hearings in July 2010, and contacted “appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and D[raft] E[conomic] A[nalysis] during these comment periods.” 75 Fed. Reg. 77,961, 77,989 (Dec. 14, 2010). The FWS also subjected its rule to peer review, responded to several Congressional inquiries, and met with various stakeholders, including Appellants’ representatives. See id. at 77,989-94. Various agencies participating in the SASCP and MSHCP, including Appellants, commented extensively on the 2009 Proposed Rule, supporting an exclusion and asking the FWS to adhere to its commitment in the MSHCP-IA to exclude MSHCP land.
In December 2010, the FWS issued its Final Rule. The 2010 Final Rule designated 9,331 acres of critical habitat across the three river systems. The 2010 Final Rule designated habitat closely along the lines of the 2009 Proposed Rules, except that it removed approximately 400 acres from subunit 1A. The 2010 Final Rule designated approximately 1,500 acres of unoccupied habitat in subunit 1A on the ground that these areas are “essential to the eon-servation of the species” because they function as pathways to transport storm and stream waters and sediments “necessary to maintain” preferred substrates to occupied portions of the Santa Ana River further downstream. 75 Fed.Reg. at 77,-972, 77,978. The FWS also decided not to exclude the areas in subunits IB and 1C, which included 3,048 acres of land covered by the MSHCP. The FWS found that the benefits of continued exclusion did not outweigh the benefits of inclusion, and declined to exercise its discretion to exclude those areas because of the sucker’s conservation status.
II. Procedural History
In August 2011, the plaintiff municipalities and water districts sued the FWS, challenging the 2010 Final Rule on multiple grounds, and requested declaratory and injunctive relief. As relevant to this appeal, the plaintiffs alleged that the FWS (1) failed to cooperate with them to resolve water resource concerns pursuant to Section 2(c)(2) of the ESA (claim 1); (2) designated lands along the Santa Ana River or within the MSHCP in a manner that was arbitrary and capricious, in violation of the ESA and the APA (claims 2 and 4); and (3) violated NEPA by failing to prepare an Environmental Impact Statement (claim 6).
In November 2011, California Trout, Inc., the Center for Biological Diversity, the San Bernardino Audubon Society, and the Sierra Club successfully moved to intervene as defendants. The parties cross-moved for summary judgment and in October 2012, the district court granted defendants summary judgment on all claims. Bear Valley Mut. Water Co. v. Salazar, No. 11-cv-1263, 2012 WL 5353353 (C.D.Cal. Oct. 17, 2012). In sum, the district court concluded that (1) the FWS complied with its statutory obligations to cooperate with state and local authorities and Section 2(c)(2) of the ESA does not impose additional substantive or procedural obligations on federal agencies, see id. at *9-11; (2) an agency’s decision not to exclude areas from critical habitat is a discretionary action not subject to judicial review, see id. at *14, and the FWS’s critical habitat designation was not arbitrary or capricious because it was rationally connected to the best available science, see id. at *15, 19-34; and (3) any claim under NEPA is barred by Douglas County, see id. at *37.
The municipalities and water districts appealed and the Pacific Legal Foundation successfully moved to appear as amicus curiae in support of Appellants. We have jurisdiction pursuant to 28 U.S.C. § 1291.
STANDARDS OF REVIEW
We review a district court’s grant of summary judgment de novo. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970 (9th Cir.2011). ‘We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir.2008) (quotation omitted). “This Court also reviews de novo the district court’s evaluations of an agency’s actions.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th Cir.2014).
Claims brought against an agency under the ESA are evaluated under the APA. Pursuant to the APA, an agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Under this standard, we will ‘sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made.’ ” San Luis & Delta-Mendota, 776 F.3d at 994 (quoting Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.2005)). A federal court may not substitute its judgment for that of the agency. See, e.g., U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001).
ANALYSIS
I. Section 2(c)(2) Does Not Create an Independent Cause of Action
Section 2 of the ESA is entitled “Congressional findings and declarations of purposes and policy.” 16 U.S.C. § 1531. Section 2(c) provides:
(c) Policy
(1) It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.
(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.
16 U.S.C. § 1531(c). Appellants argue that the FWS violated Section 2(c)(2) because it failed to cooperate with State and local agencies on water resource issues, by, for example, failing to give sufficient weight to the California State Water Board’s determination that the issuance of permits for the proposed diversion from the Santa Ana River at Seven Oaks Dam for municipal purposes would have no impact upon public trust resources, including the sucker, and otherwise declining to engage Appellants in negotiating the critical habitat designation.
This argument fails as a matter of law because, as the district court correctly held, Section 2(c)(2) is a non-operative statement of policy that “does not create an enforceable mandate for some additional procedural step.” Bear Valley, 2012 WL 5353353, at *11. By its own terms, Section 2(c)(2) is a subsection of the ESA’s declaration of purposes and policy. It is well established that such declarations do not create substantive or enforceable rights. See Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175, 129 S.Ct. 1436, 173 L.Ed.2d 333 (2009) (“[W]here the text of a clause itself indicates that it does not have operative effect...., a court has no license to make it do what it was not designed to do.” (quotation marks and citation omitted)). Although we believe the text is clear, we note that this reading is further supported by the statute’s legislative history. When Congress amended the ESA to include Section 2(c)(2) in 1982, the Senate Committee report expressly provided that this provision was “not intended to and does not change the substantive or procedural requirements of the Act.” S. Rep. 97-418, at 25-26 (May 26, 1982). We also note that no court has ever construed Section 2(c)(2) to set forth a substantive or procedural requirement.
Appellants claim that this reading renders- statutory language superfluous and violates established canons of statutory interpretation. They note that Section 2(c)(2) uses the word “shall,” which is typically considered to be a mandate. Appellants contend that the Eighth Circuit’s decision in Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294 (8th Cir.1989) supports their position. There, the court concluded that the ESA “imposes substantial and continuing obligations on federal agencies,” citing Section 2(c)(1), which expresses the policy “that all Federal departments and agencies ... shall utilize their authorities in furtherance of the purposes of this Act.” 882 F.2d at 1299. According to Appellants, if Section 2(c)(1) imposes a “substantial and continuing obligation,” then so must Section 2(c)(2). However, the substantive provisions enforced by the Eighth Circuit were Sections 7 and 9 of the ESA, which set forth the procedures reflecting the policy statement in Section 2(c)(1). Nothing in Defenders of Wildlife establishes or recognizes a free-standing claim based on Section 2(c)(1).
Contrary to what Appellants contend, the policy goals embodied in Section 2(c)(2) are implemented through the substantive and procedural requirements set forth in Section 4, which direct the FWS to “give actual notice of the proposed regulation (including the complete text of the regulation) to the State agency in each State in which the species is believed to occur, and to each county or equivalent jurisdiction in which the species is believed to occur, and invite the comment of such agency, and each such jurisdiction, thereon,” 16 U.S.C. § 1533(b)(5)(A)(ii), and to provide a “written justification” for any rule that was issued without “adopting] regulations consistent with the [State] agency’s comments or petition.” 16 U.S.C. § 1533(i). In other words, the procedures set forth in Section 4 outline the scope of “cooperation” required between the FWS and state and local agencies in designating critical habitat. This process is an enhanced level of notice and comment compared to that afforded to the general public through notice in the Federal Register and publication in a newspaper that circulates in the area in which the species is believed to occur. It is undisputed that the FWS complied with Section 4 of the ESA.
Appellants argue that Section 2(c)(2)’s mandate of “cooperation” is not satisfied by Section 4’s procedures, and that the provision creates additional obligations where “water resource issues” are involved. As support for this contention, Appellants cite to California Wilderness Coalition v. U.S. Department of Energy, which held that a provision of the Energy Policy Act that required “consultation with affected States” in conducting a study concerning certain transmission corridors issues mandated that the DOE “confer with the affected States before ... completing]” the study, rather than rely on the statute’s notice and comment procedure. 631 F.3d 1072, 1088 (9th Cir.2011). But as the district court noted, both relevant provisions of the Energy Policy Act at issue in California Wilderness are substantive and distinct because “the opportunity to comment provision applie[s] to the issuing of a.... report based on the congestion study previously subject to consultation.” Bear Valley Mut. Water Co., 2012 WL 5353353, at *10. But here, Section 2(c)(2) merely announces a general policy goal that is reflected in the substantive and procedural requirements of Section 4.
Finally, Appellants’ citation to legislative history is unavailing. Although Appellants cite some portion of the legislative history which suggests that Congress intended for “most of the potential conflicts between species conservation and water resource development [to] be avoided through close cooperation,” this same text later make's explicitly clear that Section 2(c)(2) does not “change the substantive or procedural requirements of the Act.” Accordingly, we affirm the district court’s grant of summary judgment in favor of Appellees as to claim 1.
II. The Critical Habitat Designation of Land Covered by the MSHCP Was Proper
A. Legal Framework
Section 4(b)(2) requires the FWS to designate critical habitat “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” 16 U.S.C. § 1533(b)(2). “The determination of what constitutes the ‘best scientific data available’ belongs to the agency’s ‘special expertise... .When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 602 (9th Cir.2014) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)).
A critical habitat designation must describe the PCEs, which are the “physical and biological features essential to the conservation of the species and which may require special management considerations or protection.” 50 C.F.R. § 424.12(b). The FWS “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [it] determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” 16 U.S.C. § 1533(b)(2).
B. Appellants’ Challenge to the FWS’s Decision Not to Exercise Its Discretion to Exclude Land Covered by the MSHCP Fails
Judicial review of agency decisions under the APA does not apply to an “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). An action is committed to agency discretion where there is no “meaningful standard against which to judge the agency’s exercise of discretion.” See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Typically, where a statute is written in the permissive, an agency’s decision not to act is considered presumptively unreviewable because courts lack “a focus for judicial review ... to determine whether the agency exceeded its statutory powers.” Id. at 832, 105 S.Ct. 1649. Here, the district court found that, to the extent Appellants argued that the FWS violated the ESA and the APA by not exercising its discretion to exclude land covered by the MSHCP, that agency decision is unreviewable because “[t]he statute is written in the permissive,” and authorizes the FWS to exclude essential area from a critical habitat designation but does not compel it to do so. Bear Valley Mut. Water Co., 2012 WL 5353353, at *14. For the reasons explained below, we agree with the district court that an agency’s decision not to exclude critical habitat is unreviewable.
Appellants’ principle argument is that if there is a manageable standard to review an agency’s decision to exclude, which all parties agree is subject to review, the same standard can, and should be, used to review an agency’s decision not to exclude. Their authority for this proposition is the D.C. Circuit’s decisions in Amador County v. Salazar, 640 F.3d 373, 379-83 (D.C.Cir.2011), and Dickson v. Sec’y of Def., 68 F.3d 1396, 1401-02 (D.C.Cir.1995), cases in which the court held that a statute is not made unreviewable by the use of permissive language alone. This argument is unavailing.
In Amador County, the D.C. Circuit analyzed a provision of the Indian Gaming Regulatory Act, which states that the Secretary of Commerce “may disapprove a [Tribal-State] compact [entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe] ... only if such compact violates (i) any provision of this chapter, (ii) any other provision of Federal law ..., or (iii) the trust obligations of the United States to Indians.” 25 U.S.C. § 2710(d)(8)(B). The court found that subsection (d)(8)(B)’s “use of ‘may’ is best read to limit the circumstances in which disapproval is allowed.” Amador Cnty., 640 F.3d at 381. In Dickson, the D.C. Circuit analyzed a statute directing that the Army Board for Correction of Military Records “may excuse a failure to file [a request for a correction of military records] within three years after discovery if it finds it to be in the interest of justice.” 68 F.3d at 1399 (quoting 10 U.S.C. § 1552(b)). The court concluded that Congress did not intend “may” to confer complete discretion because “this construction would mean that even if the Board expressly found in a particular case that it was in ‘the interest of justice’ to grant a waiver] it could still decline to do so.” Id. at 1402, n. 7.
Appellants, however, misunderstand the standard under which a decision .to exclude is reviewable. Unlike Amador County and Dickson, where the government argued that it was not obligated to take any action, the FWS is obligated to take an action under Section 4(b)(2), i.e., designate essential habitat as critical.’ The decision to exclude otherwise essential habitat is thus properly reviewable because it is equivalent to a decision not to designate critical habitat.
But the statute cannot be read to say that the FWS is ever obligated to exclude habitat that it has found to be essential. Such a decision is always discretionary and the statute “provides absolutely no standards that constrain the Service’s discretion” not to exclude, unlike the statute reviewed in Amador County, which cab-ined the agency’s discretion to disapprove compacts to a set of specified conditions. See Conservancy of Sw. Fla. v. U.S. Fish and Wildlife Serv., 677 F.3d 1073, 1084, n. 16 (11th Cir.2012) (distinguishing Amador County and finding that the use of the word “may” in another section of the ESA precludes the review of an agency’s exercise of discretion); see also Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002) (holding that where the Board of Immigration is permitted to reopen proceedings in “exceptional circumstances,” its decision not to reopen a case is unreviewable because there are no “statutory, regulatory, or caselaw definition[s] of ‘exceptional circumstances’ ” and ' thus no manageable standard to apply on review). Accordingly, we affirm the district court’s holding that the FWS’s decision not to exclude land covered by the MSHCP is not subject to review.
C. The FWS’s Designation of Lands Included in the MSHCP Was Not Arbitrary or Capricious
Even if an agency’s decision not to exclude is unreviewable, courts undisputedly have the authority to review whether the FWS properly included an area in a critical habitat designation. This inquiry turns on whether the designation was based on “the best scientific data available,” and whether the FWS took into consideration the economic, national security, or any other relevant impacts, of “specifying any particular area as critical habitat,” 16 U.S.C. § 1533(b)(2).
Appellants do not argue that the FWS relied on faulty scientific data, or that there is no rational relationship between the facts underlying the determination that the MSHCP lands were essential and the FWS’s designation of critical habitat. Rather, Appellants contend that “[b]y executing the MSHCP and its Implementation Agreement, the FWS assured [p]er-mittees that it would not designate MSHCP land unless it first found that the plan was not being implemented.” According to Appellants, the inclusion of this land in the 2010 Final Rule was a “radical departure from prior precedent and in contravention of assurances provided in the IA,” and the FWS’s failure to consider the consequences of violating those assurances makes the 2010 Final Rule arbitrary and capricious. We disagree.
The MSHCP-IA states that the FWS will not designate land within the agreement “to the maximum extent allowable after public review and comment.” While Appellants read this provision to require that the FWS exercises its discretion under Section 4(b)(2) to exclude MSHCP land unless absolutely barred from doing so under the law, the Federal Appellees respond that the MSHCP-IA does not constitute a “contractual assurance[] that the agency would not designate as critical habitat lands covered by the MSHCP” because “[t]he FWS did not, nor could it, promise to ignore its ESA obligations.” Further, the Federal Appellees argue that it would be inappropriate and unlawful for an agency to “commit to the substantive outcome of a future rulemaking in 'an agreement with a specific group like the MSHCP signatories.”
To the extent Appellants believe the MSHCP-IA creates an enforceable guarantee not to designate critical habitat, they are mistaken. Although Appellants raise valid concerns about the permittees’ reliance on the FWS’s promise not to designate lands “to the maximum extent allowable,” the FWS may not relinquish its statutory obligation to designate essential critical habitat by contract with third parties. Nevertheless, Appellants correctly argue that the MSHCP is a “relevant impact” that should have been considered in the process of rulemaking. Contrary to Appellants’ assertions, the FWS. fully considered the MSHCP as a “relevant impact,” and its conclusion that designation of critical habitat was nevertheless warranted is, consequently, permissible.
At the time the 2010 Final Rule was promulgated, the FWS’s duty to consider “any other relevant impact” under Section 4(b)(2) required that the Service “identify any significant activities that would either affect an area considered for designation as critical habitat or be likely to be affected by the designation,” and “consider the probable economic and other impacts of the designation upon proposed or ongoing activities.” 50 C.F.R. § 424.19 (2010), revised by 78 Fed.Reg. 53,058 (Aug. 28, 2013).
The FWS fully considered the impact of including the areas covered by the MSHCP (as well as the SASCP) in the 2010 Final Rule, including the potentially deleterious impact on future local cooperation efforts. See 75 Fed.Reg. at 77,985-87 (“Rationale for Including the Western Riverside County MSHCP and SAS Conservation Program in This Final Critical Habitat Designation”). Nevertheless, the FWS found that the designation of critical habitat was warranted. Specifically, the FWS noted that “the status of the Santa Ana sucker and the status of its habitat continue to decline throughout the Santa Ana River system,” and that because mitigation under the MSHCP is to be implemented over a 75 year period, the continued decline warranted inclusion of essential habitat within the MSHCP area. Id. at 77,985. The FWS also noted that designation will provide a significant public educational benefit, and may strengthen other laws in á manner beneficial to the sucker. Id. at 77,986.
Appellants contend that the FWS’s decision was arbitrary and capricious because the 2010 Final Rule (1) failed to cite or address the specific assurance not to designate critical habitat in the MSHCP-IA, or (2) to explain the decision to reverse the exclusion in the 2004 and 2005 Final Rules. But as Appellants admit, the FWS specifically determined that “‘the partnership benefits of exclusion] ... do not outweigh the regulatory and educational benefits afforded ... as a consequence of designating critical habitat in this area.’ ” Thus, the 2010 Final Rule fully addresses the impact on conservation plans and local partnerships. Further, the Final Rule explains the changed circumstances requiring designation and articulates the reasons for why the benefits of inclusion outweigh the benefits of exclusion. This is clearly adequate even in the absence of a specific citation to the assurance in the MSHCP-IA.
D. The Designation Does Not Violate the “No Surprises Rule”
Alternatively, Appellants argue that the designation of habitat in areas covered by the MSHCP violates the FWS’s “No Surprises Rule.” The “No Surprises Rule” provides that once a permit has been issued pursuant to a habitat conservation plan, and assuming that the terms of the underlying plan are being implemented, the permittee “may remain secure regarding the agreed upon cost of conservation and mitigation.” Habitat Conservation Plan Assurances (“No Surprises”) Rule, 63 Fed.Reg. 8,859, 8,867 (Feb. 23, 1998). In other words, the FWS may not require permittees to pay for additional conservation and mitigation measures absent “unforeseen circumstances.” 50 C.F.R. §§ 17.32(b)(5)(ii-iii).
We agree with the district court that, although the FWS cites the possibility of “conservation not currently provided under the plan” as a potential benefit in the critical habitat designation, nothing in the 2010 Final Rule discusses “additional measures by the [MSHCP] permittees in undertaking covered activities,” nor does the 2010 Final Rule require the permittees to undertake any additional acts for conservation. Bear Valley Mut. Water Co., 2012 WL 5353353, at *15. Appellants admit that the FWS has not yet imposed such a requirement, but contend that the “additional regulatory benefit” rationale is arbitrary and capricious because it could violate the No Surprises Rule in the future. At this juncture, these concerns are speculative. Tellingly, the Appellants can point to no additional conservation or mitigation measures that have been imposed on them. Consequently, based on the record on this appeal, we conclude that the 2010 Final Rule does not violate the No Surprises Rule.
E. Appellants Had Adequate Opportunity to Comment on the FWS’s Scientific Citations
Next, the Appellants argue that the FWS committed error by citing to two new studies — SMEA 2009 and Thompson et.' ah, 2010 — in the 2010 Final Rule to support its conclusion that the status of the sucker and its available habitat have continued to decline. We see no impropriety in'the use of those studies.
The ESA’s notice and comment procedures require that the public be given an opportunity to provide comments on the contents of a proposed rule. The contents of a proposed rule for a revised habitat designation “shall contain the complete text of the proposed rule, a summary of the data on which the proposal is based (including, as appropriate, citation of pertinent information sources), and shall show the relationship of such data to the rule proposed.” 50 C.F.R. § 424.16(b) (effective prior to May 31, 2012). While “[a]n agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary.... the public is not entitled to review and comment on every piece of information utilized during rule making.... [A]n agency, without reopening the comment period, may use supplementary data ... that expands on and confirms information contained in the proposed rulemaking ... so long as no prejudice is shown.” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir.2006) (internal quotations omitted); accord Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1402 (9th Cir.1995).
The Federal Appellees correctly contend that the Thompson and SMEA studies simply expand upon and confirm the data used to support two conclusions in the 2009 Proposed Rule — the decline of the sucker and its habitat. Further, the Thompson study was cited in the Proposed Rule in its draft form, and was thus available to the public for comment. While the SMEA study was not available at the time of the Proposed Rule, it was supplementary to the otherwise cited studies, which also found that the sucker and its habitat have declined over time.
Appellants do not challenge the reliability of the studies, but disagree with the FWS’s interpretation and use of the studies. Specifically, Appellants argue that the majority of the studies in the 2009 Proposed Rule predate 2004, while the FWS based its decision to designate critical habitat in the 2010 Final Rule on a conclusion, supported by the new studies, that there has been a continued decline of the sucker since the MSHCP was finalized in 2004.
Appellants’ contention that the FWS used these studies to show decline since 2004 is not correct. Rather, the FWS used these studies to supplement the previous studies which showed the persistent decline of the sucker and its habitat over time. Appellants fail to explain why the pre-2004 studies would not tend to support the conclusion that the habitat continues to decline. More importantly, Appellants do not explain why the 2009 Proposed Rule’s citation to the pre-2004 studies did not put them “on notice” that the decline of the sucker and its. habitat were relevant factors in the FWS’s decision making process, and did not afford Appellants an opportunity to comment on those issues.
Even if the FWS somehow erred in failing to reopen the comment period after the addition of these two studies, Appellants fail to demonstrate how this error prejudiced them. See 5 U.S.C. § 706 (requiring that a court reviewing agency decisions take “due account ... of the rule of prejudicial error”). Appellants do not challenge the studies’ reliability or conclusions or cite to studies supporting alternative findings. Accordingly, we affirm the district court’s grant of summary judgment in favor of Appellees on all claims arising out of the designation of critical habitat in areas covered by the MSHCP.
III. The FWS’s Designation of Critical Habitat in Unoccupied Areas Was Proper
The ESA authorizes the FWS to designate unoccupied areas “upon a determination by the [Service] that such areas are essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A)(ii). The implementing regulation further provides that “critical habitat areas outside the geographical area presently occupied by a species” should be designated “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” 50 C.F.R. § 424.12(e).
The 2010 Final Rule designated unoccupied habitat in subunit 1A of the Santa Ana River as essential because areas with-' in subunit 1A are the primary sources of high quality coarse sediment for the downstream occupied portions of the Santa Ana River. The Final Rule determined that coarse sediment was essential to the sucker because provided a spawning ground as well as a feeding ground from which the sucker obtained algae, insects, and detritus. The Final Rule also determined that Subunit 1A assisted in maintaining water quality and temperature in the occupied reaches of the river. 75 Fed.Reg. at 77,-972-73, 77,977-78.
Appellants claim that this justification fails to establish that subunit 1A is essential to the conservation of the species and that the designated occupied areas are inadequate to ensure the conservation of the species. Although Appellants consider these to be two separate requirements, they are identical. The ESA requires the FWS to demonstrate that unoccupied area is “essential” for conservation before designating it as critical habitat. The implementing regulation phrases this same requirement in a different way, and states that the FWS must show that the occupied habitat is not adequate for conservation. As the district court properly found, “[i]f certain habitat is essential, it stands to reason that if the [Service] did not designate this habitat, whatever the [Service] otherwise designated would be inadequate .... [T]he regulation provides only elaboration and not an additional requirement or restriction.” Bear Valley Mut. Water Co., 2012 WL 5353353, at *22. The Final Rule sufficiently explained why the designation of unoccupied habitat in subunit 1A was essential, and conversely, why designation of solely occupied habitat was inadequate for the conservation of the species. ■
Appellants further contend that the FWS’s justification for designating this unoccupied land was arbitrary and capricious because “uninhabitable source areas do not meet the statutory requirement for critical habitat.” .There is no support for this contention in the text of the ESA or the implementing regulation, which requires the Service to show that the area is “essential,” without further defining that term as “habitable.” Finally, Appellants argue that the FWS’s reliance on the fact that PCEs exist in the designated unoccupied habitat is contrary to the statute because it is the same test used for occupied habitat. But the 2010 Final Rule does not designate subunit 1A as essential only because it contains PCEs. Rather, the area is designated as essential because it provides “sources of water and coarse sediment.... necessary to maintain preferred substrate conditions” for the sucker. 75 Fed.Reg. at 77,972-73 (emphasis added). For these reasons, we affirm the district court’s grant of summary judgment in favor of Appellees as to all claims pertaining to the designation of unoccupied habitat in subunit 1A.
IY. Appellants’ NEPA Claim Fails as a Matter of Law
Finally, Appellants contend that the FWS violated NEPA by failing to prepare an environmental impact statement in connection with its 2010 Final Rule. Any such claim is foreclosed by the controlling law of this Circuit, which holds “that [the]' NEPA does not apply to the designation of a critical habitat.” Douglas Cnty., 48 F.3d at 1502. Although Appellants ask this Court to revisit and overrule Douglas County, “in the absence of intervening Supreme Court precedent, one panel cannot overturn another panel.” Hart v. Massanari, 266 F.3d 1155, 1171-72 (9th Cir.2001). Accordingly, we affirm the district court’s grant of summary judgment in favor of Appellees on any claim arising under NEPA.
CONCLUSION
For the foregoing reasons, we AFFIRM . the judgment of the district court.
. Because Appellants did not address several other claims raised before the district court in their opening brief, we consider those claims to be abandoned. See Christian Legal Soc. Ch. v. Wu, 626 F.3d 483, 485 (9th Cir.2010).
. The Association of California Water Agencies, State Water Contractors, Metropolitan Water District of Southern California, Main San Gabriel Basin Watermaster, County of Los Angeles, and the Western Riverside County Regional Conservation Authority ("RCA”) have also moved for leave to file three separate amicus curiae briefs in support of Appellants. The RCA further requests that this Court take judicial notice of several documents. These motions are opposed by the Intervenors-Appellees. All pending motions for leave to file amicus briefs are hereby' granted. RCÁ’s request for this Court to take judicial notice is denied because “judicial review of an agency decision is [generally] limited to the administrative record on which the agency based the challenged decision,” and RCA has not shown why the additional materials are "necessary to adequately review” the decision here. See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir.2010).
. We note that our holding today also comports with every lower court that has addressed this issue to date. See Aina Nui Corp. v. Jewell, 52 F.Supp.3d 1110, 1132 n. 4 (D.Haw.2014) (“The Court does not review the Service’s ultimate decision not to exclude ..which is committed to the agency’s discretion.”); Cape Hatteras Access Pres. Alliance v. U.S. Dep't of the Interior, 731 F.Supp.2d 15, 29 (D.D.C.2010) ("The plain reading of the statute fails to provide a standard by which to judge the Service's decision not to exclude an area from critical habitat.”); Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., No. 05-cv-629, 2006 WL 3190518 (E.D.Cal. Nov. 2, 2006) ("[T]he court has no substantive standards by which to review the [agency's] decisions not to exclude certain tracts based on economic or other considerations, and those decisions are therefore committed to agency discretion.").
. Appellants argue that this conclusion is not supported by the factual record because a large percentage of sucker habitat had already been conserved under the terms of the MSHCP. However, as the RCA admits, “the acquisition of additional conservation land was intended to be a multi-step, gradual process where land is acquired in rough proportionality to development” over the first 25 years of the plan. Thus, the FWS’s conclusion that the MSHCP would likely benefit the sucker in the long term, but would not necessarily resolve short-term conservation problems, is not arbitrary and capricious.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2083333333333333, Costs: 0.04166666666666666
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PER CURIAM:
The Warm Springs Dam Task Force (“the Task Force”) seeks an injunction pending appeal barring further work on the proposed Warm Springs Dam in Sonoma County, California, on the ground that the Environmental Impact Statement (“EIS”) prepared for the dam project by the Army Corps of Engineers fails to comply with the requirements of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (1971). After three days of hearings, the district court rejected the Task Force’s motion for an injunction, finding that the challenged EIS fully complied with the NEPA, and it also rejected the Task Force’s motion for an injunction pending appeal. (Fed.Rules Civ.Proc., Rule 62(c); Fed.Rules App.Proc., Rule 8.)
The considerations in determining whether to grant or deny the requested relief are three-fold: (1) Have the movants established a strong likelihood of success on the merits? (2) Does the balance of irreparable harm favor the movants? (3) Does the public interest favor granting the injunction? (Alpine Lakes Protection Society v. Schlapfer (9th Cir. 1975) 518 F.2d 1089, 1090.) As the Eighth Circuit has pointed out, the latter criteria merge into a single equitable judgment in which the environmental concerns of the movants must be weighed against the societal interests which will be adversely affected by granting the relief requested (Reserve Mining Co. v. United States (8th Cir. 1974) 498 F.2d 1073, 1076-77), a process which must be significantly affected by the realities of the situation. (See Friends of the Earth, Inc. v. Coleman (9th Cir. 1975) 518 F.2d 323, 330; Lathan v. Volpe (9th Cir. 1971) 455 F.2d 1111, 1116-17.)
We conclude that the public interest can best be served by expediting an appeal of the hearing on the merits and denying the requested interim injunctive relief. We do not believe that appellants have shown that they will suffer significant harm during the pendency of such an expedited hearing on the merits.
The scope of appellate review in this action is extremely narrow. While injunctions will issue under the NEPA if an EIS is inadequate (see Environmental Defense Fund v. Tennessee Valley Authority (6th Cir. 1972) 468 F.2d 1164, 1183-84; Lathan v. Volpe, supra, 455 F.2d at 1116-17; Sierra Club v. Coleman (D.D.C.1975) 405 F.Supp. 53, 54-55; see also Cady v. Morton (9th Cir. 1975) 527 F.2d 786, 798-99 n. 12; Friends of the Earth, Inc. v. Coleman, supra, 518 F.2d at 330 (no absolute right to an injunction); accord State of New York v. Nuclear Regulatory Commission (2d Cir. 1977) 550 F.2d 745, 753-57), the district court’s finding that the EIS is adequate will be reversed only if based upon an erroneous legal standard or upon clearly erroneous findings of fact. (Brooks v. Coleman (9th Cir. 1975) 518 F.2d 17, 19; Daly v. Volpe (9th Cir. 1975) 514 F.2d 1106, 1108-09; Sierra Club v. Morton (5th Cir. 1975) 510 F.2d 813, 818. See also Aguirre v. Chula Vista Sanitary Service and Sani-Tainer, Inc. (9th Cir. 1976) 542 F.2d 779, 780-81; William Inglis & Sons Baking Co. v. ITT Continental Baking Co. (9th Cir. 1975) 526 F.2d 86, 88.) Judicial review of the adequacy of an EIS is also circumscribed. The substantive decision whether to proceed with a project is committed to the executive and legislative branches of government with which the judiciary will not interfere in the absence of a showing that the choice was “arbitrary and capricious,” given the known environmental consequences. (Trout Unlimited v. Morton (9th Cir. 1974) 509 F.2d 1276, 1282-83; Lathan v. Brinegar (9th Cir. 1974) 506 F.2d 677, 692-93 (en banc). See also Kleppe v. Sierra Club (1975) 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576; Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army (5th Cir. 1974) 492 F.2d 1123, 1138-40 & n. 33; Jicarilla Apache Tribe of Indians v. Morton (9th Cir. 1973) 471 F.2d 1275, 1281; Note, The Least Adverse Alternative Approach to Substantive Review under NEPA, 88 Harv.L.Rev. 735 (1975).)
Judicial enforcement of NEPA includes strict compliance with the disclosure and procedural provisions of the Act. Nevertheless, the test of EIS adequacy is pragmatic and the document will be examined to see if there has been a good faith attempt to identify and to discuss all foreseeable environmental consequences. (Sierra Club v. Froehlke (8th Cir. 1976) 534 F.2d 1289, 1299-1301; Brooks v. Coleman, supra, 518 F.2d at 19; Sierra Club v. Morton, supra, 510 F.2d at 818-19, 821; Lathan v. Brinegar, supra, 506 F.2d at 693.)
The Task Force’s primary contention is that the dam has not been designed to resist a potential “maximum credible event,” i. e., an earthquake registering 7.5 to 8.1 on the Richter scale. The dam is designed to resist a quake measuring 7.0 on the same scale. Dam failure could entail huge losses of life and damages to property. The Task Force’s concerns are shared by the State of California, through the Resources Agency, which commented that “the responses to questions on seismicity are not adequate” and requested tests for a 7.5 event. The President’s Council on Environmental Quality (“CEQ”), charged with review of environmental impact statements for the executive branch, 42 U.S.C. § 4344 (1971), “strongly recommended” in a letter to the Corps that an investigation of the desirability of such tests be undertaken in view of the California comment on the EIS.
The dispute about the maximum credible event, in turn, is based upon differences of opinion among geological experts as to the size of and degree of activity of three fault systems in the vicinity of the dam. The district court found that:
“In the preparation and publication of the EIS Supplement differences of opinion both as to the lengths of the various faults in the area and the maximum credible earthquake that could occur in the area were printed and thoroughly discussed. The pros and cons of the various positions are covered in the report and an exhaustive list of authorities relied upon is included. When the EIS and EIS Supplement are read together, there is no doubt in the court’s mind that they fully comply with the mandate of NEPA.” (Warm Springs Dam Task Force v. Gribble (N.D.Cal.1977) 431 F.Supp. 320, 322-23.)
It further held that to the extent that the State of California and the Task Force relied upon studies conducted after the publication of the EIS, such data could not be used to render the EIS inadequate through the judicial review process, but should instead be addressed to the responsible executive branch agencies.
The Task Force raised a number of specific objections to the EIS. The Task Force argues that it will prevail on the merits because undisputed evidence introduced at the hearing in support of those contentions below showed that “the Corps has still failed to deal in a meaningful manner with the seismic issue.” However, the district court’s findings are to the contrary, and the Task Force has not specified the portions of the record (other than the Resources Agency and CEQ comments) upon which it relies to show us that the findings are clearly erroneous. The Task Force relies on the continued dissatisfaction of the California Resources Agency with the seismic testing and particularly on the CEQ letter to the Corps. It suggests that the CEQ letter should be given great weight by this court as an indication that the EIS does not satisfy the NEPA and justifies issuance of an injunction, just as a 1974 CEQ letter persuaded Mr. Justice Douglas to grant a stay at an earlier stage in this litigation. (See note 1, supra; 417 U.S. at 1304-10, 94 S.Ct. 2542.) The CEQ objections are markedly different from those involved in the 1974 stay. In 1974, the CEQ had expressed its belief that the EIS was inadequate within the meaning of the NEPA, both in letters to the Corps and in a letter filed with the Supreme Court which had been directed to the Solicitor General. In the latter, the CEQ expressly stated that the EIS was inadequate in numerous respects and that an injunction was necessary to prevent irreparable harm to the public interest. (Id. at 1305, 94 S.Ct. 2542.) In contrast, the December, 1976, letter from the CEQ was directly addressed to the Corps and advised only that in the CEQ’s opinion an independent assessment should be made by the United States Geological Survey of whether testing for a 7.5 event is necessary. It viewed this as important because the objections of the California Resources Agency were based upon USGS information and the issue remained “a matter of contention” between the Corps and the State of California. It states that such an assessment would “ensure that all questions of dam safety have been resolved prior to any final decision with respect to this project.” The letter contains a strong suggestion that specified action be taken prior to constructing the dam, but the suggestion is not the same as its earlier statement that the EIS was inadequate within the meaning of the NEPA. An EIS is not supposed to resolve all contentions but to identify them to enable the appropriate decision-makers to make an informed choice. (Life of the Land v. Brinegar (9th Cir. 1973) 485 F.2d 460, 472-73.) The CEQ’s role is to advise the executive branch on the merits of proceeding with a project; it is not entrusted with decision making. (See Sierra Club v. Callaway (5th Cir. 1974) 499 F.2d 982, 990-91, 993; Hiram Clarke Civic Club, Inc. v. Lynn (5th Cir. 1973) 476 F.2d 421, 424.)
NEPA requires that “[p]rior to making any detailed (EIS) 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.” (42 U.S.C. § 4332(C).) The section also requires that copies of the statements of such agencies and of appropriate state agencies be made available to decision-makers and accompany the proposal throughout the project review process. The section does not specify the form which the consultation must take. Moreover, there is no requirement that the responsible agency alter its project or perform new studies in response to comments such as those of the California Resources Agency. The relevant questions under the NEPA are whether such comments are made available to decision-makers, whether the differences of opinion are readily apparent, and whether they receive good faith attention from decision-makers. (See 42 U.S.C. § 4332(C).) The purpose of an EIS is to disclose such issues, but the responsible agency is not under a duty to resolve them. (Life of the Land v. Brinegar, supra, 485 F.2d at 472-73. Of course, resolution of such issues may be required by the executive branch as a condition precedent to project approval or funding.)
The Task Force seeks only a “partial injunction;” it is not opposed to the continuance of activities which would not irrevocably commit the Corps and other decision-makers to the project. Such commitment cannot practicably be made before an expedited disposition on the merits. The Corps has yet to let contracts for road construction and the roads must be built before new work on the dam can begin; the next step is letting of contracts for the dam work itself; finally, a good portion of the work done prior to the commencement of this action must be removed prior to commencement of the dam as now designed, as the dynamic analysis conducted due to the Task Force’s intervention revealed that the original design would not stand up under potential seismic stress. No further appropriation for the Warm Springs Dam now exists, and given the CEQ and State of California objections, it is unclear whether the project will proceed in any event until the seismic concerns are resolved.
Injunctive relief pending appeal is denied. The appeal is expedited, and a briefing schedule will hereafter issue. The motion to place the appeal before the same panel that heard the prior appeal is denied. Supplemental briefs amicus heretofore tendered are ordered filed.
. This litigation has a long history. The dam was originally approved in 1962, Flood Control Act of 1962; Pub.L. 87-874, but an EIS was first prepared in 1973, following the intervening enactment of the NEPA in 1970. In 1974, the Task Force commenced this action, first seeking a preliminary injunction, alleging the inadequacy of the EIS on a variety of grounds. After fourteen days of hearings, the district court denied the request, finding the EIS adequate, but it ordered the defendants not to disturb the archeological site threatened by the construction. Warm Springs Dam Task Force v. Gribble (N.D.Cal.1974) 378 F.Supp. 240, 242, 252. A request for an injunction pending appeal was denied by the district court and by this court, but an injunction was granted by Mr. Justice Douglas, sitting as a Circuit Justice, Warm Springs Dam Task Force v. Gribble (1974) 417 U.S. 1301, 94 S.Ct. 2542, 41 L.Ed.2d 654, motion to vacate stay denied (1974) 418 U.S. 910, 94 S.Ct. 3202, 41 L.Ed.2d 1156. On Appeal, we remanded for reconsideration of the issues of seismic safety and water quality, to be determined after renewed review and testing promised by the Corps. No. 74-1968 (9th Cir. August 18, 1975) (unpub. mem.). After three days of new hearings on the Task Force’s motion for a permanent injunction and consideration of a Supplemental EIS and various tests and studies, the district court concluded that “all segments of the EIS fully complied with NEPA.” Warm Springs Dam Task Force v. Gribble (N.D.Cal.1977) 431 F.Supp. 320, 322. The recent hearings incorporated by reference the prior hearing testimony and considered the original and supplemental EIS’s as if they were one document. The two are referred to herein as “the EIS.”
. The somewhat more liberal standards for granting an injunction under the NEPA than in other litigation do not affect the standards applicable to this Rule 8 motion nor the standards for review of the trial court’s findings on the merits. See Alpine Lakes Protection Society v. Schlapfer, supra, 518 F.2d at 1090.
. There is language in Environmental Defense Fund, Inc. v. Armstrong (9th Cir. 1973) 487 F.2d 814, which suggests that appellate review of the trial court’s denial of an injunction under the NEPA must be based upon the “arbitrary and capricious” standard of 5 U.S.C. § 706(2)(A) rather than the clearly erroneous standard of Rule 52(a), Fed.Rules Civ.Proc. See id. at 817. However, the arbitrary and capricious standard applied only to administrative agency decisions, not findings of fact of a district court. Environmental Defense Fund was disapproved insofar as its language was taken to refer to the standard for judicial review of procedural compliance with the NEPA. See Trout Unlimited v. Morton (9th Cir. 1974) 509 F.2d 1276, 1282-83; Lathan v. Brinegar (9th Cir. 1974) (en banc) 506 F.2d 677, 692-93 (arbitrary and capricious standard applies to decision to proceed with project; while 5 U.S.C. § 706(2)(D) applies to compliance with NEPA procedural requirements). See also Cady v. Morton (9th Cir. 1975) 527 F.2d 786, 793.
. The Task Force’s more extensive objections to water quality, archeological impact, discussion of alternatives, and other dam consequences have apparently been abandoned as they are not mentioned in the trial brief or motion papers. See 378 F.Supp. at 243-44. The Task Force also does not appear directly to attack the substantive decision to proceed with the dam. See id. at 243 n. 4 (stating that its original allegation that the decision was “arbitrary and capricious” was not seriously pressed at the 1974 hearing).
. It is somewhat unclear in the present record whether the Corps failed to consider this later data in its attachments to the EIS and in the decision-making process. The Corps asserts that the California Resources Agency relied upon a map which was subsequently superseded by new USGS studies and that it was therefore correct in stating that there is “no basis in existing data” for assuming the additional tests are needed. The Task Force states that this is a gross misstatement of the evidence, but does not directly address the issue of whether the data, was considered and rejected by the Corps and made part of the EIS record or simply disregarded as the trial court’s opinion suggests. Both sides must attempt to explicate as precisely as possible the facts on which they rely to present their legal contentions in the appeal on the merits.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1428571428571428, Costs: 0.02380952380952381
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HILL, Circuit Judge.
This is an appeal from the United States District Court for the District of New Mexico for dismissing appellants’ action against the United States government. Appellants allege the government failed to follow the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and of 25 U.S.C. § 415 before approving a 99-year lease on the Tesuque Indian Reservation in Santa Fe County, New Mexico.
The facts are simple and uncontro-verted. On April 17, 1970, a 99-year lease of restricted Indian lands was executed by the Pueblo of Tesuque (Pueblo), as lessor, and Sangre de Cristo Development Company, Inc. (Sangre), a New Mexico corporation, as lessee. The agreement granted Sangre a lease on a 1300-acre tract of land called “Tract 1” and granted lease options on four other tracts, thereby subjecting approximately 5400 acres to the lease. The purpose of the lease is to develop the property for residential, recreational and commercial purposes. Ultimately a small city is planned with a population of approximately 15,000 inhabitants.
On May 24, 1970, appellee Walter O. Olson, Area Supervisor for the New Mexico District of the Bureau of Indian Affairs of the Department of the Interior, approved the lease agreement pursuant to 25 U.S.C. § 415. Olson’s authority was granted to him by appellee Lewis R. Bruce, Commissioner of Indian Affairs in the Department of the Interior, and by appellee Rogers C. B. Morton, Secretary of the Interior of the United States. Subsequent to this initial lease approval, appellees have approved a master plan for the development of the total acreage, a plat plan for the first phase of development, deed restrictions, the make-up of an architectural and engineering review board, and the plan for the. development of a condominium apartment complex on Tract 1 of the leased premises. Appellants, two of whom are landowners living near the leased Indian property and two of whom are non-profit corporations concerned with protection of the environment, filed the complaint on October 22, 1971, asking for a preliminary injunction enjoining future work by Sangre on the leased premises. Appellants charged that appellees were without authority to grant the lease since no environmental impact study was conducted prior to approval of the lease as required by NEPA, 42 U.S.C. § 4332 (2) (C). They further asserted that ap-pellees violated 25 U.S.C. § 415(a) by approving the lease on Indian lands without first being assured that certain statutory mandates had been met. Appellants requested the court to issue a preliminary and permanent injunction enjoining appellees from approving, allowing or acting in any way on submissions or approvals required or permitted under the lease agreement until the environmental impact of the project had been studied and evaluated. Appellants further requested the court issue a Writ of Mandamus requiring appellees to follow mandates of NEPA before taking any future action on the Pueblo lease.
The hearing on the preliminary injunction was held November 22, 1971, and thereafter the court entered its order denying appellants’ motion for preliminary injunction, 335 F.Supp. 1258. Later the court adopted the findings of fact and conclusions of law found in its denial for a preliminary injunction as its findings of fact and conclusions of law with respect to the merits of the action, and dismissed the action with prejudice. The trial court concluded the-lands in question are owned by the Pueblo subject to a restraint on alienation without approval of the Secretary. The United States was not a party to the lease, but rather was acting as a fiduciary or guardian of the Pueblo interests in the lease. The only “federal action” was in approving the lease; as the United States has no interest in the lease, their approval does not constitute “major federal action.” Therefore, 42 U.S.C. § 4332(2) (C) does not apply. In support of this conclusion, the trial court reasons that since the amendment to 25 U.S.C. § 415 specifically relates to environmental concerns on Indian lands, and was passed after NEPA, it is logical to infer that NEPA did not cover Indian lands or there would be no need to have amended § 415. The trial court's second conclusion is that since § 415 was amended on June 2, 1970, more than a week after the Secretary approved the lease, it has no effect on the lease.
Two issues are presented on appeal. First, does the Secretary’s authority to ratify or reject leases relating to Indian lands constitute major federal action? Second, does 25 U.S.C. § 415, as amended, have any effect on a lease signed before the amendment’s enactment date? As we answer the first issue in the affirmative, it will be unnecessary to discuss the retroactive effect of § 415.
Appellees’ primary thesis is that although the contractual relationship between Sangre and the Pueblo is a lease, it is not a federal lease and therefore does not constitute major federal action. The United States did not initiate the lease, was not a party, possessed no interest in either the lease or the development, did not participate financially or benefit from the lease in any way. Before federal action will constitute major federal action under the mandates of NEPA, the' government must initiate, participate in or benefit from the project.
We feel the government’s interpretation of NEPA is too constrained for our court to adopt. Title 42 U.S.C. § 4331 (b) states:
[I] t is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to . . . (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; .
These general mandates reflect Congress’ attitude toward preserving our environment. To ensure the implementation of these substantive requirements, Congress established procedural guidelines. One in particular applies to the instant case, 42 U.S.C. § 4332(2) (C). This section directs all agencies to present a detailed statement on the environmental impact of the proposed action. This impact statement will aid the agency in determining what proper course of action should be taken in each situation as it arises.
It is clear Congress passed this legislation out of concern for our natural environment. NEPA requires all federal agencies to consider values of environmental preservation in their spheres of activity. As the court stated in Calvert Cliffs’ Coord. Comm. v. United States Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971):
NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department. The Atomic Energy Commission, for example, had continually asserted, prior to NEPA, that it had no statutory authority to concern itself with the adverse environmental effects of its actions. Now, however, its hands are no longer tied. It is not only permitted, but compelled, to take environmental values into account. Perhaps the greatest importance of NEPA is to require the Atomic Energy Commission and other agencies to consider environmental issues just as they consider other matters within their mandates, (p. 1112).
Senator Jackson, NEPA’s principal sponsor, said on the floor just before final Senate approval that the Act “directs all agencies to assure consideration of the environmental impact of their actions in decision-making.” 115 Cong.Rec. (Part 30) 40416 (1969). Reading the Act and its legislative history together, there is little doubt that Congress intended all agencies under their authority to follow the substantive and procedural mandates, of NEPA.
The problem boils down to whether granting leases on Indian lands constitutes major federal action as required in NEPA § 102(2)(C). Upon review of the lease and relevant case law, we feel the lower court erred in holding the lease did not constitute major federal action. The lease refers to the United States government countless times. All notices and approvals must be made by the Pueblo and the United States. The Secretary is required to give written approval before encumbrances can be made on the leased land. The lease protects the United States government against damage or injury to people or property on the leased premises. Certainly the fact the United States government might be held liable for injury or damages incurred on the Indian land unless the lease provides otherwise makes the government more than an impartial, disinterested party to the contract between Pueblo and Sangre.
Recent case law sheds some light on what constitutes major federal action under NEPA § 102(2) (C). In Greene County Planning Board v. Federal Power Comm’n, 455 F.2d 412 (2d Cir. 1972), the case centered around the licensing procedures of the Federal Power Commission. The question of whether granting a license to construct a high voltage line constituted major federal action was never in issue, because all parties conceded granting the license was major federal action. In this case the only involvement necessary to constitute major federal action was the approval by the governmental department of a project under its jurisdiction.
Another case showing the only involvement necessary by the federal government to constitute major federal action is approving or licensing the project is Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287 (D.D.C. 1971). In that case the district court required the Atomic Energy Commission to prepare an environmental impact statement before issuing an interim operating license for a nuclear power plant. Another poignant example of what constitutes major federal action occurred in a suit by the City of New York to annul an order of the Interstate Commerce Commission authorizing the abandonment of a railroad line. The court concluded :
While the Commission may initially have thought that, as a general matter, abandonment proceedings were not within the provisions of NEPA, subdivisions (A), (B), and (D), among others, of § 102(2), 42 U.S.C. § 4332 (2), impose a number of duties on all federal agencies with respect to the consideration and exploration of the environmental effects of their decisions and plans, and the obligation of a federal agency to adhere to these subdivisions in all instances is essentially unqualified. City of New York v. United States, 337 F.Supp. 150, 158 (E.D.N.Y.1972).
Appellees concede that where a federal license or permit is involved, or where Congress possesses and has utilized its plenary power of regulation under the interstate commerce clause or other constitutional authority, federal approval constitutes major federal action. But appellees argue the government is operating in a different capacity when dealing with Indian lands. It is the appel- $ lees’ contention that Indian lands, such !: as those of the Pueblo, are held in trust j by the government for the Indians.; Therefore, the appellees should approve! the lease if it is advantageous to the! beneficiaries of the trust.
Appellees also charge that Congress did not intend to enmesh the discretionary execution of these fiduciary duties in the procedural and bureaucratic web that NEPA § 102(2) (C) imposes. To impose this burden on private Indian land places the Indians at an economic and competitive disadvantage, and subjects their property to judicial challenge by non-Indian competitors laboring under no such environmental restriction.
It is interesting to note that appellees proffer no case law to support their arguments. The fact Indian lands are held in trust does not take it out of ■ NEPA’s jurisdiction. Cf. Federal Power Comm’n v. Tuscarora, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). All public lands of the United States are held by it in trust for the people of the United States. Utah Power & Light v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791 (1916). To accept appellees’ contention would preclude all federal lands from NEPA jurisdiction, something clearly not intended by Congress in passing the Act.
Appellees’ second contention that Congress did not intend to enmesh the discretionary execution of these fiduciary duties in the procedural and bureaucratic web imposed by NEPA § 102(2) (C) also falls on deaf ears. In Calvert Cliffs’ Coord. Comm. v. United States A. E. Comm’n, supra, the court answered this problem by stating that “Section 102 i duties are not inherently flexible . Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance.” (449 F.2d p. 1115).
We conclude approving leases on federal lands constitutes major federal action and thus must be approved according to NEPA mandates. As our court had occasion to consider once before, this Act was intended to include all federal agencies, including the Bureau of Indian Affairs. See National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir. 1971).
The lower court felt NEPA did not apply to Indian lands or otherwise the amendment to 25 U.S.C. § 415 would not have addressed the problem of environmental concerns. We do not draw that conclusion. NEPA is a very broad statute covering both substantive and procedural problems relating to the environment. The amendment to 25 U.S. C. § 415 deals primarily with the addition of Indian tribes to the group having long-term lease authority. Only briefly is the environmental problem discussed. The amendment only requires the Secretary to satisfy himself on the environmental issue; nowhere are any specific procedural guidelines set out as in NEPA. In Calvert Cliffs’ Coord. Comm, v. United States A. E. Comm’n, supra, a similar problem arose. The court correctly determined that unless the obligations of another statute are clearly mutually exclusive with the mandates of NEPA, the specific requirements of NEPA will remain in force. The reasoning is applicable in the instant case. The general statement in § 415 in no way implies leases on Indian lands were not covered by NEPA. The amendment merely reaffirms congressional intent that environmental considerations are to play a factor in any Bureau of Indian Affairs decisions.
For the reasons stated above, we feel the lower court erred in dismissing appellants’ request for a temporary and permanent injunction enjoining appel-lees from approving or acting on any submissions or approvals under the lease until the environmental impact of the project is studied and evaluated.
The judgment appealed from is reversed, and the case is remanded to the trial court with directions to grant the relief prayed for.
. The Congress authorizes and directs that, to the fullest extent possible: (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, anil (v) any irreversible and irretrievable commitments of resources which would be involved in tlie proposed action should it be implemented. .
. 25 U.S.C. § 415, as amended :
(a) Any restricted Indian lands, whether tribally, or individually owned, may be leased by the Indian owners, with the approval of the Secretary of the Interior, for public, religious, educational, recreational, residential, or business purposes. . . . Prior to approval of any lease or extension of an existing lease pursuant to this section, the Secretary of the Interior shall first satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any sti-uctures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject. ' (Emphasis added.)
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1041666666666667, Costs: 0.04166666666666666
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AINSWORTH, Circuit Judge:
This much litigated and important environmental case has been in the courts for more than six years and is now before us for the second time. The complaint seeks to enjoin the construction of an expressway which would pass through parklands in the City of San Antonio, Texas. Plaintiffs are named individual members of the San Antonio Conservation Society, and defendants are The Texas Highway Department, an administrative agency of the State of Texas, acting by and through the Texas Highway Commission, consisting of DeWitt C. Greer, Herbert C. Petry, Jr., and Garret Morris, and the State Highway Engineer, J. C. Dingwall, termed “State defendants”; and The Federal Department of Transportation, an administrative agency of the United States of America, acting by and through John A. Volpe, Secretary of Transportation; F. C. Turner, Administrator, Federal Highway Administration; R. R. Bartlesmeyer, Director, Bureau of Public Roads; A. C. Taylor, Regional Administrator, Federal Highway Administration ; and J. F. Cary, Division Engineer, Bureau of Public Roads, termed “federal defendants.”
The question for decision is whether the congressional enactment of section 154 of the Federal-Aid Highway Act of 1973, severing all federal connection with the San Antonio North Expressway, removes that project from the necessity for compliance with the provisions of the National Environmental Policy Act (NEPA) (42 U.S.C. § 4331 et seq.) and section 4(f) of the Department of Transportation Act (49 U.S.C. § 1653(f)).
Our prior decision (446 F.2d 1013 (1971)) reversed a summary judgment in favor of defendants and held that there had been a failure to comply with the provisions of NEPA and section 4(f) before proceeding with construction of the Expressway. We remanded the case with directions to the district court that it be held until 'the Secretary of Transportation had complied with his statutory responsibilities after which the district court was to conduct a full review of the matter. In the meanwhile, we ordered that “[c] (instruction shall not proceed until there has been full compliance with the law.” Id., at 1029.
The San Antonio North Expressway has been projected since 1959. The disputed segment is approximately six miles long, running about north and south through the middle of the City of San Antonio, and extends between Interstate Loop 410 and Interstate Highway 35. The controversy arises out of the fact that it will traverse portions of the Braekenridge-Olmos Basin Parklands. Its proponents stress the imperative need to solve serious traffic problems of the city; its opponents do not wish it to go through the beautiful Parklands in mid San Antonio. Some time after our initial decision in this case, Congress enacted the Federal-Aid Highway Act of 1973. Section 154 of that Act is directly applicable to the Expressway here, and reads in full as follows:
(f) It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
Sec. 154. (a) Notwithstanding any other provisions of Federal law or any court decision to the contrary, the contractual relationship between the Federal and State Governments shall be ended with respect to all portions of the San Antonio North Expressway between Interstate Highway 35 and Interstate Loop 410, and the expressway shall cease to be a Federal-aid project.
(b) The amount of all Federal-aid highway funds paid on account of sections of the San Antonio North Expressway in Bexar County, Texas (Federal-aid projects numbered U 244(7), U 244(10), UG 244(9), U 244(8), and U 244(11)), shall be repaid to the Treasurer of the United States and the amount so repaid shall be deposited to the credit of the appropriation for “Federal-Aid Highways (Trust Fund)”. At the time of such repayment the Federal-aid projects with respect to which funds have been repaid and any other Federal-aid projects located on such expressway and programed for expenditure on such project, if any, such be canceled and withdrawn from the Federal-aid highway program. Any amount so repaid, together with the unpaid balance of any amount programed for expenditure on any such project shall be credited to the unprogramed balance of Federal-aid highway funds of the same class last apportioned to the States, respectively. The amount so credited shall be available for expenditure in accordance with the provisions of title 23, United States Code, as amended.
It is undisputed that in conformity with section 154 the State of Texas has returned to the Federal Government all federal-aid funds which it received on account of the Expressway and that it will receive no other federal funds in the future to aid in its construction. All funds received have been restored to the Federal Government and reapportioned among the States. By congressional enactment the Expressway is now entirely a state-financed project.
Upon the passage of section 154 the Federal Government and the State of Texas both moved the district court to dismiss plaintiffs’ suit on the ground that removal of all federal funding by Congress exempted the project from compliance with the environmental provisions of NEPA and section 4(f). Plaintiffs contended, however, that passage of section 154 did not exempt the Expressway from the requirement that state and federal officials comply with federal environmental statutes specifically designed to protect parklands, especially NEPA and section 4(f). Plaintiffs argued that these statutory requirements are still applicable (1) because the Expressway would traverse an area in which U. S. Army Corps of Engineers’ approval would be required, thus constituting a “major federal action” under 42 U.S.C. § 4332(2) (C) and necessitating an environmental impact statement; (2) because the Expressway was only a small portion of a larger federal-aid network and inextricably related thereto; (3) because it would cross the San Antonio River said to be navigable and for which a U. S. Coast Guard permit would be required, another “major federal action”; and (4) if section 154 did exempt the project, it violated the due process clause of the U. S. Constitution.
The district court ruled adversely to the plaintiffs on all of these issues and held that the San Antonio North Expressway was exempt from the requirements of the federal environmental laws by virtue of the congressional enactment of section 154, which was not unconstitutional. Summary judgment was granted in favor of defendants and plaintiffs bring this appeal. A large volume of evidence, affidavits, depositions, and exhibits was filed by the parties in connection with the motions, and there does not appear to be any serious dispute as to the facts. It is the law as to which the parties have stressed their principal arguments and on which they differ.
We stayed the district court order pending consideration of this appeal.
I.
Plaintiffs contend that section 154 does not in its terms specifically exempt the North Expressway from NEPA, section 4(f) or any other federal law, and the fact that the North Expressway is now exclusively a Texas state highway project is not dispositive of the environmental issues. They argue that if Congress intended this result it should have expressly stated it in section 154.
Following this premise the plaintiffs urge that the Expressway will pass through the San Antonio Channel Improvement Project over which the Army Corps of Engineers has jurisdiction, such as, for example, the Olmos Dam and Reservoir situated in the Olmos Basin Parklands which they aver are portions of the Channel Improvement Project. Plaintiffs contend that the State Highway Department must obtain the Army Corps’ approval for the Expressway to cross the San Antonio River at Josephine Street and also to traverse the Olmos Dam and Reservoir area. They aver that the prior 1968 approval thereof by the Army Corps is outdated because there have been material changes in the design of the Expressway since that time. Finally they' contend that the Army Corps' approval will constitute a “major federal action” and thereby trigger the provisions of NEPA relative to furnishing an environmental impact statement. The defendants, Federal and State Governments, respond that the plain language of section 154 as well as the legislative history make it clear that Congress intended to exempt the North Expressway from the environmental requirements of federal law. They contend that Army Corps’ approval of the project insofar as the river crossing at Josephine Street and traversing the Olmos Dam and Reservoir are concerned is not required by statute, regulation, or otherwise and that the Corps has no authority to approve or disapprove the Expressway.
We agree with defendants. Section 154(a) clearly states that “Notwithstanding any other provisions of Federal law or any court decision to the contrary, the contractual relationship between the Federal and State Governments shall be ended . . . and the expressway shall cease to be a Federal-aid project.” (Emphasis added.) If Congress had not intended to exempt the Expressway from the environmental statutes, there would have been no purpose in passing the legislation. We cannot believe that Congress intended a vain and useless act. Any doubt about the matter, however, is fully resolved by the legislative history which shows without question that Congress drew the bill with the evident purpose of exempting the Expressway from the provisions of federal environmental laws including NEPA and section 4(f). The debates in the Senate and House disclose this unmistakably, as do the reports of the Senate and House Committees. Federal control and involvement thus came to an end with enactment of section 154.
Nor was approval of the Expressway by the Army Corps of Engineers necessary so as to constitute a “major federal action” and trigger the provisions of NEPA relative to the requirement of an environmental impact statement before the Expressway can proceed. The Olmos Dam and Reservoir areas and the Josephine Street crossing area are not within Corps jurisdiction or authority. No rights of way have been acquired in the area. As the Corps’ witness testified, it would not be able to approve the Expressway plans because there is no Corps project there at the moment. The Corps’ opinion was sought by the Texas Highway Department as to whether the project would cause any adverse effect on flood control, and the state was informed that there was no objection though it was not something within the right of the Corps, to approve or disapprove. It does not appear that there is any legal requirement that the state obtain Corps’ approval.
Thus this case differs from those cited by plaintiffs where federal official approval was necessary, being required by statute, such as Citizens Committee for Hudson Valley, S.D.N.Y.1969, 302 F.Supp. 1083, aff’d 2 Cir., 425 F.2d 97, cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970), and Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971), where Army Corps of Engineers’ approval was statutorily required; also, as in Davis v. Morton, 10 Cir., 1972, 469 F.2d 593, where the Secretary of the Interior was required by statute to ratify or reject leases on Indian reservations. In those cases the Federal Government’s role was one of control — or primary jurisdiction — unlike the present case. We find no merit, therefore, in this contention of plaintiffs.
II.
Plaintiffs’ second contention is that the Expressway is only a small portion of a larger federal-aid highway network and that even though this segment is to be constructed exclusively with state funds, NEPA must still be complied with by the state. Plaintiffs contend that practically every vehicle using the Expressway will enter or exit from the federal-aid route. Therefore, they argue that the North Expressway is basically a part of one federal-aid highway. Nevertheless, we cannot ignore the fact that Congress, by section 154, specifically determined that the North Expressway was not to be a federal project. The court below also held that the North Expressway has an independent utility of its own. The Federal Government argues that the congressional enactment of section 154 answers and disposes of this issue since there has now been an express congressional determination that the North Expressway is not a part of a larger federal project. It is true that the Expressway connects with other federal interstate highways at the north and south ends thereof, but defendants point out that virtually every road in the country crosses or interchanges with federal-aid highways, and that there are many state-constructed roads which do not form a part of the federal network. The independent utility of the Expressway is found in its connection of downtown San Antonio with the airport and in its primary purpose to relieve the serious traffic problem in central San Antonio. Accordingly, we hold that the Expressway is properly considered independently of the interstate routes with which it connects.
We approve, therefore, the conclusion of the district court (Judge Roberts), well expressed in this regard as follows:
While the North Expressway will, coincidentally, provide a link in the interstate highway system in San Antonio, this is not to be its major function. Indeed, a primary reason for the perseverance of the State in its efforts to build the North Expressway is the interest the people of San Antonio have in the completion of this project, an interest which derives not from the coincidental function of the North Expressway as a link in the interstate highway system, but rather from the perceived need for the North Expressway as a major artery of intra-urban transportation. Thus, the North Expressway has an “independent utility of its own,” Id., which justifies its consideration separately from surrounding projects for purposes of NEPA. The undisputed facts are that this project is to be financed with non-federal funds, designed and built without federal approval or authorization, and to serve primarily local needs. We cannot conceive this project to be a “major Federal action” within the contemplation of 42 U.S.C. § 4332(2) (C). We conclude, therefore, that no environmental impact statement is necessitated by the relationship of the North Expressway to the interstate highway system.
III.
The issue posed by plaintiffs on the navigability vel non of the San Antonio River is now moot. The Army Corps of Engineers made its determination on March 8, 1974 in which it concluded that the San Antonio River at the points involved in this ease should not be regarded as a navigable water of the United States. Plaintiffs' contention that U. S. Coast Guard approval is required for a bridge to cross the river must, therefore, fail.
IV.
Plaintiffs finally contend that if Congress’ enactment of section 154 did exempt the North Expressway such action violates the due process clause of the U. S. Constitution by arbitrarily discriminating against plaintiffs and depriving them of rights under federal environmental statutes. They argue that such fundamental federal rights are available to all other citizens in the nation in similar circumstances and that Congress has without any justification deprived them of such rights. They aver that there is no basis for treating the Expressway any differently “from any other federal-aid highway that threatens urban parklands.” (Appellants’ brief, p. 40.)
The short answer to this contention is that by virtue of section 154 the North Expressway is no longer a federal-aid highway and that the same Congress which enacted the environmental statutes to which plaintiffs refer, concluded to exempt this segment of highway from these laws. The federal-aid highway program was established by Congress and there is no reason apparent why it cannot decide which roads of the nation shall be included in the system. The environmental statutes were designed to apply to federal projects. The Expressway is now a state highway, not a federal highway. Its former federal status has been terminated by act of Congress. Congress having spoken in the matter, we see no reason to attempt to override the solemn expression of its will found in the enactment of section 154.
V.
Plaintiffs have also sought an award of attorneys’ fees in this case. They were successful in reversing the judgment of the district court when we first considered the case on appeal and remanded it. After passage of the Federal Aid Highway Act of 1973, they have been unsuccessful both in the lower court and in this court by our decision herein. They request, however, as a minimum that they be awarded attorneys’ fees through the first appeal. Obviously such an award would be substantial, considering the circumstances of this litigation.
They seek such an award against the state defendants. The Texas Highway Department, an administrative agency of the State of Texas, acting by and through the Texas Highway Commission, consisting of DeWitt C. Greer, Herbert C. Petry, Jr., and Garret Morris, and the State Highway Engineer, J. C. Dingwall. It is conceded that the federal defendants are immunized from an award of attorneys’ fees by provisions of 28 U.S.C. § 2412.
The claim for attorneys’ fees is asserted under the so-called “private attorney general” theory in that plaintiffs contend they were effectuating important congressional policy by prosecuting this suit. Plaintiffs do not contend that their efforts in this environmental case have been made inordinately difficult by actions of defendants taken in bad faith or for oppressive reasons. There is, accordingly, no indication of unreasonable or obdurate obstinacy or vexatious or groundless conduct.
The state defendants respond that sovereign immunity of the State of Texas by virtue of the Eleventh Amendment to the Constitution has also immunized them from an award of attorneys’ fees. The recent case of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, decided by the Supreme Court on March 25, 1974, is cited by the state defendants in support of this contention. It is apparent that any award for attorneys’ fees must be paid from the general revenues of the State of Texas. Under the Edelman rationale “the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” Edelman, supra, 415 U.S. at 663, 94 S.Ct. at 1356. Cases in which attorneys’ fees were awarded because of bad faith or obdurate obstinacy, or under the private attorney general theory against non-state defendants, are clearly inapposite. The claim for attorneys’ fees, even if limited to services through the first appeal of this case, is, therefore, barred.
Conclusion
This controversy has now “been resolved in the Halls of Congress, which is the proper place in our system of Government for priority decisions to be made.” 446 F.2d at 1024. We therefore defer to the will of Congress and give effect to its solemn enactment. Here the litigation should end.
Affirmed.
. Each of said persons is also defendant herein as an individual, for acts outside the authority delegated to that defendant, respectively, by the State of Texas and by the United States of America.
. Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332, provides in pertinent part:
* * * [A]ll 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.
. 49 U.S.C. § 1653(f) reads as follows :
. The Olmos Reservoir is not included in the Channel Improvement. See H.R.Doc.No. 344, 83d Cong., 2d Sess. 46, 49 (1954). The Expressway therefore passes through the San Antonio Channel Improvement Project only at the crossing of the San Antonio River and Josephine Street, and there is no project right of way in this area.
. Section 4(f) requirement is no longer in the case since section 154 eliminated all federal funds on the Expressway and approval of the Secretary of Transportation is thus no longer required. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 407, 411, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
. See the Majority Report, Senate Public Works Committee, in pertinent part as follows :
TERMINATION OF FEDERAL-AID RELATIONSHIP, SAN ANTONIO FREEWAY
The San Antonio North Expressway would be terminated as a Federal-aid project and Federal funds programed for the State of Texas for that project would be returned to the United States Department of Transportation for reapportionment among the States. While congressional termination of Federal involvement in such projects is not unprecedented, the Committee recognizes that this is an unusual action and believes it is warranted only because of unusual circumstances.
The project involves a non-interstate urban expressway located wholly within the limits of the City of San Antonio which was planned and requested by that city in 1959. The State obtained initial route approval from the Federal Highway Administrator, purchased all rights-of-way, and completed all relocation with approximately $7 million in State and local funds prior to changes in Federal law which later involved it in legal controversy.
The Secretary approved the letting of construction contracts prior to recent Federal court decisions defining the standard by which the administrative approval was to be reviewed. Thus the project has been affected twice by subsequent changes in Federal law and procedures preventing its completion as a Federal-aid project.
As a result, $4 million in construction has been deteriorating and contractors have claimed an additional $4.5 million in damages against the State of Texas. Since the State and municipality have indicated the desire to complete the project with wholly local financing, the Committee believes that it would be proper to allow them to do so.
The Committee’s recommendation is not intended to be an adverse comment on the Fifth Circuit Court of Appeals decision of August 5, 1971, setting forth the administrative procedures required of the Secretary of Transportation in approving Federal-aid projects, nor would it prevent -future litigation in State court. Its only effect would be to ratify the action of the Secretary of Transportation in accepting the Federal funds already returned by the State and to terminate the Federal-State relationship on the project.
The Committee heard extensive evidence about the project, studied the proposed route and is satisfied that it would not involve significant damage to recreational areas.
S.Rep.No.93-61, 93d Cong., 1st Sess. 23, 54-56 (1973).
(See also Senator Buckley’s individual views in opposition to passage of the bill added to the Senate Report in which he urges rejection because it would have an effect on NEPA and section 4(f).)
The reports of both the Senate and House Committees on Public Works in 1972 when the bill was pending are to the same effect. They contain the following significant language :
Prior to granting such approval the Committee studied the proposed route and is satisfied that it does not involve significant damage to recreational areas. S.Rep.No.92-1081, 92d Cong., 2d Sess. 42, 43 (1972) ; II.R.Rep.No.92-1443, 92d Cong., 2d Sess. 33 (1972).
See also Hearings on S. 502 Before Sub-comm. on Transportation of the Senate Public Works Comm., 93d Cong., 1st Sess. 372-481 (1973) ; Hearings on 1973 Highway Legislation (Future Highway Needs) Before Subcomm. on Transportation of the House Public Works Comm., 93rd Cong., 1st Sess. (1973) ; S.Rep.No.93-61, 93d Cong., 1st Sess. (1973) ; 119 Cong.Rec.S. 4934-S. 4943 (daily ed. March 15, 1973) ; 119 Cong.Rec. H. 7418 (Aug. 3, 1973).
The Senate debate in 1972 and 1973 also revealed quite clearly that the purpose of the proposed legislation was to exempt the Expressway from environmental control. See Senator Nelson’s incorporation in the Congressional Record of memorandum of opponents’ attorney, Mr. Vardaman; 118 Cong. Rec.S. 14843 (daily ed. September 13, 1972) ; also Senator Buckley’s attempt to delete the provisions relative to the San Antonio Expressway from the Federal-Aid Highway Bill; 118 Cong.Rec.S. 14839-S. 14846 (daily ed. September 13, 1972); 119 Cong.Rec.S. 4724, S. 4726 (daily ed. March 14, 1973); 119 Cong.Rec.S. 4934-S. 4943 (daily ed. March 15, 1973). See also Hearings on 1973 Highway Legislation (Future Highway Needs) (93-5) Before the Subcommittee on Transportation of the Committee on Public Works of the House of Representatives, 93d Cong., 1st Sess. (March 19-23, 1973).
. Cf. Ely v. Velde, 4 Cir., 1974, 497 F.2d 252.
. Corps regulations (33 C.F.R. § 208.10 et seq.) require approval only if construction is proposed within the limits of the project right of way. Thus they are inapplicable here.
. In the deposition of George Demeritt, Corps of Engineers, the following testimony is of interest on the question of Corps’ approval of the project:
BY MR. ROSENBERG:
Q. Presuming that you were to receive the final plans for the Josephine area, what would be the basis for your review in point, if you received these plans today?
BY MR. DEMERITT:
A. We would review them based on the latest study plan that we would have for the Corps project, which, at present, is the preliminary plans and determine whether our floodway could — they could be incorporated into our floodway plan.
We would make any suggestions we might have that might assist us in our plan, but we would not be able to approve them, because we have no project there at the moment.
. 28 U.S.C. § 2412 reads as follows: § 2412. Costs
Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action. A judgment for costs when taxed against the Government shall, in an amount established by statute or court rule or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by him in the litigation. Payment of a judgment for costs shall be as provided in section 2414 and section 2517 of this title for the payment of judgments against the United States.
As amended July 18, 1966, Pub.L. 89-507, § 1, 80 Stat. 308.
. It is clear that no such claim can be properly made as to this appeal because our holding is predicated upon the carrying out of congressional policy as enunciated by the Federal-Aid Highway Act of 1973, section 154.
. Nor would there be any difference in principle because some of the defendants are state officers rather than the state itself since the state’s Eleventh Amendment immunity would still prevail. See Edelman, 415 U.S. at 677, 94 S.Ct. at 1362. See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0.08333333333333333
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TUTTLE, Circuit Judge:
This is an appeal from a dismissal of an action, seeking to enjoin Secretary of Transportation Yolpe, Secretary of the State of Florida Department of Transportation, Edward A. Mueller and Federal Highway Administrator, Francis C. Turner, from proceeding with their plans to continue construction of 1-295. This particular route the defendants have chosen goes directly through appellant’s 50 acre wildlife refuge (Grandma’s Farm) in Duval County, Florida.
Secretary Volpe and FHA Turner moved to dismiss “for failure to state a cause of action and for lack of jurisdiction over the subject matter.” Secretary Mueller moved to dismiss on three grounds: (1) sovereign immunity, (2) standing, and (3) “failure to state a claim upon which relief can be granted.” After an evidentiary hearing, the motion was granted, but no grounds were stated. The court merely stated, as to each defendant “the motion to dismiss the complaint ... is Granted.”
So far as concerns “sovereign immunity” as a defense to a suit to enjoin state or federal officials from failing to comply with the laws spelling out their legal authority, the raising of such a defense in this action borders on the frivolous. See K. C. Davis, Administrative Law Treatise, Vol. 3, 27.03.
Regarding the defense of standing, appellees argue that because appellant Ragland raised the issues now being litigated in Federal Court in the state condemnation proceeding, he does not have standing to contest personally these same claims in Federal Court. Such an argument clearly confuses the defense of standing with that of collateral estoppel. Regarding the latter, we note that on the basis of the record before us, it simply is unclear whether all the procedural issues raised in the Federal portion of this litigation were also raised in state court. Specifically, it is unclear whether appellant’s claim that the National Environment Act of 1969 ought to be applied retroactively was ever raised and decided in the state court proceedings. The state court opinion dealing with these matters, which is a part of this record, specifically refers only to “petitioner’s contention that he was not given notice of the ‘design public hearing’ ” as required by 23 U.S.C. § 128, and Policy and Procedure Memorandum 20-8.
This being the case, we are left with the issue of whether Appellant’s allegation that § 102(2) (C) of the National Environment Act of 1969 was not complied with states a claim upon which relief might be granted. While this court and others have held that in certain situations, the National Environment Act of 1969 may be applied retroactively, See Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971); Arlington Coalition on Transportation et al. v. Volpe et al., 458 F.2d 1323 decided April 4 1972, 4th Cir., this is clearly not such a case. Analysis of the facts reveals that when NEPA became effective January 1, 1970, sixteen of the twenty miles of the disputed highway had already been fully completed and the right of way for the remaining four miles had been acquired. It is simply unreasonable to assume that Congress intended that at this point in time, construction should halt, an environmental impact study should be made, and the highway possibly be rerouted. Finding no authority in this or any other circuit contrary to this view we therefore affirm the judgment of the trial court granting appellee’s motion to dismiss.
Judgment affirmed.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1875, Costs: 0.07291666666666667
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MANSFIELD, Circuit Judge:
This case, which presents serious questions as to the interpretation of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331 et seq. (“NEPA”), the language of which has been characterized as “opaque” and “woefully ambiguous,” is here on appeal for the second time. Following the district court’s denial for the second time of a preliminary injunction against construction of a jail and other facilities known as the Metropolitan Correction Center (“MCC”) we are called upon to decide whether a redetermination by the General Services Administration (“GSA”) that the MCC is not a facility “significantly affecting the quality of the human environment,” made pursuant to this Court’s decision remanding the case after the "earlier appeal, Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972) (Feinberg, J.), cert. denied, Hanly v. Kleindienst, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972) (herein “Hanly /”), satisfies the requirements of NEPA and thus renders it unnecessary for GSA to follow the procedure prescribed by § 102(2) (C) of NEPA, 42 U.S.C. § 4332(2) (C), which requires a formal, detailed environmental impact statement. In view of the failure of the GSA, upon redetermination, to make findings with respect to certain relevant factors and to furnish an opportunity to appellants to submit relevant evidence, the case is again remanded.
Since the background of the action up to the date of our earlier remand is set forth in Hanly I, we limit ourselves to a brief summary. Appellants are members of groups residing or having their businesses in an area of lower Manhattan called “The Manhattan Civic Center” which comprises not only various courthouses, government buildings and businesses, but also residential housing, including cooperative apartments in two buildings close to the MCC and various similar apartments and tenements in nearby Chinatown. GSA, of which appellant Robert L. Kunzig was the Administrator, is engaged in the construction of an Annex to the United States Courthouse, Foley Square, Manhattan, located on a site to the east of the Courthouse and immediately to the south of Chinatown and the aforementioned two cooperative apartments. The Annex will consist of two buildings, each approximately 12 stories high, which will have a total of 345,601 gross square feet of space (214,264 net). One will be an office building for the staffs of the United States Attorney and the United States Marshal, presently located in the severely overcrowded main Courthouse building, and the other will be the MCC.
The MCC will serve, under the jurisdiction of the Bureau of Prisons, Department of Justice, as the detention center for approximately 449 persons awaiting trial or convicted of short term federal offenses. It will replace the present drastically overcrowded and inadequate facility on West Street, Manhattan, and will be large enough to provide space not only for incarceration but for diagnostic services, and medical, recreational and administrative facilities. Up to 48 of the detainees, mostly those scheduled for release within 30 to 90 days, may participate in a community treatment program whereby they will be permitted to spend part of each day in the city engaged in specific work or study activity, returning to the MCC after completion of each day’s business. A new program will provide service for out-patient non-residents. The MCC will be serviced by approximately 130 employees, only 90 of whom will be present on the premises at any one time.
In February 1972, appellants sought injunctive relief against construction of the MCC on the ground that GSA had failed to comply with the mandates of § 102 of NEPA, 42 U.S.C. § 4332(2) (C), which requires the preparation of a detailed environmental impact statement with respect to major federal actions “significantly affecting the quality of the human environment.” On March 22, 1972, the application was denied by the district court on the ground that GSA had concluded that the Annex would not have such an effect and that its findings were not “arbitrary” within the meaning of § 10 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. The Government concedes that construction of the Annex is a “major” federal action within the meaning of § 102 of NEPA.
Upon appeal this Court affirmed the district court’s order as to the office building but reversed and remanded as to the detention center, the MCC, on the ground that the GSA’s threshold determination, which had been set forth in a short memorandum entitled “Environmental Statement” dated February 23, 1971, was too meager to satisfy NEPA’s requirements. That statement confined itself to a brief evaluation of the availability of utilities, the adequacy of mass transportation, the removal of trash, the absence of a relocation problem and the intention to comply with existing zoning regulations. In remanding the case this Court, although finding the GSA statement sufficient to support its threshold determination with respect to the proposed office building, concluded that the detention center “stands on a different footing,” Hanly I at 646, and that the agency was required to give attention to other factors that might affect human environment in the area, including the possibility of riots and disturbances in the jail which might expose neighbors to additional noise, the dangers of crime to which neighbors might be exposed as the consequence of housing an out-patient treatment center in the building, possible traffic and parking problems that might be increased by trucks delivering food and supplies and by vans taking prisoners to and from the Eastern District and New Jersey District Courts, and the need for parking space for prison personnel and accommodations for visitors, including lawyers or members of the family. This Court concluded:
“The Act must be construed to include protection of the quality of life for city residents. Noise, traffic, overburdened mass transportation systems, crime, congestion and even availability of drugs all affect the urban ‘environment’ and are surely results of the ‘profound influences of high-density urbanization [and] industrial expansion.’ ” Hanly I, 460 F.2d at 647.
We further noted that in making the threshold determination authorized by § 102(2) (C) of NEPA the agency must “affirmatively develop a reviewable environmental record” in lieu of limiting itself to perfunctory conclusions with respect to the MCC. This Court granted the injunction as to the MCC but after consideration of the balance of hardships stayed the order for a period of 30 days to enable GSA to make a new threshold determination which would take into account the factors set forth in the opinion.
Following the remand a new threshold determination in the form of a 25-page “Assessment of the Environmental Impact” (“Assessment” herein) was made by the GSA and submitted to the district court on June 15, 1972. This document (to which photographs, architect’s renditions and a letter of approval from the Director of the Office of Lower Manhattan Development, City of New York, are attached) reflects a detailed consideration of numerous relevant factors. Among other things, it analyzes the size, exact location, and proposed use of the MCC; its design features, construction, and aesthetic relationship to its surroundings ; the extent to which its occupants and activities conducted in it will be visible by the community; the estimated effects of its operation upon traffic, public transit and parking facilities; its approximate population, including detainees and employees; its effect on the level of noise, smoke, dirt, obnoxious odors, sewage and solid waste removal; and its energy demands. It also sets forth possible alternatives', concluding that there is none that is satisfactory. Upon the basis of this Assessment the Acting Commissioner of the Public Building Service Division of the GSA, who is the responsible official in charge, concluded on June 7, 1972, that the MCC was not an action significantly affecting the quality of the human environment.
On August 2, 1972, appellants renewed their application to Judge Tenney for a preliminary injunction, arguing that the Assessment failed to comply with this Court’s direction in Hanly I, that it amounted to nothing more than a rewrite of the earlier statement that had been found inadequate, and that some of its findings were incorrect or insufficient. Appellants further demanded a consolidation of the motion for preliminary relief with a jury trial of the issues. On August 8, 1972, Judge Tenney, in a careful opinion, denied appellants’ motions, from which the present appeal was taken.
Discussion
At the outset we accept and agree with the decision of the Hanly I panel that the agency in charge of a proposed federal action (in this case the GSA) is the party authorized to make the threshold determination whether an action is one “significantly affecting the quality of the human environment” as that phrase is used in § 102(2)(C). Judge Feinberg, speaking for the panel in Hanly I, recognized this screening function of agencies in upholding GSA’s determination that the proposed office portion of the Annex building did not require a detailed impact statement. Hanly I, 460 F.2d at 644. This interpretation comports with the general pattern of NEPA, which contemplates that with respect to each major federal action the responsible official of the federal agency authorized to take the action is the person obligated to follow the “action-forcing” procedures prescribed by § 102(2) (C), and with guidelines issued by the Council on Environmental Quality (the “CEQ”) and the GSA. See, e. g., Council on Environmental Quality, Guidelines, 36 Fed.Reg. 7724 (April 23, 1971); Implementation Procedures attached to GSA Order [PBS 1095.1A] issued December 2, 1971, by the Commissioner, Public Building Service, 1 Env.L.Rep. 46150-46152. Accordingly we are satisfied that “GSA was the appropriate body to make the original determination as to environmental impact,” Hanly I, 460 F.2d at 645.
We are next confronted with a question that was deferred in Hanly I— the standard of review that must be applied by us in reviewing GSA’s action. The action involves both a question of law — the meaning of the word “significantly” in the statutory phrase “significantly affecting the quality of the human environment” — and a question of fact— whether the MCC will have a “significantly” adverse environmental impact. Strictly speaking, our function as a reviewing court is to determine de novo “all relevant questions of law,” Administrative Procedure Act § 10(e), 5 U.S.C. § 706, see K. Davis, 4 Administrative Law Treatise § 29.01 (1958) (herein “Davis”), and, with respect to GSA’s factual determinations, to abide by the Administrative Procedure Act, which limits us in matters not involving an agency’s rule-making or adjudicatory function to determining whether its findings are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law,” APA § 10 (e), 5 U.S.C. § 706(2) (A) and (D); see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed. 2d 136 (1971).
Where the court’s interpretation of statutory language requires some appraisal of facts, a neat delineation of the legal issues for the purpose of substituted judicial analysis has sometimes proven to be impossible or, at least, inadvisable. Furthermore, in some eases a complete de novo analysis of the legal questions, though theoretically possible, may be undesirable for the reason that the agency’s determination reflects the exercise of expertise not possessed by the court. See, e. g., Moog Industries, Inc. v. FTC, 355 U.S. 411, 78 S.Ct. 377, 2 L.Ed.2d 370 (1958), where the Court declined to overturn the Commission’s discretionary determination, stating:
“It is clearly within the special competence of the Commission to appraise the adverse effect on competition that might result from postponing a particular order prohibiting continued violations of the law. Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically.” 355 U.S. at 413, 78 S.Ct. at 379 (emphasis supplied).
Accordingly, with respect to review of such mixed questions of law and fact the Supreme Court has authorized a simpler, more practical standard, the “rational basis” test, whereby the agency’s decision will be accepted where it has “warrant in the record” and a “reasonable basis in law.” NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); see Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 83 L.Ed. 1147 (1939); 4 Davis §§ 29.01, 30.05 (1958).
Noth withstanding the possible availability of the “rational basis” standard, we believe that the appropriate criterion in the present case is the “arbitrary, capricious” standard established by the Administrative Procedure Act, since the meaning of the term “significantly” as used in § 102(2) (C) of NEPA can be isolated as a question of law. This was the course taken by the district court and is in accord with the Supreme Court’s decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), where its review of the Department of Transportation’s authorization of federal funds to finance construction of a highway through a federal park, turned on the meaning to be attributed to a statutory prohibition against such an authorization if “a feasible and prudent” alternative route exists. § 4(f) Dept. of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1964 ed. Supp. V); § 18(a) of the Federal Aid Highway Act of 1968, 23 U.S.C. § 138 (1964 ed. Supp. V). Speaking for the Court, Justice Marshall declared that upon review the facts should be scrutinized to determine whether the agency decision was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law” as required by the APA and whether the agency followed the necessary procedural requirements. We see no reason for application of a different approach here since the APA standard permits effective judicial scrutiny of agency action and concommitantly permits the agencies to have some leeway in applying the law to factual contexts in which they possess expertise. Accordingly we conclude that the applicable scope of review of an agency’s threshold determination that an impact statement is not required under § 102 of NEPA is the “arbitrary, capricious, abuse of discretion” standard. See, e. g., Echo Park Residents Committee 'V. Romney, 3 E.R.C. 1255 (C.D.Calif. 1971).
Upon attempting, according to the foregoing standard, to interpret the amorphous term “significantly,” as it is used in § 102(2) (C), we are faced with the fact that almost every major federal action, no matter how limited in scope, has some adverse effect on the human environment. It is equally clear that an action which is environmentally important to one neighbor may be of no consequence to another. Congress could have decided that every major federal action must therefore be the subject of a detailed impact statement prepared according to the procedure prescribed by § 102(2) (C). By adding the word “significantly,” however, it demonstrated that before the agency in charge triggered that procedure, it should conclude that a greater environmental impact would result than from “any major federal action.” Yet the limits of the key term have not been adequately defined by Congress or by guidelines issued by the CEQ and other responsible federal agencies vested with broad discretionary powers under NEPA. Congress apparently was willing to depend principally upon the agency’s good faith determination as to what conduct would be sufficiently serious from an ecological standpoint to require use of the full-scale procedure.
Guidelines issued by the CEQ, which are echoed in rules for implementation published by the Public Buildings Service, the branch of GSA concerned with the construction of the MCC, suggest that a formal impact statement should be prepared with respect to “proposed actions, the environmental impact of which is likely to be highly controversial.” See Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment, Guidelines § 5(b), 36 Fed.Reg. 7724 (April 23, 1971); Public Buildings Service, Environmental Statements, Attachments § la(5) (Dec. 2, 1971), 1 Env.L. Rep. 46151. However, the term “controversial” apparently refers to cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use, the effect of which is relatively undisputed. This Court in Hanly I, for instance, did not require a formal impact statement with respect to the office building portion of the Annex despite the existence of neighborhood opposition to it. The suggestion that “controversial” must be equated with neighborhood opposition has also been rejected by others. See Citizens for Reid State Park v. Laird, 336 F.Supp. 783 (D.Me.l972).
In the absence of any Congressional or administrative interpretation of the term, we are persuaded that in deciding whether a major federal action will “significantly” affect' the quality of the human environment the agency in charge, although vested with broad discretion, should normally be required to review the proposed action in the light of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses irTtKe area affected by it, and (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area. Where conduct conforms to existing uses, its adverse consequences will usually be less significant than when it represents a radical change. Absent some showing that an entire neighborhood is in the process of redevelopment, its existing environment, though frequently below an ideal standard, represents a norm that cannot be ignored. For instance, one more highway in an area honeycombed with roads usually has less of an adverse impact than if it were constructed through a roadless public park. See, e. g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
Although the existing environment of the area which is the site of a major federal action constitutes one criterion to be considered, it must be recognized that even a slight increase in adverse conditions that form an existing environmental milieu may sometimes threaten harm that is significant. One more factory polluting air and water in an area zoned for industrial use may represent the straw that breaks the back of the environmental camel. Hence the absolute, as well as comparative, effects of a major federal action must be considered.
Chief Judge Friendly’s thoughtful dissent, while conceding that we (and governmental agencies) face a difficult problem in determining the meaning of the vague and amorphous term “significantly” as used in § 102(2) (C), offers no solution other than to suggest that an impact statement should be required whenever a major federal action might be “arguably” or “potentially” significant and that such an interpretation would insure the preparation of impact statements except in cases of “true” insignificance. In our view this suggestion merely substitutes one form of semantical vagueness for another. By failure to use more precise standards it would leave the agency, which admittedly must make the determination, in the very quandary faced in this case and only serve to prolong and proliferate uncertainty as to when a threshold determination should be accepted. The problem is not resolved by use of terms as “obviously insignificant,” “minor,” “arguably significant,” a “fairly arguable” adverse impact, or the like, or by reference to “grey” areas or characterization of our opinion as “raising the floor” to permit agencies to escape an impact statement.
We agree with Chief Judge Friendly that an impact statement should not be required where the impact will be minor or unimportant, or where “there is no sensible reason for making one,” and that such a statement should be required where the action may fairly be said to have a potentially significant adverse effect. But these conclusions merely pose the problem which cannot be solved by an interchange of adjectives. In our view such a morass can be avoided only by formulation of more precise factors that must be considered in making the essential threshold determination. This we have attempted to do.
In the absence of such standards we cannot agree that construction of a proposed office building of the type forming part of the Annex would be “obviously insignificant” and hence would not require an impact statement. An office building or, indeed, a jail, may have an adverse impact in an area where such use does not exist and is not permitted by zoning laws (e. g., Park Avenue and 72nd Sreet) whereas the contrary would hold in a location where such uses do exist and are authorized by such laws (e. g., the location of the MCC). See Goose Hollow Foothills League v. Romney, 334 F.Supp. 877 (D.Ore.1971) (setting aside threshold determination that high-rise building would not significantly affect environment where no weight had been given to fact that it would change character of neighborhood and concentrate population in the neighborhood). Rather than encourage agencies to dispense with impact statements, we believe that application of the foregoing objective standards, coupled with compliance with minimum procedural requirements (specified below), which are designed to assure consideration of relevant facts, will lead agencies in doubtful cases (so-called “grey” areas) to obtain impact statements rather than to risk the delay and expense of protracted litigation.
Although this Court in Hanly I did not expressly articulate the standards we have used, its decision that the proposed office building portion of the Annex would not be environmentally significant conforms to the rationale. The office building would not differ substantially from the makeup of the surrounding area. Nor would it in absolute terms give rise to sizeable adverse environmental effects. Most of the employees occupying the building would merely be transferred from the existing Courthouse where the newly created space will be used primarily for courtrooms and desperately needed office space for court personnel. On the other hand, the proposed jail, for reasons set forth in detail in Hanly I, might have adverse effects differing both qualitatively and quantitatively from those associated with existing uses in the area. Moreover there was insufficient evidence that the absosolute environmental effect with respect to the jail had been analyzed and considered by the GSA. Thus the matter was remanded for reappraisal. Now that the GSA has made and submitted its redetermination in the form of a 25-page “Assessment,” our task is to determine (1) whether it satisfies the foregoing tests as to environmental significance, and (2) whether GSA, in making its assessment and determination, has observed “procedure required by law” as that term is used in § 10 of the APA, 5 U.S.C. § 706(2) (D).
The Assessment closely parallels in form a detailed impact statement. The GSA’s finding that the MCC would harmonize architecturally with existing buildings in the area, and even enhance the appearance of the neighborhood, is supported by details of the proposed building, architectural renditions, and photographs of the area. The facade of the MCC and of the Annex office building are designed to reflect the first cornice height of the Municipal Building, a prominent architectural feature of both the United States Courthouse and the New York Supreme Court, and to blend closely in appearance and geometry with the surrounding buildings, including the newly constructed New York City Police Headquarters. The windows, which will be glazed with unbreakable polycarbonate plastic shatter-proof sheets will be recessed and will be of a dark gray color designed to insulate the community from visual contact with the detainees. Moreover, there will be no fortress walls or unsightly steel-barred windows, cf. Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971). In short, the building will not look like a correctional center.
The Assessment further describes efforts that will be made to minimize any contact between detainees and members of the community. In addition to the recessed, darkened windows, all prisoners will enter the building through an entrance on Cardinal Hayes Place, located on the side opposite from and out of view of neighborhood residental apartments. Although there will be a roof-top recreational area for detainees, a 20-foot wall will minimize their visibility from the apartments.
The Assessment further notes that any increase in traffic from MCC will be extremely slight. One van will take and return detainees on one daily round trip during weekdays to the Eastern District Courthouse and to the Newark District Courthouse. However, this traffic will be offset by the fact that two vans currently used to bring prisoners from West Street to the Courthouse in Foley Square' daily will be eliminated since these prisoners will be transported from the MCC across enclosed bridges connecting it with the Courthouse.
Visiting hours at the MCC will be permitted between 8:00 A.M. and 4:00 P.M. and between 7:00 P.M. and 9:00 P.M. The GSA Assessment projected on ' the basis of past experience that approximately 130 visitors will arrive per day with no more than 20 on the premises at any one time. This would not impose any excessive burden on mass transportation facilities, which are nearby, numerous and include several subway lines and bus routes described in detail. In addition to limited parking during the day on certain nearby streets, there are at least six garages or lots available for parking in the area, also identified by location and capacity. There will be only four truck deliveries of supplies per day to the premises.
The windows of the MCC are designed to minimize any noise from within the premises, in addition to which detainees will be under constant supervision when outside on the roof-top for recreational purposes. During the past five years there have been only two small inside disturbances at the present detention facility at West Street, Manhattan, and three outside disturbances, the latter confined to non-violent picketing, marching and the like, incidents which have been common occurrence in the Foley Square area during the same period.
The Assessment makes clear that the MCC will not produce any unusual or excessive amounts of smoke, dirt, obnoxious odors, solid waste, or other forms of pollution. The utilities required to heat and air-condition the building are readily available and the MCC is designed to incorporate energy-saving features, so that no excessive power demands are posed. The GSA further represents that the building will conform to all local codes, use and zoning, and attaches a letter from the New York City Office of Lower Manhattan Development dated August 4, 1971, indicating approval of the Annex, which includes the MCC.
Appellants contend that the Assessment is merely a “rewrite” of GSA’s earlier February 23, 1971 “Environmental Statement” found inadequate in Hanly 1, and that GSA has failed to take into consideration certain adverse facts. A comparison of the 25-page detailed Assessment with the earlier statement reveals that the former is far more than a “rewrite” and that it furnishes detailed findings with respect to most of the relevant factors unmentioned in the earlier statement. On its face the Assessment indicates that GSA has redetermined the environmental impact of the MCC with care and thoroughness. In the absence of contrary factual proof, we would have no hesitancy in upholding it, whether it is reviewed by the “arbitrary, capricious” standard or the “rational basis” test. Judged by the comparative uses in the area and according to its quantitative environmental effects, the MCC should not have a significant effect upon the human environment.
Appellants offer little or no evidence to contradict the detailed facts found by the GSA. For the most part their opposition is based upon a psychological distaste for having a jail located so close to residential apartments, which is understandable enough. It is doubtful whether psychological and sociological effects upon neighbors constitute the type of factors that may be considered in making such a determination since they do not lend themselves to measurement. However we need not decide that issue because these apartments were constructed within two or three blocks of another existing jail, The Manhattan House of Detention for Men, which is much larger than the proposed MCC and houses approximately 1,200 prisoners. Furthermore the area in which the MCC is located has at all times been zoned by the City of New York as a commercial district designed to provide for a wide range of uses, specifically including “Prisons.”
Despite the GSA’s scrupulous efforts the appellants do present one or two factual issues that merit further consideration and findings by the GSA. One bears on the possibility that the MCC will substantially increase the risk of crime in the immediate area, a relevant factor as to which the Assessment fails to make an outright finding despite the direction to do so in Hanly I. Appellants urge that the Community Treatment Program and the program for observation and study of non-resident out-patients will endanger the health and safety of the immediate area by exposing neighbors and passersby to drug addicts visiting the MCC for drug maintenance and to drug pushers and hangers-on who would inevitably frequent the vicinity of a drug maintenance center. If the MCC were to be used as a drug treatment center, the potential increase in crime might tip the scales in favor of a mandatory detailed impact statement. The Government has assured us by post-argument letter addressed to the Court that:
“Neither the anticipated nonresident pre-sentence study program nor any program to be conducted within the Metropolitan Correction Center will include drug maintenance.”
While we do not question the Government’s good faith, a finding in the matter by GSA is essential, since the Assessment is ambiguous as to the scope of the non-resident out-patient observation program and makes no finding on the subject of whether the MCC will increase the risk of crime in the community. In addition one of the appellants, Sien Wei Liu, has furnished to the district court an affidavit taking issue with certain facts found by the GSA, including the visibility of the jail’s rear entrance from nearby apartment buildings, the distance of the MCC from the closest apartment, the possible use of nearby overcrowded community medical facilities by prisoners, and the claim that certain city officials are opposed to the location of the MCC.
Appellants further contend that they have never been given an opportunity to discuss the MCC with any governmental agency prior to GSA’s submission of its Assessment, which raises the question whether the agency acted “with-, out observance of procedure required by law,” see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). We do not share the Government’s view that the procedural mandates of § 102(A), (B), and (D), 42 U.S.C. § 4332(2)(A), (B) and (D), apply only to actions found by the agency itself to have a significant environmental effect. While these sections are somewhat opaque, they are not expressly limited to “major Federal actions significantly affecting the quality of the human environment.” Indeed if they were so limited § 102(D), which requires the agency to develop appropriate alternatives to the recommended course of action, would be duplicative since § 102(C), which does apply to actions “significantly affecting” the environment, specifies that the detailed impact statement must deal with “alternatives to the proposed action.” 42 U.S.C. § 4332(2) (C)(iii). However, in our view the Assessment does, in fact, satisfy the requirement of § 102(2) (A) that an interdisciplinary approach taking into account the “natural and social sciences and the environmental design arts” be used. The GSA has retained architects familiar with the design requirements of the Civic Center and consulted with the Office of Lower Manhattan Development in an effort to harmonize the MCC with the Civic Center. The Assessment scrupulously takes into account the aesthetics and the tangible factors involved in the designing and planning of the MCC. Furthermore we find that § 102 (2) (D) was complied with insofar as the GSA specifically considered the alternatives to continuing operation at the present facility at West Street and evaluated the selected site as compared with other specified possibilities. Although the assessment of the alternative sites was not as intensive as we might hope, its failure to analyze them in further detail does not warrant reversal.
A more serious question is raised by the GSA’s failure to comply with § 102(2)(B), which requires the agency to “identify and develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations.” 42 U.S.C. § 4332 (2)(B). Since an agency, in making a threshold determination as to the “significance” of an action, is called upon to review in a general fashion the same factors that would be studied m depth for preparation of a detailed environmental impact statement, § 102(2) (B) requires that some rudimentary procedures be designed to assure a fair and informed preliminary decision. Otherwise the agency, lacking essential information, might frustrate the purpose of NEPA by a threshold determination that an impact statement is unnecessary. Furthermore, an adequate record serves to preclude later changes in use without consideration of their environmental significance as required by NEPA.
Where a proposed major federal action may affect the sensibilities of a neighborhood, the prudent course would be for the agency in charge, before making a threshold decision, to give notice to the community of the contemplated action and to accept all pertinent information proffered by concerned citizens with respect to it. Furthermore, in line with the procedure usually followed in zoning disputes, particularly where emotions are likely to be aroused by fears, or rumors of misinformation, a public hearing serves the dual purpose of enabling the agency to obtain all relevant data and to satisfy the community that its views are being considered. However, neither NEPA nor any other federal statute mandates the specific type of procedure to be followed by federal agencies. There is no statutory requirement that a public hearing be held before a site for a house of detention is selected by the Attorney General or construction of the facility is undertaken by the GSA. See 18 U.S.C. § 4003, 40 U.S.C. §§ 602-606. Although the Guidelines issued by the CEQ suggest that agencies “shall include, whenever appropriate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action,” Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment, Guidelines § 10(e), 36 Fed.Reg. 7724, 7726 (April 23, 1971), these provisions apply only to the procedure for preparation of detailed impact statements after the preliminary determination of significance has been made.
Notwithstanding the absence of .statutory or administrative provisions on the subject, this Court has already held in Hanly I at 647 that federal agencies must “affirmatively develop a reviewable environmental record . . . even for purposes of a threshold section 102 (2) (C) determination.” We now go further and hold that before a preliminary or threshold determination of significance is made the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency’s threshold decision. We do not suggest that a full-fledged formal hearing must be provided before each such determination is made, although it should be apparent that in many cases such a hearing would be advisable for reasons already indicated. The necessity for a hearing will depend greatly upon the circumstances surrounding the particular proposed action and upon the likelihood that a hearing will be more effective than other methods in developing relevant information and an understanding of the proposed action. The precise procedural steps to be adopted are better left to the agency, which should be in a better position than the court to determine whether solution of the problems faced with respect to a specific major federal action can better be achieved through a hearing or by informal acceptance of relevant data.
In view of the Assessment’s failure to make findings with respect to the possible existence of a drug maintenance program at the MCC, the increased risk of crime that might result from the operation of the MCC, and the fact that appellants have challenged certain findings of fact, we remand the case for the purpose of requiring the GSA to make a further investigation of these issues, with directions to accept from appellants and other concerned citizens such further evidence as they may proffer within a reasonable period, to make supplemental findings with respect to these issues, and to redetermine whether the MCC “significantly affects the quality of the human environment”. If, as a result of such further investigation, the GSA concludes that a detailed environmental impact statement is required, a preliminary injunction will be granted restraining further construction of the MCC until the agency has complied with the procedures required by § 102(2) (C) of NEPA. In the event that the GSA reaffirms its initial determination, the district court will determine, should a further request be made, whether preliminary injunctive relief is warranted.
With the aid of hindsight we recognize, as does the dissent, that a further Assessment, when added to the time and expense already incurred, will prolong the final determination far beyond the time that would have been required if the energies of the GSA had been directed initially toward the preparation of an impact statement. However, important issues have been presented and there is no suggestion of bad faith or deliberate delay on the part of anyone. Indeed if the need for an impact statement had been obvious, this Court in Hanly I would hardly have accepted the initial determination with respect to the office building portion of the Annex and remanded the case for a further determination as to the MCC.
The case is remanded for further proceedings not inconsistent with this opinion. The mandate shall issue forthwith.
. The relevant portions of § 102, 42 U.S.C. § 4332, provide:
“The Congress authorizes and directs that, to the fullest extent possible : . .
(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 a [sioj impact on man’s environment;
“(B) identify and develop methods and procedures, in consultation witli the Council on Environmental Quality established by subchapter II of tills chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along witli 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,
(ii) any adverse environmental effects which cannot be avoided should the proposal lie 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 witli and obtain the comments of any Federal agency which has jurisdiction b,v 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, tlie Council on Environmental Quality and to tlie public as provided by section 552 of Title 5, and shall accompany tlie proposal through tlie 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 ; ”
. City of New York v. United States, 337 F.Supp. 150, 159 (E.D.N.Y.1972) (Friendly, Ch.J., speaking for a 3-judge court).
. Harry H. Voight, The National Environmental Policy Act and The Independent Regulatory Agency, 5 Natural Resources Lawyer 13 (1972).
. See 18 U.S.C. §§ 4082, 3651, and 4201 for authorization of such programs.
. See 18 U.S.C. §§ 4208(b), 5010(e), and 5034.
. The statement is quoted in full at 460 F.2d at 645-646.
. On May 23, 1972, the district court enjoined further construction of the MCO until the GSA filed a revised threshold determination, but stayed such order until June 22, 1972. As the GSA did file its Assessment -within the 30-day period, the injunction never did issue.
. The interpretation is further supported by the Senate Report accompanying the proposed NEPA, which paraphrased the pertinent provision of § 102 as follows:
“(C) Each agency which proposes any major actions, such ns project proposals, proposals for new legislation, regulations, policy statements, or expansion or revision of ongoing programs, shall make a determination as to whether the proposal would have a significant effect upon the quality of the human environment. If the proposal is considered to have such an effect, then the recommendation or report supporting the proposal must include statements by the responsible official of certain findings as follows: . . . . ” S.Rep. 91-296, 91st Cong., 1st Sess. at 20.
. Views of other courts as to the standard of review of an agency’s threshold determination of the necessity for an environmental impact statement under § 102 of NEPA have varied. See Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 789 (D.Me.1972) (warrant in the record and a reasonable basis in law) ; Scherr v. Volpe, 336 F.Supp. 886, 888 (W.D.Wis.1971), affd., 466 F.2d 1027 (7th Cir. 1972) (de novo review) ; Goose Hollow Foothills League v. Romney, 334 F.Supp. 877 (D.Ore.1971) (arbitrary, capricious) ; Echo Park Residents Committee v. Romney, 2 Env.L.Rep. 20337 (C.D.Calif.1971) (arbitrary) ; Save Our Ten Acres v. Kreger, 2 Env.L.Rep. 20305, 20307 (S.D.Ala.1972) (“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).
. To require an impact statement whenever a threshold determination dispensing with one is likely to face a court challenge, as the dissent suggests, would surrender the determination to opponents oí a major federal action, no matter how ^significant its environmental effect when viewed objectively. Experience in local zoning disputes demonstrates that it is the rare case where some neighbors do not oppose a project, no matter how beneficial, and that their opposition is usually accompanied by threats of litigation.
. Unlike factors such as noise, which can be related to decibels and units which measure duration, or crime, in ' which crime statistics are available, psychological factors are not readily translatable into concrete measuring rods.
. See Rhem v. McGrath, 326 F.Supp. 681, 688 (S.D.N.Y.1971).
. The MCC is located in a C6 — General Central Commercial District which is “designed to provide for the wide range of retail, office, amusement, service, custom manufacturing, and related uses normally found in the central business district, but to exclude non-retail uses which generate a large volume of business.” City of New York, Zoning Maps and Resolutions 102 (1967). Among the uses specifically permitted are prisons. Id. at Appendix A, A-15 (1968).
. See note 4 and accompanying text supra.
. See note 5 and accompanying text supra.
. If the Government should later change the use of the premises to include a drug treatment center, or any other change that might significantly affect the quality of the human environment, then a detailed § 102(C) impact statement would be required at that time. Bee Council on Environmental Quality, Guidelines § 11, 36 Fed.Reg. 7724, 7727 (April 23, 1971) ; Public Buildings Service, Environmental Statements, Attachment B, § lb (5) (Dec. 2, 1971), 1 Env.L.Rep. 46150, 46151.
. This Court in Hanly I left open the question whether subsections (A), (B) and (D) of § 102(2), 42 U.S.C. § 4332(2) (A), (B) and (D) are applicable even when no § 102(2) (C) environmental impact statement was required and even if they wei-e applicable whether the GSA had in substance complied. 460 F.2d at 649.
. But see the guidelines of the Public Buildings Service which suggests that § 102(2) (D) impels “[a] rigorous exploration and objective evaluation of possible alternative actions that might avoid some or all of the adverse environmental effects. . . . ” Public Buildings Service, Environmental Statements, Attachment B, § 5c (5) (Dec. 2, 1971), 1 Env.L.Rep. 46150, 46151.
. See note 15, supra.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.07142857142857142, Costs: 0
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PER CURIAM:
Since the issuance of the partial preliminary injunction pending appeal the United States Attorney has filed a memorandum in this court stating the Government’s position to be that the Sharon Lane project in Charlotte is entirely a “State project, and is not to be approved or rejected by the Secretary of Transportation . . ., nor dependent upon ‘Federal supervision’ . . ., nor subject to any question of compliance with Federal ‘statutory and regulatory standards’ . . ..” The United States respectfully suggests that before any court could mandate compliance with the National Environmental Policy Act it would be necessary for plaintiffs to show the eventuality of Federal participation in the Sharon Lane project.
Despite the breadth of the NEPA we think there are doubtless local projects that may be destructive of environmental assets that are not within the ambit and protection of the Act. If America’s environment is to be preserved in accordance with the national policy expressed by the Congress the gap will have to be filled with state and local legislation. Indeed, there already exists a statute of North Carolina looking toward the preservation of ecological values. N.C.G.S. 113A. Nothing contained in our decision is intended to foreclose resort to state and local remedies.
We hold that the failure and refusal of the district judge to issue a preliminary injunction was not an abuse of his discretion. The partial preliminary injunction pending appeal is vacated.
Affirmed.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1818181818181818, Costs: 0
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LUCERO, Circuit Judge.
Associations Working For Aurora’s Residential Environment (“AWARE”), a nonprofit corporation comprised of individuals and businesses who reside in or around the Parker Road/I-225 interchange in Aurora, Colorado, appeals an order refusing to enjoin defendants from beginning construction at that interchange. Plaintiff asserts three claims on appeal: (1) defendants failed to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370d, and its implementing regulations by allowing a private contractor with a conflict of interest to assist in the preparation of the Environmental Impact Statement (“EIS”) for the proposed project; (2) defendants failed to consider structural mass transit as a reasonable alternative to construction in violation of 42 U.S.C. § 4332(C)(iii) and 40 C.F.R. § 1502.14(e); and (3) defendants failed to consider “feasible and prudent” alternatives to developing publicly owned land in violation of the Transportation Act, 49 U.S.C. § 303(c)(1). We conclude that, to the extent that the contractor operated under a conflict of interest, the Colorado Department of Transportation (“CDOT”) exercised sufficient supervision to preserve the “objectivity and integrity of the NEPA process.” Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations (“Forty Questions”), 46 Fed.Reg. 18,026, 18,031 (Council on Envtl. Quality 1981). We also conclude that defendants adequately considered alternatives to construction and to the use of publicly owned lands. Accordingly, we affirm.
I
The history of the construction project at issue begins in 1985, when CDOT entered into a contract with CH2M Hill (the “Contractor”), a private contractor, to identify “the short and long-term needs” for a one-mile segment of Parker Road where it meets with 1-225, a major intersection in the Denver metropolitan area. Appellees’ Supp. App., Ex. A, at 50,003. The contract provided that, after those needs had been identified, the Contractor was to provide “preliminary and final design plans for the selected short-term improvement concept.” Id. In August 1987, the Contractor completed a feasibility study, which concluded that there were “severe congestion problems” in the target area and proposed both long- and short-term solutions to those problems. Appellant’s App. at 37.
In April 1989, CDOT and the Contractor entered into a supplemental contract that authorized the Contractor to assist CDOT in refining the proposed solution and preparing an environmental assessment for the project, and to complete the preliminary engineering for the recommended improvements. In October 1991, CDOT and the Contractor entered into another supplemental contract authorizing the Contractor to perform preliminary and final design work for the Parker Road project. See Appellees’ Supp. App., Ex. A, at 50,129, 50,159-61. At the time of the execution of the 1991 contract, the parties anticipated that construction would begin in late 1993 or early 1994.
In 1992, the proposed project became the subject of controversy. As a result, the I-225/Parker Road Interchange Citizens’ Advisory Committee (“CAC”) was established “to develop a new or modified version of corridor/interchange improvements.” Appellees’ SuppApp. at A294. The membership of the CAC comprised 23 individuals, including one member of AWARE. Although not members of the CAC, representatives from CDOT and the Contractor were part of a “Project Planning Team responsible for guiding and assisting the CÁC.” Id. The CAC evaluated fourteen alternatives for the Parker Road corridor and ultimately proposed a majority and minority solution, both of which involved construction of highway improvements in the target area.
As a result of the CAC proposal, CDOT decided to develop an environmental impact statement for the proposed project. In January 1993, CDOT conducted a scoping meeting to discuss the preliminary design alternatives to be included in the EIS. Representatives from CDOT, the Contractor, the United States Army Corps of Engineers, the Colorado Division of Parks and Outdoor Recreation, the City of Aurora, the Regional Transportation District (“RTD”), and the Federal Highway Administration (“FHWA”) attended that meeting.
On January 31, 1994, CDOT and the Contractor entered into another supplemental contract authorizing the Contractor to assist in'the development of the EIS. A key dispute in this litigation is whether that supplemental contract simply added to the scope of the existing duties of the Contractor, which included final design work for the construction of improvements at Parker Road, or whether the 1994 agreement amended the scope of work to eliminate final design work pending the outcome of the EIS.
In March 1996, defendants issued a draft environmental impact statement and notice was published in the Federal Register. See 61 Fed.Reg. 10,754, 10,754 (1996). After a public hearing to receive comment on the draft EIS, the FHWA and CDOT issued the final environmental impact statement. Another hearing was held to receive public comment and explain the preferred alternative. In December 1996, defendants issued the Record of Decision (“ROD”), which approved the preferred construction alternative in the final EIS.
In January 1997, CDOT and the Contractor executed a supplemental contract authorizing the Contractor to assist in the preliminary and final design of the preferred alternative. Shortly after CDOT began soliciting bids from construction contractors, AWARE brought the present action seeking a preliminary injunction. That motion was consolidated with a trial on the merits before .the district court. The district court concluded that plaintiff was not entitled to an injunction and entered final judgment on the merits in favor of defendants. It is from that order that plaintiff now appeals.
II
In the National Environmental Policy Act, Congress recognizes that each generation is a “trustee of the environment for succeeding generations.” 42 U.S.C. § 4331(b)(1). Accordingly, NEPA mandates that federal agencies comply with certain procedures before taking actions that will affect the quality of the environment to ensure that appropriate consideration is given to the environmental impacts of those actions. See, e.g., 42 U.S.C. § 4332(2)(C) (listing the requirements for an environmental impact statement). “It is ‘well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.’ ” Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir.1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Thus, in reviewing agency decisions, it is not for the court to select what it believes to be the optimum alternative, see Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (per curiam); rather, our review is limited to whether the agency complied with the “ ‘action-forcing’ procedures” required by NEPA to guarantee that agencies take a “hard look” at the environmental consequences of proposed actions. Robertson, 490 U.S. at 350, 109 S.Ct. 1835 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)).
A. Conflict of Interest
When a federal agency proposes to undertake a “major aetion[] significantly affecting the quality of the human environment,” NEPA requires that it prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C). Under implementing regulations promulgated by the Council on Environmental Quality (“CEQ”), an agency may either prepare the EIS itself or it may select a contractor to do so. See 40 C.F.R. § 1506.5(c). If the agency chooses to have a contractor prepare the EIS, that contractor must “execute a disclosure statement ... specifying that [it has] no financial or other interest in the outcome of the project.” Id. A contractor with a known conflict “should be disqualified from preparing the EIS.” Forty Questions, 46 Fed.Reg. at 18,031.
Plaintiff contends that we must invalidate the EIS for the Parker Road project because the Contractor had an incentive to promote a build alternative over a non-build alternative at the time it aided in the preparation of the EIS. Specifically, it argues that the Contractor either had an enforceable contract for future work on the project, or that CDOT’s unvarying practice of awarding final design contracts to the company that prepares the EIS amounts to a conflict of interest here because the Contractor won the contract in a non-competitive bid process. According to plaintiff, this alleged conflict is aggravated by the Contractor’s failure to execute the required conflict of interest disclosure statement, see 40 C.F.R. § 1506.5(e), until after the final EIS had been issued.
Whether the Contractor had a conflict of interest or not rests on the definition of “financial or other interest” under § 1506.5(c). That phrase, however, has eluded precise definition. In 1981, the CEQ interpreted the conflict provision “broadly to cover any known benefits other than general enhancement of professional reputation.” Forty Questions, 46 Fed.Reg. at 18,031. Even then, however, the CEQ conceded that a contractor may “later bid in competition with others for future work on the project” if that contractor “has no promise of future work or other interest in the outcome of the proposal.” Id. After discovering that many agencies had “been interpreting the conflicts provision in an overly burdensome manner,” the CEQ instructed that, absent an agreement to perform construction on the proposed project or actual ownership of the construction site, it is “doubtful that an inherent conflict of interest will exist” unless “the contract for EIS preparation ... eon-taints] ... incentive clauses or guarantees of any future work on the project.” Guidance Regarding NEPA Regulations, 48 Fed.Reg. 34,263, 34,266 (Council on Envtl. Quality 1983).
The FHWA has also struggled to define what constitutes a conflict of interest. In a 1988 memorandum, the FHWA construed “financial or other interest in the outcome of the project” to exclude a contract for further project development work. Appellees’ Supp. App. at A316. In 1995, the FHWA abandoned that interpretation and concluded that a contract for future work would constitute a conflict under the regulations. See id. at A317. In 1996, however, the FHWA re-adopted the 1988 guidance after receiving numerous “inquiries and comments reflecting concerns about [the 1995] guidance.” Id. at A320.
Despite these inconsistent interpretations, we agree with the district court that a contractor with “an agreement, enforceable promise or guarantee of future work” has a conflict of interest under § 1506.5(c). Appellant’s App. at 65. In this case, however, the contract between CDOT and the Contractor did not create such an arrangement. Notwithstanding plaintiffs argument to the contrary, the 1994 supplemental contract between CDOT and the Contractor did supplant the scope of work provision under the 1991 contract, thereby eliminating any contractual guarantee the Contractor had to perform final design work. Each of the contracts in the record contain a scope of work section that describes the Contractor’s obligations with respect to the design work for the project. In the 1991, 1994, and 1997 contracts, that scope of work section took the form of a checklist listing all of the required tasks involved in preliminary and final design. Next to each task on these checklists, there is an X indicating that it is the Contractor’s obligation, an X indicating that CDOT has retained that obligation, an X in each column indicating a shared duty, or no mark at all. Absence of a mark indicates that the task responsibility is not assigned by that contract. As the parties entered supplemental contracts, each new scope of work section redefined the parties’ obligations under the agreement. See Appellant’s App. at 107 (“[T]he assignments associated with the work activities have changed to achieve Aurora’s Citizen Advisory Committee objectives.”). Although the Contractor was clearly obligated to complete both preliminary and final design work under the 1991 contract, none of the tasks related to final design are marked on the checklist in the 1994 contract. Thus, in 1994 the Contractor’s duties did not include final design. We therefore agree with the district court that, at the time its services were employed to develop the EIS, the Contractor had no contractual guarantee of future work on the project.
Plaintiff also argues that, even absent an enforceable promise, the Contractor operated under a conflict of interest because CDOT consistently awards final design contracts to the firm that prepares the EIS and the Contractor here received the final design contract through a non-competitive bid process. The district court rejected plaintiffs argument on two alternate grounds: (1) it interpreted § 1506.5(c) to exclude a mere expectation of future work from the definition of “financial or other interest,” see Appellant’s App. at 65; and (2) it concluded that, to the extent that CDOT’s practice could give rise to a conflict, defendants oversaw the Contractor’s work to a sufficient degree that such conflict would not require invalidation of the EIS in this case, see id. at 70-72. Accepting for the sake of argument that the Contractor’s heightened expectation that it would receive the contract for future design work amounted to a conflict, we nevertheless agree with the district court’s eon-elusion that the degree of oversight exercised by defendants, particularly CDOT, is sufficient to cure any defect arising from that expectation.
The procedural requirements of NEPA and its implementing regulations are designed to force agencies proposing to take any action that will affect the natural environment to take a “hard look” at the environmental consequences. See Robertson, 490 U.S. at 350, 109 S.Ct. 1835. When reviewing an EIS prepared by a contractor who has allegedly breached a requirement imposed by 40 C.F.R. § 1506.5(c), the ultimate question for the court is thus whether the alleged breach compromised the “ ‘objectivity and integrity of the NEPA process.’” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 202 (D.C.Cir.1991) (quoting Forty Questions, 46 Fed.Reg. at 18,031); see Holy Cross, 960 F.2d at 1529 (concluding that, although procedure followed deviated from “typical order of events” in a NEPA ease, circumstances led to conclusion that agency had taken the requisite “hard look” at environmental factors); Northern Crawfish Frog (Rana Areolata Circulosa) v. Federal Highway Admin., 858 F.Supp. 1503, 1529 (D.Kan.1994); Sierra Club v. Marsh, 714 F.Supp. 539, 583 (D.Me.1989); see also Brandon v. Pierce, 725 F.2d 555, 563-64 (10th Cir.1984) (holding prior to passage of CEQ regulations that contractor’s apparent conflict did not mandate invalidation of environmental assessment so long as the agency does not substitute the contractor’s judgment for its own), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992) (en banc); 40 C.F.R. § 1500.3 (“[I]t is the [CEQ]’s intention that any trivial violation of these regulations not give rise to any independent eause of action.”). Therefore, when an EIS is challenged on the basis of an alleged conflict of interest that is known to the agency, we agree with the district court “that the Court can evaluate the oversight that the agency provided to the environmental impact statement process as a factual matter and make a determination upholding the environmental impact statement.” Appellant’s App. at 70.
The record on appeal indicates that CDOT exercised substantial supervision over the preparation of the EIS. Even after CDOT hired the Contractor, CDOT continued to perform all management activities and only used the Contractor’s personnel for technical expertise or to supplement staff where there was insufficient manpower. Consequently, CDOT managers made all major decisions and the Contractor’s representatives reported to those managers, sometimes on a daily basis, to receive direction. In addition, CDOT prepared, without the Contractor’s assistance, those sections of the EIS addressing noise impacts,' air quality, wetlands, threatened and endangered species, paleontological resources, hazardous waste materials, vegetation, botanical and wildlife habitat, and historic resources. Finally, CDOT independently and extensively reviewed all of the Contractor’s analyses, commented on the Contractor’s field data and written product, noted deficiencies in the data and analysis, gave direction to the Contractor’s work, and .frequently required the Contractor to gather more facts or perform supplemental analysis on aspects of the project. To the extent that we are able to review the district court’s findings in the absence of the entire administrative record, we are convinced that the degree of supervision exercised by CDOT protected the integrity and objectivity of the EIS in this case.
B. Reasonable Alternatives
At “the heart of the environmental impact statement” is the obligation of the lead agency to review “all reasonable alternatives” to the proposed action. 40 C.F.R. § 1502.14. To fulfill that obligation, “federal agencies must ‘[rjigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.’ ” All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir.1992) (quoting 40 C.F.R. § 1502.14(a)). The agency is not required to evaluate “the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or ... impractical or ineffective.” Id. (quotation omitted). We review an EIS under a “rule of reason” standard to determine “ ‘whether the statement is a good faith, objective, and reasonable presentation of the subject areas mandated by NEPA’ ” and whether the discussion of alternatives in the EIS is sufficient to permit a reasoned choice.among the options. Id. (quoting Manygoats v. Kleppe, 558 F.2d 556, 560 (10th Cir.1977)). We are not to substitute our judgment for that of the agency’s; we may only determine whether the. necessary procedures have been followed. See id. at 1445.
Plaintiff asserts that the EIS is fatally defective because it fails to consider mass transit independently as a reasonable alternative to the construction proposal selected ' by defendants. We disagree. Although definition of the term reasonable is not self-defining, see Busey, 938 F.2d at 196, it is clear an agency need not independently evaluate alternatives it determines in good faith to be ineffective as a means to achieving the desired ends, see All Indian Pueblo Council, 975 F.2d at 1444; North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1543 (11th Cir.1990) (holding mass transit alternative properly eliminated because it did not resolve the congestion problem targeted by the agencies involved). Defendants’ goal for the instant project is to relieve “[ejxtreme congestion ... in the portion of Parker Road within the project area.” Appellees’ Supp. App., Ex. B, vol. 1, at 1-3. Having reviewed both the EIS and the ROD, as well as the portions of the administrative record submitted on appeal, we conclude defendants reasonably rejected the mass transit alternative on the basis that it would not ameliorate the congestion problem in the project area. See, e.g., id. at E-2 (“Heavy congestion in the project area will hamper use of alternative modes of travel as. well as motor vehicles, making this interchange less viable for transit in the future if improvements are not made.”); id. at 1-18 (noting that a Light Rail Transit alternative “would not negate the need for this proposed project”); id., vol. 2, at B-2 (noting that additional bus service to the surrounding neighborhoods “would not address the significant portion of vehicles” traveling through the project area); id., Ex. C., at A-8, A-12 to A-13 (same). We are therefore forced to agree with the district court that defendants “satisfied the hard look, reasonableness standard of NEPA.” Appellant’s App. at 56.
III
Plaintiffs final argument on appeal is that defendants failed to comply with § 4(f) of the Transportation Act by failing to consider “prudent and feasible” alternatives to the use of 29 acres of publicly owned parkland. 49 U.S.C. § 303(c)(1). In evaluating alleged violations of the Transportation Act, we engage in a three-tiered inquiry established by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). First, we determine “whether the Secretary acted within the scope of his authority.” Id. at 415, 91 S.Ct. 814. In that inquiry, “the reviewing court must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems.” Id. at 416, 91 S.Ct. 814. Next, we must determine that the Secretary’s decision to authorize the project was not “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). To make this determination, we “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. The court, however, “is not empowered to substitute its judgment for that of the agency.” Id. Finally, we must determine “whether the Secretary’s action followed the necessary procedural requirements.” Id. at 417, 91 S.Ct. 814. According to plaintiff, the district court erred because structural mass transit is both feasible and prudent, and defendants improperly refused to consider whether mass transit would obviate the need to use publicly owned lands.
Because we have already concluded that defendants did consider mass transit during the preparation of the EIS, the only claim left for our review is whether mass transit constitutes a “prudent and feasible” alternative to construction. Although there appears to be no dispute that mass transit is, at a minimum, feasible, we nevertheless conclude that defendants could properly dismiss that alternative as imprudent. Whether an alternative is “prudent” for purposes of the Transportation Act “involves a common sense balancing of practical concerns, but § 4(f) requires the problems encountered by proposed alternatives to be ‘truly unusual’ or ‘reach[ ] extraordinary magnitudes’ if parkland is taken.” Committee to Preserve Boomer Lake Park v. Department of Transp., 4 F.3d 1543, 1550 (10th Cir.1993) (quoting Overton Park, 401 U.S. at 413, 91 S.Ct. 814). Nevertheless, an alternative that does not solve existing or future traffic problems, such as the congestion problem at issue in this ease, may properly be rejected as imprudent. See id. (citing Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 947 (10th Cir.1989)). Because we have already concluded that defendants reasonably rejected the mass transit alternative on the ground that it fails to ameliorate the congestion problem in the project area, we conclude that this alternative is imprudent for purposes of the Transportation Act. We have closely examined the final EIS, the ROD, and the portions of the administrative record submitted for our review, and we conclude that the decision to construct improvements in the project area “was based on a consideration of the relevant factors” and followed “necessary procedural requirements.” Overton Park, 401 U.S. at 416-17, 91 S.Ct. 814.
IV
We are not unsympathetic to plaintiffs position. Nevertheless, controlling precedent dictates that we not evaluate the wisdom of the decision to construct improvements at Parker Road. See Overton Park, 401 U.S. at 416, 91 S.Ct. 814; All Indian Pueblo Council, 975 F.2d at 1445. To the extent we are able to review the decision of the district court without the entirety of the administrative record, we must conclude that defendants adequately complied with the requirements of NEPA, its implementing regulations, and the Transportation Act. Accordingly, the judgment is AFFIRMED.
. A comprehensive, site-specific environmental ' impact statement is required for "major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
. Although the parties have each submitted numerous materials in separaté appendices, this court has not been provided with the entire ad- - ministrative record. We therefore defer to findings of fact by the district court where the record on, appeal is insufficient for us to determine whether those findings are clearly erroneous. See United States v. Vasquez, 985 F.2d 491, 494-95 (10th Cir.1993); cf. McEwen v. City of Norman, 926 F.2d 1539, 1550 (10th Cir.1991) ("Generally, a party may not assign error on appeal unless he ... designates that part of the district court proceeding relevant thereto for appellate review.”).
. CDOT argues that plaintiff is precluded from raising this issue on appeal because it did not assert this argument before the district court. See Jenkins v. Wood, 81 F.3d 988, 996 (10th Cir.1996). We disagree. Plaintiff has consistently argued that CDOT’s practice of awarding final design contracts to the contractor that prepares the EIS amounts to a conflict of interest for that contractor. Plaintiff’s suggestion on appeal that we adopt such an interpretation of § 1506.5(c) is an extension of its arguments before the district court.
. Although we recognize that we may rely on the interpretive guidance offered by the CEQ, the Forty Questions document is not owed the substantial deference afforded to administrative rules that are the product of notice and comment procedures. See Northern Crawfish Frog (Rana Areolata Circulosa) v. Federal Highway Admin., 858 F.Supp. 1503, 1527 n. 12 (D.Kan.1994) (gathering cases).
. Plaintiff argues. that it was improper for the district court to rely on the testimony of representatives of CDOT and the Contractor about their understanding of the contract's meaning because such testimony is not part of the administrative record and, alternatively, because Colorado applies the parol evidence rule to contracts. We need not reach these issues because our review of the "contract documents,” see Appellant’s Br. at 19, reveals that the 1994 scope of work provision clearly superseded any obligations the Contractor had under previous agreements. See Appellant’s App. at 107 ("The original supplemental work activities assignment tasks are attached for more clarification.... Enclosed is a fully executed copy of our revised scope of work with CH2M Hill for this project.”) (emphasis added). Moreover, the materials in the administrative record reinforce that interpretation. See id. at 198 (Contractor Disclosure Statement) ("No final design tasks were included in the revised scope and there was no promise on the part of CDOT for future design work.”). Thus, any error in admitting such testimony would be harmless because it merely reiterates what the documents state clearly on their face.
. Plaintiff goes so far as to argue that "CH2M Hill must have known that if the build alternative was chosen as a result of the EIS they were preparing, they would get to perform the final design work or could sue under a theory of detrimental reliance or promissory estoppel.” Appellant’s Br. at 20.
. We disagree with plaintiff that the rule adopted by the district court fails to promote the conflict of interest provision’s goal of preserving public faith in the integrity of the NEPA process. See Appellant's Reply Br. at 10 (citing Guidance Regarding NEPA Regulations, 48 Fed.Reg. at 34,-266). When an agency is integrally involved in the preparation of an EIS, that involvement diminishes the threat posed by any potential conflicts of interest because the agency then has the opportunity to direct the analysis and supplement areas it deems deficient. When agencies take such an active role, public perception concerning the integrity of the process is necessarily strengthened, even when the Contractor performs future work on the project. Indeed, recent legislation indicates that Congress shares this view. See Transportation Equity Act for the 21st Century, Pub.L. No. 105-178, § 1205, 112 Stat. 107, 184-85 (1998).
.' Plaintiff continues to rely on the Contractor's belated filing of the required disclosure statement as grounds for invalidating the EIS. Although we agree with the district court that it was a violation of the NEPA regulations to file the disclosure statement after the final EIS had been issued, see Forty Questions, 46 Fed.Reg. at 18,031 (noting that the purpose of the conflict provision is to screen out contractors with conflicts of interest prior to beginning the EIS), we conclude that the late filing does not require reversal. The record demonstrates that the disclosure was filed prior to the Record of Decision, that it was reviewed as soon as it came in, and that it was found to be accurate and satisfactory. Given the extensive supervision by CDOT and given the agency’s evaluation of the disclosure upon its filing, we conclude it is not appropriate to invalidate the EIS on the basis of the late disclosure. See 40 C.F.R. § 1500.3; cf. Busey, 938 F.2d at 202 (remanding to agency for execution of an appropriate disclosure statement and, if conflict found, for agency to determine appropriate measures to be taken).
. Plaintiff argues that defendants admit that .mass transit is a reasonable alternative in the final EIS. See Appellant's Br. at 23. This argument is without merit. Appendix A of the EIS, to which plaintiff points for support, identifies “feasible” congestion management strategies, see Appellees' Supp.App., Ex. B., vol. 2, at A-l to A-2; it does not state that any such strategies would be a reasonable solution to the targeted problem — i.e., extreme traffic congestion on Parker Road at the 1-225 interchange. See id., vol. 1, at 1-3. Moreover, defendants have consistently maintained the position that the EIS did not consider mass transit as an independent alternative because it was not a reasonable solution to the stated problem.
. We do not mean to suggest that plaintiff could not have supported a NEPA claim by showing that defendants' decision to reject mass transit was ill-informed or contrary to the evidence in the administrative record. See North Buckhead, 903 F.2d at 1543 (upholding EIS in which agency failed to address no build/heavy rail alternative primarily because scientific data in the administrative record demonstrated that existing streets would not be able to accommodate future traffic volumes). Because plaintiff has failed to submit the entirety of the administrative record for our review, however, we are simply unable to review its claim that the administrative record is insufficient to support the agency’s conclusion on that point.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.07364341085271318, Costs: 0.003875968992248062
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RANDALL, Circuit Judge:
Eleven years ago, a home developer applied for a federal permit to dredge canals in the navigable waters around Galveston Island, Texas. From the beginning, environmental groups and neighboring landowners have fought against the development. They sought first to persuade, and then to compel, the Army Corps of Engineers to prepare a formal environmental impact statement, under the provisions of the National Environmental Policy Act, before issuing the permit to dredge. Their attempts to persuade failed; the developer obtained a permit without preparation of an environmental impact statement. Their attempts to compel, on the other hand, could not have been more successful. The District Court for the Southern District of Texas, principally because the Corps did not adequately consider “cumulative impacts,” enjoined the developer from performing work under the permit and ordered the Corps of Engineers to prepare a comprehensive environmental impact statement on the whole of West Galveston Island. 592 F.Supp. 120 (S.D.Tex.1984). The court also enjoined the Corps of Engineers from granting additional dredging permits for this project or for any similar project on the west end of the island until the environmental impact statement is completed.
Both the developer and the Corps of Engineers have appealed. The developer argues that the environmental assessment of the project that has already been prepared is adequate and that a formal impact statement is not required. The Corps of Engineers, on the other hand, argues that, although the environmental assessment may be inadequate, the district court should at most have remanded the case to the Corps for reconsideration of cumulative impacts. Both appellants claim alternatively that determining the scope of an environmental impact statement is an administrative function, not a judicial one, and that, even if it can now be said that an environmental impact statement is required, the district court erred by defining the precise parameters of the statement.
We agree with the district court that the Corps has not performed an adequate analysis of the cumulative impacts that may flow from this and other developments on West Galveston Island. We also agree, however, with the developer and the Corps that the district court should not have ordered the preparation of an impact statement at this stage in the process. Because of the Corps’ failure to conduct the proper study, it is too early to tell whether an impact statement is needed. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The northern shore of Galveston Island, which fronts on Galveston Bay, is riddled with lakes, coves and bayous. The shoreline consists of marshlands and mud flats. From a developer’s point of view, this area is ideal for the construction of ‘Venetian” housing developments which consist of homes built along the shores of manmade canals. There are several developments of this type on the western end of Galveston Island. Homeowners there can store their boats in the canals and have immediate access, for recreational purposes, to the waters of Galveston Bay.
Just west of Eleven Mile Road, a small peninsula with Hoecker’s Point at its end extends into the bay from the north shore of Galveston Island. The waters of Dele-hide Cove form the western boundary of the peninsula; Eckert’s Bayou (sometimes called Tucker’s Bayou) lies to the east. Mitchell Development Corporation of the Southwest (“Mitchell”) owns a tract of land at the base of this peninsula, near the southern end of Eckert’s Bayou. The property lies about five miles west of the City of Galveston. At some point during the pendency of this controversy, the city annexed the property. We understand that it now lies within a tax zone that provides incentives for development.
For many years, Mitchell has been trying to build a venetian-style housing development, similar to others along the northern shore of West Galveston Island, on this waterfront property. The development will be called Pirate’s Cove Section 6. Eckert’s Bayou, the proposed development’s link to Galveston Bay, is a saltwater estuary. Mitchell’s property, which borders the bayou, contains important saltwater and freshwater wetlands. There are, for example, approximately fifteen acres of freshwater marsh on the property. This area, according to some experts, constitutes the “largest natural fresh marsh complex remaining on Galveston Island.” Important marsh grasses, including spartina altemiflora, grow in the forty-four acres of saltwater wetlands that are located within the boundaries of Section 6. Many species of fish and wildlife live in these wetlands and in the bayou itself. Mitchell’s property also contains a rare coastal woodlot — one of the largest and best of only twenty-two on the Texas Gulf coast — that provides an important rest area for migratory birds. The woodlot is known as Live Oak Grove. The rest of Section 6 consists primarily of grazed grasslands. The property, in addition, houses a Kanankawa Indian archeological site.
Construction of Section 6 will require excavation from navigable waters and the discharge of dredged materials. Mitchell must, therefore, obtain a Department of the Army permit before commencing work. See Rivers and Harbors Act of 1899, 33 U.S.C. § 403; Clean Water Act, 33 U.S.C. § 1344. The Secretary of the Army has delegated the authority to grant such permits to the appropriate district engineer of the Army Corps of Engineers (“Corps”). See 33 C.F.R. § 320.1(a)(2).
On July 20, 1974, Mitchell applied to the Corps’ Galveston District for a permit (1) to dredge a channel in Eckert’s Bayou; (2) to dredge a canal connecting Eckert's Bayou with Delehide Cove; (3) to dredge on its property a system of canals and to thereby extend the waters of Eckert’s Bayou inland; and (4) to construct bulkheads, piers, and boat launches in the canals. The proposed dredging and construction were part of Mitchell’s overall plan to build a 475-unit venetian-style housing development on a 145-acre tract. As finally submitted, the plans proposed extensive dredging of material from the floor of Eckert’s Bayou and surrounding areas. Mitchell planned to use some of the material as fill during construction and to place the rest in designated spoil areas that will be fortified where necessary by levees. The plans called for the destruction of all of the freshwater marsh on the property, a small area of saltwater marsh, and a significant number of trees in Live Oak Grove. Mitchell also proposed, however, to preserve as a park portions of Live Oak Grove and the archeological site.
The Corps notified the public and other federal agencies that the application had been filed. Mitchell met on many occasions with representatives of the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) to discuss objections that both agencies had to the proposed project. As a result of these discussions, Mitchell agreed to redesign the canals to reduce the amount of saltwater marsh that will be destroyed by the development, to designate an additional spoil site, and to take steps to ensure water quality in the canals. Neither NMFS nor USFWS requested preparation of an environmental impact statement. Both agencies, however, commented on the ecological importance of Section 6 and expressed concern about the proliferation of development in the area. NMFS said:
We are confident that the [Mitchell] project alone will not severely affect the productivity of West Bay____ However, we are concerned with the cumulative effects of the proliferation of waterfront housing developments on this estuary. Ten such developments with box-cut canals already exist along West Bay and its tributary bayous, and the Mitchell Corporation has plans for several other sections of waterfront housing developments in the Hoeckers Cove-Tucker Bayou area. We fear that such development may be approaching the level whereby the quality of water and habitat throughout the West Bay would become degraded.
We, therefore, further recommend that an Environmental Impact Statement be prepared by the Corps of Engineers ... before granting any permits for future waterfront housing developments in West Bay or its tributary bays and bayous.
(Emphasis added.) This recommendation was included in nearly every subsequent communication from NMFS to the Corps.
The Corps recognized from the outset that its action on Mitchell’s application triggered responsibilities under the National Environmental Policy Act, 42 U.S.C. §§ 4331 et seq. (“NEPA”), which requires in certain circumstances the preparation of environmental impact statements (“EIS”) prior to federal action affecting the environment. The Corps made a preliminary determination, however, that, on these facts, NEPA did not require the preparation of an EIS, and that the Corps could discharge its NEPA responsibilities by conducting a less comprehensive review known as an environmental assessment (“EA”). This determination, which was included in the public notice, triggered several requests to prepare an EIS and to convene a public hearing on Mitchell’s permit application. In response, the Corps held a public hearing on November 6, 1975. Individuals and environmental groups raised several objections to the project, both at the hearing and in subsequent written statements. The objections were, for the most part, expressed in very general terms by laymen. Their comments focused on the loss of trees in Live Oak Grove, the destruction of wetlands and oyster reefs, hurricane evacuation, and the possibility that the development will make it easier for a hurricane to split the island in two. Many people stressed that Mitchell’s application should not be viewed in isolation, but should be assessed in the light of the cumulative impact that Pirate’s Cove Section 6 and other developments — past and future — will have on West Galveston Island. They expressed frustration with the piecemeal development of Galveston Island and urged the Corps to prepare a comprehensive EIS covering the entire west end of the island.
Mitchell responded to the objections and stressed that, although some areas will be destroyed, parts of Live Oak Grove will be preserved and many acres of spartina al-temiflora will be planted. With respect to the need for a comprehensive EIS, Mitchell concluded that, because its consultants had already prepared “extensive and precise” ecological studies, “an EIS will serve no purpose in the processing of the application.”
The public comments did not persuade the Corps to prepare an EIS. On May 28, 1976, Don McCoy, then district engineer for the Corps’ Galveston District, issued for Mitchell’s application an EA and a Statement of Findings. McCoy expressly recognized, as a general matter, that the cumulative impact on wetlands from surrounding developments can be devastating. He concluded, however, that, “[i]n the absence of any study concerning Galveston Island, the cumulative effects of this and similar projects cannot be estimated with any degree of success.” McCoy determined that an EIS was not required, despite this void in the data, as long as “future projects in the West Bay area are closely scrutinized for potential cumulative effects on the environment.” The Corps issued a permit to Mitchell on June 28, 1976, almost two years after the initial application.
After the permit was awarded, Mitchell dredged a canal connecting Eckert’s Bayou to Delehide Cove. Thereafter, Mitchell acquired additional land adjacent to its existing tract on Eckert’s Bayou and suspended work under the 1976 permit. In February of 1978, Mitchell submitted an application for an amended permit to include in the project approximately forty acres of the newly acquired land and to redesign completely the canal system. Although the amended plans lessened the environmental impacts that can be expected from the project, USFWS and NMFS again expressed concerns. USFWS, for example, proposed extensive changes to the amended plans to protect additional saltwater and freshwater marshes. In addition, a number of individuals and groups again opposed the project. Before their concerns could be addressed, however, the administrative-review process came to an abrupt halt. On August 17, 1978, the plaintiffs, who are individuals owning land near Ec-kert’s Bayou, filed this lawsuit.
The plaintiffs sued Mitchell and, through various individuals in their official capacities, the Army, the Corps, and USFWS. The complaint alleges that the Corps violated its duty under NEPA to prepare an EIS before granting Mitchell’s original permit application. It seeks both a preliminary and a permanent injunction preventing Mitchell from resuming work under the original permit and an order requiring the federal defendants to prepare an EIS for Pirate’s Cove Section 6 and otherwise to fulfill their statutory obligations. The plaintiffs requested that the EIS address, among other things, “the cumulative impact of development of West Galveston Bay and West Galveston.” They specifically asked that the EIS answer the three questions posed by NMFS. See supra note 1.
Judge Cowan held a preliminary injunction hearing in early September. Expert witnesses called by the plaintiffs testified about various deleterious environmental effects that may flow from the project. They echoed, with greater specificity, many of the concerns expressed at the public hearing, including fears that the development may allow a hurricane-storm surge to split the island in two and will cause the contamination of a freshwater aquifer. In addition, the court heard testimony that the work already performed by Mitchell under the original permit — the dredging of a canal between Eckert’s Bayou and Delehide Cove and the deposit of dredged material in spoil areas — was environmentally unsound. Many experts urged the Corps to prepare a full-blown EIS. The experts, like the individuals who spoke at the public hearing, stressed the need to consider in more depth the cumulative impact that Pirate’s Cove and other bay-side developments will have on West Galveston Island and West Bay.
On September 15, 1978, Judge Cowan, granted a preliminary injunction that prevented Mitchell from working on the project. He also ordered that the case proceed to trial on an expedited basis. The parties did not, however, proceed according to the expedited schedule. Instead, Mitchell announced its intention not to resume work under the original permit, and all counsel joined in a motion to continue the case until the Corps completed its review of Mitchell’s application for an amended permit.
The Corps’ review process resumed shortly after Judge Cowan issued the preliminary injunction. In late September, the Corps busily began to marshal data and expert testimony to refute the plaintiffs’ claims. Many studies were generated on topics ranging from hurricane-storm surges to the nature of the soil and groundwater in Section 6. Coordination between Mitchell, USFWS, and NMFS, moreover, continued. In September of 1979, Mitchell submitted revised plans to address the concerns that had been raised over one year earlier by USFWS and NMFS. Another major revision of the project resulted which again lessened Section 6’s adverse environmental impacts. In November of 1979, Mitchell formally amended the application to reflect these changes and withdrew the February 1978 application.
After the second application for an amendment was filed, Mitchell continued to work with USFWS and NMFS. USFWS, at one point, recommended that the permit application be denied because “canal development of the site is simply not possible without significant environmental damage.” USFWS eventually relented, however, and decided that, if certain conditions were imposed, the Mitchell project should be allowed to go forward. Mitchell eventually agreed to all of the conditions.
In July of 1982, the Corps received final notification from other governmental entities that the Mitchell project was not objectionable. Ultimately, the following agencies expressed their approval: (1) The Texas Parks and Wildlife Department; (2) the Texas Department of Water Resources; (3) the Texas Department of Highways and Public Transportation; and (4) the Texas Historical Commission. NMFS, like USFWS, conditioned its approval of the project on Mitchell’s agreement to certain changes. Mitchell agreed to all of them except one, which the Corps eventually determined was not necessary.
On December 3, 1982, the Corps finally reached a decision on Mitchell’s application for an amended permit. Alan Laubscher (“Laubscher”), who was by then the district engineer for Galveston, decided on that date to grant the amended permit without preparing an EIS. The decision is supported by an EA, which concludes that Section 6 will not have a significant impact on the environment, and a Statement of Findings, which concludes that granting the permit is in the public interest. With respect to cumulative effects, which is the primary issue involved in this appeal, Laubscher said:
In the absence of any other studies concerning Galveston Island by the City or other governmental entity, the Corps of Engineers must evaluate each permit on an individual basis, carefully examining the environment of West Bay with each permit application. Uncontrolled development in an estuarine area can undoubtedly be devastating to the natural environment. However, with existing laws and regulatory constraints, projects such as this proposal can be designed to minimize, by mitigation and/or compensation, environmental degradation. Other projects pending before the Corps of Engineers or proposed in the future, including maintenance dredging projects that would affect West Bay, are currently undergoing these strict regulatory constraints.
Laubscher also said of cumulative impacts:
Cumulative impacts. This development is not related to any overall plan, by the applicant or other developers, to provide additional waterfront housing on Galveston Island. This project has independent utility, and will not encourage or support other related development.
The Statement of Findings concludes, without explanation: “The cumulative effects on the aquatic ecosytem are insignificant.”
After the Corps issued to Mitchell the amended permit, the parties again shifted their attention from administrative to judicial review. The plaintiffs strongly suggested in pretrial briefs that the inquiry under NEPA must proceed on two distinct, albeit related, levels: (1) was the Corps obligated to prepare a local, site-specific EIS for Section 6 of Pirate’s Cove? and (2) was the Corps obligated to prepare a comprehensive, regional EIS on the whole of West Galveston?
The defendants seized upon this distinction as a way to narrow the issues in the case. They moved jointly for partial summary judgment solely on the issue of whether the Corps was obligated to prepare a regional, as opposed to a local, EIS. They argued that the Mitchell project does not propose regional action and that it is not intimately related to other proposals for federal action on West Galveston Island. Thus, under Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976), a regional EIS, in the defendants’ view, is not required. The Corps’ conclusion that Section 6 is not related to other projects, moreover, is not arbitrary and capricious, according to the defendants, because the Mitchell project will have “independent utility” and will not “irreversibly commit substantial resources” to future projects or “foreclose consideration of subsequent proposals.” The motion was supported by Laubscher’s affidavit which concludes that, absent a “regional development plan,” “the Corps of Engineers must evaluate each permit on an individual basis, carefully examining the environment of West Galveston Island and West Bay with each permit application.”
In response, the plaintiffs denied that they had created two separate issues — a regional-EIS issue and a local-EIS issue— with respect to the Corps’ obligation to prepare an EIS. They filed a cross-motion for summary judgment on the general issue of whether the Mitchell permit application triggered a duty on the part of the Corps to prepare an EIS. The plaintiffs argued that, unlike the plaintiffs in Kleppe, they are not seeking a “regional” EIS; rather, they want “a ‘full’ [EIS], not a ‘regional’ EIS.” The record, the plaintiffs concluded, demonstrates that the Corps’ decision not to prepare an EIS was unreasonable and that they are entitled to judgment as a matter of law.
The defendants responded with an additional motion for summary judgment, this time arguing that they are entitled to judgment as a matter of law, not just on the regional-EIS question, but on all of the issues raised by the plaintiffs. The motion relies on the administrative record which, to the defendants, shows conclusively that the Corps reasonably concluded that an EIS was not required.
On March 2, 1984, the district court granted the plaintiffs’ motion for summary judgment and denied the defendants’ motions. 592 F.Supp. at 120. The court noted first that “[t]he case file, administrative record, an oral hearing, and the exhaustive briefs filed by the parties indicate the absence of any genuine issue of material fact.” Id. at 121. The court then applied the standard of review we first outlined in Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973). Significantly, the court determined that the issue in this case is not whether the Corps should prepare a regional EIS. 592 F.Supp. at 126 n. 6. Rather, “the Corps’ alleged failure adequately to consider the cumulative impact of the Mitchell project on the ecosystem of west Galveston Island and its adjacent waters is the gravamen of plaintiffs’ complaint.” Id. at 124 (footnote omitted). The court then moved to what, in its view, is the ultimate question: in the light of the environmental issues raised by the plaintiffs, was the Corps’ decision not to prepare an EIS “reasonable?” The court noted that NEPA requires an EIS for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The court then evaluated the Corps’ finding of no significant impact (“FONSI”) against the CEQ definition of “significantly.” See 40 C.F.R. § 1508.27. The definition mandates consideration by federal agencies of “cumulative impacts,” viz., “the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Id. § 1508.7. The court focused upon the two findings made by the Corps in purportedly complying with this mandate: (1) absent “other studies” by “other governmental entities],” the Corps must evaluate “each permit [for action on Galveston Island] on an individual basis,” and (2) the Mitchell development “is not related to any overall plan, by the applicant or other developers, to provide additional waterfront housing on Galveston Island.”
The court determined that the Corps’ consideration of cumulative impacts was inadequate. The court specifically “set[] aside,” because it reflects a misdirected analysis, the finding that the Mitchell project is “not related to an overall plan.” 592 F.Supp. at 125-26 n. 6. To the court, the proper inquiry under the CEQ guidelines is, not whether there is an “overall plan,” but simply whether this project “is related” to other past, present and reasonably foreseeable actions. The court concluded that Section 6 is related to other development on West Galveston Island. This conclusion is based upon “an extensive review” of the record. Id. at 124. The court cited three examples to support its point: (1) Mitchell’s statement in the application for an amended permit that “future project expansion” is possible; (2) the December 1974 letter from NMFS to the Corps warning of the cumulative effects of venetian-style housing developments along West Bay; and (3) a May 1983 letter from USFWS to the Corps, which concerns a Galveston County permit to construct offshore breakwaters in connection with a Homecraft housing development, that notes that “cumulative impact [from developments on West Galveston], especially on wetlands, has been substantial.” Based on this evidence, the court concluded:
The Mitchell project is clearly related to other past, present, and reasonably foreseeable developments on west Galveston Island. The Corps therefore abdicated its responsibility under NEPA by failing properly to consider cumulative impacts and instead evaluating the Mitchell permit application commensurate with, and narrowly confined to, its stated policy of evaluating “each permit on an individual basis.” AR 17:296. Accordingly, the Corps’ determination that an EIS is not required under NEPA, because the Mitchell project will not significantly affect the environment, is not sufficiently supported by the environmental record and is hence unreasonable and arbitrary.
Id. at 125 (emphasis added; footnote omitted).
Having found a violation of NEPA, the court sought to “fashion a remedy to fulfill, as closely as possible, the objectives of the statute.” Id. at 126. That remedy originally consisted of a two-pronged injunction: (1) an order requiring “the Corps to prepare an EIS which addresses the cumulative impact of the proposed Mitchell project on west Galveston Island and West Bay, taking into consideration all past, present and reasonably foreseeable developments” and (2) a continuation of Judge Cowan’s injunction preventing “significant work” on the Mitchell project. Id. Over five months later, in response to motions to amend, the court modified its order to state in detail the scope of the EIS that the Corps must prepare. The EIS must cover “all past, present and reasonably foreseeable projects [similar to Section 6] that may occur within the geographic area [of West Galveston Island] within five (5) years of the date of entry of this order.” Similar projects “include, but shall not be limited to, those developments, including residential developments — whether that development be a single unit or more than one unit — that incorporate dredged canals or lagoons and that are wholly or partially located upon lands subject to the'jurisdiction of the [Corps].” Id. (emphasis added). The court also clarified that the Corps is enjoined from granting permits for all “similar projects” until the EIS is completed.
Later, the Corps moved for a partial stay of the court’s injunction. The court modified the injunction pending appeal to delete from the definition of similar projects the phrase “but shall not be limited to,” thus rendering the injunction, during the pend-ency of this appeal, applicable only to permits for venetian-style housing developments.
In summary, it is clear that Section 6 has been the subject of much study. There have been three public hearings and many scientific reports. Mitchell, at times, has shown the kind of sensitivity to the environment for which it has been praised in the past. Still, Section 6 is a controversial project. It has come at a time of increasing public concern for the unique environmental problems facing wetlands and barrier islands in general and Galveston Island in particular. It is true, as the defendants are fond of emphasizing, that, after extensive review, no governmental entity has requested that an EIS be prepared on this project. It is also true, however, that many entities have expressed grave doubts about continuing this type of development on Galveston Island. Moreover, although the defendants have failed to point this out, USFWS has now taken the position that the EA that has been prepared for Section 6 is inadequate. In a February 3, 1983 letter to the Corps, USFWS stated: “In general we believe that this document fails to adequately convey the profound changes to wetlands and other fish and wildlife habitats that will occur on the project site.” USFWS specifically complained that the EA does not adequately address the issue of cumulative impacts.
It is against this background that we, mindful that our role in the process is indeed a limited one, turn to an analysis of the parties’ contentions on appeal.
II. CONTENTIONS ON APPEAL
Both Mitchell and the Corps have appealed, but they emphasize different points.
A. Mitchell’s Position
Mitchell raises four points on appeal— one concerning the district court’s substantive decision that the Corps acted unreasonably and three concerning the scope of the relief ordered by the court. Mitchell’s first claim is simple: the administrative record conclusively shows that the Corps adequately considered cumulative impacts and reasonably concluded that any such impacts from the Mitchell project will be insignificant. To support this conclusion, Mitchell points to specific portions of the administrative record that purportedly demonstrate consideration of cumulative impacts, including the Corps’ findings that: (1) although .13 acres of saltwater wetlands will be destroyed by the Mitchell project, nine acres will be created and, (2) although 13.8 acres of freshwater wetlands will be destroyed, 1.2 acres will be preserved and will “allow the area to continue to serve its most important biological functions.”
Moreover, the district court’s opinion, according to Mitchell, betrays a misunderstanding of the nature of the review mandated by Kreger and its progeny. In Mitchell’s view, a district court applying the reasonableness test to a NEPA-thresh-old decision should simply satisfy itself that the agency has taken a “hard look” at the proposed action. The district court, in Mitchell’s view, has gone much further than that and has, in reality, labeled the Corps’ action unreasonable upon a simple finding that cumulative impacts will exist, without the requisite discussion of the potential significance of those impacts.
With respect to the scope of relief ordered by the district court, Mitchell makes three arguments. (1) Assuming, arguen-do, that the EA’s discussion of cumulative impacts is inadequate, the court should have simply remanded the case for reconsideration of those impacts, thus leaving to the Corps the decision whether, when properly evaluated, they mandate preparation of an EIS or whether they can again be considered in an EA. (2) Despite the district court’s disclaimer to the contrary, the court has in effect ordered the Corps to prepare a regional EIS. The Corps did not, however, abuse its discretion in determining that the environmental review of Mitchell’s permit application could properly be limited to Section 6, rather than all development on West Galveston Island. Because Mitchell’s project will have independent utility, the district court erred in ordering the Corps to prepare a regional EIS. (3) At any rate, even if a regional EIS is required, the court erred in enjoining Mitchell from proceeding with its project pending completion of the EIS. The environmental ramifications of Section 6 have been adequately reviewed, and the project should be allowed to continue while the comprehensive EIS is being prepared.
B. The Corps’ Position
The Corps’ brief starts from the premise that the case must, because of an inadequate evaluation of cumulative impacts, be remanded to the Corps for further consideration. The Corps argues, however, that the relief ordered by the district court exceeds the scope of its authority. The district court erred, the Corps maintains, by ordering the preparation of an EIS because, although the court found that the EA was inadequate, it did not expressly find that “there may be significant cumulative impacts from this and other related projects.” Absent such a finding, according to the Corps, the district court was empowered, at most, to remand the case to the Corps for a reassessment of cumulative impacts. In the alternative, the Corps argues that, even if the court properly ordered the preparation of an EIS, it should have allowed the Corps to determine its scope in the first instance. Finally, the Corps argues that, even if the court correctly ordered the preparation of a comprehensive EIS, the injunction against all similar developments on West Galveston Island is overbroad. According to the Corps, the injunction, to the extent that it enjoins activities other than the Mitchell project, does not make sufficiently clear the nature of the conduct that is prohibited, is not adequately supported by a statement of reasons, see Fed.R.Civ.P. 65(d), and does not adequately balance the interests involved.
C. The Plaintiffs’ Position
The Corps, according to the plaintiffs, did not consider cumulative impacts at all and instead blindly deferred to “other governmental entitpes]” to conduct such an analysis. They argue, moreover, that the district court did not, as the defendants assert, limit its analysis to the mere existence of cumulative impacts. The court, according to the plaintiffs, also found that cumulative impacts may be significant, a finding that is amply supported by the record.
The plaintiffs also argue that the district court did not exceed the scope of its authority in ordering the preparation of a comprehensive EIS on the whole of West Galveston Island. According to the plaintiffs, defining the “geographic dimensions of an EIS is an issue traditionally decided by the judiciary.” Finally, the plaintiffs claim, the district court properly exercised its discretion in enjoining the Corps from granting permits for “similar projects” on West Galveston Island until an EIS is prepared.
III. JUDICIAL REVIEW OF NEPA THRESHOLD DECISIONS
We are of course primarily a reviewing court. As such, we are in every case sensitive to the proper standard of review. In administrative-law cases like this one, where the district court was itself in essence a reviewing court, there are really three standards to identify: (1) the standard to be applied in the first instance by the agency; (2) the standard to be applied by the district court in reviewing the agency’s findings; and (3) the standard to be applied by this court in reviewing the district court’s decision. See Sierra Club v. Sigler, 695 F.2d 957, 964-68 (5th Cir.1983). Because the parties in this case disagree sharply on what the standards are and on how they should be applied, we shall, before reaching the merits, set forth the standards that govern this case at all three levels.
A. NEPA’s Implementing Regulations
NEPA directs “all agencies of the Federal Government” to prepare impact statements for every “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The Act also creates the Council on Environmental Quality. Id. § 4342. The CEQ has promulgated regulations, 40 C.F.R. pt. 1500, designed to “tell federal agencies what they must do to comply with the procedures and achieve the goals of [NEPA].” Id. § 1500.1. These regulations are binding on federal agencies. See Sierra Club v. Sigler, 695 F.2d at 972 (citing Andrus v. Sierra Club, 442 U.S. 347, 356-58, 99 S.Ct. 2335, 2340-41, 60 L.Ed.2d 943 (1979)). The CEQ guidelines provide a broad framework for NEPA compliance, but also direct federal agencies to promulgate their own regulations for implementing the Act. See 40 C.F.R. § 1507.-3. The Corps has complied with this mandate. See Policy and Procedures for Implementing NEPA, 33 C.F.R. pt. 230. The CEQ has directed agencies to, among other things, list (1) those actions which normally require preparation of an EIS and (2) those actions which normally do not require preparation of an EA or an EIS. See 40 C.F.R. § 1501.4. If a proposed action fits into neither category, the agency should prepare an ÉA. Id. § 1501.4(b). The Corps has determined that “regulatory permits” are actions “normally requiring an ... EA but not necessarily an EIS.” 33 C.F.R. § 230.7(e); see also 33 C.F.R. pt. 230, App. B. The purpose of an EA is to “provide sufficient evidence and analysis for determining whether to prepare an [EIS].” 40 C. F.R. § 1508.9(a)(1); see also 33 C.F.R. § 230.9(a). An EA, moreover, will result in one of two findings: (1) a finding that an EIS must, because of potentially significant environmental impacts, be prepared for the proposed action or (2) a FONSI — a finding that the proposed action “will not have significant effects on the environment.” 40 C.F.R. § 1501.4(cHe), 1508.13; 33 C.F.R. § 230.10.
An EA should be brief. 40 C.F.R. § 1508.9; 33 C.F.R. § 230.9(b) (an EA “should not normally exceed 15 pages”). An EA should, however, “include brief discussions of the need for the proposal, of alternatives ..., of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9(b); see also 33 C.F.R. § 230.9(e). While the discussion of these factors should be brief, it should also be sufficient to demonstrate reasoned decision making. See Foundation on Economic Trends v. Heckler, 756 F.2d 143, 154 (D.C.Cir.1985) (“[s]imple, conclusory statements of ‘no impact' are not enough”). Moreover, “[a]n [EA] that fails to address a significant environmental concern can hardly be deemed adequate for a reasoned determination that an EIS is not appropriate.” Id. at 154.
Before preparing an EA on proposed action, the Corps must consult with other federal agencies. The Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 et seq., for example, directs federal agencies to consult with USFWS and NMFS before allowing bodies of water to be dredged. Id. § 662(a); see also 33 C.F.R. § 320.4(c) (Corps regulations for coordination under the Act with USFWS and NMFS); 33 C.F.R. § 320.4(b), (c) (Corps regulations for coordination with USFWS and NMFS in cases affecting wetlands).
As is readily apparent, the decision whether to prepare an EIS may turn in large part on the definition of the term significantly. The CEQ has defined significantly as follows:
“Significantly” as used in NEPA requires considerations of both context and intensity:
(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.
(b) Intensity. This refers to the severity of the impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) The unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions ivith individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
40 C.F.R. § 1508.27 (emphasis added).
B. The Standard for Judicial Review
An agency’s decision to act without preparing an EIS is of course subject to judicial review. The circuits are, however, split on how that review should be conducted. In roughly half of the circuits that have decided the issue, a decision not to prepare an EIS will be overturned only if it is “arbitrary and capricious.” Other circuits employ a “reasonableness” standard of review. There are, moreover, considerable variations within these two general categories. See generally Shea, The Judicial Standard for Review of Environmental Impact Statement Threshold Decisions, 9 Envtl.Aff.L.Rev. 63 (1980). “This conflict is not merely semantic or academic.” Gee v. Boyd, — U.S. -, 105 S.Ct. 2123, 2125, 85 L.Ed.2d 487 (1985) (White, J., dissenting). In fact, three justices of the Supreme Court have recently argued that the full Court should review a case like this one to end the “disarray” and “confusion” that exists on this issue. Id. 105 S.Ct. at 2126 (White, J., joined by Brennan, J. & Marshall, J., dissenting from denial of petition for writ of certiorari).
Since Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir.1973), we have employed the less deferential of the competing standards — the reasonableness test. The reasonableness test is clearly a “more rigorous standard ... than the rule of arbitrary and capricious review that ordinarily governs agency actions.” State of Louisiana v. Lee, 758 F.2d 1081, 1084 (5th Cir.1985). In Kreger, 472 F.2d at 463, we described the inquiry under the reasonableness test as follows:
[T]he court should proceed to examine and weigh the evidence of both the plaintiff and the agency to determine whether the agency reasonably concluded that the particular project would have no effects which would significantly degrade our environmental quality. This inquiry must not necessarily be limited to consideration of the administrative record, but supplemental affidavits, depositions and other proof concerning the environmental impact of the project may be considered if an inadequate evidentiary development before the agency can be shown.
Id. at 467 (citations omitted).
Admittedly, our decisions applying Kreger have not been entirely “consistent” or “pellucid.” Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044, 1054 (5th Cir.1985) (Rubin, J., dissenting). We agree with Mitchell that a court applying the reasonableness test does not have unbridled discretion to substitute its judgment for that of the agency responsible for making the decision in the first instance. It may not be possible, without degenerating to a circular definition, to articulate with more precision what an application of the reasonableness standard entails. It is clear, however, that a court applying the reasonableness test may, in certain circumstances, receive and weigh evidence beyond that in the administrative record, see Hiram Clarke Civic Club v. Lynn, 476 F.2d 421, 425 (5th Cir.1973), and should at least satisfy itself that the agency has taken a “hard look” at the environmental concerns raised by the plaintiffs and the factors made relevant by the various regulations implementing NEPA. See Vieux Carre Property Owners v. Pierce, 719 F.2d 1272, 1282 (5th Cir.1983).
It is also clear that a decision to forego preparation of an EIS may be unreasonable for at least two distinct reasons: (1) the evidence before the court demonstrates that, contrary to the FONSI, the project may have a significant impact on the human environment, see, e.g., Lee, 758 F.2d at 1085, or (2) the agency’s review was flawed in such a manner that it cannot yet be said whether the project may have a significant impact, see, e.g., York, 761 F.2d at 1053; Foundation on Economic Trends, 756 F.2d at 154. The appropriate relief, moreover, depends upon which of these findings the district court makes. If the court finds that the project may have a significant impact, the court should order the agency to prepare an EIS. Lee, 758 F.2d at 1085; Kreger, 472 F.2d at 467. If the court finds, on the other hand, that the EA is inadequate in a manner that precludes making the determination whether the project may have a significant impact, the court should remand the case to the agency to correct the deficiencies in its analysis. See York, 761 F.2d at 1053 (“[we do] not order [an] ... EIS because the question of whether the Project may have significant adverse impacts is still an open one”); Foundation on Economic Trends, 756 F.2d at 154 (“until [the agency] completes such an evaluation the question whether the experiment requires an EIS remains an open one”).
C. Appellate Review of the District Court’s Findings
The scope of our review of district court decisions, of course, depends on (1) the nature of the question that has been decided and (2) the procedural context in which the decision was made. Mitchell argues that, because the district court granted a motion for summary judgment, we should in effect conduct a de novo review of its decision. The plaintiffs and the Corps have not bothered to address this threshold issue.
Generally speaking, we owe substantial deference to a district court’s resolution of fact questions, but review de novo its pronouncements on questions of law and mixed questions of law and fact. Mitchell is, of course, correct that, when we review a summary judgment, we apply the same standards that the district court has applied. See, e.g., Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir.1985). That is because the district court’s role in the summary judgment context is simply to identify, not to resolve, questions of fact and to apply correctly the law — matters upon which we owe no special deference to district courts.
The scope of our review is not, however, necessarily determined by the label that the parties or the district court have used to characterize the proceedings. See John v. State of Louisiana, 757 F.2d 698, 708 (5th Cir.1985). In fact, we may in certain circumstances disregard those labels altogether and apply the standard that is appropriate for reviewing what has really happened in the district court. See, e.g., Marathon Manufacturing Co. v. Enerlite Products Corp., 767 F.2d 214, 216-18 (5th Cir.1985) (“A trial procedure which accomplishes what the parties and court intend does not become erroneous merely because it is misnamed.”). The problem arises most often when the parties, in a case involving an extensive discovery record, administrative record, or the like, file cross-motions for summary judgment. Not infrequently, the parties in such a case do not really mean to suggest that there are no material questions of fact. Rather, they intend to submit the remaining fact questions to the district court for resolution on the existing record. If the parties and the district court intended to resolve the case in that manner, we will, despite any misnomers to the contrary, review the decision according to what has really happened — a trial on a stipulated record. See, e.g., Marathon Manufacturing, 767 F.2d at 216-18; John, 757 F.2d at 706 n. 4 (collecting cases); Vet-ter v. Frosch, 599 F.2d 630, 632-33 (5th Cir.1979).
The district court expressly found that the summary judgment proof in this case showed an absence of genuine issues of material fact. Nevertheless, we are convinced that this is a case, like Marathon Manufacturing, in which we must disregard the court’s label and inquire further. As Marathon Manufacturing makes clear, it is appropriate for us to do so when (1) the district court has in reality decided questions of fact and (2) the parties have effectively agreed to that procedure. See also John, 757 F.2d at 706 n. 4.
We note first that, following the submission of summary judgment motions, both sides informed the court that they had submitted all of the evidence that they had to offer. Said the court, in a docket entry:
The Court heard argument ... concerning cross-motions for summary judgment. Both parties informed the Court that no significant new evidence would be adduced if the case were to proceed to trial.
Accordingly, the Court CANCELLED the trial setting on 12/27/83 and indicated that it would rule on the summary judgment motions in the near future.
(Emphasis added).
Moreover, if ever there was a case in which the parties disagree about material questions, this is it. As our extended discussion of the administrative and judicial record should make clear, the parties, each with evidentiary support, surely disagree over at least the following: (1) whether Section 6 “may” have significant environmental impacts; (2) whether Section 6 is “related” to other projects on West Galveston Island; (3) whether the Corps’ review of cumulative impacts was sufficient; and (4) whether the Corps’ ultimate decision not to file an EIS was reasonable. At least the first two of these are questions of fact. See, e.g., Lee, 758 F.2d at 1081; Save Our Wetlands, 711 F.2d at 642; National Wildlife Federation v. Marsh, 721 F.2d 767, 782 (11th Cir.1983) (applying Fifth Circuit precedent).
Because the district court may have answered questions of fact, and because the parties effectively consented to that procedure, we will review the court’s answers under the clearly erroneous test, see Fed.R. Civ.P. 52(a), notwithstanding the district court’s view that this is a summary judgment case. That test allows us to reject findings of fact only if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). It does not matter that the district court’s decision is based on a record consisting primarily of documentary evidence. See Anderson v. Bessemer City, North Carolina, — U.S. -, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). We will of course review de novo conclusions of law.
IV. DISCUSSION
A. Cumulative Impacts: Kleppe and The CEQ Regulations
The discussion of cumulative impacts must start with the CEQ definition of significance and the Supreme Court’s decision in Kleppe, 427 U.S. at 398, 96 S.Ct. at 2724. The issue in Kleppe was whether the Department of the Interior and other federal agencies were obligated to prepare a comprehensive, regional EIS before granting leases to operate coal mines on federal land in the Northern Great Plains Region — an area encompassing parts of Wyoming, Montana, North Dakota, and South Dakota. The responsible agencies had already prepared a programmatic EIS of national scope on the coal-leasing program as a whole and individual statements on specific leases for specific tracts. The Department of the Interior, moreover, had announced its intention to prepare comprehensive statements on all coal leases in various regions to be “determined by basin boundaries, drainage areas, areas of common reclamation problems, administrative boundaries, areas of economic interdependence, and other relevant factors.” Id. at 411, 96 S.Ct. at 2731. The only issue, therefore, was whether the Department of Interior had violated NEPA by refusing to prepare an EIS on coal leasing in general in the broad region suggested by the plaintiffs. The plaintiffs did not challenge the Department of Interior’s environmental analysis of any specific coal lease.
The Supreme Court began its analysis by noting that the obligation to prepare an EIS is triggered by a “proposal” for major federal action. “[T]he mere ‘contemplation of’ certain action is not sufficient to require an impact statement.” Id. at 404, 96 S.Ct. at 2728. The Court rejected the District of Columbia Circuit’s view that, in certain circumstances, the obligation to prepare an EIS may be triggered at some stage in the development of a contemplated project before it becomes a true proposal.
The Court next considered two arguments that had been made for the preparation of a regional EIS on coal leasing in the Northern Great Plains area: (1) the Department of the Interior was contemplating a plan for regional development and (2) there were pending proposals for individual actions within the region that were “intimately related.” The Court rejected the first argument because the agencies had not proposed regional action. Contemplated regional action, as opposed to proposed regional action, cannot trigger the obligation to prepare an EIS. Absent a proposal, “there is nothing that could be the subject of the [kind of] analysis envisioned by the statute for an impact statement.” Id. at 401, 96 S.Ct. at 2726.
With respect to the second contention, the Court noted that it could be read two ways:
First, it amounts to an attack on the sufficiency of the impact statements already prepared by the petitioners on the coal-related projects that they have approved or stand ready to approve____ It also is possible to view the respondents’ argument as an attack upon the decision of the petitioners not to prepare one comprehensive impact statement on all proposed projects in the region.
Id. at 408-09, 96 S.Ct. at 2729-30. The Court held, however, that the first of these possible constructions of the argument was not properly before it because the plaintiffs had not challenged the environmental review of any specific coal lease. With respect to the second construction, the Court agreed with the general proposition that cumulative impacts from distinct proposals pending in a given region may in certain circumstances mandate the preparation of a regional or comprehensive EIS even though a single proposal for comprehensive, regional action is not pending. Said the Court: “Thus, when several proposals ... that will have cumulative or synergistic impact upon a region are pending concurrently before an agency their environmental consequences must be considered together.” Id. at 410, 96 S.Ct. at 2730 (footnote omitted). The Court simply disagreed on the record before it with the plaintiffs’ contention that the responsible agencies had arbitrarily and capriciously determined that the coal-related proposals within the entire Northern Great Plains region were not so closely related in terms of environmental impact that they should be considered in the same EIS.
The Court, in footnote 20, placed an important limitation on its recognition, of the rule that cumulative impacts may trigger the need to prepare a comprehensive EIS. Proposed actions with potential cumulative impacts may mandate the preparation of a regional or comprehensive impact statement; contemplated actions with potential cumulative impacts cannot. Said the Court:
At some points in their brief respondents appear to seek a comprehensive impact statement covering contemplated projects in the region as well as those that already have been proposed. The statute, however, speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated actions later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of the environment presumably will reflect earlier proposed actions and their effects.
(Emphasis added). See also Piedmont Heights, 637 F.2d at 441.
Since Kleppe, new, binding CEQ regulations have been promulgated. They reflect the recognition in Kleppe and the independent-utility cases, see supra note 10, that comprehensive impact statements may sometimes be required. In fact, the regulations mirror the cases. The scoping regulation, 40 C.F.R. § 1508.25, states that actions that are either “connected” or “cumulative” should be considered in the same environmental impact statement. “Connected actions” are defined in a manner consistent with the criteria recognized in the independent-utility cases, see supra note 10. “Cumulative actions,” on the other hand, are defined in a manner consistent with Kleppe.
This case must be distinguished from both Kleppe and the independent-utility eases in a manner that has apparently escaped the parties’ attention. Kleppe did not involve an attack on a specific project for which the responsible agency had, on the basis of a FONSI, refused to prepare an EIS. Rather, Kleppe and most of the independent-utility cases relied upon by the defendants involve individual proposals that undeniably will have significant impacts on the human environment and for which individual EISs were prepared. The issue in those cases was whether other actions should be considered in the same impact statements or whether separate, comprehensive impact statements were also needed. As noted, the Supreme Court made clear that, although cumulative impacts may sometimes demand the preparation of a comprehensive EIS, only the impacts of proposed, as distinguished from contemplated, actions need be considered in scoping an EIS. In a case like this one, on the other hand, where an EA constitutes the only environmental review undertaken thus far, the cumulative-impacts analysis plays a different role. See, e.g., Citizens for Responsible Area Growth v. Adams, 477 F.Supp. 994, 1002 (D.N.H.1979) (“different legal consequences flow from decisions to segment a project made prior to the threshold determination than the same decision made after the finding of significant effect”), vacated in part on other grounds, 680 F.2d 835 (1st Cir.1982). This distinction is clearly recognized in the CEQ regulations. Sections 1508.7 and 1508.27 require an analysis, when making the NEPA-threshold decision, as opposed to the EIS-scoping decision, whether it is “reasonable to anticipate cumulatively significant impacts” from the specific impacts of the proposed project when added to the impacts from “past, present and reasonably foreseeable future actions,” which are “related” to the proposed project. The regulation does not limit the inquiry to the cumulative impacts that can be expected from proposed projects; rather, the inquiry also extends to the effects that can be anticipated from “reasonably foreseeable future actions.” Cf 40 C.F.R. § 1508.25(a)(2) (cumulative actions are “proposed actions ... ”). In other words, when deciding the potential significance of a single proposed action (i.e., whether to prepare an EIS at all), a broader analysis of cumulative impacts is required. The regulations clearly mandate consideration of the impacts from actions that are not yet proposals and from actions — past, present, or future — that are not themselves subject to the requirements of NEPA. See 40 C.F.R. § 1508.7 (“past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions ”) (emphasis added). This requirement, moreover, is entirely consistent with Kleppe. Said the court in Adams:
Both ... footnote [20] and Kleppe itself refer to cases in which an EIS is prepared. But contemplated actions which have not reached the proposal stage may certainly play a critical role in assessing the impacts of current proposals, and CEQ regulations require that they be considered____ The suggestion that those contemplated actions must also be the subject of assessments of their own “environmental effects” — for which the plaintiffs in Kleppe argued — was rejected. Defendants read footnote 20 to opine that only another project which independently requires an EIS must be considered in determining possible cumulative effects of a current proposal. Kleppe does not suggest such a narrow restriction on EIS requirements, and the CEQ regulations clearly reject it.
477 F.Supp. at 1003 n. 19.
With this understanding of the dual role that a cumulative-impacts analysis plays in the NEPA process, we turn to a review of the district court’s findings and the contentions of the parties.
B. The District Court’s Findings
The initial problem that confronts us is determining, from an opinion that is admittedly not as clear as it might have been, exactly what the district court found. The court plainly held that (1) the Corps misconstrued the nature of the CEQ mandate to consider cumulative impacts; (2) Section 6 is related, within the meaning of the CEQ cumulative-impacts regulation, to other actions on West Galveston Island; and (3) the Corps' review of cumulative impacts is therefore inadequate, thus rendering unreasonable its decision to grant Mitchell’s application without preparing an EIS. The first question is whether the district court’s opinion can also be fairly read to find that, when properly analyzed, the cumulative impacts from Section 6 and other actions on the island may be significant. The Corps and Mitchell argue that the district court did not and, indeed, could not on the record before it have made such a finding. The plaintiffs, on the other hand, argue that the district court “very strongly” made a finding that cumulative impacts from this and other projects may have a significant impact on the human environment. They discern that finding in the following language:
Accordingly, the Corps’ determination that an EIS is not required under NEPA, because the Mitchell project will not significantly affect the environment, is not sufficiently supported by the environmental record and is hence unreasonable and arbitrary.
592 F.Supp. at 125.
Clearly, the finding of potential significance, for which the plaintiffs cite this statement, is not express. The plaintiffs, moreover, do not explain how it is implicit, and we do not think that it is. As we have seen, a court may conclude that a FONSI is unreasonable for reasons other than a belief that the proposed project may have significant environmental impacts. York, 761 F.2d at 1053. For example, a court may be convinced that an agency has, by failing adequately to consider a factor made relevant by the CEQ regulations, made a FONSI that is premature and based on incomplete data. The discussion that precedes the language quoted by the plaintiffs reveals that the district court based its decision on just such a finding, not on a finding of potential significance. The court’s discussion of the record is limited to evidence that, in the court’s view, establishes that Section 6 is related to other actions in West Bay and the surrounding environs — a preliminary finding that merely triggers the duty to consider cumulative impacts. See 40 C.F.R. § 1508.7. There is no follow-up attempt to explain what the impacts of other actions are or how, when added to the impacts of Section 6, they may be significant. Absent such a discussion, there is no basis upon which to conclude that cumulative impacts will be significant.
Having determined what the district court did not find, we turn to an analysis of what it clearly did find. Beyond the eonclusory statement that cumulative impacts will be insignificant, the EA makes two points about cumulative impacts: (1) Section 6 “is not related to an overall plan ... to provide additional waterfront housing on Galveston Island,” has “independent utility,” and will not “support or encourage other related development” and, (2) “[i]n the absence of any other studies concerning Galveston Island by the City or other governmental entity, the Corps must examine each permit on an individual basis, carefully examining the environment of West Bay with each permit application.”
The district court reasoned from these statements that in reality the Corps failed entirely to “conduct[ ] a cumulative effects study.” 592 F.Supp. at 124. The court held, moreover, that neither of the two reasons offered — the absence of studies by other governmental entities and the lack of both an overall plan and project interdependence — justifies that failure.
We agree with the district court that, if the Corps failed to consider cumulative impacts, neither of the proferred reasons would justify its actions. The CEQ regulations make mandatory a consideration of cumulative impacts at this threshold stage of the NEPA process. The Corps, moreover, cannot avoid NEPA responsibilities by cloaking itself in ignorance.
It must be remembered that the basic thrust of an agency’s responsibilities under NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as “crystal ball inquiry.”
Sierra Club v. Sigler, 695 F.2d at 970 (quoting Scientists’ Institute for Public Information, Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C.Cir.1973)). Thus, the Corps cannot rely upon an absence of other governmental studies to justify a failure to consider cumulative impacts.
Moreover, the Corps cannot, at this point in the process, rely upon the lack of either an overall plan or functional and economic dependence to avoid considering cumulative impacts. As we have seen, these factors are relevant in determining the scope of an EIS that has already been ordered. In fact, the “overall plan” language comes directly from Kleppe’s discussion of the kind of single proposal that, without regard to cumulative impacts, might require preparation of a regional EIS. See 427 U.S. at 402, 96 S.Ct. at 2726 (“Absent an overall plan for regional development____”). Whether a project has “independent utility” and will “support or encourage” future development are criteria relevant to whether a single EIS must include more than one proposal. See supra note 10. The issue at this point in the process, however, is whether Section 6 itself may significantly impact the human environment. The cumulative-impacts analysis, therefore, must be conducted more broadly than the EA’s language suggests. It should consider (1) past and present actions without regard to whether they themselves triggered NEPA responsibilities and (2) future actions that are “reasonably foreseeable,” even if they are not yet proposals and may never trigger NEPA-review requirements. 40 C.F.R. § 1508.7; see Adams, 477 F.Supp. at 1003.
As noted, the Corps does not contest the district court’s finding that its consideration of cumulative impacts was inadequate. Mitchell, then, is the only party that has attacked the district court’s conclusion that the cumulative impacts of Section 6 and other actions must be reassessed. Mitchell’s argument, in essence, is twofold: (1) the EA’s discussion of an overall plan and of project interdependence was in fact a response to issues raised in Kleppe and the independent-utility cases, a response that was fully justified because of the many requests received by the Corps to prepare a regional EIS for West Galveston Island, and (2) the Corps did not, however, use the absence of these factors as an excuse for foregoing altogether a cumulative-impacts analysis. Mitchell steadfastly maintains that, despite language in the EA suggesting that the Corps did not conduct the kind of cumulative-impacts analysis required by the regulation, the Corps in fact conducted a thorough analysis and reasonably concluded that cumulative impacts will be insignificant. We shall, therefore, review the record to determine the extent of the cumulative-impacts analysis.
C. The Corps’ Cumulative-Impacts Analysis
Our extensive review of the administrative record reveals that the Corps did not generate a study or report specifically addressing cumulative impacts. Given the CEQ regulations, it seems to us that a meaningful cumulative-effects study must identify: (1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions— past, proposed, and reasonably foreseeable — that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate. See Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 683-84 (D.C.Cir.1982). There is no study in the record, prepared by the Corps or by Mitchell’s consultants, that approximates this kind of analysis and, as we have seen, the discussion in the EA is vague and conclusory.
We note that the Corps did submit to the district court Laubscher’s affidavit, in which he states:
In reviewing [Mitchell's] application for [an amended permit for Section 6], I took into consideration all previously issued permits for West Galveston Island and West Bay to analyze potential cumulative effects. Therefore, in making my public interest review, I carefully examined the environment of West Bay for cumulative impacts. I determined that the Pirates Cove development has independent utility, and will not encourage or support other related development.
This smacks of post hoc rationalization, for there is no study in the record to support this claim. At any rate, it still reflects a focus that, under the CEQ regulation, is too narrow. As we have seen, actions should be considered in the threshold cumulative-impacts analysis without regard to whether they have themselves required a permit or will in the future be the subject of NEPA review.
Mitchell’s brief, moreover, argues generally for pages that the Corps adequately considered cumulative impacts. When it comes to record citations, however, the discussion is limited to quotations from the EA and the following summary of the Corps’ cumulative-impacts analysis:
The trial court’s holding also ignores that the reasoning process that led the Corps to conclude specifically that [cumulative effects are insignificant] is well supported in the record. For example, with respect to salt water wetlands, the Corps noted that while consuming .13 acres of salt water wetlands, the proposed project creates nine acres of these wetlands in compensation. Moreover, the Corps found that the creation of salt water wetlands is a viable means of off-setting adverse impacts to an estuary. The Corps assessed the effect of the loss of these wetlands and the adjacent uplands on surrounding areas of West Bay, and concluded that the effect would be insignificant. With respect to freshwater wetlands, the Corps noted that of the 15 acres on-site, all but 1.2 acres would be filled during development. After assessing the biological significance of these areas, however, the Corps concluded that the preservation of the 1.2 acre reserve allows the area to continue to serve its most important biological functions after construction.
Mitchell’s Brief at 15-16 (record citations omitted).
This discussion of the record fails to show an adequate consideration of cumulative impacts. It is true, as the defendants have argued in the past, that “an impact can be cumulative and at the same time [be] a direct or indirect impact.” Defendants’ Brief in Support of Motion for Summary Judgment at 38. Said the defendants: “[T]he taking of wetland acreage is surely the direct impact of a permit allowing the taking. But if other wetlan¡d consumption is considered simultaneously the same taking becomes a cumulative impact.” Id. Mitchell’s reliance on the Corps’ consideration of the direct and indirect effects of Section 6 to show consideration of cumulative impacts is flawed, however, because the record does not reveal the requisite concomitant inquiry into other actions with which Section 6 may share impacts. In short, there is nothing in the record to indicate that the Corps conducted the review mandated by the regulations.
We certainly do not mean to suggest that the consideration of cumulative impacts at the threshold stage will necessarily involve extensive study or analysis of the impacts of other actions. See Vieux Carre Property Owners, 719 F.2d at 1276-79 (finding adequate an EA that did not discuss in depth later stages of a development that had effectively been “shelved”). The inquiry at this point is properly limited to whether the specific proposal under consideration may have a significant impact. The EA must however, at a minimum, show that the Corps considered impacts from those actions listed in the regulation: “other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal), or person undertakes such other actions.” 40 C.F.R. § 1508.7. The extent of the analysis will necessarily depend on the scope of the area in which the impacts from the proposed action will be felt and the extent of other activity in that area. Because of the unique and fragile nature of wetland areas, this is undoubtedly an unusual case. Cf. 33 C.F.R. § 320.4(b)(3) (“Thus, the particular wetland site for which an application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area.”).
The district court found that Section 6 “is clearly related to other past, present, and reasonably foreseeable developments on west Galveston Island.” 592 F.Supp. at 125. When that finding is properly analyzed in terms of the CEQ-threshold regulations, as opposed to the scoping regulations; it is not clearly erroneous. The district-court based that finding on three aspects of the record: (1) Mitchell’s suggestion that the project may be expanded; (2) NMFS’ view that the impacts of venetian-style developments on West Galveston Island have cumulative effects on the same ecosystem; and (3) USFWS’ view that development in West Galveston wetland areas has cumulative effects on the same ecosystem. We agree with the defendants that these views do not by themselves show that Section 6 may have a significant impact on the environment. We think, however, that they amply support the district court’s finding that Section 6 is related to other actions on West Galveston Island. We note, moreover, that the plaintiffs submitted additional scientific evidence, at the preliminary injunction hearing and by affidavit, to show that Section 6 is related, in the sense that it may affect the same estuarine environment, to other actions on West Galveston Island. The Corps itself apparently agrees, as demonstrated by Laubscher’s affidavit, in which he indicates that the correct focus of a cumulative-impacts analysis of Section 6 is West Bay.
The record, moreover, is replete with evidence of other actions on West Galveston Island — past, present, proposed and future — that may affect the same area that Section 6 will affect. Significant among these are the annexation by the city of parts of West Galveston Island and the creation of a tax zone with development incentives and the Corps' granting of permits to Homecraft for a large housing development on far West Galveston Island. At various times during the administrative process, the Corps’ attention was drawn to many other actions on the island that, in the view of experts and ordinary citizens alike, should be included in a cumulative-impacts analysis. Admittedly, much of the evidence is conclusory. It is not clear, for example, which, if any, of these actions are actually proposals. That, however, is precisely why, in our view, further study is required.
We stress the narrow scope of our holding. We are not saying that any of these actions is related to Section 6 in a manner that compels preparation of a comprehensive EIS. As Kleppe makes clear, only those that have reached the proposal stage could possibly be so. We are not saying that the existence of these actions necessarily means that Section 6 may significantly affect the environment. We are saying, however, that we agree with the district court that, given this evidence, it was unreasonable for the Corps to make a FONSI without taking a hard look at the existence of these actions. The EA’s cryptic analysis of cumulative effects, bottomed as it is on improper criteria, is insufficient.
In sum, while we agree that the Corps’ analysis of cumulative impacts is inadequate, we do not read the district court’s opinion to find that, because of cumulative impacts, Section 6 may have a significant impact on the human environment. Indeed, we think, precisely because the Corps’ analysis is incomplete, that it is too early to make that determination. Whether Section 6 may have a significant impact is “an open question.” York, 761 F.2d at 1053.
V. RELIEF ORDERED BY THE DISTRICT COURT
As noted, the district court (1) ordered the preparation of a comprehensive EIS on the whole of West Galveston Island; (2) enjoined further work on Section 6; (3) enjoined the Corps from granting additional permits for Section 6; and (4) enjoined the granting of permits for projects on West Galveston Island that are “similar” to Section 6. We shall consider the propriety of these remedies in turn.
A. Order to Prepare an EIS
It should be clear from what we have said thus far that the relief ordered by the district court is vastly over-broad. The district court ordered the Corps to prepare an EIS covering “all past, present and reasonably foreseeable projects that may occur” on all of West Galveston Island within the next five years. That order on its face requires the EIS to consider projects that have not yet become concrete proposals. In this respect, it clearly violates the principles announced in Kleppe. By requiring on the general question of development in West Galveston Island the kind of in-depth analysis undertaken in an EIS, the district court has ordered a study that resembles a local zoning or land-use-planning guide. That is not the role that NEPA plays. See Isle of Hope v. U.S. Army Corps of Engineers, 646 F.2d 215, 221 (5th Cir.1981) (“ ‘[T]he EIS was not intended to be a substitute community planning device.’ ”) (quoting Concerned About Trident v. Rumsfeld, 555 F.2d 817, 829 (D.C.Cir.1976)). It is undisputed that there is not a regional plan for federal development of West Galveston Island. It cannot be said, moreover, from the record now before us whether, because of the pendency of several concrete proposals with “cumulative or synergistic” effects, that the Corps’ decision not to prepare a comprehensive EIS is arbitrary and capricious. See Kleppe, 427 U.S. at 410, 96 S.Ct. at 2730.
We are convinced, moreover, that the district court erred in ordering the Corps to prepare an EIS at all, regardless of its scope. The court has simply not made the findings necessary to support an order requiring the preparation of an EIS. A court may only order such relief if it finds that the project may have a significant effect on the human environment. See, e.g., Lee, 758 F.2d at 1084; Kreger, 472 F.2d at 466-67. As we have seen, the district court did not expressly make such a finding, and it is not implicit in the court’s opinion. See supra Part IY(B). We agree with Mitchell and the Corps that the district court’s analysis collapses two steps into one. The court jumped from the finding that the EA is inadequate to the ultimate conclusion that the Corps must prepare an EIS without stopping to consider whether the impacts from Section 6 may be significant. We have never said that deficiencies in an EA can only be cured by preparing an EIS, and that is not the law. See York, 761 F.2d at 1053; Foundation on Economic Trends, 756 F.2d at 154. Absent a finding that Section 6 may have significant impacts on the human environment, the district court should not have ordered the Corps to prepare an EIS.
Whether a proposed project may have a significant impact on the human environment is a question of fact, see supra Part III(C), that, in a suit attacking the decision to forego an EIS, should normally be considered first by the district court. In a normal case, we would remand to the district court to consider anew, in the light of our holding, the plaintiffs’ request for an order requiring the preparation of an EIS. There is, however, an alternative that we have found especially attractive in environmental cases “in which protracted litigation ... can kill projects by delay.” Sierra Club v. Sigler, 695 F.2d at 981. We may avoid a remand if “ ‘the record permits only one resolution of the factual issue.’ ” Id. (quoting Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 1792, 72 L.Ed.2d 66 (1982)). We are convinced, precisely because of the Corps’ failure adequately to consider cumulative impacts, that it cannot yet be said whether Section 6 will or will not have a significant impact on the environment. The proper remedy in such a case is to remand to the agency to reconsider its FONSI in the light of the proper standards. See York, 761 F.2d at 1053.
Although we have found that the district court ordered excessive relief, it is clear that the court correctly distilled the deficiencies in the Corps’ analysis of the Mitchell project. The court ordered the Corps to consider the cumulative impacts from Section 6 and precisely those actions listed in the CEQ regulation: “past, present and reasonably foreseeable” actions that will affect the same ecosystem. The only problem is that the regulation requires consideration of those actions in making ,the threshold determination of significance. The court, on the other hand, ordered that they be considered by the Corps in the kind of detailed analysis that is only required after the threshold of significance is crossed — an EIS. The solution is simply to order the Corps to conduct a cumulative-impacts analysis in compliance with the regulation. The Corps must consider the same impacts identified by the district court. It need not, however, do so in an EIS.
What we have said does not preclude the possibility that the Corps may have to prepare an EIS for Section 6 or, if the cumulative-impacts analysis reveals proposals for federal action that are sufficiently related to it, a comprehensive EIS on the whole of West Galveston Island. That determination must await a proper environmental assessment.
B. Injunctive Relief
The district court enjoined Mitchell from working on Section 6 and enjoined the Corps from granting permits for similar projects. In the light of our holding that the district court erred in ordering the preparation of a comprehensive EIS, there is no basis for the second portion of the injunction. In Kleppe, the court noted that, even when a comprehensive, regional EIS is required, it may not be necessary to enjoin all individual projects in the region. 427 U.S. at 414 n. 26, 96 S.Ct. at 2732 n. 26. It follows, as the Court noted, that, if the need to prepare a regional EIS is uncertain, in “simple equitable terms” there is no basis for an injunction against federal action within the scope of the proposed regional EIS. Id. at 407, 96 S.Ct. at 2729. Clearly, there are no equitable grounds for a broadly based injunction here. See Foundation on Economic Trends, 756 F.2d at 159-60. The portion of the district court’s injunction prohibiting the Corps from granting permits for projects similar to Section 6 must be vacated.
The situation with respect to Section 6 itself is, of course, markedly different. The district court found that the EA on this project is inadequate. We agree and hold today that the Corps must supplement the EA and re-evaluate the FONSI for Section 6. The injunction against work on the Mitchell project must, therefore, be continued until the project is adequately analyzed.
VI. CONCLUSION
For the reasons set forth above, we (1) affirm the district court’s judgment insofar as it finds that the Corps’ environmental assessment of Pirate’s Cove Section 6 is inadequate; (2) affirm the district court’s injunction insofar as it (a) prohibits Mitchell from performing additional work on Pirate’s Cove Section 6 that is within the jurisdiction of the Corps and (b) prohibits the Corps from granting additional permits for Pirate’s Cove Section 6; (3) vacate the district court’s injunction prohibiting the Corps from granting permits for projects similar to Section 6; (4) reverse the district court’s judgment insofar as it orders the Corps to prepare an environmental impact statement; and (5) remand the case with instructions to order the Corps to (a) conduct a cumulative-impacts analysis of Pirate’s Cove Section 6 and (b) reassess the environmental significance of Pirate’s Cove Section 6 in the light of that analysis. Costs shall be borne by the plaintiffs.
AFFIRMED IN PART, REVERSED IN PART; VACATED AND REMANDED WITH INSTRUCTIONS.
. The recommendation was contained in a December 1974 letter to the Corps. The letter went on to say:
The Environmental Impact Statement should address questions such as: (1) How much more waterfront housing development can occur in West Bay before the water and habitat quality is degraded throughout the Bay?; (2) What modifications can be made in the design of future developments to minimize or eliminate cumulative habitat degradation?; and (3) What modifications can be made to existing developments to reduce their contribution to water and habitat degradation?
. An EA is the document required by federal regulations to support a federal agency’s decision that an EIS is not necessary. A Statement of Findings addresses the merits of the permit application. See infra Part III(A).
. In the summer of 1980, the district court, in a ruling not challenged on appeal, dismissed the claims against USFWS.
. The brief reads as if the Corps now concedes that its analysis of cumulative impacts is inadequate. At oral argument, however, the Corps told us that it did not intend to make that concession. Instead, according to appellate counsel, the Corps simply decided as a matter of "appellate strategy" to forego attacking the district court's decision on the adequacy of the cumulative-impacts analysis in favor of challenging what it considers to be more egregious errors by the district court. Whether we label it a concession or a strategic choice, however, the fact remains that the Corps has offered nothing by way of argument or citation to the record to convince us that the EA is adequate. Significantly, the Corps has likewise not argued that a more thorough review of cumulative impacts is not possible. To the contrary, the Corps stands ready to "supplement its EA with a thorough consideration of cumulative impacts.”
. But cf. River Road Alliance v. Corps of Engineers, 764 F.2d 445, 449 (7th Cir.1985) ("we are not sure how much if any practical difference there is between ‘abuse of discretion’ and ‘unreasonable’ ”); Lower Alloways Creek v. Public Service Electric & Gas Co., 687 F.2d 732, 743 n. 23 (3d Cir.1982) (“In some instances the distinction between the two standards tends to blur.").
. Mitchell makes a halfhearted attempt to convince us that, in the light of intervening decisions of the Supreme Court, we should abandon the reasonableness test and should join those circuits that apply the less rigorous arbitrary- and-capricious standard. Specifically, Mitchell points to Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980), and Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Although other courts have suggested that these decisions undermine our rule, see, e.g., Aertsen v. Landrieu, 488 F.Supp. 314, 321 n. 4 (D.Mass.), aff'd, 637 F.2d 12 (1st Cir.1980), neither decision expressly rejects our position.
At any rate, we, as a three-judge panel of the court, are not empowered to overrule the decisions of other panels. We could, of course, deviate from prior opinions if required to do so by intervening Supreme Court authority. This circuit has, however, on several occasions since the decisions, relied upon by Mitchell, reiterated that the reasonableness test is the law in the Fifth Circuit. See, e.g., York, 761 F.2d at 1044; Lee, 758 F.2d at 1081; Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (5th Cir.1983). This panel is bound by those decisions.
. The use of the auxiliary verb “may" is deliberate. Until recently, there has been some confusion in our cases about whether, to support an order to prepare an EIS, a district court must find that the project "will” have a significant impact or "may” have a significant impact. In Lee, we made clear that it is the latter, not the former. The test is whether there is a possibility, not a certainty, of significant impacts. 758 F.2d at 1085.
. York presented a challenge to the Corps’ decision not to prepare a supplemental EIS for a levee project in Louisiana. Because the legal standard for determining when a supplemental EIS is required is "essentially the same as the standard for determining the need for an original EIS,” 761 F.2d at 1051, York’s analysis applies here.
. The CEQ regulations define proposal as follows:
"Proposar exists at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated.
40 C.F.R. § 1508.23.
. We note first that the Supreme Court in Kleppe discussed comprehensive impact statements in the light of proposals that were not functionally or economically interdependent. See id. at 414-15 n. 26, 96 S.Ct. at 2732 n. 26 (“approval of one lease or mining plan does not commit the Secretary to approval of any others"). The only argument before the Court was that the proposals for coal leases within the region were "environmentally interrelated.” Id. at 414 n. 25, 96 S.Ct. at 2732 n. 25. There is, however, a line of cases in this and other circuits, upon which the defendants rely, delineating the circumstances under which proposals that are functionally or economically related must be evaluated in the same environmental analysis. If proceeding with one project will, because of functional or economic dependence, foreclose options or irretrievably commit resources to future projects, the environmental consequences of the projects should be evaluated together. See, e.g., Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir.1981). A highway segment to nowhere, for example, should not be evaluated apart from later connectors that will be necessary to make the initial segment useful. Id. at 440 (allowing independent analysis because the "district judge found that each highway segment can serve its transportation purpose whether or not the other projects are built”). This analysis of the need for comprehensive impact statements has loosely been referred to as the independent-utility test.
It is important to remember that issues of economic and functional dependence are distinct from questions of environmental synergy, and that concerns in both areas may trigger the need for a comprehensive EIS. See Barney, The Programmatic Environmental Impact Statement and the National Environmental Policy Act Regulations, 16 Land & Water L.Rev. 1, 10 (1981). Contrary to assertions in the defendants’ briefs, there may be circumstances in which proposals that are not functionally or economically interdependent may, because of cumulative impacts, trigger the requirement to prepare a comprehensive EIS. Kleppe, 427 U.S. at 410, 96 S.Ct. at 2730.
. Section 1508.25(a)(1) states in part:
Actions are connected if they:
(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.
. "Cumulative actions," are those which, “when viewed with other proposed actions'^,] have cumulatively significant impacts and should therefore be discussed in the same impact statement." 40 C.F.R. § 1508.25(a)(2) (emphasis added).
. The plaintiffs have at various times in this case tried to distinguish Kleppe, principally on the ground that, because the proposed region there was vastly larger than West Galveston Island, an EIS on the whole of West Galveston Island is not a “regional EIS” within the meaning of that case. The defendants, on the other hand, claim that Kleppe is right on point.
. Said the court:
The Corps therefore abdicated its responsibility under NEPA by failing properly to consider cumulative impacts and instead evaluating the Mitchell permit application commensurate with, and narrowly confined to, its stated policy of evaluating "each permit on an individual basis".
592 F.Supp. at 125.
. Obviously, we are not suggesting that at this stage of the process a full-blown environmental analysis of the impacts of other actions, akin to that which they would receive if they were the subject of NEPA review, is necessary. The regulations require, however, that other actions and their probable impacts be identified and considered in determining whether the impacts from the specific proposal before the agency may be significant.
. We need not, therefore, resolve the dispute among the parties about whether, once a court determines that an EIS is required, it is proper for the court, rather than the agency, to scope the EIS in the first instance. We do note that the plaintiffs’ argument that defining the geographic dimensions of an EIS is a traditionally judicial, rather than administrative, function is disingenuous at best. The plaintiffs cite Kleppe —a case that says that, at least with respect to comprehensive impact statements, "determination of the region ... is properly left to the informed discretion of the responsible federal agencies” — for this proposition.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1079136690647482, Costs: 0.0539568345323741
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ELY, Circuit Judge:
We are once again faced with environmental challenges to the proposed construction by the State of Hawaii of the remaining portion of Interstate Route H-3. In this skirmish, the appellants challenge on numerous grounds the appellees’ approval of H-3, alleging violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (1976 & Supp. V 1981) (NEPA), the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1982) (ESA), the Department of Transportation Act of 1966, 49 U.S.C. §§ 1651-1660 (1976 & Supp. Y 1981) (DOTA), the Federal-Aid Highway Act of 1966, 23 U.S.C. §§ 101-157 (1982) (FAHA), and various implementing regulations. The appellants appeal the District Court's Findings of Fact and Conclusions of Law, Stop H-3 Association v. Lewis, 538 F.Supp. 149 (D.Hawaii 1982), which denied many of their claims for declaratory and injunctive relief and which dissolved the injunctions against construction of H-3 that had been in place since 1972. The appeal is timely, and we have jurisdiction to consider the appeal under 28 U.S.C. § 1291 (1982) and 28 U.S.C. § 1292(a)(1) (1982). We affirm in part and reverse in part.
I. SECTION 4(f)
The principal issue in this appeal is whether the Secretary of Transportation (Secretary) has complied with section 4(f) of DOTA, 49 U.S.C. § 1653(f), and section 18 of FAHA, 23 U.S.C. § 138. (Both statutes, which essentially are identical, are hereinafter referred to simply as “section 4(f).”)
A. INTRODUCTION
Section 4(f) is part of Congress’ response to the growing public concern over the preservation of our Nation’s natural beauty. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 404, 91 S.Ct. 814, 817, 28 L.Ed.2d 136 (1971). In section 4(f), Congress has determined that the preservation of our parklands should be given major consideration in connection with all proposed highway construction programs that are to receive financial aid from the federal government. The statute provides, in declaring national policy, that “special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands ____” The statute further provides that:
[T]he Secretary [of Transportation] shall not approve any project or program which requires the use of any publicly owned land from a public park ... of national, State, or local significance ... unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park .,. resulting from such use.
23 U.S.C. § 138; 49 U.S.C. § 1653(f). It is obvious that the requirements of section 4(f) are stringent. Moreover, the implementing regulations promulgated by the Secretary pursuant to section 4(f) (4(f) regulations) require the Secretary to prepare and circulate a statement (4(f) statement) that must examine the highway’s proposed use of parkland in light of the requirements of section 4(f). See 23 C.F.R. § 771.19 (1980). The 4(f) regulations specifically require the 4(f) statement to analyze alternatives to the use of the parkland to determine whether the alternatives are feasible and prudent. See id.
In its proposed configuration, H-3 will use land from two public parklands: (1) Ho’omaluhia Park, a major regional park; and (2) Pali Golf Course Park, one of Oahu’s most challenging and heavily used public golf courses. Because of H-3’s use of the parklands, 4(f) statements were prepared in 1971 (approved by the Secretary in 1974) for Pali Golf Course Park and in 1979 (approved by the Secretary in 1980) for Ho’omaluhia Park. In response to the District Court’s order, 538 F.Supp. at 184, the Pali Golf Course Park Section 4(f) Statement was supplemented in 1983. See Fed. Highway Admin., U.S. Dep’t of Transp., Highways Div., State of Hawaii Dep’t of Transp., Final Second Supplement to the Interstate Route H-3 Environmental Impact/4(f) Statement (1982), lodged with this Court on July 7, 1983.
All of the above mentioned 4(f) statements conclude that there is no feasible and prudent alternative to the use of Ho’omaluhia Park or to the use of Pali Golf Course Park. The Secretary concurred in that conclusion and the District Court held that the Secretary properly found there is no feasible and prudent alternative to the use of Ho’omaluhia Park. See 538 F.Supp. at 181, 183. The District Court also held that the Secretary reasonably rejected certain of the alternatives to the use of Pali Golf Course Park. The appellants challenge the Secretary’s rejection of the alternatives to the use of Pali Golf Course Park and Ho’omaluhia Park as being unsupported by the record. They challenge the District Court’s holdings on the same ground, as well as on the ground that the District Court’s decision was made upon an erroneous application of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). After a thorough, probing, and in-depth review of the administrative record, we agree with the appellants’ contentions in respect to the “Makai Realignment” alternative and the “No Build” alternative, and, accordingly, we reverse.
B. STANDARD OF REVIEW
As to all of the Secretary’s section 4(f) determinations at issue in this case, the standard of judicial review is whether the Secretary’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982); Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. While the Secretary’s decisions are entitled to a presumption of regularity, that presumption does not “shield his action[s] from a thorough, probing, in-depth review.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. The reviewing court is required to consider whether:
1. The Secretary acted within the scope of his authority (not at issue in this case).
2. The Secretary properly construed his authority to approve the use of parkland as limited to situations where none of the alternatives to such use are feasible and prudent.
3. The Secretary could have reasonably believed that in the case under review there are no feasible and prudent alternatives.
4. The Secretary’s decision was based on a consideration of the relevant factors.
5. The Secretary made a clear error of judgment.
6. The Secretary’s action followed the necessary procedural requirements (not at issue in this case). Id. at 415-17, 91 S.Ct. at 823-24. See also Stop H-3 Association v. Coleman, 533 F.2d 434, 445 (9th Cir.) (the court, in reviewing the Secretary’s decision, “must satisfy itself that the Secretary evaluated the highway project with the mandates of section 4(f) clearly in mind”), cert, denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976).
In its consideration of the Secretary’s determination, the reviewing court must draw upon Overton Park’s definition of a “feasible and prudent alternative”: parklands may be “used” for highway purposes only if “there [are] truly unusual factors present in [the] case,” if “feasible alternative routes involve uniquely difficult problems,” or if “the cost or community disruption resulting from alternative routes [reach] extraordinary magnitudes.” 401 U.S. at 413, 416, 91 S.Ct. at 822, 823.
Moreover, the reviewing court should consider the full administrative record of the agency’s action, id. at 420, and if the record fails to show a sufficient basis for the Secretary’s decision, the 4(f) determination must be overturned, see id. In addition, the “reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947).
In reviewing the District Court’s decision affirming the Secretary’s action, this Court should apply the same standards of review used by the District Court. See Southeast Alaska Conservation Council v. Watson, 697 F.2d 1305, 1312 (9th Cir. 1983). The District Court’s review is accorded no particular deference, because the District Court, limited to the administrative record, is in no better position to review the Secretary’s action than is the Court of Appeals. See Arizona Past & Future Foundation v. Lewis, 722 F.2d 1423, 1425-26 (9th Cir.1983); Asarco, Inc. v. Environmental Protection Agency, 616 F.2d 1153, 1161 (9th Cir.1980). Thus, this Court may review the administrative record and determine for itself whether the Secretary’s action was arbitrary, capricious, or an abuse of discretion. Southeast Alaska Conservation Council, 697 F.2d at 1312.
Bearing in mind the specified legal standards, we now turn to the appellants’ contentions.
C. DISCUSSION
The appellants contend: (1) that the Ho’omaluhia Park Section 4(f) Statement, the Ho’omaluhia. Park Section 4(f) Determination, and the rest of the administrative record fail to provide a basis for the Secretary to conclude that no feasible and prudent alternative exists to H-3’s use of Ho’omaluhia Park, and (2) that the District Court erred in holding that the Secretary could have reasonably reached such a conclusion. Two of the rejected alternatives, the Makai Realignment and the No Build alternative, would have no impact upon either Ho’omaluhia Park or Pali Golf Course Park. The appellants argue that these alternatives have not been shown to be imprudent. We agree.
1. The Makai Realignment
In the Makai Realignment, H-3 would be realigned to turn northward before reaching Ho’omaluhia Park and would follow the existing alignment of Likelike Highway and Kamehameha Highway from the Kaneoke Interchange to the Halekou Interchange. The H-3 traffic would merge with the Likelike Highway traffic, and, along Kamehameha Highway, H-3 would be on a viaduct with at-grade frontage roads underneath to permit cross-corridor movement for local residents.
As above noted, this alternative would avoid all use of both Ho’omaluhia Park and Pali Golf Course Park. The Secretary nonetheless rejected this alternative because:
[I]t would require the dislocation of one church, four businesses and 31 residences adjacent to Likelike and Kamehameha Highways; increase noise, air quality and visual impacts to residences in the general vicinity; require additional costs due to the need for the viaduct structure ($42 million additional); and require construction to lesser design geometric standards.
Ho’omaluhia Park Section 4(f) Determination, at 3.
The appellants argue that the above listed reasons do not represent the “unique problems,” the “truly unusual factors,” or the “cost or community disruption [reaching] extraordinary magnitudes” required by Overton Park. Indeed, the District Court specifically found that the displacements resulting from the Makai Realignment were not, by themselves, sufficient to justify use of the parkland. See 538 F.Supp. at 180. Nevertheless, the District Court found that the Secretary could reasonably have believed that the sum of the listed factors rendered the alternative imprudent. See id. The court based its finding on the proposition that “Overton Park does not bar considering whether all of the difficulties posed by an alternative route, taken together, render that alternative imprudent.” Id. The only “factor” the District Court discussed was “construction to lesser geometric standards.” See id. After a painstaking and thorough review of the record, we conclude that we cannot affirm the District Court’s decision because the reasons for finding the Makai Realignment imprudent advanced by the Secretary in his 4(f) determination do not satisfy the stringent Overton Park standards that we must apply.
The first three reasons need not long detain us, for these are displacements that one would normally expect might happen in following Overton Park. The dislocation of one church, four businesses and thirty-one residences no doubt is a community disruption of some magnitude. We do not believe, however, that this disruption is of the “extraordinary” magnitude required by Overton Park. In Overton Park the Supreme Court stated:
[S]ince people do not live or work in parks, if a highway is built on parkland no one will have to leave his home or give up his business. Such factors are common to substantially all highway construction. Thus, if Congress intended these factors to be on an equal footing with preservation of parkland, there would have been no need for the statutes____ But the very existence of the statutes indicates that protection of parkland was to be given paramount importance.
Overton Park, 401 U.S. at 412-13, 91 S.Ct. at 821-22 (footnote omitted). We find that the Secretary could not have reasonably concluded that the community displacements resulting from the Makai Realignment rose to the level required by Overton Park.
Likewise, the increased cost of $42 million (1978 dollars) is not a cost of extraordinary magnitude, especially in light of the projected total cost of H-3 — $386 million (1979 dollars), see NHY-SEIS, vol. I, at 37. This is not to say that $42 million is not a considerable sum of money; however, when the taking of parkland is involved, “cost is a subsidiary factor in all but the most exceptional cases.” Coalition for Responsible Regional Development v. Brinegar, 518 F.2d 522, 526 (4th Cir.1975). We hold that the Secretary could not have reasonably concluded that the increased cost of the Makai Realignment was of the “extraordinary magnitude” required by Overton Park.
As to the third reason — increased noise, air quality and visual impacts to residences in the general vicinity — there is nothing in the record to show that this factor represents a disruption of extraordinary magnitude. Overton Park amply made clear that only in the most exceptional cases may parkland be taken solely to prevent highways from adversely affecting areas that are already developed. See Overton Park, 401 U.S. at 412-13, 91 S.Ct. at 821-22. We are not convinced that the Secretary could have reasonably concluded that this is one of those exceptional cases.
This brings us to the fourth and final reason — the only reason that we find even somewhat troubling — “lesser design geometric standards.” “Lesser design geometric standards” has been translated in the context of this case to mean “safety considerations.” See 538 F.Supp. at 180.
At the outset, we note that there appears to be a dearth of case law that specifically addresses safety issues as they relate to the taking of 4(f) land. Nonetheless, in Overton Park the Supreme Court emphatically stated:
[The defendants] contend that the Secretary should weigh the detriment resulting from the destruction of parkland against the cost of other routes, safety considerations, and other factors, and determine on the basis of the importance that he attaches to these other factors whether, on balance, alternative feasible routes would be “prudent.” ...
[N]o such wide-ranging endeavor was intended .... [I]f Congress intended these factors to be on an equal footing with preservation of parkland there would have been no need for the [4(f)] statutes ____ [T]he very existence of the statutes indicates that protection of parkland was to be given paramount importance.
Overton Park, 401 U.S. at 411-13, 91 S.Ct. at 821-22 (footnote omitted) (emphasis supplied).
It seems obvious to us that safety considerations, since they so directly involve human life, warrant extremely close scrutiny when determining whether such considerations satisfy the Overton Park standards. Neither a court nor an agency should weigh lightly the potential risk to human life an alternative might pose. On the other hand, undue deference to a prior pronouncement that an alternative is undesirable because of safety considerations would transform such a pronouncement into a “talisman.” For these reasons, there is a need for an especially “thorough, probing, and in-depth review” when safety issues are presented for review. In the case at hand, we have conducted just this sort of review, and we find that the record before the Secretary could not have provided a sufficient basis for him to conclude reasonably that the safety considerations of the Makai Realignment were “truly unusual factors,” that they reflected “unique problems,” or that they represented cost or community disruption reaching “extraordinary magnitudes.”
The Ho’omaluhia Park Section 4(f) Statement, upon which the Secretary relied, see 538 F.Supp. at 178-79, mentions “safety considerations” a scant three times:
CONS:
(e) Traffic movements will be complex due to the high volume of H-3 traffic to be funneled into Likelike Highway and the short distance between the Kaneohe Interchange, Kaheliki Interchange, and Kamehameha Highway.
(f) Undesirable curves for H-3/Likelike Highway movements. Design speeds on the through route will have to be reduced from 55 MPH to 30 MPH to negotiate the ramp curves safely and comfortably.
(j) ... The loop ramp configuration at Kaneohe Interchange is required, because of grade differences, and is unusual for a through highway connection. The confusing configuration, coupled with the high volume of merging and weaving traffic from H-3 plus Likelike Highway (3,300 v.p.h. on H-3 plus 3,300 v.p.b. on Likelike) is undesirable because of safety considerations.
Ho’omaluhia Park Section 4(f) Statement, at 20-21.
Two points should be noted regarding the traffic density figures cited in the Ho’omaluhia Park Section 4(f) Statement. First, the capacity of the Likelike Highway is 3650 vph (vehicles per hour) and the capacity of H-3 is projected to be 3900 vph. See NHV-SEIS, vol. Ill, app. B, at 29-30. Therefore, even at peak rush hour, the two highways will be operating at less than capacity. See id. at 31. Second, the 3300 vph figure was based on an outdated population projection for the Windward side of 150,000; the most recent official population projections forecast a Windward side population of between 125,700 and 138,500. See 538 F.Supp. at 166.
The District Court, in finding that the Secretary properly rejected the Makai Realignment as imprudent, expressly relied upon the “safety considerations” of this alternative: “In particular, the Makai Realignment would necessitate reducing design speeds on the through route from 55 MPH to 30 MPH and require an unusually complex and unsafe ramp configuration.” Id. at 180.
A close examination of the record, however, reveals that the above mentioned speed reduction would be necessary only at one interchange, and then only to negotiate the “exit” ramp safely — a total distance of less than one mile. See, e.g., NHV-SEIS, vol. I, at fig. Ill — 9. In other words, the ramp configuration is not per se unsafe as suggested by the District Court — the traffic on H-3 merely would have to slow down to use the “exit” ramp. The conclusion that the ramp configuration, or the rest of the Makai Realignment for that matter, is not per se unsafe is further supported by the fact that there is nothing in the record to indicate that the Makai Realignment in any way fails to meet the minimum criteria for safety standards set forth by the Federal Highway Administration at 23 C.F.R. § 625.3(a)(3) (1979) (Am. Ass’n of State Highway & Transp. Officials, Geometric Design Standards for the National System of Interstate and Defense Highways (1967)).
In addition, the Likelike Highway, a little over one mile from its proposed interchange with H-3, contains a curve of 40 mph design speed. See Fed.Highway Admin., U.S. Dep’t of Transp., Region 9 Staff Analysis: Interstate H-3 and Existing Trans-Koolau Highway Alternatives 13 (1979) [hereinafter referred to as “Region 9 Staff Analysis”]. The current analyses do not investigate adequately the extent to which this may reduce the difference in speeds between the merging traffic from H-3 and the traffic on the Likelike Highway.
Moreover, the Pali Highway contains “substandard curves” on its Windward portion. See id. at 11. This, when considered together with the existence of a 40 mph design speed curve on the Windward portion of the Likelike Highway, indicates to us that, in the absence of further evidence suggesting a contrary conclusion, the existence of a ramp on H-3 with a curve of 30 mph design speed does not represent an “unusual situation” or a community disruption of “extraordinary magnitude.” In other words, since trans-Koolau commuters currently are faced with travelling on highways that contain curves similar to, if not worse than, the curved ramp on H-3, we do not see that the H-3 curve will extraordinarily disrupt the community or will present an unusual situation such that the taking of 4(f) parklands is warranted.
The record, then, paints the following picture. Emptying H-3’s traffic onto a curved off-ramp, decreasing the speed of that traffic from 55 mph to 30 mph, and merging that traffic with the traffic on the Likelike Highway probably raises more safety concerns than the less circuitous route of H-3’s recommended alignment. The Makai Realignment, like other highways commonly in use at present, probably presents a safety risk of some magnitude. The question is, however, whether this situation presents a safety risk of the magnitude required by Overton Park. The problem is that the record does not illustrate what magnitude of risk this alternative in fact poses and, consequently, does not support adequately the Secretary’s conclusion that the alternative is imprudent because of safety considerations. In other words, the record in this case does not provide a sufficient basis for the Secretary to have reasonably concluded that the safety considerations of the Makai Realignment were of such a magnitude as to overcome the paramount importance given to the protection of parkland. See Overton Park, 401 U.S. at 412-13, 91 S.Ct. at 821-22. Moreover, we note that the District Court did not rely on safety reasons, per se, as the basis for upholding the Secretary’s rejection of the Makai Realignment. Rather, it found it necessary to cumulate safety concerns with other unrelated factors in order to do so. Thus, even accepting the District Court’s view of the record, the safety concerns would be insufficient to warrant affirmance of the Secretary’s findings.
In conclusion, we have examined against the record the four reasons advanced by the Secretary, and we find that the specified reasons, even when amalgamated, are insufficient to support a determination that the Makai Realignment is imprudent. Therefore, because the Secretary could not have reasonably believed that no feasible and prudent alternative exists to the use of Ho’omaluhia Park, his approval of H-3 was an abuse of discretion. See id. at 415-17, 91 S.Ct. at 823-24. Accordingly, we must reverse the District Court’s judgment affirming the Secretary’s action and remand to the District Court for that court to remand to the Secretary for a more comprehensive 4(f) determination considering sufficiently the Makai Realignment.
We stress that we do not find, nor is it this Court’s role to find, that the Makai Realignment is in fact a feasible and prudent alternative. We obviously do not possess the technical expertise of roadbuilders, and we should not interfere in the technical processes of building roads. At the same time, however, it remains our solemn responsibility to insure that those with technical expertise exercise it in accordance with the laws of the United States and the public welfare. See Citizens to Preserve Overton Park v. Volpe, 432 F.2d 1307 at 1318 (6th Cir.1970) (Celebrezze, J., dissenting). The record before us simply does not demonstrate that the stringent requirements of section 4(f), as defined in Overton Park and its progeny, have been satisfied. Until those requirements are satisfied, we cannot allow our Nation’s sacred parklands to be taken or used.
2. No Build Alternative
The No Build alternative entails not constructing the portion of H-3 that runs between the Halekou Interchange and the Halawa Interchange. See 538 F.Supp. at 180; Ho’omaluhia Park Section 4(f) Determination, at 4.
The record discloses that the Secretary based his rejection of the No Build alternative on four reasons:
1. The alternative would require that thirty-one additional buses be purchased to meet year 2000 trans-Koolau travel demand at a total purchase cost of $3.3 million (1977 dollars) and annual operating costs, defrayed by fares, of $1.19 million (1977 dollars). See Ho’omaluhia Park Section 4(f) Determination, at 4; Ho’omaluhia Park Section 4(f) Statement, at 24.
2. The alternative would result in traffic congestion and increased delays experienced by Windward commuters. Ho’omaluhia Park Section 4(f) Determination, at 4.
3. The alternative would result in increased safety hazards on Likelike and Pali Highways which would directly affect Kalihi Valley and Nuuanu Valley residents. Id.
4. The costs of providing increased bus service which will not effectively reduce the congestion on the existing highways are documented in the supplement to the Interstate H-3 EIS. Id.
We hold that these four reasons, when viewed against the record, do not establish that the Secretary could reasonably conclude that the No Build alternative must be rejected as imprudent.
First, we can discern no basis in the record for the Secretary to conclude reasonably that the purchase and operation of thirty-one additional buses would cause “unique problems” or that the cost would be of “extraordinary magnitude.” Moreover, under 23 U.S.C. § 103(e)(4) (1982), the cost could be met by transferring funds already allocated for H-3 construction to purchase and operate the buses. The record, however, lacks an adequate analysis of the effect the transferability of such funds has on the prudence of the No Build alternative. Cf. Benton Franklin Riverfront Trailway & Bridge Committee v. Lewis, 701 F.2d 784, 790-91 (9th Cir.1983) (section 4(f) determination that no feasible and prudent alternatives exist held invalid because there was no consideration of the “potential of federal funds”).
Second, we are not wholly convinced that the record clearly demonstrates that the increased congestion or commuter delays projected for the year 2000 would be so unusual or extraordinary that the No Build alternative must be rendered imprudent. The Pali Highway currently is operating during peak hour at 3000 vph, with the Likelike operating during peak hour at 3100 vph. NHV-SEIS, vol. Ill, app. B, at 30. There is, therefore, a current unused peak hour capacity of 1200 vph available to meet future demand. See id. Indeed, the NHV-SEIS reveals that, if H-3 is not built, the projected year 2000 peak hour demand (7300 vph) can be met by the present combined capacity of the Pali Highway (3650 vph) and the Likelike Highway (3650 vph). See id. at 29-31.
In addition, the population projections for Windward Oahu originally used for H-3 planning were revised downward in 1978 as part of the changes in the Oahu General Plan that redirected growth from Windward Oahu to the central plain of Leeward Oahu. See 538 F.Supp. at 166-67. These revisions were made before the Ho’omaluhia Park Section 4(f) Statement was prepared. Rather than analyze the projected congestion and commuter delays in light of the revised population projections, however, the Secretary and the FHWA chose to ignore the revised projections and to continue to use the pre-1978 figures. See id. Even the District Court noted that “[i]t would have been wiser ... to have considered whether [H-3] would still be viable if [the new] population goals are met.” Id. at 167.
The question the Secretary failed to address, then, is whether the current unused capacity of trans-Koolau highways combined with the lower growth projections for Windward Oahu will prevent year 2000 congestion and commuter delays from becoming “truly unusual factors,” from becoming “most unusual situations,” or from disrupting the community to an “extraordinary” degree. In our view, this is a question that must be answered before determining that the No Build alternative is imprudent.
Moreover, the Region 9 Staff Analysis states that the rush hour capacity of the Pali and Likelike Highways could be increased by fifty percent simply by banning trucks during rush hour. Region 9 Staff Analysis, at 45. This information does not appear to have been included in any analysis of current or future congestion.
Finally, our review of the Region 9 Staff Analysis reveals that of the sixteen alternatives studied therein, two non-H-3 (no build) alternatives have nearly identical projected operational characteristics as H-3: (1) the same peak hour volume to capacity ratio, (2) the same projected congestion, and (3) similar projected “accidents & severity.” Id. at 14. We note also that these two non-H-3 alternatives offer the following advantages over H-3: (1) they have environmental impact ratings that are over three times as favorable as H-3’s, (2) they increase the use of mass transit, and (3) they cost only one-thirtieth of the cost of H-3. Id. There is no analysis in the record as to why these two alternatives should be rejected — or why they are any less prudent than H-3 in terms of congestion. In conclusion, we are not convinced that the No Build alternative must be rejected as imprudent because of traffic congestion and increased commuter delays.
Third, except for the following excerpt, the “increased safety hazards” are not substantiated or discussed in the record: “[The increased traffic on the Likelike and Pali Highways] is resulting in increased congestion and safety hazards on Likelike and Pali Highways which will have a direct effect on the residents of the valleys through which these two facilities traverse.” Ho’omaluhia Park Section 4(f) Statement, at 24. This bald statement does not seem to us to provide sufficient support for the Secretary’s conclusion that the No Build alternative is imprudent because of safety considerations. On the other hand, the Region 9 Staff Analysis indicates that all of the various permutations of the No Build alternative pose more safety hazards than H-3 poses. The problem is that the Region 9 Staff Analysis does not specifically mention the Nuuanu and Kalihi Valleys in this respect; in addition, for the majority of the No Build permutations, the increase in safety hazards is slight — up one rating from “minor” to “moderate” “accidents & severity.” Region 9 Staff Analysis, at 14. And, if the revised population figures are used, projected congestion will likely be decreased with a concomitant decrease in projected safety hazards. We are not convinced that the present record sufficiently supports a conclusion that the No Build alternative is imprudent because of the “increased safety hazards to residents of the Nuuanu and Kalihi Valleys.”
Fourth, we are uncertain as to the significance, if any, of the Secretary’s fourth “reason” — that “[t]he costs of providing increased bus service which will not effectively reduce the congestion on the existing highways have been documented in the supplement of the Interstate H-3 EIS.” The costs of the increased bus service indeed are documented in the supplemental EIS. As above discussed, however, the relatively modest cost of the increased bus service does not provide a sufficient basis for the Secretary to conclude that the No Build alternative is imprudent. As to the failure to reduce congestion, we note that at least four of the rejected No Build alternative’s permutations (including the alternative of banning trucks at peak rush hour) are projected to have identical levels of congestion as that of H-3. Id. The inference is that if the No Build alternative should be held imprudent because of its failure to reduce congestion, so should H-3 for the same reason. Moreover, the inference from the record is that year 2000 traffic demand can be met by increased bus service alone. See Ho’omaluhia Park Section 4(f) Statement, at 23-24; NHV-SEIS, vol. I, at 272. And, again, if the lower revised population figures and the banning of trucks are considered, the effectiveness of increased bus service in reducing congestion likely would be enhanced.
In conclusion, then, it is our view that the present record does not support a determination that the No Build alternative must be rejected as imprudent. We emphasize that, as with the Makai Realignment, we do not hold that the No Build alternative is, in fact, reasonable and prudent. We merely hold that the record before us does not demonstrate that the stringent requirements of section 4(f) have been satisfied. Therefore, we reverse the District Court’s judgment affirming the Secretary’s action and remand to the District Court for that court to remand to the Secretary for a more comprehensive 4(f) determination considering sufficiently both the Makai Realignment and the No Build alternative.
II. THE ENDANGERED SPECIES ACT
A. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The appellants also challenge the appellees’ compliance with the ESA.
On March 9, 1978, the Federal Highway Administration (FHWA), pursuant to the ESA, initiated formal consultation with the United States Fish and Wildlife Service (USFWS) with regard to the potential impact of the H-3 project on the Oahu Creeper. The Oahu Creeper is an extremely rare species of bird; it was officially listed as endangered on October 13,1970. See 50 C.F.R. § 17.11 (1980). As part of the consultation process, FHWA authorized several avifaunal surveys to produce current information on the Creeper. The surveys were conducted by Dr. Robert Shallenberger and confirmed the presence of Creepers in the North Halawa Valley.
Based on these surveys, USFWS issued its biological opinion, dated September 11, 1978. The opinion discusses Dr. Shallenberger’s surveys and concludes with the following statement:
In essence, we have very little data for providing an opinion, but feel it would be unreasonable to request [an additional] study which would be unlikely to provide definitive results. We must, therefore, assume the Oahu Creeper would be like most species in that a highway would not split a population.
Based on the available information, which we grant is weak, it is our opinion the proposed project is not likely to jeopardize the continued existence of the Oahu Creeper.
Also, in a biological opinion on the Achatinella, dated October 7, 1981, USFWS states that FHWA need not reinitiate consultation on the Creeper.
In district court, the appellants challenged the adequacy of the biological opinion and charged that FHWA must reinitiate consultation with USFWS. In its Order Denying Plaintiffs’ Motion for Partial Summary Judgment as to the Twenty-Sixth Cause of Action, the District Court ruled that the facts showed: (1) USFWS could reasonably conclude that the H-3 project is not likely to jeopardize the continued existence of the Creeper, and (2) based on 50 C.F.R. § 402.04 (1980), no further consultation was required. In addition, the District Court limited the scope of review at trial to the issue of: “Whether or not the USFWS has requested that [appellees] reinitiate formal consultation regarding the Oahu Creeper____”
At trial Dr. Shallenberger testified to the presence of the Oahu Creeper in North Halawa Valley, to the significance of the valley to the survival of the species, and that the H-3 freeway “is likely” to jeopardize the Creeper’s continued existence. The appellants attempted to use Dr. Shallenberger’s testimony to show that FHWA’s decision to grant location and design approval for H-3 was arbitrary and capricious in light of H-3’s potential impact on the Creeper. The appellees moved to strike the testimony of Dr. Shallenberger on the ground that USFWS had informed the appellees that further consultation on the Creeper was not required. The court granted the motion and, ultimately, ruled that FHWA had complied with the ESA.
The appellants allege that it was improper for the District Court to strike Dr. Shallenberger’s testimony, since it precluded inquiry into FHWA’s substantive decision to grant location and design approval for H-3. They argue that, by limiting the scope of review to the procedural issue of consultation with USFWS, the District Court failed to examine FHWA’s decision under the proper legal standard. Thus, the appellants urge this Court to conclude that FHWA’s grant of location and design approval was arbitrary, capricious, an abuse of discretion, and not in accordance with the Endangered Species Act on the ground that FHWA failed to make a rational determination, based on the best available scientific data, that H-3 is or is not likely to jeopardize the existence of the Creeper.
The appellees respond that the District Court properly struck Dr. Shallenberger’s testimony because the testimony did not offer any information that had not already been considered by the USFWS before issuing the biological opinion. The appellees argue that the administrative record, on its face, provides adequate support for the conclusions reached in the biological opinion, and, therefore, there was no reason to go beyond the administrative record to consider Dr. Shallenberger’s testimony. Finally, the appellees contend that they have complied with the requirements of the ESA, that they properly deferred to the USFWS’s biological opinion, and that, therefore, their decision to grant location and design approval for H-3 was not arbitrary and capricious.
B. STANDARD OF REVIEW
Under the ESA, FHWA has a duty to “insure” that its action “is not likely to jeopardize” the continued existence of the Creeper. See 16 U.S.C. § 1536(a)(2) (1982). To this end, FHWA is required to consult with an expert agency (here, the USFWS). See 50 C.F.R. § 402.01 (1980). Using the “best scientific and commercial data available,” the expert agency is required to issue a biological opinion to FHWA. See 16 U.S.C. § 1536(a)(2).
Here, since FHWA has complied with the consultation requirements, the question is whether FHWA’s decision to rely on USifW’s biological opinion in granting location and design approval for H-3 was valid. FHWA’s decision is subject to review under the “arbitrary and capricious” standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982). See Village of False Pass v. Clark, 733 F.2d 605, 609-10 (9th Cir.1984). Thus, the issue for review is whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. See Overton Park, 401 U.S. at 416, 91 S.Ct. at 823.
C. DISCUSSION
In the case at hand, the District Court did not review FHWA’s decision under the “arbitrary and capricious” standard. Rather, the District Court limited its review to the substantive issue of the adequacy of USFWS’s biological opinion and the procedural issue of consultation with USFWS; the court did not examine FHWA’s decision to rely on the biological opinion. The court limited its review in this manner apparently because the appellants’ complaint, in respect to this cause of action, was couched in language that challenged USFWS’s substantive compliance with the ESA and language that challenged FHWA’s procedural compliance with the ESA. Appellants made clear at trial, however, that the gravamen of the cause of action was a challenge to FHWA’s substantive compliance with the ESA — a challenge that the District Court should have evaluated under the “arbitrary and capricious” standard. Thus, it appears the District Court erred by not applying the proper legal standard.
Remand is not required on this issue, however, because we are able to determine from the record that as a matter of law FHWA’s decision to rely on USFWS’s biological opinion was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Southeast Alaska Conservation Council, 697 F.2d at 1312 (“[T]he appellate court m$y review the administrative record and determine for itself whether the [agency’s action] was arbitrary, capricious, or an abuse of discretion.”); cf. Asarco, Inc. v. Environmental Protection Agency, 616 F.2d at 1161 (“District court review of agency action is generally accorded no particular deference, because the district court, limited to the administrative record, is in no better position to review the agency than the Court of Appeals.”). It is clear that FHWA complied with all initial consultation obligations and relied on an opinion issued by an expert agency. On its face, this does not seem to be a “clear error of judgment.” Furthermore, while the information used to form the opinion admittedly was weak, the expert agency determined on two separate occasions that no further inquiry was necessary.
The appellants are correct when they argue that FHWA cannot abrogate its responsibility to decide whether it has taken all possible action to insure that H-3 is not likely to jeopardize the continued existence of the Creeper. See National Wildlife Federation v. Coleman, 529 F.2d 359, 371 (5th Cir.), cert, denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976). But, no improper abrogation of responsibility occurred here. Dr. Shallenberger’s testimony may challenge the conclusions contained in the biological opinion, but that testimony offered no information that had not already been evaluated by the expert agency. Cf. 50 C.F.R. § 402.04(h)(1) (1980) (reinitiation of consultation required when new information comes to light). In these circumstances, it was not unreasonable for FHWA to rely on the expert agency’s opinion in deciding not to make a separate opinion regarding the Creeper. Thus, FHWA’s ultimate conclusion that, based on the best available scientific data, H-3 is not likely to jeopardize the existence of the Creeper clearly was grounded on “a consideration of the relevant factors” and, not being unreasonable as a matter of law, was not a “clear error of judgment.” We hold, therefore, that the appellees have complied with the mandate of the ESA.
III. NATIONAL ENVIRONMENTAL POLICY ACT AND FEDERAL-AID HIGHWAY ACT
The appellants also contend that the appellees have not complied sufficiently with NEPA or, in addition to the alleged noncompliance with section 4(f), with FAHA. We are not persuaded by the appellants’ arguments in respect to this contention and will only briefly discuss the pertinent issues.
A. NEPA-EIS ADEQUACY
The appellants challenge the adequacy of the Environmental Impact Statement (EIS) on three grounds: (1) that the EIS inadequately assess the secondary (socio-economic) effects of H-3, (2) that the EIS inadequately analyzes whether H-3 is consistent with local land use plans, and (3) that the EIS must be supplemented to include discussions of significant new information. The EIS for the North Halawa Valley alignment of H-3 consists of the 1972 EIS, 1973 EIS Preface, and the NHVSEIS.
1. Standard of Review
In our Circuit, a district court’s finding that an EIS is adequate will be reversed only if based upon an erroneous legal standard or upon clearly erroneous findings of fact. Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir. 1981). The district court’s review of an EIS also is limited:
Judicial review of an EIS covers only the issue of whether NEPA’s procedural requirements have been met, and whether • the EIS performs its primary function of presenting the decision-maker with an environmentally-informed choice. The correct standard is provided in the Administrative Procedure Act, 5 U.S.C. § 706(2)(D), which directs courts to set aside an agency action if taken ‘without observance of procedure required by law )
Id. (citations omitted). Under this standard, the court employs a “rule of reason” that inquires: (1) whether the EIS contains “a reasonably thorough discussion of the significant aspects of the probable environmental consequences,” Village of False Pass v. Clark, 733 F.2d at 613; Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974); and (2) whether the EIS’s “form, content and preparation foster both informed decision-making and informed public participation,” Village of False Pass v. Clark, 733 F.2d at 613; California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Once satisfied that the agency has taken this procedural and substantive “hard look” at environmental consequences in the EIS, see Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976); Village of False Pass v. Clark, 733 F.2d at 613, the court’s review is at an end.
The role of the reviewing court under NEPA, then, differs fundamentally from the role of the reviewing court under section 4(f). While the mandate of section 4(f) essentially is prohibitory, the mandate of NEPA essentially is procedural. The court’s review, therefore, is much more limited under NEPA than under section 4(f). In the case at hand, the reviewing court should consider only whether, under the Council on Environmental Quality regulations implementing NEPA, the H-3 EIS satisfies the above specified “hard look” standard.
2. Socio-Economic Impacts
The Council on Environmental Quality (CEQ), established under 42 U.S.C. § 4342 (1976), promulgates uniform, mandatory regulations for implementing the procedural provisions of NEPA. See Andrus v. Sierra Club, 442 U.S. 347, 357, 99 S.Ct. 2335, 2340, 60 L.Ed.2d 943 (1979); Village of False Pass v. Clark, 733 F.2d at 613; 40 C.F.R. § 1515.2 (1982). Under CEQ regulation 40 C.F.R. § 1500.8(a)(3)(ii) (1978), an EIS must assess and discuss the secondary (socio-economic) effects of the project in question. In the case at hand, the District Court found that the EIS adequately discusses the socio-economic impacts of H-3. 538 F.Supp. at 166. Based on our review of the relevant case law and the record, we cannot conclude that the District Court’s finding was “clearly erroneous.”
The appellants allege that the EIS fails to assess adequately the secondary effects of H-3 on population growth, public services, and community cohesion and stability of Windward Oahu. The appellants essentially are arguing that the EIS discussion of secondary impacts lacks sufficient detail and meaningful supporting data. To support this argument, the appellants cite two cases, City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975), and Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir.1980), in which EIS’s were found inadequate. In both cases, however, the EIS’s were not nearly as detailed as the EIS in the ease at hand. Here, while there are some “general” discussions and “assumptions” in the EIS, and while it may have been preferable to consider the secondary impacts in more detail, it is our view that the EIS contains reasonably sufficient data for decisionmakers to take the requisite “hard look” at the environmental consequences of H-3 and to reach subsequently an environmentally-informed and independent conclusion about H-3.
First, an “H-3 Socio-Economic Study” was prepared and circulated in 1973. The 1973 study briefly discusses the socio-economic impacts of H-3 on Windward Oahu. The appellants charge that the 1973 study is obsolete in light of the new Oahu General Plan.
Second, even if portions of the 1973 study are obsolete, the NHV-SEIS, prepared after the new Oahu General Plan went into effect, adequately updates the 1973 study. The NHV-SEIS contains a reasonably thorough discussion of H-3’s secondary impacts in light of the planning changes that have occurred. See NHVSEIS, vol. I, at 118-29.
Third, the NHV-SEIS, in a reasonably thorough fashion, discusses socio-economic phenomena in Windward region-wide terms, as well as island-wide terms. See, e.g., id. at xv-xxiv, 45-55, 100-13, 118-29, 316-17.
Fourth, the NHV-SEIS relies upon, among other things, the conclusions and data developed by the City and County of Honolulu in connection with the updating of the Oahu General Plan in 1977. See id. at 13-17, 49 (table III-3), 100-13.
On the other hand, the District Court found that the appellees put forth contradictory assertions in respect to the ability of the General Plan to control H-3 induced growth. See 538 F.Supp. at 166. The appellants are correct when they point out that this may reflect a less than complete evaluation of H-3’s secondary impacts. Nonetheless, NEPA only requires a “reasonably thorough discussion” that “fosters informed decisionmaking,” not a “complete evaluation.” Therefore, it is our view that the District Court was not “clearly erroneous” in finding that the EIS assesses and discusses adequately H-3’s socio-economic impacts.
3. Consistency with Local Planning
The regulations of both the Department of Transportation (DOT) and CEQ require the EIS to analyze the relationship of H-3 to local land use plans and to discuss how H-3 “may conform or conflict with the objectives and specific terms” of land use plans, policies, and controls for the area. See 23 C.F.R. § 771.18(h) (1978); 40 C.F.R. § 1500.8(a)(2) (1978). If a conflict or inconsistency exists, the EIS “should describe the extent of reconciliation and the reason for proceeding notwithstanding the absence of full reconciliation.” 23 C.F.R. § 771.18(h) (1978); 40 C.F.R. § 1500.8(a)(2) (1978).
On January 18, 1977, the City and County of Honolulu adopted a revised Oahu General Plan, which became law on February 2, 1977. See NHV-SEIS, vol. I, at 100. The obsolete Oahu General Plan had envisioned large-scale development and population growth, including a deep draft harbor, for Windward Oahu. The new 1977 Oahu General Plan altered significantly the planning objectives for Windward Oahu. See 538 F.Supp. at 165. The new Plan envisions limited growth for the region and calls for a reduction in the proportion of Oahu’s population living in the region. Id. The appellants strongly urge that: (1) H-3 is inconsistent with the population objectives and policies of the 1977 Plan, (2) the inconsistencies are not resolved in the EIS, and, therefore, (3) the EIS is inadequate.
Indeed, the portion of the EIS that we find the most troubling is its analysis of the 1977 General Plan. For example, the appellees, in both their H-3 Travel Demand Analysis and Region 9 Staff Analysis, use outdated Windward region population projections, apparently assuming that the 1977 General Plan population goals will not be met. See 538 F.Supp. at 166-67. As the District Court points out, “this assumption contradicts [the appellees’] assertion that growth will be limited by the General Plan.” Id. This would seem to indicate that the appellees may not have reasonably concluded that H-3 is consistent with the 1977 Plan. Moreover, in the NHV-SEIS the appellees assert several times that H-3 was planned only in response to the projected and desired growth pattern in Windward Oahu that appears in the 1977 General Plan. See, e.g., NHV-SEIS, vol. I, at 87, 90, 103. The H-3 freeway, however, was under development when the obsolete 1964 General Plan was in effect, see, e.g., 1973 EIS Preface, at 5-1 to 5-12, app. B, at 69, and at that time the appellees asserted that H-3 was consistent with the then current planning and growth policies, see id. app. B, at 211-292. It seems incongruous to us, therefore, that the appellees assert that H-3 is only a response to the 1977 General Plan when H-3 originally was designed to help implement the 1964 General Plan vision of an urbanized, industrial Windward Oahu.
Nonetheless, our role is not that of a “super-planner,” see 538 F.Supp. at 164, and, under NEPA, we are not allowed to substitute our judgment for that of the agency concerning the wisdom of a proposed action. See California v. Block, 690 F.2d at 761. Our role is limited to insuring that the appellees have taken a “hard look” at H-3’s environmental consequences. The NHV-SEIS contains a fairly detailed discussion of H-3’s relationship to state and city land use plans, policies, controls, goals, and objectives. See NHV-SEIS, vol. I, at 85-114, 126-29. Furthermore, the relationship between H-3 and the 1977 Plan specifically is discussed. Id. at 100-10. And, one of the terms upon which the appelleeSecretary’s concurrence in the EIS was conditioned was:
That the Hawaii Department of Transportation will cooperate with the City and County of Honolulu in monitoring land use and development trends on Windward Oahu, including the impact of H-3 on such trends. Hawaii DOT will cooperate with the City and County in the implementation of measures proposed to achieve General Plan objectives for Windward Oahu.
Office of the Secretary, U.S. Dep’t of Transp., Concurrence Memorandum 3 (Nov. 21, 1980). See also Fed. Highway Admin., Decision Memorandum 4 (Dec. 5, 1980) (“the conditions required by the Office of the Secretary ... are accepted and will be implemented by FHWA and the Hawaii DOT”).
Thus, while it may have been preferable to include a comparison study of the interrelationship between H-3, the 1964 Plan, and the 1977 Plan, we cannot conclude in these circumstances that the District Court’s decision was “clearly erroneous” when it found that the EIS contains adequate information for the relevant decisionmakers to reach a reasoned conclusion concerning H-3’s conformity with land use planning on Oahu.
4. Supplementation of the EIS
a. Standard of Review
A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions, even after release of an EIS. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023-24 (9th Cir.1980) (Warm Springs Dam II). The CEQ regulations require that agencies “prepare supplements to either draft or final environmental impact statements if ... [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(l)(ii) (1980).
An agency’s decision not to supplement an EIS will be upheld if it was reasonable. Warm Springs Dam II, 621 F.2d at 1024. When new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing requirements. Id. Reasonableness depends on the environmental significance of the new information, the probable accruacy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. Id.
The appellants allege that the 1977 General Plan, revised population projections, and 1980 census data are “significant new information” requiring EIS supplementation.
b. 1977 New General Plan
The appellants assert that the “complete reversal” of Windward planning goals, as embodied by the 1977 Plan, is a “significant new circumstance” requiring further supplementation of the 1973 EIS. They argue that the shift of planned population centers from Windward Oahu to Ewa should be specifically addressed in a supplement to the EIS.
This argument has little merit. The 1977 General Plan is not “new information” that has come to light after release of the EIS. The relationship between H-3 and the 1977 General Plan objectives and policies is addressed in some detail in the NHV-SEIS, a supplement to the 1973 EIS. See NHVSEIS, vol. I, at 100-10. We have already concluded that the EIS adequately considers the 1977 Plan; the appellees’ decision not to supplement further the EIS was reasonable. See Warm Springs Dam II, 621 F.2d at 1024.
c. Revised Population Projections
As above noted, in 1978 the State of Hawaii Department of Planning and Economic Development (DPED) revised its year 2000 population projections downward; DPED reduced the Oahu population projection from 1,039,000 persons to 917,-400 for the year 2000. Applying the 1977 General Plan distribution percentages to this new figure yields a target Windward Oahu population of between 125,700 and 138,500. See 538 F.Supp. at 166.
The NHV-SEIS fails to discuss in detail the 1978 projections, even though they were issued nearly two years before the NHV-SEIS was approved. See id. The appellees, however, did consider the 1978 projections in their Region 9 Staff Analysis. See Region 9 Staff Analysis, at app. B. They apparently concluded that older projections, predicting a Windward Oahu population of 150,500, were more valid. See NHV-SEIS, vol. I, at xviii; 538 F.Supp. at 167.
The District Court found, under 40 C. F.R. § 1500.8(a)(1) (1978), that the appellees met their NEPA obligations by identifying the population and growth assumptions used to justify H-3. See 538 F.Supp. at 166-67.
The appellants argue that the 18,000-per-son reduction in population figures is “significant new information” because federal decisionmakers regarded population projections and goals important when they approved the EIS. See, e.g., Office of the Secretary, U.S. Dep’t of Transp., Concurrence Memorandum 2 (Nov. 21, 1980) (“Since construction of H-3 is likely to stimulate development on Windward Oahu, and could contribute to pressures for development in excess of that contemplated in the General Plan, monitoring of population growth and of traffic levels on H-3 will be needed to assure that development objectives of the plan are not exceeded.”). The appellants also allege that the NHV-SEIS fails to state any reason why a discussion of the reduction in projected growth was omitted from the EIS.
The appellees correctly respond that both the “outdated” and 1978 projected population figures are actually a range of projections and that the NHV-SEIS discusses the changing population projections and their ranges. See NHV-SEIS, vol. I, at xvii-xviii. Moreover, the EIS explains, albeit briefly, the appellees’ reasons for selecting the population projections used in the EIS. See id. at xviii.
On this record, the appellants simply have not shown that the appellees have violated the Warm Springs Dam II standards; accordingly, we will not disturb the appellees’ decision not to supplement further the EIS on account of the revised population projections.
d. 1980 Census Data
The appellants argue that the 1980 census data is “significant new information” because it shows that Windward Oahu is growing faster than called for in the 1977 General Plan, and that, therefore, the growth-inducing impact of H-3 virtually will insure that General Plan growth limits will not be met. With regard to supplementing the EIS, this argument has little merit for several reasons.
First, the appellants have not persuasively shown the significance of the 1980 census data in terms of new environmental impact. Cf Citizens Committee Against Interstate Route 675 v. Lewis, 542 F.Supp. 496, 554-56 (S.D.Ohio 1982) (census data does not require supplementation of EIS).
Second, the appellants’ argument assumes, without showing, that H-3 will induce growth beyond that envisioned in the General Plan.
Third, as above noted, the Secretary’s concurrence in the EIS was conditioned upon the Hawaii Department of Transportation’s cooperation with the City and County of Honolulu “in their implementation of measures proposed to achieve General Plan objectives for Windward Oahu.” See Office of the Secretary, U.S. Dep’t of Transp., Concurrence Memorandum 3 (Nov. 21, 1980). See also Fed. Highway Admin., Decision Memorandum 4 (Dec. 5, 1980) (FHWA’s and Hawaii DOT’s acceptance of Secretary’s conditions).
For these reasons, the appellees acted reasonably in not supplementing the EIS on account of the 1980 census data.
B. FAHA — ADEQUACY OF LOCATION/DESIGN REPORTS
Under FAHA, a request for location or design approval must be accompanied by reports and other documents that discuss, inter alia, the anticipated economic, social, and environmental effects of the proposed action and alternatives under consideration. 23 C.F.R. §§ 790.9(c), 790.-8(b)(2)(i) (1978). The H-3 Location/Design Study Report, NHV-SEIS, 1973 EIS Preface, and 1972 EIS were submitted as evidence of compliance with this requirement. The appellants challenge the adequacy of these reports with respect to socio-economic impacts.
The appellants allege that: (1) the FAHA requirements cannot be satisfied by incorporating the EIS documents by reference; and (2) even if incorporation by reference is acceptable, the EIS is inadequate and needs to be supplemented by a detailed, current socio-economic study. The first contention has no merit. The CEQ regulations clearly permit the type of incorporation by reference to which appellants object. See 23 C.F.R. § 790.8(b)(2)(iv) (1978). As to the second contention, we have already concluded that the documents adequately discuss the secondary impacts of H-3.
IV. CONCLUSION
The District Court’s rulings in respect to the ESA, NEPA, and the portions of FAHA other than section 4(f) are affirmed. The District Court’s Order dissolving the injunctions against construction of H-3, however, is reversed. On remand, the District Court must enjoin construction of the entire highway as proposed until such time that the Secretary can demonstrate his full compliance with section 4(f) as the statute applies to Ho’omaluhia Park and has made a determination in harmony with the statutory requirements. Our decision does not affect any injunctions the District Court has not dissolved that originated in the district court.
The judgment of this Court shall issue forthwith, and no Petition for Rehearing will be entertained. See Fed.R.App.P. 2.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. The H-3 project has been the subject of extensive litigation spanning nearly 12 years. See Stop H-3 Ass’n v. Volpe, 349 F.Supp. 1047 (D.Hawaii 1972); Stop H-3 Ass'n v. Volpe, 353 F.Supp. 14 (D.Hawaii 1972); Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Hawaii 1974), rev'd, 533 F.2d 434 (9th Cir.), cert, denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976); Stop H-3 Ass'n v. Coleman, 533 F.2d 434 (9th Cir.), cert, denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976); Stop H-3 Ass'n v. Lewis, 538 F.Supp. 149 (D.Hawaii 1982). The earlier history of the controversy is reviewed thoroughly in Stop H-3 Ass'n v. Brinegar, 389 F.Supp. at 1105-07. The more recent factual background and procedural history of the controversy is set forth at 538 F.Supp. at 154-56. It should also be noted that construction on the remaining portion of H-3 was resumed in January 1983, but was enjoined by this Court pending disposition of this appeal. This Court’s injunction issued November 30, 1983, and will remain in effect until the District Court issues a new injunction in conformity with our decision.
. The appellants are Stop H-3 Association and Life of the Land, both of which are non-profit organizations chartered for the purpose of opposing the construction of H-3, and Hui Malama Aina O Ko'olau, an unincorporated association formed "to protect the Hawaiian people, the Hawaiian lifestyle, and the land from destruction.”
. The appellees are the Secretary of the United States Department of Transportation, the Hawaii Division Engineer for the Federal Highway Administration, and the Director of the Department of Transportation of the State of Hawaii. As this litigation has progressed, the incumbent Secretary of Transportation has been substituted for his or her predecessor as a named defendant, under the authority of Fed.R.App.P. 43(c)(1).
. Section 4(f) states:
It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
49 U.S.C. § 1653(f) (1976).
. “Ho'omaluhia" in Hawaiian means "to make a place of peace and tranquility." Ho’omaluhia Park is a 450-acre mountain park; it is the major non-ocean park on the island of Oahu. The park includes a 32-acre lake, camping and picnicking areas, and equestrian and hiking trails. The Honolulu Department of Parks and Recreation describes the park as follows:
Ho’omaluhia is a program park, where all activities are directed toward the exploring, evaluating and appreciating of the natural environment and our interaction with it. Recreation at Ho’omaluhia will offer many ways to become involved in the environment, through nature walks, hiking, camping, picnicking, cloud watching and other programs to enhance environmental awareness. Variety is the key; and to ensure it, the wilderness atmosphere of quiet and solitude must be maintained.
Department of Parks and Recreation of the City and County of Honolulu, Ho’ike (1981).
Ho'omaluhia Park began as a flood control project developed by the Army Corps of Engineers. Between 1966 and 1970 the concept of the park was expanded from a 35-acre "greenbelt” surrounding the flood control dam and reservoir to a 75-acre facility for general recreational purposes. In 1973, the proposed park was further expanded to 115 acres, taking into consideration the planned Windward alignment of H-3. A 115-acre area between the park and the highway was to act as a "buffer zone" between the two projects. This area subsequently was purchased by the City and County of Honolulu and incorporated into the project, making part of the boundary of the park contiguous with the proposed H-3 right-of-way. A master plan for the park was adopted in February 1974. The plan restricts all of the park’s intensive uses, i.e., camping and picnicking, to the interi- or 115 acres of the park. The intensive use area is separated from the proposed path of H-3 by a peripheral park circulation road and a low density recreational use zone. Nonetheless, the largest three campsite areas begin 100, 200, and 700 feet, respectively, from the proposed path of H-3. In addition, half of the length of the equestrian trail is between 75 and 200 feet from the proposed path of H-3. On November 21, 1978, the District Court ruled that the proximity of H-3 to the park constituted constructive use of the park. Thereafter, the appellees moved the District Court to reconsider its ruling. On April 8, 1982, the District Court affirmed its earlier ruling by again holding that H-3’s impacts on Ho'omaluhia Park constituted a constructive use sufficient to bring section 4(f) into play, notwithstanding that the plan for the park and the plan for H-3 had been designed together. See 538 F.Supp. at 176-77. The appellees did not appeal this ruling.
. Pali Golf Course Park lies approximately 700 feet southwest of Ho'omaluhia Park. Nestled at the foot of the Nuuanu Pali Lookout, the 220-acre, 18-hole course is considered one of Oahu’s most challenging public courses because of its rolling terrain and the general layout of its fairways and greens. The course is open year round and, being the only 18-hole public course in the Windward region, is very heavily used. The northeast side of the golf course borders on Kamehameha Highway.
In its proposed configuration, H-3 will occupy almost completely the area separating Ho’omaluhia Park and Pali Golf Course Park. Moreover, the Halekou Interchange, which is' proposed to connect H-3 to Kamehameha Highway, will take approximately 3.5 acres from the northwest end of Pali Golf Course Park. See Fed. Highway Admin., U.S. Dep’t of Transp., Highways Div., State of Hawaii Dep’t of Transp., Final Second Supplement to the Interstate Route H-3 Environmental Impact/4(f) Statement (1982), lodged with this Court on July 7, 1983. See also infra notes 7 & 9.
. The Final Second Supplement, prepared in response to the District Court’s order, is not part of the record on appeal; indeed, its adequacy has not been reviewed by any federal court. If such a review is to take place, the proper tribunal to conduct the initial review would be, of course, the District Court. We note in passing, however, that the Final Second Supplement, at 29, rejects the alternatives to the use of Pali Golf Course Park (namely, the Makai Realignment and the No Build alternative) by reference to the Ho'omaluhia Park Section 4(f) Statement. We note also in passing that the Final Second Supplement, at 27-28, concludes that the Secretary should adopt a new design for the Halekou Interchange, one which reduces the amount of golf course land taken by the interchange from 4.09 to 3.49 acres. See also infra note 9.
. While the District Court held that the Secretary’s Ho’omaluhia Park Section 4(f) Determination was invalid and remanded the 4(f) statement, the basis for that decision was that "the 4(f) statement does not adequately support the finding that all possible measures have been taken to minimize harm to the park.” See 538 F.Supp. at 183. The District Court affirmed the Secretary’s conclusion that no feasible and prudent alternatives exist to the use of the park. See id. It is that conclusion which the appellants challenge and which we must now evaluate.
. The District Court held that the Secretary’s Pali Golf Course Park Section 4(f) Determination was invalid because "the record does not adequately support the conclusion that all possible measures have been taken to minimize harm to the golf course.” See 538 F.Supp. at 183. The court also stated that "the inquiry does not end with the determination that there are no feasible alternatives to the use of the [Pali Golf Course] 4(f) property.” Id. at 182. Yet, the District Court remanded the Pali Golf Course Park Section 4(f) Determination "for further documentation that no feasible and prudent alternatives exist to the use of the golf course lands and all possible measures to minimize harm to the golf course have been taken." Id. at 184. In other words, the District Court apparently held the Secretary’s determination invalid because it violated one prong of the 4(f) test, yet remanded the 4(f) statement with instructions to remedy violations of both prongs of the 4(f) test. For the purposes of this appeal, we will assume that the District Court found that the Secretary had violated both prongs of the 4(f) test. We, therefore, do not have jurisdiction over the portion of the controversy that involves the challenges to the Secretary's Pali Golf Course Park Section 4(f) Determination.
. We base our decision today on the Secretary’s rejection of the Makai Realignment and the No Build alternative qua alternatives to the use of Ho’omaluhia Park. For reasons discussed supra note 9, the issue of whether the Secretary properly rejected the above specified alternatives qua alternatives to the use of Pali Golf Course Park is not properly before this Court at this time. Since the Makai Realignment and No Build alternative would avoid completely the use of either Ho’omaluhia Park or Pali Golf Course Park, however, the following discussion sometimes will be framed in reference to both parklands.
. In Overton Park the Supreme Court stated that the section 4(f) requirement that an alternative be “feasible” means that the alternative must be able to be built as a matter of sound engineering: "For this exemption to apply the Secretary must find that as a matter of sound engineering it would not be feasible to build the highway along any other route." 401 U.S. at 411, 91 S.Ct. at 821 (footnote omitted). All of the alternatives considered in the Ho'omaluhia Park and Pali Golf Course Park Section 4(f) Statements are "feasible” because they all can be built as a matter of sound engineering. This issue is not in dispute in this case. The only issue in dispute is whether the alternatives that would avoid use of the parklands are prudent. See infra note 18.
. The Second Circuit has aptly paraphrased the Overton Park test as follows:
In other words, a road must not take parkland, unless a prudent person, concerned with the quality of the human environment, is convinced that there is no way to avoid doing so. Monroe County Conservation Council v. Volpe, 472 F.2d 693, 700 (2d Cir. 1972) (footnote omitted).
. The Ho’omaluhia Park Section 4(f) Determination is a document prepared by the Secretary and included in the Ho’omaluhia Park Section 4(f) Statement. The opening paragraph of the Ho'omaluhia Park Section 4(f) Determination states:
This statement sets forth the bilis for a determination that there is no feasible and prudent alternative to the constructive use of land from Ho'omaluhia Park for a proposed Federal-aid highway designated as Interstate H-3, and that the highway proposal includes all possible planning to minimize harm resulting from such use. This determination is made pursuant to 49 U.S.C. 1653(f) and 23 U.S.C. 138. Ho’omaluhia Park Section 4(f) Determination, at 1.
Its concluding paragraph states:
Based on the above factors and considerations, it is our determination that there is no feasible and prudent alternative to the constructive use of land from Ho’omaluhia Park and that all planning to minimize harm resulting from such use has been accomplished. Id. at 5 (emphasis supplied).
Therefore, while the Secretary may have considered the entire administrative record in reaching his decision that no feasible and prudent alternatives exist to H-3’s use of Ho’omaluhia Park, the actual basis for his decision is set forth in the Ho’omaluhia Park Section 4(f) Determination. Cf. Securities & Exchange Comm’n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (reviewing court is limited to judging the justificatory grounds invoked by the agency).
. The appellants assert that the "totality of the circumstances” approach applied by the District Court is an erroneous application of the law in that it violates the Overton Park prohibition against a "wide ranging balancing of competing interests.” See Overton Park, 401 U.S. at 411-13, 91 S.Ct. at 821-22. Since we find that the reasons advanced in the Ho’omaluhia Park Section 4(f) Determination, even when amalgamated, do not satisfy the Overton Park standards, we need not reach the issue of the “totality” approach. We express no opinion as to the propriety of such an approach.
. The District Court apparently conceded that the community displacements resulting from the Makai Realignment are not, by themselves, sufficient to render that alternative imprudent under Overton Park. See 538 F.Supp. at 180.
. In its analysis of the prudence of the Makai Realignment the District Court made no mention of the increased cost of the alternative.
. Moreover, there is some question as to where "safety" fits into the Overton Park requirements; that is, is "safety” properly placed in the feasibility or the prudential requirement? Safety might well be considered a matter of "sound engineering” and, therefore, included in the feasibility requirement. See supra note 11. On the other hand, safety could just as well be considered a matter of prudence. But, as one commentator points out:
‘Feasible’ smacks of technical considerations, ‘prudent’ of the entire range of concerns relevant to wisdom. Since both words appear it is not necessary to refine ‘feasible’ beyond the general concept of capability of being built, or of being made to work, with available technology. [citing Overton Park ] Nuances as to other factors which might tend to make an engineering project inadvisable, ... need not be addressed as questions of feasibility, since they can be considered under the requirement of prudence.
Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 369-70 (1973). We prefer to adopt this approach, and, accordingly, we will consider safety under the requirement of prudence.
. At trial the District Court heard testimony from an engineer who had assisted in the preparation of the Ho’omaluhia Park Section 4(f) Statement that the Makai Realignment’s intersection between H-3 and the Likelike Highway presented a "very unsafe situation.” He offered no explanation as to why that conclusion was not included in the final Ho’omaluhia Park Section 4(f) Statement. Moreover, the testimony was not before the Secretary when he made his decision. As the Supreme Court has stated, "In applying [the arbitrary, capricious, or an abuse of discretion] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam).
The District Court also had before it a litigation affidavit from a traffic engineer for the State of Hawaii that attested that the curved exit ramp on H-3 was “unsafe.” Once again, this affidavit was not before the Secretary when he made his decision. And, the Supreme Court has characterized such affidavits as “merely ‘post hoc rationalizations, ... which have traditionally been found to be an inadequate basis for review." Overton Park, 401 U.S. at 419, 91 S.Ct. at 825 (citations omitted).
. There is nothing in the record to indicate that a detailed safety analysis of the Makai Realignment cannot be conducted relatively easily. In fact, the record supports a contrary conclusion. For example, the Region 9 Staff Analysis, at 14, contains an analysis of the safety considerations of each of 16 alternatives (2(T)H-3 alternatives, 2 H-3 alternatives, and 12 No Build alternatives), couched in terms of "accidents and severity."
. Brooks v. Coleman, 518 F.2d 17 (9th Cir.1975) (per curiam) cited by appellees, is readily distinguishable and does not alter our conclusion. In that case, we affirmed the District Court’s finding that the Secretary reasonably concluded that no feasible and prudent alternative existed to the planned use of 4(f) parkland. Id. at 19-20. We based our decision, in part, upon safety conditions because the record reflected that the “unusual safety problems” posed by the alternative in question represented a "truly unusual factor” or a "unique problem.” Id. By contrast, in the case at hand, the record as it stands simply does not reflect that the safety problems posed by the Makai Realignment are "unusual” or "unique."
. The District Court disposed of the No Build alternative in the following manner: "[The] defendants have sufficiently established the need for the highway. Rejection of the no-build alternative was thus reasonable.” 538 F.Supp. at 180.
The mere fact that a “need” for a highway has been "established” does not prove that not to build the highway would be "imprudent” under Overton Park. To the contrary, it must be shown that the implications of not building the highway pose an "unusual situation,” are "truly unusual factors," or represent cost or community disruption reaching "extraordinary magnitudes." See Overton Park, 401 U.S. at 411-13, 91 5. Ct. at 821-22.
. It is also worth noting that the NHV-SEIS reveals that if H-3 is not built, the average car occupancy rate for the year 2000 trans-Koolau commuter will increase from 1.7 persons per car to 2.0 persons per car. NHV-SEIS, vol. Ill, app. B, at 31. See generally City and County of Honolulu, 1977 General Plan 39-40 (a goal of local planning is to encourage the development and use of public transportation by "discourag[ing] the inefficient use of the automobile”).
. It should be noted, however, that one of the terms upon which the Secretary's concurrence in the H-3 EIS was conditioned was "further study of ... peak hour prohibition of trucks on the Likelike and Pali Highways.” Office of the Secretary, U.S. Dep't of Transp., Concurrence Memorandum 2 (Nov. 21, 1980); see 538 F.Supp. at 170. The Secretary, then, was aware of the reduction in congestion that a truck prohibition might produce. Yet, the Secretary apparently did not include this pertinent information in his analysis of the No Build alternative, preferring, instead, to make his decision without the benefit of "further study of ... peak hour prohibition of trucks on the Likelike and Pali Highways." It is our view that the truck prohibition should have been studied before the Secretary rejected the No Build alternative as imprudent.
. One of the goals of the Oahu General Plan is to encourage the development and use of public transportation on the island of Oahu. See City and County of Honolulu, 1977 General Plan 39-40.
. The proposition that H-3 will not, in and of itself, greatly reduce congestion is borne out by other portions of the record. The Region 9 Staff Analysis indicates that only 27% of the daily trans-Koolau trips are Ewa- or Central Oahu-bound — the remainder are Honolulu-(70%) and Hawaii Kai- (3%) bound. Region 9 Staff Analysis, at 10. H-3 purportedly is being constructed primarily to service the Ewa-Windward community corridor. It is obvious that, if H-3 is built, virtually no Honolulu- or Hawaii Kai-bound trans-Koolau commuter will travel on H-3 to Aiea (where H-3 terminates) and then fight the Pearl City-Aiea traffic back to Honolulu. In other words, H-3 does not seem to have the potential to reduce greatly the congestion on the Likelike and Pali Highways.
. The consultation process under the ESA is governed by 50 C.F.R. § 402.2 (1980). The appellants have not alleged that the appellees violated the procedural requirements of this regulation.
. Under 50 C.F.R. § 402.04(e) (1980), once the USFWS issues its biological opinion, no further consultation by FHWA is required, unless the USFWS requests that FHWA reinitiate further consultation under id. § 402.04(f) or unless the requirements of id. § 402.04(h) are satisfied.
. A project will "jeopardize” an endangered species if it "reasonably would be expected to reduce the reproduction, numbers, or distribution of a listed species to such an extent as to appreciably reduce the likelihood of the survival and recovery of that species in the wild.” 50 C.F.R. § 402.02 (1980).
. The regulations that implement FAHA impose a similar requirement. See 23 C.F.R. § 771.18(i) (1978).
. The appellants contend that H-3 is inconsistent with the 1977 Oahu General Plan because H-3 could stimulate rapid population growth contrary to the new planning goals of limited growth for Windward Oahu. As above noted, a goal of the 1977 Plan is to create employment opportunities and to direct residential population to the Ewa (Leeward) side. The appellants argue that H-3 is inconsistent with this goal because H-3 would encourage persons employed in the Ewa and Aiea-Pearl City areas to live on Windward Oahu and commute to work on Leeward Oahu. Thus, they allege that H-3 virtually will insure that the population and distribution targets of the 1977 Plan will not be met.
. 40 C.F.R. § 1500.8(a)(1) (1978) states in relevant part:
Agencies should also take care to identify, as appropriate, population and growth characteristics of the affected area and any population and growth assumptions used to justify the project or program or to determine secondary population and growth impacts resulting from the proposed action and its alternatives____
. Pending the disposition of this appeal, an injunction has proscribed the continued work and expense in connection with the highway in question. Upon remand, the District Court will be in a better position, considering the prospect of possibly needless expenditures of the taxpayers' funds, to determine the nature and extent of the injunction that is necessary to protect the interests of all parties to the litigation pending further developments. If any of the litigants wish to suggest to this Court the question of whether an additional injunction is now necessary, and the form of any such injunction, if necessary, they may deem themselves at liberty to do so.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.08823529411764706, Costs: 0.01838235294117647
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LOGAN, Circuit Judge.
I
The Burr Trail winds for sixty-six miles through federally owned land in the rugged, dramatic terrain of southern Utah’s Garfield County. Connecting the town of Boulder with Lake Powell’s Bullfrog Basin Marina, the road at various points traverses across or next to unreserved federal lands, two wilderness study areas, the Capitol Reef National Park, and the Glen Canyon National Recreation Area. The trail has hosted a variety of uses: during the late 1800s and early 1900s to drive cattle, sheep and horses to market; around 1918 to facilitate oil exploration; and since the 1930s for various transportation, emergency, mineral, agricultural, economic development, and tourist needs. Garfield County (the County) has maintained the Burr Trail since the early 1940s. The combination of public uses and county maintenance has created a right-of-way in favor of Garfield County, pursuant to Congress’ grant of public land in R.S. 2477. See § 8 of the Act of July 26, 1866, 14 Stat. 253, formerly § 2477 of the Revised Statutes of the United States, repealed by Federal Land Policy Management Act of 1976, § 706(a), Pub.L. No. 94-579, 90 Stat. 2793.
The current controversy arises out of the County’s immediate plan to improve the western twenty-eight miles of the Burr Trail from an essentially one-lane dirt road into an improved two-lane graveled road. Part of this section of the trail runs between two federally protected wilderness study areas (WSAs), the Steep Creek and the North Escalante Canyons WSAs. Asserting concern over the impact that construction and subsequent increased travel will have on plants, animals, and archaeological sites in the area, Sierra Club and other environmental groups (collectively referred to as Sierra Club) sued the Secretary of the United States Department of the Interior and a division thereunder, the Bureau of Land Management (collectively referred to as federal defendants or as BLM) and Garfield County. The complaint’s essential allegations are that:
(1) the County’s proposed improvements will extend the actual roadway beyond the right-of-way and encroach upon federal land;
(2) the County has not received authorization for this encroachment from the Bureau of Land Management (BLM), as required by the Federal Land Policy Management Act of 1976 (FLPMA), supra, codified, as amended at 43 U.S.C. § 1701 et seq.;
(3) the improvements will unnecessarily and unduly degrade adjacent wilderness study areas and will impair the WSAs’ suitability for designation as wilderness; and
(4) BLM has failed to study the environmental impact of the construction in violation of the National Environmental Policy Act of 1969 (NEPA), Pub.L. No. 91-190, 83 Stat. 852, codified as amended at 42 U.S.C. § 4321.
The complaint requests an injunction against construction until the County and BLM comply with FLPMA and NEPA.
The district court enjoined the County’s project pending trial. After trial, the district court agreed almost entirely with the County and BLM and authorized the construction. See Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987). It found that the entire proposal fell within the County’s right-of-way, but that one part of the proposal — in the riparian area known as The Gulch — threatened the wilderness study areas. To protect The Gulch, the district court ordered the County to seek from BLM a FLPMA permit to relocate part of the road outside the existing right-of-way. It further ordered BLM to conduct studies of plant life along the trail, to monitor the construction in areas with archaeological sites, and to direct alterations in the plan where necessary to preserve plant life or archaeological sites. The court denied Garfield County’s request for damages resulting from construction delays. The court then dissolved the preliminary injunction. Both sides appealed portions of the district court’s rulings. This court stayed the dissolution of the preliminary injunction pending appeal.
On appeal we must consider two jurisdictional questions: (1) whether BLM’s self-described refusal to act under FLPMA is committed to agency discretion under the Administrative Procedure Act and thus exempt from judicial review; and (2) whether Sierra Club has rights of action against BLM and Garfield County. On the merits, we must consider whether and to what extent (1) the County’s plans fall within their R.S. 2477 right-of-way; (2) the plans affect adjacent WSAs; (3) major federal action as defined in NEPA is involved by BLM’s activities or responsibilities under FLPMA; and (4) BLM must conduct further environmental studies under NEPA. We also must determine whether the district court erred in ordering the County to apply for a permit to relocate part of the road and to make an inventory of plant life along the Burr Trail. Finally, we must address the district court’s denial of damages for the construction delays caused by. the suit.
II
A. Reviewability of BLM’s Refusal to Act
BLM raises a threshold jurisdictional question. Under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., administrative actions generally are subject to judicial review. Courts, however, cannot review actions or, as in this case, refusals to act which are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). BLM alleges that its decision not to attempt to enjoin or regulate the County’s plans fits within the § 701(a)(2) exception to judicial review.
Sierra Club has asserted that FLPMA imposes a duty on BLM to require Garfield County to prove its entitlement to a right-of-way before BLM can allow the County to begin “significant construction,” and “to prevent the trespass of Garfield County and Harper Excavating, Inc. if Garfield County does not have a right-of-way.” Complaint, I R. tab 1 at 1164. BLM characterizes Sierra Club’s complaint as a request for investigative and enforcement action, which FLPMA requires only if “necessary to prevent unnecessary or undue degradation of the lands.” FLPMA § 302(b), codified at 43 U.S.C. § 1732(b). According to BLM, the statutory language “unnecessary or undue degradation” “ ‘breath[es] discretion at every pore.’ ” Brief of Federal Defendants at 17 (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975)). BLM contends that FLPMA lacks a statutory standard capable of judicial application, and thus that its decisions whether to enjoin private activities which affect public lands fall beyond the purview of judicial review.
In general, in the absence of an express statutory prohibition of judicial review (which would invoke APA § 701(a)(1)), an agency bears “the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of [the agency’s] decision.” Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court stated that § 701(a)(2)’s judicial review exemption applies only “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Id. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)).
When, however, an agency decides not to take a requested enforcement action, an opposite presumption applies. In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), several death-row inmates petitioned the Food and Drug Administration (FDA) to study the safety and effectiveness of drugs used for lethal injections. The FDA refused to take enforcement action, and the Supreme Court held that the FDA’s decision was exempt from judicial review. The Court relied on the oft-stated principle that an “agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Id. at 831, 105 S.Ct. at 1656. In reaching this result, the Court set forth the general rule that an “agency’s decision not to take enforcement actions should be presumed immune from judicial review under § 701(a)(2).” Id. at 832, 105 S.Ct. at 1656. The Court noted, however, “that the decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 832-33, 105 S.Ct. at 1656 (footnote omitted).
The Court in Chaney reconciled Dunlop by distinguishing the cases factually. The Supreme Court reasoned that the statute in Chaney (the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.) committed “complete discretion to the Secretary [of Health and Human Services] to decide how and when” the injunctive, criminal, and investigative remedies of the statute should be exercised. Chaney, 470 U.S. at 835, 105 S.Ct. at 1658. Conversely, the statute in Dunlop (the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481 et seq.) “withdrew discretion from the agency and provided guidelines for exercise of its enforcement power.” Id. at 834, 105 S.Ct. at 1657. Dunlop involved no analog to “an unreviewable exercise of prosecutorial discretion.” Dunlop, 421 U.S. at 567 n. 7, 95 S.Ct. at 1857 n. 7 (cited in Chaney, 470 U.S. at 834, 105 S.Ct. at 1657). Dunlop and Chaney therefore both stand for the proposition that judicial review is available if “Congress has provided us with ‘law to apply.’ ” Id. at 834, 105 S.Ct. at 1657.
Thus, even though BLM’s position in this case perhaps could be characterized as a decision not to take enforcement action, that decision is nonetheless reviewable. Like the statute in Dunlop, and unlike the statute in Chaney, FLPMA provides “law to apply.” FLPMA assigns to the Department of the Interior the responsibility to define the boundaries of Wilderness Study Areas, see id. §§ 201(b), 603(a), 43 U.S.C. §§ 1711(b), 1782(a), and, before their designation or nondesignation as wilderness, to manage WSAs “in a manner so as not to impair the suitability of such areas for preservation as wilderness ... [and] by regulation or otherwise [to] take any action required to prevent unnecessary or undue degradation....” Id. at § 603(c), 43 U.S.C. § 1782(c). Further, the duty to define and protect “roadless” areas of “more than 5,000 acres” “having ... wilderness characteristics,” see Wilderness Act of 1964, Pub.L. No. 88-577, 78 Stat. 890, codified at 16 U.S.C. § 1131 et seq., as incorporated by FLPMA § 603(a), imposes a definite standard on BLM.
Sierra Club alleges that BLM has refused to take action which would prevent a road from invading and redefining the boundaries of two WSAs. The federal courts are capable of determining whether a WSA has remained “roadless,” and whether the boundaries of public lands and rights-of-way will be breached. A court can measure whether the improvement of the Burr Trail will “impair the suitability of [WSAs] for preservation as wilderness” or will cause “unnecessary or undue degradation.” BLM’s characterization of its non-action as an “enforcement” decision does not preclude judicial review.
B. Right to Sue BLM and the County
BLM asserts another jurisdictional argument: that FLPMA does not create a private right of action against BLM and the County. BLM frames its analysis in terms of the four-factor test set out in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), arguing that none of the four factors are met in this case.
We do not here decide whether FLPMA creates a private cause of action, because Sierra Club does not rely upon that approach. Rather, it contends that the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, expressly confers a right of action. “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ..., is entitled to judicial review thereof.” APA § 10, 5 U.S.C. § 702. We have already discussed and found inapplicable the only exceptions to this rule: (a) when a statute precludes judicial review, id. § 701(a)(1), and (b) when the action is committed to agency discretion by law, id. § 701(a)(2).
Section 702 of the APA permits actions against an agency even when there is not an implied private right of action. See Chrysler Corp. v. Brown, 441 U.S. 281, 317, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). Thus, Sierra Club has the right to sue BLM under § 702 even if it does not have a private right of action under FLPMA. See California v. Watt, 683 F.2d 1253, 1270 (9th Cir.1982) (allowing APA action in environmental case in which no implied private right of action existed under Coastal Zone Management Act), rev’d on other grounds, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). Cf. Humboldt County v. United States, 684 F.2d 1276, 1282 n. 7 (9th Cir.1982) (upholding right to sue under § 702 over closing of alleged R.S. 2477 road); City & County of Denver v. Bergland, 695 F.2d 465, 473-75 (10th Cir.1982) (upholding APA action in case involving FLPMA’s effect on rights-of-way granted under the Act of February 1, 1905, 33 Stat. 628).
The more difficult question is whether Sierra Club can reach the County in this action. By its terms, § 702 neither permits nor prohibits suits against non-agency defendants who, by the agency’s alleged misdeeds, have benefited at the plaintiffs’ expense. We know of no cases explicitly permitting a private suit under § 702 against a nonagency defendant, even in a case such as this in which the nonfederal actor, by its unrestrained actions, could defeat the objectives sought in the suit against the agency.
Sierra Club argues that the device of permissive joinder under Rule 20 of the Federal Rules of Civil Procedure permits it to seek injunctive relief against the County, and cites as authority League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917-18 (9th Cir.1977). In that case, an environmental group sued both a state planning agency and two developers, alleging that a congressionally sanctioned interstate compact had been violated by a project proposed by the developers and approved by the agency. The developers argued that the plaintiff failed to state a claim against them. The Ninth Circuit nevertheless found that joinder of the defendant developers was necessary under Rule 20, “in order to properly afford complete relief to appellants. Such joinder in this case promotes trial convenience and prevents the possibility of multiple lawsuits.” League to Save Lake Tahoe, 558 F.2d at 918.
The facts of this case closely parallel League to Save Lake Tahoe. In both, an environmental group alleges that a land management authority has violated a federal duty owed members of the group.' In both, the environmental group seeks to enjoin a third-party developer from despoiling the land during the pendency of the dispute between the environmental group and the agency. In neither case is it clear whether the environmental group has an original cause of action against the developer, but in both cases it is apparent that a decision favorable to the environmental group would impose a duty on the respective agency to enjoin the developer. In the formal alignment of the parties, the developers are denoted as defendants, but substantively they are third-party defendants who could have been impleaded by the federal agencies.
While we concur in the Ninth Circuit’s result in League to Save Lake Tahoe, we subscribe to different reasoning. If Sierra Club had not joined Garfield County as a party, then this would be a paradigm case for applying Fed.R.Civ.P. 19. Under Rule 19(a), an absent party “shall be joined” if:
“(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”
Id. These criteria abound here. Sierra Club cannot hope for complete relief if the County is not enjoined from construction during the pendency of the APA action against the federal defendants. The County claims an interest in the subject of the action, the Burr Trail, and the County’s absence would impede its ability to defend the boundaries and legal uses of its right-of-way. Further, BLM would face a substantial risk of inconsistent obligations if the County, unbound by the outcome in this case, sought declaratory or other relief against BLM at variance with the orders in this case.
Rule 19(a) does not permit joinder if it will deprive the court of subject matter jurisdiction over the action. Joinder here would not defeat jurisdiction, despite Sierra Club’s alleged lack of a right of action against the County. The dispute between the Sierra Club and BLM raises substantial and important issues involving the R.S. 2477 right-of-way and its scope, and whether wilderness study areas are threatened by the County’s proposed improvements. BLM is required by FLPMA to enjoin activities which threaten wilderness study areas. This duty includes expansive powers: “the Secretary shall by regulation or otherwise take any action required” to protect WSAs. FLPMA § 603(c), 43 U.S.C. § 1782(c) (emphasis added). BLM’s statutory powers clearly would encompass the ability to bring an impleader action against the County. BLM’s reluctance to assume the stance of a third-party plaintiff would be irrelevant:
“The plaintiff has the right to ‘control’ his own litigation and to choose his own forum. This ‘right’ is, however, like all other rights, ‘defined’ by the rights of others. Thus the defendant has the right to be safe from needless multiple litigation and from incurring avoidable inconsistent obligations. Likewise the interests of the outsider who cannot be joined must be considered. Finally there is the public interest and the interest the court has in seeing that insofar as possible the litigation will be both effective and expeditious.”
Schutten v. Shell Oil Co., 421 F.2d 869, 873 (5th Cir.1970). It is of no moment that the County formally has been aligned as a defendant rather than a third-party defendant. Substantively, the relief sought and the defenses raised are identical; no party has been prejudiced; and neither the County nor BLM has raised an objection to the misalignment. We thus conclude that, if not joined originally, the County would have been brought in under Rule 19.
Ill
A. Background on Right-of-Way Issue
From 1866 until its repeal by FLPMA in 1976, R.S. 2477 granted a “right of way for the construction of highways over public lands, not reserved for public uses....” According to regulations issued by the Department of the Interior and, after 1946, the Bureau of Land Management, a right-of-way could be obtained without application to, or approval by, the federal government. See 43 C.F.R. § 2822.1-1 (1979). See also 43 C.F.R. § 244.55 (1939). Rather, “[t]he grant referred to in [R.S. 2477] [became] effective upon the construction or establishing of highways, in accordance with the State laws.” 43 C.F.R. § 244.55 (1939).
FLPMA, passed in 1976, vests the Secretary of the Interior with broad authority to manage the federal government’s vast land holdings. The statute departs from the federal government’s earlier policy of giving away public lands, in favor of a philosophy of retention and management to maximize the multitudinous interests in the lands. To that end, FLPMA repeals R.S. 2477 and its open-ended grant of rights-of-way over public lands while explicitly protecting R.S. 2477 rights-of-way in existence on the date of FLPMA’s passage. See FLPMA §§ 509(a), 701(a), and 701(h), codified respectively at 43 U.S.C. §§ 1769(a) and 1701, Savings Provisions (a) and (h). Any new rights-of-way must be obtained under the stricter provisions of FLPMA Subchapter V, codified at 43 U.S.C. §§ 1761-1771. FLPMA also requires the Secretary of the Interior to identify and protect wilderness study areas (WSAs) pending executive decisions on whether to accept WSAs into the Federal Wilderness Preservation System. FLPMA § 603, 43 U.S.C. § 1782.
A major part of this case involves the interplay between FLPMA and preexisting R.S. 2477 grants, such as the Burr Trail. Sierra Club maintained in the district court that the County’s plans for the right-of-way conflict with FLPMA in two ways. Sierra Club first claimed that the plans require significant deviations from the existing right-of-way, constituting, in effect, an attempt to obtain a new right-of-way, and thereby triggering the permit requirements of FLPMA Subchapter V. Sierra Club sought to enjoin the improvements on the Burr Trail until the County obtains a FLPMA permit. Second, Sierra Club contended that the improvements will cause the unnecessary and undue degradation of the Steep Creek and North Escalante Canyons WSAs and will impair their suitability for designation as wilderness, in violation of the Secretary’s duties under FLPMA § 603(c). Sierra Club argued not only that the construction activities and future increased traffic themselves would disturb the WSAs, but also that widening the trail to a twenty-four-foot, two-lane road would exceed the scope of the right-of-way.
The district court rejected most of Sierra Club’s arguments. It found a right-of-way under Utah law which was broad enough in scope to incorporate all of the planned improvements; thus, BLM approval for “new” rights-of-way was unnecessary, since only the preexisting right-of-way was involved. Further, the district court found no threatened impairment of the WSAs’ suitability for wilderness designation. Finally, the district court found, with one exception, that the improvements would not cause “unnecessary or undue degradation” to the WSAs. The exception was the court’s determination that proposed improvements in a riparian area of the Burr Trail known as “The Gulch” would cause unnecessary degradation to the WSAs. Based on a BLM manager’s testimony, the court decided that the County’s improvement of The Gulch portion of the trail would cause less degradation of the WSAs if it were moved out of the County’s right-of-way and onto an immediately adjacent formation — “the bench” — located on BLM land. The court ordered the County to apply to BLM for a permit to move the road onto the bench.
On appeal, Sierra Club raises the same arguments, although it now concedes the existence — but not the scope — of the County’s right-of-way. The defendants reply that (1) the district court correctly relied on Utah law to determine the scope of the right-of-way; (2) under Utah law, all of the proposed improvements fall within the County’s right-of-way and thus are beyond the reach of FLPMA; (3) to the extent that improvements within the preexisting right-of-way would impair the suitability of a WSA for designation as wilderness, the district court properly ruled BLM lacks authority to prevent such impairment; and (4) BLM and the court do not have the authority to replace the County’s R.S. 2477 right-of-way in The Gulch with a new FLPMA right-of-way on the bench. We treat the competing contentions.
B. Controlling Law
BLM and Garfield County propose a two-part standard for measuring the scope of an R.S. 2477 right-of-way:
a) the baseline is the historical extent of use, i.e., the beaten path both as it is now and once existed; plus
b) the right to deviate from the beaten path when “reasonable and necessary” to meet the exigencies of increased travel.
This right to deviate when “reasonable and necessary” is derived entirely from Utah case law.
Sierra Club, in contrast, advocates an “actual construction” standard derived from the federal R.S. 2477 statute, which granted a right-of-way for “the construction of highways.” This standard would measure an R.S. 2477 right-of-way entirely by the actual construction which the right-holder has performed. “Construction” indisputably does not include the beaten path; rather there must be some evidence of maintenance, e.g., grading, drainage ditches, culverts.
The salient issue is whether the scope of R.S. 2477 rights-of-way is a question of state or federal law. The statute itself does not specify whether state or federal law should define the scope of rights-of-way granted thereunder. There is no legislative history to R.S. 2477, and the legislative context of R.S. 2477 sheds little light. R.S. 2477 was originally enacted as section 8 of the Act of July 26, 1866. Congress explicitly adopted state or local law as the rule of decision for sections 1, 2, 5 and 9 of the 1866 Act; just as explicitly, Congress asserted the applicability of federal laws or regulations in sections 7, 10, and 11. The silence of section 8 reflects the probable fact that Congress simply did not decide which sovereign's law should apply.
In the face of such congressional silence, the interpretation given by the federal agency with dominion over the statute’s subject matter carries great weight:
“ ‘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 [94 S.Ct. 1055, 1072, 39 L.Ed.2d 270] (1974).... 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 provision for a reasonable interpretation made by the administrator of an agency.”
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted).
The federal regulations heavily support a state law definition. At least since 1938, the Secretary of the Interior has interpreted R.S. 2477 as effecting the grant of a right-of-way “upon the construction or establishing of highways, in accordance with State laws... 43 C.F.R. § 244.55 (1939). BLM, the Secretary’s designee, has followed this interpretation consistently and has incorporated it in the Bureau’s manual: “State law specifying widths of public highways within the State shall be utilized by the authorized officer to determine the width of the RS 2477 grant.” BLM Manual, Rel. 2-229 at 2801.48B, Brief of Sierra Club, Attachment D. Especially when an agency has followed a notorious, consistent, and long-standing interpretation, it may be presumed that Congress’ silence denotes acquiescence:
“[G]overnment is a practical affair, intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long-continued action of the Executive Department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself, — even when the validity of the practice is the subject of investigation.”
United States v. Midwest Oil Co., 236 U.S. 459, 472-73, 35 S.Ct. 309, 312-13, 59 L.Ed. 673 (1915).
Sierra Club challenges this reliance on BLM’s interpretation. First, it challenges the consistency of BLM’s interpretation of R.S. 2477. It cites a 1980 opinion letter from the Solicitor of the Interior Department stating that “The question of whether a particular highway has been legally established under R.S. 2477 remains a question of federal law.” Opinion Letter of Interior Department Solicitor at 4 (April 28, 1980) (Opinion Letter), Brief of Sierra Club, Attachment B. While this letter admits of at least three possible interpretations, none aids Sierra Club here. One interpretation, which Sierra Club propounds, is that state law plays no role whatsoever in the determination of the existence and scope of R.S. 2477 rights-of-way. This position, however, clearly conflicts with more than four decades of agency precedent, subsequent BLM policy as expressed in the BLM Manual, and over a century of state court jurisprudence. So viewed, the opinion letter would be highly suspect and would deserve little weight. A second reading is that the Solicitor is stating that, as a matter of federal law, the use of the word “construction” in R.S. 2477 imposes actual construction as a baseline requirement for perfection of a right-of-way, a requirement which state law can interpret but cannot disregard or emasculate. See Opinion Letter at 5-11. This reading of the Solicitor’s opinion does not help Sierra Club, however, as it speaks only to what is necessary to perfect an R.S. 2477 right, not the scope of such a right once perfected. Sierra Club does not dispute that an R.S. 2477 right-of-way for the Burr Trail was perfected before passage of FLPMA, even under an “actual construction” standard for perfection. The third possible reading of this letter would return us to BLM’s regulations: as a matter of federal law, state law has been designated as controlling. This third reading, we think, is most consonant with reason and precedent.
Sierra Club also contends that decisions in this and the Ninth Circuit reject the use of state law in R.S. 2477 cases, citing United, States v. Gates of the Mountains Lake-shore Homes, Inc., 732 F.2d 1411, 1413 (9th Cir.1984), and City & County of Denver v. Bergland, 517 F.Supp. 155, 190 n. 45 (D.Colo.1981), aff'd in part, rev’d in part on other grounds, 695 F.2d 465 (10th Cir.1982). Neither of these cases supports Sierra Club. The holding of Gates of the Mountains is quite narrow, simply that R.S. 2477 is inapplicable to rights-of-way for utility lines because Congress has separately legislated in that area. 732 F.2d at 1413. Indeed, Gates of the Mountains acknowledges in dicta:
“The scope of a grant of federal land is, of course, a question of federal law. United States v. Oregon, 295 U.S. 1, 28 [55 S.Ct. 610, 621, 79 L.Ed. 1267] ... (1935). But in some instances ‘it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances.’ Id.”
732 F.2d at 1413. Bergland, as well, is too narrow to be on point, insofar as it deals with the choice of law under a 1905 act of Congress, and not with R.S. 2477. See 517 F.Supp. at 190 n. 45.
The next of Sierra Club’s arguments is the most troubling. It contends that a “reasonable and necessary” standard violates FLPMA’s policy of “freezing” rights of way at their October 21, 1976 width. See FLPMA §§ 509(a), 701(a) and 701(h), 43 U.S.C. §§ 1769(a), 1701 Savings Provisions (a) and (h). Although these savings provisions are phrased in terms of protecting existing “rights” and not existing “widths,” Sierra Club’s point is a good one. The Bullfrog Marina could become so popular that an eight-lane superfreeway becomes “reasonable and necessary.” The superfreeway would represent an expansion of the right-of-way far beyond the use and width existing at the time of FLPMA’s passage, and such expansion arguably would violate the “freeze” on existing rights. This concern, however, addresses not the choice of governing law, but the construction this court will put on it, which we discuss below.
Sierra Club urges finally that the analytic framework of Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979), supports the use of federal law. Under this analysis, the choice of federal or local law depends on three factors: “whether there is need for a nationally uniform body of law to apply in situations comparable to this, whether application of state law would frustrate federal policy or functions, and the impact a federal rule might have on existing relationships under state law.” Id. at 672-73, 99 S.Ct. at 2540; see also United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-28, 99 S.Ct. 1448, 1457-58, 59 L.Ed.2d 711 (1979); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1341 n. 11a (10th Cir.1982).
The first of the Wilson factors — the need for uniformity — provides only minimal support for the choice of federal law. FLPMA admittedly embodies a congressional intent to centralize and systematize the management of public lands, a goal which might be advanced by establishing uniform sources and rules of law for rights-of-way in public lands. The policies supporting FLPMA, however, simply are not relevant to R.S. 2477’s construction. It is incongruous to determine the source of interpretative law for one statute based on the goals and policies of a separate statute conceived 110 years later. Rather, the need for uniformity should be assessed in terms of Congress’ intent at the time of R.S. 2477's passage. Cf. Leo Sheep Co. v. United States, 440 U.S. 668, 681-82 & n. 18, 99 S.Ct. 1403, 1410-11 & n. 18, 59 L.Ed.2d 677 (1979). Sierra Club advances no policies from 1866 that would demand uniformity.
The second Wilson factor — whether application of state law would frustrate federal policy or functions — favors the continued use of state law. The adoption of a federal definition of R.S. 2477 roads would have very little practical value to BLM. State law has defined R.S. 2477 grants since the statute’s inception. A new federal standard would necessitate the remeasurement and redemarcation of thousands of R.S. 2477 rights-of-way across the country, an administrative duststorm that would choke BLM’s ability to manage the public lands.
The third Wilson factor strongly supports the use of state law, as imposing a federal definition of R.S. 2477 rights-of-way would undermine the local management of roads across the western United States. Although “[n]o direct statistics exist cataloging R.S. 2477 public highways,” such roads are major components of the transportation systems in most western states. See Brief of Amicus Curiae National Association of Counties at 4-7. Over the past 125 years, each western state has developed its own state-based definition of the perfection or scope of the R.S. 2477 grant, either by explicitly declaring R.S. 2477 to incorporate state law or by simply expounding its own law. We are not aware of any state that even considered the possibility of a federal rule. That a change to a federal standard would adversely affect existing property relationships squarely refutes Sierra Club’s allegation that the use of a state law standard unfairly prejudices the federal government. R.S. 2477 rightholders, on the one hand, and private landowners and BLM as custodian of the public lands, on the other, have developed property relationships around each particular state’s definition of the scope of an R.S. 2477 road. The replacement of existing standards with an “actual construction” federal definition would disturb the expectations of all parties to these property relationships.
Having considered the arguments of all parties, we conclude that the weight of federal regulations, state court precedent, and tacit congressional acquiescence compels the use of state law to define the scope of an R.S. 2477 right-of-way.
C. Scope of the Right-of-Way
Determining the scope of the Burr Trail right-of-way requires us to ascertain Utah law and to apply that law to the uses of the Burr Trail.
A Utah statute enacted in 1963 provides: “The width of rights-of-way for public highways shall be such as the highway authorities of the state, counties, cities or towns may determine for such highways under their respective jurisdiction.” Utah Code Ann. § 27-12-93 (Replacement Volume 1984). On June 15, 1987, the Garfield County Commission acted for apparently the first time under § 27-12-93, establishing a uniform width of 100 feet for all R.S. 2477 roads in the County. This determination has no effect, however, for FLPMA preserved only preexisting rights-of-way as they existed on the date of passage, October 21, 1976. Thus, Garfield County’s rights, as they existed under Utah law on that date, are the maximum rights it can exercise today. Garfield County, not having established a right-of-way width under the 1963 act before passage of FLPMA in 1976, is limited, we hold, to the width permitted by state law as of that date.
The district court held that Utah case law defined the width of an R.S. 2477 right-of-way “to be that which is reasonable and necessary for the type of use to which the road has been put.” 675 F.Supp. at 607 (citing Lindsay Land & Live Stock Co. v. Chumos, 75 Utah 384, 285 P. 646, 649 (1929)). The district court noted further that the Utah Supreme Court
“has also said that rights-of-way should not be restricted to the actual beaten path, but should be widened to meet the exigencies of increased travel. More specifically, they should be wide enough to allow travelers to pass each other. Whitesides v. Green, 13 Utah 341, 44 P. 1032, 1033 (1896).”
675 F.Supp. at 607. Thus, under Utah common law, the road could be widened as necessary to meet the exigencies of increased travel, at least to the extent of a two-lane road.
We believe the “reasonable and necessary” standard must be read in the light of traditional uses to which the right-of-way was put. Surely no Utah case would hold that a road which had always been two-lane with marked and established fence lines, could be widened to accommodate eight lanes of traffic without compensating the owners of property that would be destroyed to accommodate the increased road width. Rights-of-way are a species of easements and are subject to the principles that govern the scope of easements. See J. Cribbett, Principles of the Law of Property at 273-74 (1962). Utah adheres to the general rule that the owners of the dominant and servient estates “must exercise [their] rights so as not unreasonably to interfere with the other.” Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 158 (1946). See Nielson v. Sandberg, 105 Utah 93, 141 P.2d 696, 701 (1943) (an easement is limited to the original use for which it was acquired).
Applying the “reasonable and necessary” standard in light of traditional uses does not mean, however, that the County’s right-of-way is limited to the uses to which the Burr Trail was being put when it first became an R.S. 2477 road. R.S. 2477 was an open-ended and self-executing grant. Under the BLM regulations, the right-of-way became effective upon construction or establishment by the state, see, e.g., 43 C.F.R. § 2822.2-1 (1979); and “no action on the part of the [federal] Government [was] necessary.” See, e.g., id. at § 2822.1-1. Because the grantor, the federal government, was never required to ratify a use on an R.S. 2477 right-of-way, each new use of the Burr Trail automatically vested as an incident of the easement. Thus, all uses before October 21, 1976, not terminated or surrendered, are part of an R.S. 2477 right-of-way. As there is no contention or evidence of termination or surrender in this case, the County’s right-of-way as of the repeal of R.S. 2477 on October 21, 1976, was that which was “reasonable and necessary” for the Burr Trail’s preexisting uses.
The district court opinion recited several pre-October 21, 1976, uses: driving livestock; oil, water, and mineral development; transportation by County residents between Bullfrog and other cities in Garfield County; and, at least since 1973, access for tourists to Bullfrog Marina on Lake Powell. 675 F.Supp. at 597 & n. 4. These findings of fact are not clearly erroneous and must be affirmed. Fed.R.Civ.P. 52. Thus, the scope of Garfield County’s right-of-way is that which is reasonable and necessary to ensure safe travel for the uses above-mentioned, including improving the road to two lanes so travelers could pass each other.
We do not read the district court opinion as deciding the precise width of the easement or that it could be widened in the future to accommodate perceived needs developing after 1976. The court found only that the width was sufficient to accommodate the contemplated widening to two lanes proposed by the County. We do not have before us sufficient facts to determine whether a reasonable need existed in 1976 with respect to the Burr Trail to require some particular width beyond that needed for the presently planned improvements. See Hunsaker v. State, 29 Utah 2d 322, 509 P.2d 352 (1973). Thus, we also do not decide the precise width of this road easement held by the County.
D. The County’s Proposal
Sierra Club alleges that the County’s proposed improvements will deviate illegally from the scope of the Burr Trail right-of-way in two ways: (a) they will extend the roadway and its accoutrements (e.g., ditches, culverts) physically beyond the boundaries of the existing right-of-way; and (b) they will make the road suitable for intended uses not in existence on October 21, 1976, and therefore not protected by FLPMA’s savings clauses. Sierra Club’s argument depends largely on an “actual construction” definition of the right-of-way; the correct “reasonable and necessary” definition fixed as of October 21, 1976, which the district court applied, and which we have affirmed, seriously undercuts Sierra Club’s position.
The district court determined that constructing a two-lane gravel road, with adjoining culverts and ditches, is reasonable and necessary to assure safe travel on the Burr Trail. 675 F.Supp. at 606-07. The court condoned the proposed drainage ditches and culverts as “[s]ound engineering practice” and hence “part of the reasonable and necessary use.” Id. at 607. “[E]ven allowing for these drainage ditches, the project falls within the right-of-way as prescribed by Utah law.” Id. The district court further found that “the project is entirely consistent with the historic physical alignment of the road. The proposed deviations [from the established roadway] are minor in relation to the realignments which have been made in the past in response to flooding and rock slides.” Id. Finally, the intended use for the proposed road — the promotion of economic development — was found to square with the Burr Trail’s historic uses, including service as “a vital link between the county’s major centers of activity,” id. at 608.
As the district court correctly notes, Tenth Circuit precedent requires “that the initial determination of whether activity falls within an established right-of-way is to be made by the BLM and not the court”. 675 F.Supp. at 606 (citing City & County of Denver v. Bergland, 695 F.2d at 481). The district court based its findings of fact largely on the testimony and exhibits of several BLM experts, which in turn were based on an extensive field study by BLM of the proposed improvements. The field study resulted in a BLM staff report in which the BLM District Manager found that the entire proposal fell within the right-of-way.
On appeal, we will not disturb findings of fact unless clearly erroneous. As Sierra Club does not demonstrate clear error in the district court’s finding that the proposed improvements fall within the scope of the right-of-way, we afffirm it.
E. Impact on Wilderness Study Areas
Approximately thirty percent of the proposed improvements will occur on sections of the Burr Trail that are bounded by two wilderness study areas. As the district court explained:
“Wilderness Study Areas are governed by [FLPMA], 43 U.S.C. §§ 1701 et seq. Under the Act, all roadless areas of 5,000 acres or more which meet the criteria of the 1964 Wilderness Act are to be designated WSAs. [To qualify as a WSA under the Wilderness Act, the area must have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable, and must have outstanding opportunities for solitude or a primitive and unconfined type of recreation. 16 U.S.C. § 1131 et seq.] Within fifteen years, the BLM is to review each WSA and recommend to the President whether it should be classified as a Wilderness Area. Ample opportunity for public comment exists throughout this recommendation period. The President will then make his own recommendation to Congress which makes the final decision. [FLPMA § 603,] 43 U.S.C. § 1782.”
675 F.Supp. at 608 (bracketed material appeared as footnote in district court opinion). FLPMA expressly requires the Secretary to protect WSAs during the review process, by creating two distinct duties of conservation: (1) a “nonimpairment” duty — to manage the WSAs “in a manner so as not to impair the suitability of such areas for preservation as wilderness ...;” and (2) a “nondegradation” duty — to “take any action required to prevent unnecessary or undue degradation of the [WSAs] and their resources_” FLPMA § 603(c).
The Secretary’s conservation duties potentially interfere with nonfederal right-holders’ ability to enjoy property interests on or adjacent to WSAs. Congress partially resolved this conflict by permitting “existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976.” FLPMA § 603(c). Congress did not include rights-of-way in this provision, presumably because “Congress did not contemplate the presence of rights-of-way in WSAs since, by definition, WSAs are road-less areas.” 675 F.Supp. at 609 n. 38. Rights-of-way nevertheless receive protection from the savings provisions in FLPMA §§ 509(a), 701(a) and 701(h), 43 U.S.C. § 1769(a); 43 U.S.C. § 1701 Savings Provisions (a) and (h). It is unclear from FLPMA how these savings provisions interact with the Secretary’s conservation duties under § 603(c).
BLM issued regulations to address the statute’s lack of clarity. See Interim Management Policy and Guidelines for Land Under Wilderness Review (“IMP”), 44 Fed.Reg. 72,014 (1979); see also, e.g., Interim Management Policy and Guidelines (“Revised IMP”), 48 Fed.Reg. 31, 854 (1983) (amendments to original IMP). The IMPs establish guidelines to determine whether the use or development of private interests in public lands illegally threatens WSAs. The IMPs define three types of rights, two of which are relevant to this case: “grandfathered uses,” which are the three uses— mining, grazing, and mineral leasing — explicitly protected by § 603(c); and “valid existing rights,” which refer to those rights protected by § 701(h). See IMP, 44 Fed.Reg. at 72,015-17; Revised IMP, 48 Fed.Reg. at 31,854-55. Rights-of-way protected by FLPMA qualify as valid existing rights under the IMPs. Id.
The IMP and the Revised IMP permit impairment of WSAs resulting from activities pursued under grandfathered uses or valid existing rights:
“Valid existing rights limit the nonimpairment standard. Although the nonimpairment standard remains the norm, valid existing rights that include the right to develop may not be restricted to the point where the restriction unreasonably interferes with the enjoyment of the benefit of the right. Resolution of specific cases will depend upon the nature of the rights conveyed and the site-specific conditions involved. When it is determined that the rights conveyed can be exercised only through activities that will impair wilderness suitability, the activities will be regulated to prevent unnecessary or undue degradation. Nevertheless, even if such activities impair the area’s wilderness suitability, they will be allowed to proceed.”
Revised IMP, 48 Fed.Reg. at 31,854-55 (emphasis added). However, these activities are subject to the rule that they may not degrade WSAs unnecessarily or unduly. 44 Fed.Reg. at 72,015; 48 Fed.Reg. at 31,855. A BLM district manager testified that BLM construes the nondegradation rule to mean that “all projects must employ the latest available technology and the least degrading alternatives.” 675 F.Supp. at 610.
Relying on § 603 and the IMPs, the district court held that insofar as the County’s proposal was reasonable and was pursuant to a valid existing right, construction could proceed even if it impaired the adjoining WSAs’ suitability for wilderness designation:
“Reasonable use of the Burr Trail includes the right to a safe, two-lane gravel road of sufficient construction to accommodate regular traffic. All of the construction now proposed is reasonable under Utah law. Thus, the BLM may restrict the project under FLPMA only if it unduly degrades the WSAs. Impairment alone is insufficient to trigger regulation.”
675 F.Supp. at 609 (footnote omitted). The district court also found that the proposal would not unnecessarily or unduly degrade the WSAs, except in the riparian Gulch. As to The Gulch, the district court decided that
“traffic and periodic maintenance work in the riparian area of The Gulch will have an impact on the WSA sufficient to invoke the FLPMA requirement that all work done be the least degrading alternative. ... [M]oving the road out of the riparian area in The Gulch up onto the bench on the right will result in less disturbance to the riparian habitat and will prevent flooding of the road.”
Id. at 611. Because the bench sits outside the County’s R.S. 2477 right-of-way, the district court ordered the County “to apply for [a FLPMA] permit and to work with BLM to develop the least degrading alternative for The Gulch area.” Id.
Both sides of the controversy object to aspects of the district court’s decision. Sierra Club raises two objections to the district court’s decision. First, it challenges the district court’s findings that the improvements are consistent with the “conditions, stipulations or limitations stated in the law ... that created the right,” Revised IMP, 48 Fed.Reg. at 31,854, and that they thus qualify as valid existing rights exempt from the nonimpairment standard. Sierra Club argues:
“When the County began some construction work on the Burr Trail in 1984, the Utah State Director of BLM advised it that ‘At the present time it would appear that any change of the existing alignment would not meet the non-impairment provision of IMP or the R.S. 2477 terms.’ Ex. DG-55, Add. 34, at p. 1. In his letter, the State Director took exactly the same position as does Sierra Club in this case: ‘... it is difficult to determine how extensive maintenance can progress and not violate the terms of the grant.’ Id.”
Brief of Sierra Club at 35. We agree with Sierra Club that the opinion of the State Director of BLM deserves deference, but this paraphrased quotation falls short of the quantum of evidence necessary to demonstrate that the district court’s factual findings were clearly erroneous, especially considering the mass of testimony and exhibits presented to the district court, as well as on-site inspection which it conducted.
Sierra Club secondly contends that “valid existing rights,” including rights-of-way, are subject to the nonimpairment standard regardless of how they are exercised. This argument perhaps is supported by the plain language of § 603(c), which explicitly exempts from the nonimpairment standard only the aforementioned “grandfathered uses” — mining, grazing, and mineral leasing. See also Rocky Mountain Oil & Gas Association v. Watt, 696 F.2d 734, 749 (10th Cir.1982) (“The grandfather clause provides a limited exception to the nonim-pairment standard for three types of activities: mining and grazing uses and mineral leasing”). We nevertheless uphold the district court’s conclusion that valid existing rights are exempt from the nonimpairment standard. In Rocky Mountain we determined only whether certain activities qualified as grandfathered uses and, if so, the permissible manner and degree of impairing exercises of those grandfathered uses. But we did not consider whether by implication other types of rights might fall within § 603(c)’s exemption. Specifically, we did not have cause to reconcile FLPMA’s savings provisions (§§ 509(a), 701(a) and 701(h)) with the nonimpairment standard. We must do so in this case.
The conflict between FLPMA’s savings provisions and the nonimpairment standard of § 603(c) constitutes a latent ambiguity in the statute. “Where the statute is ambiguous, we must afford deference to the interpretation given the statute by the agency charged with its administration. The administrative interpretation need only be a reasonable one to be accepted, even though there may be another equally reasonable interpretation.” Rocky Mountain, 696 F.2d at 745 (citing Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), and Brennan v. Occupational Safety & Health Commission, 513 F.2d 553, 554 (10th Cir.1975)). Here, BLM, in its Interim Management Policies, reconciled FLPMA’s express protection of valid existing rights with the conservation duties under § 603(c) by analogizing the valid existing rights to the grandfathered uses and affording them the same protections. We uphold this interpretation as a reasonable one. The accommodation reached in § 603(c) for grandfathered uses reflects the common law of easements and profits. The exemption from the nonimpairment standard ensures that the federal government’s new uses of its servient estate — the creation of WSAs — do not eviscerate the County’s dominant estate. At the same time, § 603(c) proscribes uses of the dominant estate that unreasonably interfere with (i.e., unnecessarily or unduly degrade) the servient estate. Valid existing rights such as R.S. 2477 rights-of-way also constitute preexisting easements and logically should be accorded treatment similar to grandfathered uses. We uphold the IMP’s exemption of valid existing rights from the nonimpairment standard.
BLM contests the district court’s order that the County apply for a FLPMA permit to move the road from The Gulch up onto the adjacent bench. BLM argues that the County should not be “compelled unwillingly to accept the markedly different rights conferred by a FLPMA right-of-way permit in place of its current R.S. 2477 grant.” Brief of Federal Defendants at 38. We agree that the County cannot be forced to give up its right-of-way, and indeed FLPMA § 509(a), 43 U.S.C. § 1769, expressly states that. This point, however, does not defeat the order. The court held that the County’s proposal for The Gulch area would unreasonably or unduly degrade the adjacent WSA; according to the record, these effects exist for nearly a mile and affect 3,430 acres of the North Escalante Canyons WSA. Based upon a BLM manager’s testimony, the court found there would be less degradation of the WSA if the road were moved on to the adjacent bench located on BLM land.
Although the district court ordered the County to apply to BLM for a permit to move the road, we do not construe that order to mean that BLM may deny the permit, or impose conditions it might on ordinary right-of-way requests under FLPMA which would keep the County from improving the road. Rather, the effect of the order is to require BLM to specify where on the bench the road should be located in order that it make the least degrading impact on the WSA, the court having already determined that location on the bench would be less degrading than in The Gulch. If the results of the NEPA study which we order in Part IV so indicate, perhaps BLM can convince the district court through a motion for reconsideration that it was wrong to order the move to the bench. But we are satisfied that BLM and the court must allow the road improvement in one place or the other. So construed, we have no problems with the court’s order.
Sierra Club argues that the substitution of rights-of-way is moot since the County already has applied to BLM for a FLPMA permit. We disagree. Although the County has sought such a permit, it has not abandoned its right-of-way through The Gulch.
IV
A. Applicability of NEPA
Sierra Club contends that BLM has not complied with § 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S. C. § 4332(2)(C). NEPA seeks only to assure that environmental factors are considered in a meaningful manner before an agency commits to a major action:
“NEPA has twin aims. First, it ‘places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’ Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its de-cisionmaking process. Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. Rather, it required only that the agency take a ‘hard look’ at the environmental consequences before taking a major action. The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.”
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983) (citations omitted). To this end, NEPA requires federal agencies to prepare a detailed environmental impact statement (EIS) before undertaking “major Federal actions significantly affecting the quality of the human environment....” NEPA § 102(2)(C). The presence of a major federal action triggers a duty on the part of the agency to issue a full-fledged EIS, unless it concludes that the action will have no significant environmental impact.
It is well established that “[t]he initial determination concerning the need for an EIS lies with the agency.” City of Aurora v. Hunt, 749 F.2d 1457, 1468 (10th Cir.1984). We review an agency’s determination for “reasonableness.” The agency’s findings on the threshold NEPA issues of major federal action and significant impact “must be reasonable in the light of the mandatory requirements and high standards set by the statute.” Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1249 (10th Cir.1973); see League of Women Voters v. United States Corps of Engineers, 730 F.2d 579, 585 (10th Cir.1984) (applying “the rule of reason” to major federal action); Park County Resource Council, Inc. v. United States Department of Agriculture, 817 F.2d 609, 624 (10th Cir.1987) (same); City of Aurora, 749 F.2d at 1468 (significant impact). “[T]he party challenging the agency’s decision shoulders the burden” of proving unreasonableness. Park County, 817 F.2d at 621.
“Reasonableness” is essentially a legal conclusion, and thus we review de novo the district court’s ruling except to the extent the ruling turns on subsidiary factual findings. We apply a clearly erroneous standard of review to factual findings by the district court based on evidence or testimony adduced at trial. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
The need for NEPA study hinges on the presence of major federal action, a term which NEPA does not define. The Council on Environmental Quality (CEQ), however, has issued regulations defining the term, and, as the Supreme Court has stated, “CEQ’s interpretation of NEPA is entitled to substantial deference.” Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). These regulations establish that major federal action encompasses not only actions by the federal government but also actions by nonfed-eral actors “with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18 (emphasis added). “Non-federal” major federal action refers, inter alia, to activities “regulated or approved by federal agencies,” id. at § 1508.18(a), including “[ajpproval of specific projects such as construction ... activities located in a defined geographic area,” id. at § 1508.18(b)(4). Such approval may occur through “permit or other regulatory decision as well as federal and federally assisted activites.” Id. A leading commentator has observed: “[T]he distinguishing feature of ‘federal’ involvement is the ability to influence or control the outcome in material respects. The EIS process is supposed to inform the decision-maker. This presupposes he has judgment to exercise. Cases finding ‘federal’ action emphasize authority to exercise discretion over the outcome.” W. Rodgers, Environmental Law 763 (1977).
The touchstone of major federal action, in the context of the case before us, is an agency’s authority to influence significant nonfederal activity. This influence must be more than the power to give nonbinding advice to the nonfederal actor. See, e.g., Almond Hill School v. United States Department of Agriculture, 768 F.2d 1030, 1039 (9th Cir.1985) (no federal action where federal officials constituted minority of state advisory board which had power to recommend but not to act); Atlanta Coalition on the Transportation Crisis, Inc. v. Atlanta Regional Commission, 599 F.2d 1333, 1344-47 (5th Cir.1979) (federal funding assistance for local planning process does not constitute major federal action, where all “decisions are entrusted to the state and local agencies”). Rather, the federal agency must possess actual power to control the nonfederal activity. In the Tenth Circuit, we have found major federal action in nonfederal activities, such as the filing of documents with a federal agency, when the filing is a necessary but insufficient step to gain eligibility to apply for federal funds for a nonfederal project, Scenic Rivers Association v. Lynn, 520 F.2d 240, 243-44 (10th Cir.1975), reversed on other grounds, 426 U.S. 776, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976), and an agency’s approval of an Indian tribe’s lease of its lands to nonfederal lessees, Davis v. Morton, 469 F.2d 593, 596-98 (10th Cir.1972).
The question in the instant case thus becomes whether BLM either has exercised control over the County’s major road improvement project or has the authority and duty to do so. The district court held there was major federal action here because BLM undertook several actions to ensure that the County’s construction proposal did not exceed the scope of the R.S. 2477 right-of-way through public lands. We are not persuaded, however, that these activities, standing alone, constitute major federal action. These activities were only consistent with BLM’s duty to insure that the County does not act outside its authority or beyond the boundaries of its right-of-way. As protector of public lands, BLM no doubt should have attended County planning meetings and reviewed whether the construction fell within the County’s right-of-way (including physical inspections and staking, if necessary to check compliance). When it found the County had strayed from its proper right-of-way boundaries, it should have required rerouting, as it did. The monitoring activities to prevent the County from exceeding its authority to improve or constructing outside its right-of-way do not amount to authority to regulate or approve significant aspects of the Burr Trail construction. Except in The Gulch, where the district court required a move to avoid undue degradation of a WSA, the County no longer plans to deviate from its right-of-way; thus BLM no longer has the authority under FLPMA Subchapter V to challenge the County’s action on this basis.
We do find major federal action, however, in another aspect of BLM’s responsibilities under FLPMA as applied to the County’s proposed road improvement project. BLM’s duty under FLPMA § 603(c) and its regulations, to prevent unnecessary degradation of WSAs from these changes in the right-of-way, injects an element of federal control for required action that elevates this situation to one of major federal action. When dealing with defining boundaries of public lands or existing rights-of-way, BLM has no power to designate alternatives or deny nonfederal actors a course of action. The same is true as to improvements on R.S. 2477 rights-of-way that do not affect WSAs or implicate other federal duties containing some measure of discretion. But as to improvement on rights-of-way affecting WSAs, while BLM may not deny improvements because they impair WSAs, it retains a duty to see that they do not unduly degrade. The IMP regulation we have upheld states: “When it is determined that the rights conveyed can be exercised only through activities that will impair wilderness suitability, the activities will be regulated to prevent unnecessary and undue degradation.” Revised IMP, 48 Fed.Reg. at 31,855 (emphasis added). Thus, when a proposed road improvement will impact a WSA the agency has the duty under FLPMA § 603(c) and the regulation to determine whether there are less degrading alternatives, and it has the responsibility to impose an alternative it deems less degrading upon the nonfederal actor. While this obligation is limited by BLM’s inability to deny the improvement altogether, it is sufficient, we hold, to invoke NEPA requirements.
That BLM may be somewhat reluctant to exercise its regulatory authority under FLPMA § 603(c) does not make any difference. Even if we accept BLM’s assertion that its activity amounts to “nonaction” for purposes of NEPA § 102(2)(C), CEQ’s regulation directly addresses such failures to act: “[Major Federal] Actions include the circumstance where the responsible officials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action.” 40 C.F.R. § 1508.18.
We are unpersuaded by BLM’s reliance on two decisions from other circuits in which no major federal action was found, Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C.Cir.1980), and State of Alaska v. Andrus, 591 F.2d 537 (9th Cir.1979) (the “wolf-kill cases”). Both cases involved a decision of the Secretary of the Interior not to exercise its permissive authority under FLPMA § 302(b), 43 U.S.C. § 1732(b), to regulate a state-sponsored wolf-kill on federal land. Wrote one of the courts, “[I]f the agency decides not to act, and thus not to present a proposal to act, the agency never reaches a point at which it need prepare an impact statement.” Defenders of Wildlife, 627 F.2d at 1244. The D.C. Circuit concluded, “No agency could meet its NEPA obligations if it had to prepare an environmental impact statement every time the agency had power to act but did not do so.” Id. at 1246.
In the wolf-kill cases, the federal agency received the following instructions:
“(T]he Secretary concerned may designate areas of public lands and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law.”
FLPMA § 302(b), 43 U.S.C. § 1732(b) (emphasis added). The D.C. Circuit described the Secretary’s duty as “cautious and limited permission to intervene in an area of state responsibility and authority....” Defenders of Wildlife, 627 F.2d at 1250. This characterization derived in part from § 302(b)’s use of the permissive “may” rather than the mandatory “shall.” Id. Thus, under § 302(b), the Secretary had the option but not the duty to control nonf ederal action.
In contrast, the Secretary’s nondegradation duty toward WSAs is mandatory. Section 603(c) states: “[I]n managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources....” FLPMA § 603(c), 43 U.S.C. § 1782(c) (emphasis added). CEQ regulations emphasize that the nondegradation duty applies to “grandfathered uses and to all other activities. IMP, 44 Fed.Reg. at 72,015 (emphasis added). “Other activities” include valid existing rights-of-way, which “will be regulated to prevent unnecessary or undue degradation.” Revised IMP, 48 Fed.Reg. at 31,855.
We are not persuaded by BLM’s concerns that a finding of major federal action in this case will chill cooperation between BLM and private rightholders. If a statute requires a federal agency to regulate a local activity, the local actor’s refusal to cooperate with the agency is just as irrelevant to a finding of major federal action as is the agency’s, refusal to act.
There is also no merit in the amicus curiae’s argument that a finding of major federal action in this case would force BLM to “federalize” all local road projects, regardless of size or impact. First, the authority exists only under FLPMA § 603 and hence applies only to road projects that impact WSAs. Further, major federal action has two components: “major” and “federal.” The scope of each project must be evaluated in terms of its impact; as CEQ regulations recognize, “major” federal action does not have a meaning completely independent of significant impact. See 40 C.F.R. § 1508.18. At this stage of the NEPA analysis, we must make a preliminary finding akin to “probable cause,” whereby we determine if the project is sufficiently major in scope to trigger NEPA. The project in this case runs ten miles along one WSA and twelve miles along another, with some sections affecting both. It involves realignments, widening, considerable blasting, a significant improvement in the quality of the road surface, and large increases in future traffic. Surely that much work is a major project.
B. Requirements for an Environmental Assessment
Because private road projects affecting WSAs have been neither categorically exempted from NEPA study requirements nor identified as always requiring a full-fledged environmental impact statement (EIS), the law requires BLM to prepare an environmental assessment (EA). See 40 C.F.R. at §§ 1501.4(b), 1508.9. An EA is designed to determine if significant impact exists. If it does, then the agency must prepare an EIS before taking the action, see id. at § 1501.4(c); if it does not, then the agency shall issue a finding of no significant impact (FONSI), see id. at §§ 1501.4(e), 1508.13.
The district court found as fact that BLM did not prepare an EA for this project. See 675 F.Supp. at 604. The district court nevertheless excused BLM’s failure to prepare an EA:
“Neither an EIS nor an Environmental Assessment has been prepared for the present project. Nonetheless, the court is confident that the evidence and testimony presented at trial are sufficient for the court to review. The record before the court included a recitation of the decisions the BLM reached before trial and the facts supporting those decisions.”
Id. The district court based its conclusion on its review of expert trial testimony, some previous studies, and a privately prepared Preliminary Management Report on archaeological sites along the Burr Trail. The district court found that “BLM’s finding of no significant impact was well within the bounds of reasoned decision-making and is supported by persuasive evidence.” Id. at 615 (citation omitted).
Sierra Club urges that we automatically order a remand to BLM for a specific EA. BLM agrees with Sierra Club that, assuming major federal action, the district court should have remanded to the agency for an EA instead of entering its own findings of no significant impact. BLM urges us to overlook this error, however, contending that Sierra Club waived the right to challenge the error by requesting below that the district court serve as finder of fact on all matters in the case. It bases this argument on the well-accepted principle that “[o]ne may not on review complain of issues, proof, and variance where such errors were committed or invited by complainant....” Deland v. Old Republic Life Insurance Co., 758 F.2d 1331, 1336 (9th Cir.1985).
We are not persuaded by the waiver argument. First, we doubt that a private party has authority to waive the procedural requirements NEPA imposes on a public agency. Also, our review of the record yields a different understanding of the Sierra Club request on factfinding. Sierra Club’s challenges on the NEPA issues have focused consistently on procedural NEPA violations; Sierra Club’s request neither literally nor implicitly waived its procedural challenges.
On the merits, we agree that the district court’s finding of no significant impact unlawfully usurped the agency’s dominion over that issue. CEQ regulations, which are binding on BLM, see Andrus v. Sierra Club, 442 U.S. at 357, 99 S.Ct. at 2341, unambiguously require the preparation of an EIS, or alternatively an EA followed by either a FONSI or an EIS for all major federal actions that have not been categorically excluded. See 40 C.F.R. § 1501.4. The CEQ regulations reflect NEPA's demand that federal agencies take a "hard look" at the environmental ramifications of their major actions. Baltimore Gas & Electric Co., 462 U.S. at 97-98, 108 S.Ct. at 2252. The Supreme Court has emphasized that it is the agency, not the district court, which is to take that hard look:
"Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions. The only role for a court is to insure that the agency has taken a `hard look' at environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of the action to be taken.'"
Kieppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) (citations omitted). See also City of Aurora, 749 F.2d at 1468 ("The initial determination concerning the need for an EIS lies with the agency."). In the general context of judicial review of administrative action, the Supreme Court has addressed the failure of an agency to create a record:
"If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry."
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed. 2d 643 (1985). See also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 38 L.Ed.2d 106 (1973) (per curiam) (focal point of judicial review should be administrative record, "not some new record made initially in the reviewing court").
At least one circuit has held that an agency's failure to prepare an environmental assessment constitutes reversible error which cannot be cured by district court findings. See LaFlamme v. Federal Energy Regulatory Commission, 842 F.2d 1063, 1070 (9th Cir.1988); The Steamboaters v. Federal Energy Regulatory Commission, 759 F.2d 1382, 1393-94 (9th Cir.1985).
We agree with the Ninth Circuit's view. Agencies are to perform this hard look before committing themselves irretrievably to a given course of action, so that the action can be shaped to account for environmental values. NEPA § 102(2)(C) requires the agency to consider numerous factors: environmental impact, unavoidable adverse effects, alternatives to the proposed action, the relationship between short-term uses and long-term productivity, and irreversible commitments of resources called for by the proposal. These considerations serve to broaden inquiries and expand the range of possible executive action; they fall far outside the court's bailiwick of channeling inquiries and delimiting possibilities into a remedy. Without an administrative record, courts are left to rationalize the agency's decision-a form of review which abandons standards in favor of predilections. "This kind of speculation regarding the basis for an agency's decision not to prepare an EIS is precisely what NEPA was intended to prevent." LaFlamme, 842 F.2d at 1070.
Assumption of these duties by the courts also circumvents NEPA's express policy to involve other agencies and the public in the study process. NEPA § 102(2)(C) provides for broad-based participation:
"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 [APA], and shall accompany the proposal through the existing agency review processes.”
42 U.S.C. § 4332(2)(C). CEQ regulations implement this mandate by requiring that agencies “shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing [environmental] assessments [required by NEPA].” 40 C.F.R. § 1501.4(b). See City of Aurora, 749 F.2d at 1465. The regulations further state that a finding of no significant impact shall be made “available to the affected public” and that the public and other affected agencies shall be involved in NEPA procedures. See id. at §§ 1501.4(e)(1), 1506.6. In circumstances where the action is without precedent, the agency must make a FONSI available to the public and at times must allow “public review ... before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin.” Id. at §§ 1501.4(e)(1), 1501.4(e)(2). The preparation of an EIS also entails similar public and interagency participation. See, e.g., id. at §§ 1503.1(a)(4), 1506.6. This cross-pollinization of views could not occur within the enclosed environs of a courtroom. We must reverse the district court’s finding of no significant impact.
C. Sufficiency of Prior Studies
Garfield County argues that BLM satisfied all NEPA requirements prior to trial. In essence, it challenges the district court’s finding that no EA was prepared for this project. The County maintains that a 1985 EA which studied several alternative improvement proposals for the Burr Trail does, in fact, constitute an environmental assessment of the County’s somewhat different proposal. We cannot find the district court clearly erred in rejecting this position. First, the court reviewed the 1985 EA after seeing the County’s proposal and inspecting construction stakes on the Burr Trail. This first-hand inspection creates a strong presumption of correctness which the County’s arguments do not overcome. Second, the County’s position contradicts BLM’s admission that an EA was not prepared for this project.
Further, the 1985 EA which the County relies upon lacked accurate data on flora along the impacted area. The district court found that “no plant inventory has been prepared along the Burr Trail and no one knows if any [endangered, threatened, or sensitive] plants are present there.” 675 F.Supp. at 614. There was testimony at trial that at least one endangered plant species and perhaps several rare plant species may be found near the Burr Trail. The County argues that Dr. Stanley Welsh, a botanist from Brigham Young University, agreed in his testimony that “the proposed construction would not pose any threat to any listed threatened or endangered species.” Brief of Garfield County at 45 (emphasis in Brief). But Dr. Welsh’s statement was based on the assumption that no endangered species would be demonstrated to exist along the Burr Trail; Dr. Welsh himself acknowledged that no such demonstration has been made “[b]ecause no one has looked.” XXX R. at 71. The County has not demonstrated clear error in the district court’s conclusion that a plant survey is necessary. Thus, a new environmental assessment would have to be issued which incorporates valid plant information.
The need for an EA is moot, of course, if the district court correctly held that the substantial equivalent of an environmental impact statement has been prepared. The County and BLM do not explicitly make this argument in their briefs, but the County made it in oral argument, and it can be implied reasonably from the County’s brief. The County points to several documents which involved some study of various proposals for the Burr Trail: the aforementioned 1985 EA; the Circle Cliffs Combined Hydrocarbon Lease Conversion Draft EIS (Circle Cliffs EIS), Exh. DG-92, Sierra Club Exhibit Add. at tab 39; the Final EIS for Capitol Reef National Park (Capitol Reef EIS), Exh. D-103, Garfield County Exhibit Add. at tab 22; the Transportation Study for Arches, Canyonlands and Capitol Reef National Parks (Transportation Study), Exh. D-54, Garfield County Exhibit Add. at tab 4; the Glen Canyon National Recreation Area Road Study (Glen Canyon Study), Exh. D-37, Garfield County Exhibit Add. at tab 3; and the 1986 Statewide Wilderness Draft EIS, Steep Creek and North Escalante Canyons sections (Statewide EIS), Exh. P-28, Sierra Club Exhibit Add. at tab 12. This court has permitted a related study to serve as the functional equivalent of an EIS, when the other study was “very similar in objectives and in content to an environmental impact statement.” State of Wyoming v. Hathaway, 525 F.2d 66, 72 (10th Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976).
Upon review of these documents, however, we conclude that the studies in this case are not the functional equivalent of an EIS.
(1) The Capitol Reef EIS, supra, assumes that “[i]mproved roads will retain their existing alignments,” Capitol Reef EIS at 37, and thus does not consider the effects of cuts, fills, and blasting. Further, it fails to discuss the environmental consequence of the County’s plans to upgrade the Burr Trail, which it admits will result in substantial increased visitation to the South District of the Park, id. at 37, 70, B-4.
(2) The Transportation Study, supra, mentions the Burr Trail but discusses it only superficially, except to conclude that “[t]he nature of the Waterpocket Fold— the steep topography and instability of the land — makes it unfeasible to substantially upgrade the Burr Trail; instead, this road will be maintained as a gravel road.” Transportation Study at 38. The lack of detail is fatal.
(3) The Glen Canyon Study, supra, is somewhat more detailed, insofar as it describes the proposed construction section-by-section. Glen Canyon Study at 31-35. There nevertheless are three shortcomings. First, although a close fit might exist between the County’s proposal and the project in the Glen Canyon Study, Garfield County has not demonstrated it to this court. Second, it gives only the most cursory discussion of environmental impacts. Finally, the study candidly admits that further “careful study” is needed in at least two places— Deer Creek and The Gulch. Id. at 33.
(4) The Circle Cliffs Draft EIS, supra, is excellent and well might be a resource for the EA and either the FONSI or EIS which we order in this case. Yet it also is insufficient. The Draft EIS is directed toward the development of tar sand deposits in the Burr Trail region. Its discussion of the Burr Trail is too brief to be of use; further, the Burr Trail section addresses impacts which tar sand development would have on the roadway, rather than the impacts which development of the roadway would have on the environment. See Circle Cliffs Draft EIS at 3-45 to 3-49.
(5) Finally, the Statewide EIS, while thorough, treats the Burr Trail improvements too superficially. In the Steep Creek section, it acknowledges the County’s plans “to improve the Boulder to Bullfrog Road by paving to make it an all-weather road.” Statewide EIS at 20. However, its discussion of the impacts is limited to the conclusion that “up to 50 acres could be disturbed due to realignment and paving of the Burr Trail Road.” Id. at 22, 28. The North Escalante Canyons section is even less helpful. In that section, both the “All Wilderness” and “Partial Wilderness” alternatives demur on the impact of Burr Trail improvements: “Depending on the final location and realignment of the Burr Trail Road, there could be conflicts between road construction and protection of wilderness values.” Id. at 39, 42. The “Partial Wilderness” alternative— which was actually adopted — proposed to set back the WSA boundary by .25 mile from the roadway. Id. at 42. Although such a set-back would reduce environmental impacts, it would not eliminate them; thus detailed study should have been conducted.
All of these studies have two overlapping weaknesses: insufficiently detailed discussion of environmental impacts, and the absence of a demonstrated close fit between the County’s proposal and the study’s particular Burr Trail proposal.
The district court, in holding that the functional equivalent of an EIS had been performed, was unable to reach this conclusion without supplementing the aforementioned studies with trial evidence: “Although these reports alone probably would not be the equivalent of a specific EIS for the present project, when they are supplemented by the evidence adduced at trial, the court has no doubt that it has reviewed the substantial equivalent of an Environmental Impact Statement.” 675 F.Supp. at 616. Garfield County urges this court similarly to synthesize studies and trial evidence. We refuse, for the same reasons that we could not accept the district court’s finding of no significant impact. Environmental study is for the agency to conduct in the field, not for the judiciary to construct in the courtroom. The sufficiency of NEPA review must depend on the completeness of the studies themselves.
We order the district court to remand to BLM for an environmental assessment, followed by either a finding of no significant impact or an environmental impact statement. Whatever the shortcomings of the previous studies, on remand BLM will be required to áddress environmental issues affecting only those areas in which, under the law of the case, it still has authority to act. See League of Women Voters, 730 F.2d at 584 (further study unnecessary when “all agency decisions of any significance had already been made”). BLM’s authority is limited to what is relevant to its duty to prevent unnecessary degradation of the WSAs.
The extent to which the new EA relies on the 1985 EA is left to BLM’s discretion and will be reviewable on a reasonableness standard. See National Helium Corp. v. Morton, 486 F.2d 995, 1002 (10th Cir.1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). BLM’s discretion further extends to decisions whether previous related studies are sufficiently relevant to the County’s proposal to merit adoption into the new EA and either the new FONSI or EIS. See 40 C.F.R. §§ 1500.4(n) and (o) (authorizing adoption of other agencies’ documents to eliminate duplication). We of course do not express any opinion on the actions which BLM should take in response to this further study, except to emphasize that it must be consistent with those aspects of the district court’s opinion which have been affirmed.
V
Injunction
We have issued an order continuing an injunction against construction pending determination of this appeal. But we have held here that the NEPA requirements are triggered only by the duty imposed on BLM to prevent undue and unnecessary degradation of the WSAs. The WSAs adjoin the right-of-way for only a portion of the proposed road improvements. Thus, to the extent it can be determined that the road improvement project would not adversely impact the WSAs, it should be permitted to go forward now. We believe the district court, with input from the parties, is in the better position to determine whether any of the road improvement project that does not touch the boundaries of a WSA could possibly unduly or unnecessarily degrade a WSA. We direct that the injunction against construction continue to at least that part of the improvement project that borders the WSAs. We further direct the district court to dissolve the injunction with respect to those parts of the project which neither border a WSA nor will unnecessarily or unduly degrade a WSA. Upon BLM’s compliance with the NEPA requirements in this remand, the County may apply to the district court for complete dissolution of the injunction.
This injunction is justified under traditional principles of equity, as applied in the NEPA context:
"`The basis for injunctive relief is irreparable injury and inadequacy of legal remedies.' Amoco Production Co. v. Village of Gambell, 480 U.s. 531, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). `In each ease, a court must balance the competing claims of injury and must consider the effect on each party of granting or withholding of the requested relief.' Id."
Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988). Here the risk of irreparable harm is impossible to assess, because the studies that would quantify that harm are incomplete. Legal remedies are inadequate, however, because permitting construction to proceed before the NEPA studies have been completed would defeat the purpose of undertaking the studies, whose purpose is to make the agency aware of relevant environmental considerations before acting. Finally, the costs to the County appear to be minimal: The in-jun~ction is shaped to permit construction to commence in areas which neither border nor threaten Wilderness Study Areas, and construction apparently must be interrupted anyway during the hot, dry summer period.
VI
Damages
Garfield County seeks damages against Sierra Club under Fed.R.Civ.P. 65(c), which provides "for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained." Id. The award of damages under R. 65(c) is left to the discretion of the district court. See State of Kansas ex rel. Stephan v. Adams, 705 F.2d 1267, 1269-70 (10th Cir.1983). The district court denied damages, deciding in its discretion that "plaintiffs raised legitimate environmental concerns having a high public interest and litigated in good faith." 675 F.Supp. at 617. Especially in light of our holding that Sierra Club's NEPA claim is meritorious in part, we cannot conclude that the district court abused its discretion.
The County also seeks damages for interference with contractual relations. The district court also denied this claim, finding that "[e]ach side represented a genuine public interest and raised serious questions of law and fact." Id. We cannot find clear error with the district court's finding of fact that Sierra Club had no intent to interfere with the County's construction contract.
We reject the County's contentions on both damages questions.
VII
CONCLUSION
The judgment of the district court is AFFIRMED in part and REVERSED in part. The case is REMANDED for further proceedings in accordance with this opinion.
. R.S. 2477 read in its entirety: "Sec. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
. The County plans eventually to improve the entire sixty-six-mile trail, as well as to pave it. These plans are not part of the current proposal.
. The North Escalante Canyons area formally is known as an “instant study area.” This title refers to the fact that it was designated as a natural or primitive area prior to November 1, 1975, and the Secretary was required to present a recommendation on the area’s wilderness status to the President by July 1, 1980. See BLM Wilderness Inventory Handbook at 3 (1978), Sierra Club Exhibit Add. at tab 19. There is no substantive difference, for purposes of this case, between an instant study area and a wilderness study area. For brevity, we will refer to both the Steep Creek and North Escalante Canyons areas as wilderness study areas.
. On appeal, defendants concede Sierra Club’s standing to bring this suit. We find no merit in the argument of amicus curiae Utah Association of Counties in this regard.
. "Roadless" is defined in the Department of the Interior regulations:
"(e) ‘Roadless area’ means a reasonably compact area of undeveloped Federal land which possesses the general characteristics of a wilderness and within which there is no improved road that is suitable for public travel by means of four-wheeled, motorized vehicles intended primarily for highway use.”
43 C.F.R. § 19.2. "Wilderness characteristics” are listed in § 2(c) of the Wilderness Act:
“c) Definition of wilderness
A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
16 U.S.C. § 1131(c).
. Like the reviewability argument just discussed, this issue was not raised in the district court. But because the existence of a private right of action similarly goes to the subject matter jurisdiction of the court, see Oldfield v. The Athletic Congress, 779 F.2d 505, 508 (9th Cir.1985), we treat the issue to the extent necessary to resolve our authority to decide the merits of the appeals. The procedural context of the argument is troublesome because BLM raises it on behalf of Garfield County; however, since the County and BLM have cooperated closely in this case, we treat the argument as if the County expressly joined in it.
. WSAs are "roadless areas of five thousand acres or more [or] roadless islands of the public lands ... having wilderness characteristics described in the Wilderness Act of September 3, 1964 (78 Stat. 890, 16 U.S.C. § 1131 et seq.). FLPMA § 603(a), 43 U.S.C. § 1782(a).
. The Burr Trail comprises the south boundary of the Steep Creek WSA for approximately ten miles and the north boundary of the North Escalante Canyon WSA for approximately twelve miles.
. The "scope” of a right-of-way refers to the bundle of property rights possessed by the holder of the right-of-way. This bundle is defined by the physical boundaries of the right-of-way as well as the uses to which it has been put.
. We have considered amicus curiae William J. Lockhart’s argument that the Taylor Grazing Act of 1934, 48 Stat. 1269, codified as amended at 43 U.S.C. § 315 etseq., and particularly the amendments to section 7 thereof by the 1936 Act, 49 Stat. 1976, § 2, prevented the County from acquiring a right-of-way. We read the district court's opinion as finding that sufficient use of the Burr Trail existed in 1934 to constitute an R.S. § 2477 right-of-way and that section 6 of the 1934 Act, 43 U.S.C. § 315e, preserved existing rights-of-way. We agree with that conclusion and see nothing in the 1936 amendment to convince us that it should affect our conclusions here.
. Sierra Club also argues that the Nevada and California BLM State Offices have adopted the "actual construction” standard. These opinions are not binding in Utah.
. Given the longstanding regulatory interpretation, we are not persuaded that the law of this case reaches us in such an unsettled posture as to require the Wilson analysis. This line of cases generally addresses situations in which a federal court must cut federal common law from whole cloth. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943). We make the Wilson analysis to fully meet Sierra Club’s arguments and to demonstrate that it does not dictate a different result than that we reach without it.
. See, e.g., Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1226-27 (Alaska 1975); Tucson Consolidated Copper Co. v. Reese, 12 Ariz. 226, 100 P. 777, 778-79 (1909); McRose v. Bottyer, 81 Cal. 122, 22 P. 393, 394-95 (1889); Nicolas v. Grassle, 83 Colo. 536, 267 P. 196, 197 (1928); Tholl v. Koles, 65 Kan. 802, 70 P. 881, 882-83 (1902); Moulton v. Irish, 67 Mont. 504, 218 P. 1053, 1054 (1923); Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901); Wilson v. Williams, 43 N.M. 173, 87 P.2d 683, 685 (1939); Wallowa County v. Wade, 43 Or. 253, 72 P. 793, 794-95 (1903); Pederson v. Canton Township, 72 S.D. 332, 34 N.W.2d 172, 174 (1948); Lindsay Land and Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1930); Smith v. Mitchell, 21 Wash. 536, 58 P. 667, 668 (1899); Town of Rolling v. Emrich, 122 Wis. 134, 99 N.W. 464, 465 (1904); Hatch Bros Co. v. Black, 25 Wyo. 109, 165 P. 518, 519-20 (1917).
The perfection of an R.S. 2477 right-of-way admittedly is a different issue than its scope. However, all of the above-cited cases concern the conflict between an alleged R.S. 2477 right-of-way and a competing claim of right to the land. The cases subsume the question of scope into the question of perfection; and indeed a critical part of many of the state law definitions of perfection included the precise path of the purported roadway. See, e.g., Wilson v. Williams, 43 N.M. 173, 87 P.2d 683, 684 (1939).
. FLPMA § 701(a) recognizes rights-of-way "existing on the date of approval of this Act [October 21, 1976]." See 43 U.S.C. § 1701 Savings Provision (a). See also FLPMA §§ 509(a), 701(h), 43 U.S.C. §§ 1769(a), 1701, Savings Provision (h).
. FLPMA § 603(c) provides in relevant part:
"(c) Status of lands during period of review and determination
During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness, subject, however, to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976: Provided, That, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection."
43 U.S.C. § 1782(c).
. The district court apparently believed that the IMP and its progeny left open the question whether a right-of-way could be extended within its legal scope as defined by state law if the extension impaired a WSA. The court engaged in a complicated analysis of this question, ultimately deciding that the County could make reasonable and necessary improvements of the right-of-way, even if the improvements might impair the adjacent WSAs’ suitability for wilderness designation. See 675 F.Supp. at 609-10. Sierra Club challenges the district court’s analysis and conclusion.
Without following the district court’s approach, we adopt its result. The IMP and the Revised IMP manifestly permit the impairment of WSAs through the reasonable exercise of valid existing rights. The right to make reasonable and necessary improvements within the boundaries of the right-of-way is part of the County’s valid existing rights in the Burr Trail.
. Based on evidence and testimony adduced at trial, the district court expressly found that BLM has undertaken several actions:
(1) attending Garfield County planning meetings;
(2) expressing an opinion, prior to this lawsuit, that the construction falls within the County’s right-of-way;
(3) volunteering to monitor the progress of the construction to assure that the construction remain within the right-of-way and, with prodding from the district court, actually doing so;
(4) physically inspecting the construction site after the County (in response to a district court order) placed stakes along the Burr Trail to identify the boundaries of the project;
(5) concluding in a written report, based on its inspection of the staking, that the project falls within the right-of-way;
(6) requiring the County to reroute the project in the ten areas along the trail where the improvements fell outside the right-of-way (the County complied, rather than attempting to obtain permission for the ten deviations through the FLPMA permit process, Subchap-ter V, 43 U.S.C. §§ 1761-71);
(7) concluding in the same report that the project would not impermissibly intrude on WSAs.
675 F.Supp. 603-04.
. The previous studies included a Statewide Wilderness Draft EIS, a Fish and Wildlife Service Biological Opinion, a 1985 EA which considered five alternative proposals for Burr Trail improvements, and a FONSI which ostensibly resulted from the 1985 EA but actually concerned a new and much less intrusive project, called the "Mott Proposal”. The Mott Proposal, which was suggested by the Director of BLM, varied significantly from the County’s proposal in that it would have required virtually no realignment of the existing roadway.
. The County challenges the district court’s order that "the identified botanical studies be conducted to the BLM’s satisfaction_” 675 F.Supp. at 618. The issue is moot, since BLM already has secured the performance of these studies.
. Normally we review district court factual findings by the clearly erroneous standard. To the extent, however, that subsidiary factual findings in NEPA cases were based exclusively on the administrative record, "we have greater legal freedom to differ with the district court’s ultimate characterization of agency behavior." Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir.1985).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.48, Costs: 0.08
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MAGILL, Circuit Judge.
Gemma Lockhart appeals from an order of the district court granting summary judgment to the government in her action to enjoin the exchange of a parcel of federal land. On appeal, Lockhart argues that the Forest Service's decision to go ahead with the exchange without preparing an environmental impact statement (EIS) was arbitrary and capricious and violated the National Environmental Policy Act (NEPA). Lockhart also argues that the decision to proceed with the exchange violated the first amendment of the Constitution and the American Indian Religious Freedom Act (AIRFA) because the exchange will interfere with the exercise of Lockhart’s religion and because Indian religious leaders were not consulted. Because we find that the Forest Service’s decision was not arbitrary and capricious and did not violate NEPA, AIRFA or the first amendment, we affirm.
I. BACKGROUND
A. The Administrative Process
This action concerns a land exchange between the federal government and Verla Van Etten, the intervenor below. Proceedings have been going on for nearly nine years. On September 22, 1982, Van Etten proposed exchanging 160 acres of land she owned in the Black Hills of South Dakota for 100 acres owned by the Forest Service in another part of the Black Hills. It is this second parcel, located along the edge of Dark Canyon in a rural area near Rapid City, that the parties are arguing about. The purpose of the exchange, from the Forest Service’s point of view, was to consolidate federal lands; the Dark Canyon parcel was surrounded on all sides by private land, whereas the land offered by Van Etten was surrounded on all sides by land that already belonged to the Forest Service. The Van Etten parcel was also particularly desirable to the Forest Service because it is important wildlife habitat. Van Etten wanted to develop the Dark Canyon parcel; she planned to build sixteen luxury homes on it. On October 6, 1983, the Regional Forester issued an environmental assessment (EA) as required by § 254.10 of the Forest Service regulations governing land exchanges, 36 C.F.R. § 254.10(b), to ensure compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331-4347. NEPA requires that an environmental impact statement (EIS) be done for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1988). An agency prepares an EA to determine whether an EIS is required under this standard. The EA concluded that the exchange would have no significant impact on the environment and that therefore no EIS was required. However, the EA stated that approval of the exchange was “in concept only”; final approval was expressly conditioned on completion of studies of cultural and mineral resources with a finding that they would not be significantly affected.
When appraisals showed that Van Et-ten’s land was worth less than the federal land, Van Etten offered an additional eighty-acre parcel in the same area to equalize the land values. On January 3, 1985, the Regional Forester approved the revised exchange proposal and issued a revised EA, again concluding that the exchange would have no significant impact on the environment and that no EIS need be done. During the next month, February, Lockhart and five other Dark Canyon landowners appealed the decision to the Forest Service pursuant to 36 C.F.R. § 211.18. They complained that developing the land would adversely affect the air, water, and soil, would harm wildlife, including endangered and threatened species, and would interfere with Indian religious ceremonies. On June 7, 1985, the Chief of the Forest Service, Max Peterson, remanded the matter to the Regional Forester, saying that the Regional Forester’s approval of the project was “procedurally deficient” because: (1) the proposed exchange of the second parcel of eighty acres had never been publicly advertised, as required by 36 C.F.R. § 254.8; (2) the earlier approval had been contingent on studies of cultural and mineral resources that were never done; and (3) the revised EA did not discuss the environmental impact of Van Etten’s planned use of the land. Chief Peterson also said that the EA ought to discuss the applicable state and county regulations and how they would affect the intended use of the property. On July 9, 1985, the Regional Forester issued a supplemental EA that included the missing studies and other supporting documentation, including the applicable zoning regulations.
In August 1985, Lockhart and two of the other original administrative appellants appealed again. On September 2, 1986, Chief Peterson again sent the case back to the Regional Forester for supplementation of the administrative record under 36 C.F.R. § 211.18(q). The Chief said that because Van Etten’s plans for developing the land had become more definite, the record should be supplemented to consider information about the environmental effect of those plans. In his letter ordering the remand, Chief Peterson said, “[W]é are concerned that the potential environmental consequences ... are not sufficiently discussed” in the EA, and he ordered the Regional Forester “to specifically address the direct effects of Van Etten’s proposal on the soil, water, and air quality on and in the vicinity of the parcel, as well as its indirect effects on highway traffic, esthetics, and forest fire problems.”
On November 4, 1986, the Regional Forester issued an environmental assessment update (EA update or final EA) with a geological study of the land attached. The EA update addressed the issues the Chief had specified, albeit not in great detail. On May 7, 1987, Dale Robertson, the new Chief of the Forestry Service, approved the exchange. When the Secretary of Agriculture declined to review that determination, the decision became final under 36 C.F.R. § 211.18(f)(6). The exchange could not take place, however, because Public Land Order 725 (PLO 725), issued June 4, 1951, had classified the land for public uses and made it illegal for the government to transfer it. An injunction issued in National Wildlife Fed’n v. Burford, 835 F.2d 305 (D.C.Cir.1987), prohibited the government from changing the classification. Therefore, the case was in procedural limbo for some time after the Chiefs decision.
B. Court Proceedings
On August 4, 1987, Lockhart and two other Dark Canyon landowners who had appealed at the administrative level filed this action, alleging violations of NEPA, the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, the Bald Eagle Protection Act, 16 U.S.C. § 668, § 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996, the Federal Land Exchange Acts, 16 U.S.C. §§ 485, 486, 516, 521d, 555a; 42 U.S.C. §§ 1715, 1716; 7 U.S.C. § 1011, and the first and fifth amendments to the federal Constitution. The action sought declaratory and injunctive relief to prevent the Forest Service from proceeding with the exchange unless and until the cited statutes were complied with. The parties stipulated to a stay, however, because of PLO 725 and the injunction in Burford. Then, on November 4, 1988, the D.C. Circuit vacated the Burford injunction, and six months later PLO 725 was revoked with respect to the land in this suit. 54 Fed. Reg. 17,708 (1989) (codified at 43 C.F.R. PLO 6728). .The revocation of PLO 725 became effective May 25, 1989; shortly thereafter, the government announced that it intended to go ahead with the exchange. On July 5,1989, the district court granted a temporary restraining order (TRO) prohibiting the exchange, subject to posting of a $50,000 bond by plaintiffs. When the plaintiffs did not post the bond, the court lifted the TRO and allowed the exchange, subject to the requirement that Van Etten not cause “any physical change or destruction of the environment or property” until the case was over. The exchange occurred on July 7, 1989. The district court granted the government’s motion for summary judgment on September 18, 1989, holding that the agency’s decision not to prepare an EIS was not arbitrary and capricious. Lockhart filed a notice of appeal on November 17, 1989. On appeal, she claims violations only of NEPA, AIRFA, and the first amendment. The other two federal plaintiffs did not appeal.
II. DISCUSSION
We review the district court’s decision de novo. “[T]he appellate court must render an independent decision on the basis of the same administrative record as that before the district court; the identical standard of review is employed at both levels; and once appealed, the district court decision is accorded no particular deference.” Brown v. United States Dep’t of Interior, 679 F.2d 747, 748-49 (8th Cir.1982) (quotation omitted). Under § 706(2)(A) of the Administrative Procedure Act, an informal determination by an agency must be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1988). An agency’s decision not to prepare an EIS is reviewed under this standard. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Goos v. I.C.C., 911 F.2d 1283, 1291-92 (8th Cir.1990).
A. NEPA
NEPA requires that an EIS be done for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). “Affecting” is defined as “will or may have an effect on.” 40 C.F.R. § 1508.3. To determine whether the proposed action “significantly” affects the environment requires consideration of a variety of factors under 40 C.F.R. § 1508.27.
When the federal government exchanges land, it must consider the environmental impact not only of the exchange itself, but also of the proposed use of the federal land once it passes into private hands. National Forest Preservation Group v. Butz, 485 F.2d 408, 411-12 (9th Cir.1973). Therefore, the Forest Service was required to consider the effects of Van Etten’s planned development in determining whether the exchange would significantly affect the human environment.
Lockhart claims that the Forest Service’s decision was arbitrary and capricious because the Service did not properly consider the factors enumerated in § 1508.27. She argues that the project significantly affects the environment and that therefore an EIS is required. While we agree that the agency’s consideration of some points was not as careful as it could have been, we cannot say that the Forest Service’s consideration of environmental factors was so deficient as to make its decision arbitrary and capricious. We now address Lockhart’s specific contentions.
1.Water Quality
Lockhart contends that effluent from the sewage systems of the houses to be constructed could seep through the ground and through rock fissures into the aquifer that supplies water to her and her neighbors, or could seep onto the walls of Dark Canyon. From the canyon it would drip down into Rapid Creek, directly below, which is the water supply for Rapid City. The study submitted with the final EA of November 1986 discusses possible problems with sewage disposal and acknowledges that sewage could surface on the canyon walls. The study makes recommendations for proper placement of septic tanks and leach fields that would avoid the problem—but then goes on to say that such placement may not be possible on four of the sixteen lots. However, the study also points out that the applicable zoning regulations contain stringent requirements for safe sewage disposal, and thus concludes that there would be no significant impact on the environment. After reviewing the zoning regulations, which require that sewer systems comply with detailed design and specification requirements and be approved by the city engineer, we find that the Forest Service’s conclusion that the zoning regulations will prevent any significant impact on the environment was not arbitrary and capricious. See Maryland-National Capital Park & Planning Comm’n v. United States Postal Serv., 487 F.2d 1029, 1036-37 (D.C.Cir.1973) (compliance with zoning laws tends to show that impact of the land use is not “significant”); Sierra Club v. Cavanaugh, 447 F.Supp. 427, 432 (D.S.D.1978) (same; “the Federal agency is to be held to no stricter requirement of assuring environmental quality than local residents acting through their representatives demand”). We do note, however, that according to the study there seems to be no safe way to dispose of sewage for four of the lots; we assume that unless a safe way is found the zoning commission will not allow houses to be built on those lots.
2. Air Quality, Soil, Esthetics
These are all addressed in the final EA, and we find that the conclusion of no significant impact was not arbitrary and capricious.
3. Endangered and Threatened Species
The NEPA regulations require that the agency consider “[t]he degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.” 40 C.F.R. § 1508.27(9). Lockhart argues that the proposed development will harm bald eagles and peregrine falcons that inhabit the area. Bald eagles and peregrine falcons have been classified as protected species under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544 (1988). On appeal, however, Lockhart claims a violation only of NEPA, not of the ESA itself. Lockhart claims that the Forest Service failed to give proper weight to sightings of the birds by local landowners and that the Service’s own studies were sloppily done and inaccurate; therefore, she argues, the Service arbitrarily and erroneously concluded that the proposed development would have no significant impact on the endangered birds. i ■ ■ ;
TH-wa c»e fr» whether eagles and falcons frequent or nest on the tract. The record contains several letters and affidavits reporting sightings of eagles and falcons and claiming that they nest on the site; the Forest Service’s opposite conclusion, however, is also well supported by evidence. The Forest Service conducted two field surveys of the site and consulted several other relevant studies that had already been done. The studies conclude that Dark Canyon is not critical habitat for either species. No nesting sites were found during the field surveys, nor did the surveyors observe any eagles or falcons on or near the land. Bald eagles are not believed to nest in the Black Hills at all; they do spend the winter there, but the Dark Canyon site is not in a known winter concentration area, according to the studies. As for the peregrine falcons, the last confirmed sighting of a falcon eyrie was in Dark Canyon, but that was in 1960. The recent studies done by the Forest Service conclude that Dark Canyon is not prime habitat for peregrines because the cliffs are not high enough and because there is too much human activity nearby. Dark Canyon was rejected as a release site for these very reasons when the Forest Service was trying to reintroduce peregrine falcons into the Black Hills in 1979.
While the Forest Service’s conclusion may not be undisputed, it is certainly not unsupported by evidence. As the court said in Louisiana ex rel. Guste v. Verity, “[0]ur deference to the agency is greatest when reviewing technical matters within its area of expertise, particularly its choice of scientific data and statistical method-ology_ [WJhere, as here, the agency presents scientifically respectable conclusions ... we will not displace the administrative choice.” Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir.1988). Therefore, we find that the Forest Service’s determination that the exchange would have no significant impact on endangered and threatened species was not arbitrary and capricious.
4. Historic and Cultural Resources
Under the NEPA regulations, in determining whether the proposed action will significantly affect the environment, the agency must consider "unique characteristics of the geographic area such as proximity to historic or cultural resources,” 40 C.F.R. § 1508.27(3), and “[t]he degree to which the action may adversely affect ... sites ... listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historic resources,” 40 C.F.R. § 1508.27(8). The Forest Service commissioned a survey of the tract to identify any historic or archaeological sites; none were found. It also searched its files to find out if any such sites had been previously identified, again without success. The final EA concluded that the tract contained no historic or cultural resources, and the South Dakota Historic Preservation Office concurred in the finding. Thus, the Forest Service did make an effort to determine whether any historic or cultural resources would be affected by the proposed development, and the requirements of NEPA were met.
5. State and Local Law
Subsection (10) of 40 C.F.R. § 1508.27 requires that an agency consider whether its proposed action “threatens a violation of Federal, State or local law or requirements imposed for the protection of the environment.” Although the EA included copies of and discussed the applicable county and city zoning ordinances, it did not discuss any other state or local law. The state statutes Lockhart cites in her brief are broad provisions expressing state policy in favor of safe waste disposal, against water pollution, and in favor of maintaining air quality. None of them cover any ground not included in NEPA. Hence, although the Forest Service should have specifically referred to these statutes, its error was harmless because the EA covered the same subject matter.
6. Other Effects
Citing 40 C.F.R. § 1508.27, Lock-hart claims that the Forest Service was required to consider the sociological and community effects of the land exchange and housing development; however, § 1508.27 contains no language to that effect. It does say, as Lockhart points out, that the agency should consider “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(4). Lockhart claims this requirement was not met because the Forest Service got eight letters from neighbors protesting the exchange, none in favor of it, and yet did not discuss public opposition in the EA. This argument fails because “controversial” refers to the existence of a “substantial dispute ... as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” See Rucker v. Willis, 484 F.2d 158, 162 (4th Cir.1973); North Dakota v. Andrus, 483 F.Supp. 255, 258-59 (D.N.D.1980).
Lockhart points to the affidavit of Dr. Ken Fish as evidence that the Forest Service overlooked the “[ujnique characteristics of the geographic area,” 40 C.F.R. § 1508.27(3), and “[t]he degree to which the action ... may cause loss or destruction of significant scientific, cultural, or historical resources,” 40 C.F.R. § 1508.27(8). Dr. Fish, a professor of biology, stated that every year he takes his students on a field trip to Dark Canyon and that it is of unique educational and scientific value to him and his students. While the plaintiff in a NEPA suit may submit evidence showing substantial environmental issues the agency missed, use of the area for biology field trips does not by itself qualify as a substantial environmental issue that would render the agency’s decision arbitrary and capricious, particularly in light of the fact that the information in Dr. Fish’s affidavit could have been presented earlier, during the administrative process.
7. Resale
In September 1990, Lockhart submitted a letter calling the court’s attention to a new development in the case: Van Etten was advertising the land for sale, apparently having abandoned her plans to develop it herself. Lockhart argues that the new purchaser could pursue development plans different from those considered by the Forest Service, with potentially disastrous consequences to the environment. She urges that the district court’s grant of summary judgment should be reversed and the case remanded on this ground.
When the government sells or exchanges federal land, it must consider the environmental impact of the proposed use of the federal land by the private purchaser, but it need not consider the possible impact of use by hypothetical subsequent purchasers. Once the land passes into private hands, later sales are no longer subject to NEPA. We would scrutinize the matter more closely if there were anything to suggest that Van Etten’s purchase was a sham — that she obtained the land in order to resell it to someone else so that the real purchaser could evade NEPA scrutiny. Here, however, the resale is clearly a product of the long administrative and judicial process rather than an attempt to evade it. This court’s task is to make sure the Forest Service considered the information available at the time it made its decision; if the agency’s decision was proper at the time it was made, our inquiry is at an end.
B. AIRFA/First Amendment
Lockhart next argues that the Forest Service violated the American Indian Religious Freedom Act (AIRFA), which provides: “[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian ... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” 42 U.S.C. § 1996 (1988). First, Lockhart claims a procedural violation of AIRFA in that the Forest Service failed to consult with Indian spiritual leaders before making its decision. AIRFA contains no such consultation requirement. AIRFA is merely a statement of federal policy to protect Indians’ exercise of their religion; it confers no cause of action. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 1328, 99 L.Ed.2d 534 (1988). The original version of AIRFA contained a one-time consultation requirement; section 2 of the session law, left uncodified, directed that all federal departments and agencies evaluate their policies and procedures in consultation with native American traditional religious leaders to determine changes necessary to preserve Indian religious rights and practices, but this one-time review was to be completed by August 11, 1979, three years before the Van Etten exchange was proposed. Pub.L. No. 95-341, § 2, 92 Stat. 470 (1978); see Lyng, 108 S.Ct. at 1328. Also, the language of the section indicates that it required consultation about a generalized revamping of agency policies and procedures, not about specific decisions like this one.
Second, Lockhart claims a substantive violation of AIRFA. She contends that AIRFA and the free exercise clause of the first amendment require the agency to take into account Indian religious concerns in making its decision, citing Lyng for the proposition that agencies have a legal duty to accommodate Indian religious practices. While the Supreme Court in Lyng did say that “[t]he Government’s rights to the use of its own land ... need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents,” 108 S.Ct. at 1328, this language is purely precatory. The Court’s holding was that AIRFA creates no.judicially enforceable rights. See id. at 1328; see also Crow v. Gullet, 706 F.2d 856, 858 (8th Cir.) (AIRFA creates no rights beyond those granted by the first amendment), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). The first amendment does not require the government to conduct its own affairs to comport with the religious beliefs of its citizens. Lyng, 108 S.Ct. at 1325; see also United States v. Means, 858 F.2d 404, 407 (8th Cir.1988) (listing cases refusing to overturn governmental land management decisions challenged by Indians on free exercise grounds), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 575 (1989). In fact, the Court commented in Lyng, to limit the government’s use of its own land to avoid disrupting religious ceremonies might well violate the first amendment as it would impose a “religious servitude” on the property and subsidize the religion in question. 108 S.Ct. at 1328.
Lockhart also appears to base her claim of failure to consider religious factors on NEPA, as she complains of the “arbitrary and capricious manner in which religious factors were ignored” and says there is evidence of a “substantial environmental impact” on Indian religious practices. Reply Brief at 17. NEPA, however, does not mandate consideration of a proposal’s possible impact on religious sites or observances.
III.
Because we hold that the Forest Service complied with the requirements of NEPA, that it did not violate AIRFA or the first amendment, and that its decision to proceed with the land exchange was not arbitrary and capricious, we affirm the decision of the district court.
. The Honorable Richard H. Battey, United States District Judge for the District of South Dakota.
. "If the appeal record is considered inadequate to affirm or reverse a decision, the Reviewing Officer may suspend the appeal process and request additional information, or remand the case for further action.” 36 C.F.R. § 211.18(q) (1989).
. On approximately August 21, 1990, Van Etten put the land up for resale.
. Before Marsh, the Eighth Circuit had reviewed agency decisions not to prepare an EIS under a standard of reasonableness in the circumstances. See, e.g., Minnesota Pub. Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir.1974). In Goos, 911 F.2d at 1292, a panel of this court recognized that these earlier cases were incorrect; however, in Marsh, the Supreme Court said that in practice the difference between the two standards is not of much consequence and should not require extensive reworking of established NEPA law. 109 S.Ct. at 1861 n. 23.
. It is undisputed that the development would be subject to both the Pennington County and Rapid City zoning ordinances. The city ordinance applies because the land is within three miles of the city limits.
. According to letters in the record, Van Etten found it difficult to afford the interest payments on the land without the anticipated revenue from selling the houses.
. Although it is legally irrelevant, we note that the record shows that the Forest Service erred on whether a consultation had taken place; its summary of a conference with Indian spiritual leaders states that the Van Etten exchange was discussed, whereas the transcript of the conference shows that it was not.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.3658536585365854, Costs: 0.02439024390243903
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ALTIMARI, Circuit Judge:
The Friends of the Ompompanoosuc, an environmental group, and the State of Vermont (collectively “Vermont” or “petitioners”) seek review pursuant to 16 U.S.C. § 825l (1988) of a decision and order of the Federal Energy Regulatory Commission (“FERC” or “Commission”), which denied their request for a hearing to reconsider FERC’s grant of a license for the construction and operation of a hydroelectric power station at Thetford Center Falls on the Ompompanoosuc River in Orange County, Vermont. Petitioners claim that FERC: (1) violated the Federal Power Act, 16 U.S.C. § 792 et seq. (1988) (“FPA”) by failing to consider relevant information in granting the license; (2) made findings unsupported by substantial evidence; (3) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1988) (“NEPA”) by not preparing an environmental impact statement (“EIS”); and (4) violated various federal regulations by not holding a public hearing, by not disseminating an environmental assessment supplement, and by not considering alternatives to granting the license.
For the reasons set forth below, we affirm.
BACKGROUND
In 1985, Richard Balagur applied for a license to build and operate a hydroelectric power facility (the “Project”) at Thetford Center Falls, also known as Great Falls, on the Ompompanoosuc River near Thetford Center, Vermont. The Project area, a sylvan setting in rural Vermont, includes the Great Falls, the Thetford Center Covered Bridge, and certain structures of historic interest. The Great Falls are Vermont’s only free-flowing falls next to a covered bridge. The site formerly contained a 100 foot Army Corps of Engineers hydropower dam which was breached in the 1920’s and not repaired.
According to the application, the license would allow Balagur to restore the dam by adding two to four feet of new material, so that the height of the dam would be raised to its historic level of 8.5 feet. As a result of this construction, the existing 2.6 acre reservoir at the site would be increased by 0.4 acres. The application also explained that a 400-foot long penstock would connect the dam to a 18-foot by 25-foot powerhouse containing a 350 kilowatt generator.
In order to minimize adverse environmental effects and to preserve the historic and aesthetic qualities of the site, Bala-gur’s application proposed a number of “mitigation” measures. Among other things, Balagur proposed that minimum flows be maintained over the falls, construction activities be kept away from the Thetford Center Covered Bridge as well as from historic ruins and archaeologicabsites, that the powerhouse be built behind a screen of trees, that the transmission wires be buried, and that a brick or wood facing be put on the dam and the powerhouse to blend these structures with the surroundings.
After receiving the application, FERC also received comments from local, state, and federal agencies. The Commission also obtained comments on the application from local citizens and citizens groups, including petitioner Friends of the Ompompa-noosuc, and from petitioner State of Vermont. Based on these comments and on other information in the record regarding the project and its environmental impact, FERC issued an environmental assessment (“EA”) in 1987. The EA concluded that the Project would be useful in meeting power needs and that Balagur’s proposed miti-gative measures in Project design and construction would minimize adverse environmental effects, such as decreased scenic attractiveness and reduced recreational opportunities, to acceptable levels. Accordingly, the EA found that the Project “would not constitute a major federal action significantly affecting the quality of the human environment.” As a result of this determination, an environmental impact statement was not necessary for the Project. See 40 C.F.R. § 1508.13 (1991). In addition, a Safety and Design Assessment accompanying the EA found that the Project could be produced safely, in accordance with water resource development plans, and that power could be successfully marketed.
Based on additional comments and information received after release of the EA, including submissions by petitioners, and on further mitigation measures proposed by Balagur, FERC issued an environmental assessment supplement (“EA Supplement”). The EA Supplement addressed petitioners’ concerns that the Project, among other things, was inconsistent with existing state environmental plans, and that the Project would have serious adverse effects on recreation, particularly swimming. The EA Supplement adhered to the EA’s finding that the Project-would not have a significant impact on the quality of the human environment.
As a result of the EA and the EA Supplement, FERC issued an order in May 1989 granting Balagur a license for the Project. In its order, the Commission weighed and rejected claims that the Project would destroy the Great Falls and its environs as a visual, cultural, historical, and recreational resource. FERC also found no conflict between the Project and existing state environmental plans. However, to minimize disruption to the environment, FERC conditioned the license on the implementation of mitigative measures, including setting minimum flow requirements for the falls which would approximate natural flows during the summer and fall, the busiest season for the Falls, and requiring continued public access to the Falls.
After FERC issued the license, Vermont petitioned for rehearing and reconsideration, claiming a variety of procedural and substantive irregularities in licensing the Project. Among other things, Vermont contended that FERC failed to give adequate consideration to state comprehensive environmental programs; that substantial evidence did not support FERC’s findings regarding the effect of reduced flow rates over the Falls; and that FERC improperly failed to perform an environmental impact statement, i.e., that the EA and EA Supplement were defective in finding that the Project would have no significant impact to the human environment.
In a reasoned opinion, FERC rejected these challenges. In so doing, however, FERC further required, as a condition of the license, that Balagur study alternative sites and prepare a plan for the development of a swimming area to replace the “popular swimming hole” that would be lost. Petitioners remained unmollified, and this appeal followed.
DISCUSSION
I. Consideration of Relevant Factors Under The FPA.
A. Uniqueness, Local Import, and Opposition.
Under the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. § 824a-3 et seq. (1988), Congress directed FERC to encourage development of small hydroelectric plants, such as the one at issue here, in order to reduce the nation's dependency on fossil fuels. See FERC v. Mississippi, 456 U.S. 742, 750, 102 S.Ct. 2126, 2132, 72 L.Ed.2d 532 (1982). In deciding whether to grant a license to build such a plant, the FPA requires FERC to, among other things, give equal consideration to power and development purposes and “to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife ..., the protection of recreational opportunities, and the protection of other aspects of environmental quality.” 16 U.S.C. § 797(e) (1988). See also United States Department of Interior v. FERC, 952 F.2d 538, 545 (D.C.Cir.1992).
On appeal, petitioners contend that FERC erred in not considering relevant factors in its licensing decision. See Udall v. F.P.C., 387 U.S. 428, 450, 87 S.Ct. 1712, 1724, 18 L.Ed.2d 869 (1967) (under the FPA the Commission must explore “all issues relevant to the ‘public interest’ ”). Specifically, petitioners argue that the Commission failed to consider the uniqueness of the Project site, the Falls’ importance to the local community, and the degree of opposition to the Project.
In reviewing a decision by FERC, a court must evaluate whether the decision was based on a “consideration of the relevant factors and whether there has been a clear error of judgment.” Allegheny Elec. Coop, Inc. v. FERC, 922 F.2d 73, 80 (2d Cir.1990), cert. denied, - U.S. -, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)).
In the present case, FERC carefully considered the effects of the Project on: the aesthetic value of Great Falls and its environs; the flow rate of the Falls; the cultural and historical significance of the site; the geological uniqueness of the Falls; and the decrease in recreational opportunities available at the Project site. Indeed, in its order denying reconsideration, FERC specifically noted that Vermont claimed that the Commission “has ignored the fact that the Great Falls site is the State of Vermont’s only remaining rural village waterfall site without hydropower development.” Although FERC did not elaborate on this objection separately, the Commission was clearly aware of the issue and considered it under the topics listed above.
Further, it cannot be said that FERC ignored the local importance of the Falls or the existence of opposition to the Project. The Commission specifically addressed these concerns in the EA, the EA Supplement, the order issuing the license, and the order denying rehearing. Indeed, FERC’s entire thrust in requiring mitigation measures was to preserve the integrity of the Falls area while at the same time balancing legitimate hydropower needs. See Swinomish Tribal Community v. F.E.R.C., 627 F.2d 499, 512 (D.C.Cir.1980) (noting that Commission’s requirement of extensive mitigation measures aimed at minimizing the aesthetic impacts of the project demonstrated that it seriously considered those impacts); see also Hanly v. Kleindienst, 471 F.2d 823, 832 (2d Cir.1972) (affirming agency decision that mitigation measures would minimize aesthetic impact of project), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973).
Under these circumstances, we believe that FERC fulfilled its obligations under the FPA. See National Wildlife Federation v. FERC, 912 F.2d 1471, 1480-82 (D.C.Cir.1990). That petitioners disagree with FERC’s conclusion that the Project will not have significant adverse environmental effects is simply an insufficient basis upon which to overturn FERC’s decision.
B. State Comprehensive Plans.
Pursuant to the FPA, in developing a “comprehensive plan” for the Project, FERC “shall consider ... the extent to which the project is consistent with a [state] comprehensive plan ... for improving, developing, or conserving a waterway ... affected by the project.” See 16 U.S.C. § 803(a)(2)(A)(i) (1988). Petitioners argue that FERC failed to give sufficient consideration to conflicts between the Project and the Vermont state report on the Waterfalls, Cascades, and Gorges of Vermont (“Waterfall Study”) and the Vermont State Comprehensive Outdoor Recreation Plan (“SCORP”). This argument is unpersuasive.
Although FERC must “consider” inconsistencies with state plans, a license need not be denied merely because a state agency opposes a particular project. See, e.g., National Wildlife Federation, 912 F.2d at 1482 (“[FERC’s] actions are not subject to the effective veto of every state or federal ... agency_”). “Rather, the Commission is required to give due consideration to all recommendations from relevant agencies, to reconcile inconsistencies between those agencies’ recommendations and the Commission’s plans to the extent possible, and to explain its reasons for departing from the agencies’ recommendations when it concludes that it must do so in order to fulfill its statutory mandate.” Id. at 1482.
FERC admitted in its order denying rehearing that the Project conflicted with the Waterfall Study’s recommendation against development in the Thetford Falls area. However, after considering the Waterfall Study, FERC reasoned that mitigative measures regarding stream flows and historic preservation would minimize conflicts with the Study and appropriately balance power needs with aesthetic values. Under these circumstances, it cannot be said that FERC failed to fulfill its obligations under the FPA. See National Wildlife Federation, 912 F.2d at 1481-82.
As to the SCORP, FERC found that no conflict existed between the Project and this state plan. We agree. The purpose of Vermont's SCORP is “to guarantee access to recreation.” SCORP policy # 9 provides that Vermont’s strategy is “to increase efforts and programs which maintain and improve the quality of Vermont's lakes, rivers, and streams and which strive to strike a balance between competing uses of these waters.” (emphasis added). The SCORP further indicates that more access to swimming is needed in the general area of the Project. While the Project will prevent use of a local swimming hole, we find that FERC’s mitigation measures requiring public access to the Project and the development of plans to create other swimming areas “strike[s] a balance” consistent with Policy # 9.
II. Whether Substantial Evidence Supports FERC Findings.
Pursuant to the FPA, FERC’s factual findings are conclusive if supported by substantial evidence. See 16 U.S.C. § 825l(b) (1988). “Substantial evidence” has been defined to mean “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Allegheny Elec. Co-op, 922 F.2d at 80 (citation omitted). The FPA’s substantial evidence test has therefore been described as the application of the “arbitrary and capricious” standard to factual findings. Id. In applying this standard, “[ajlthough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971).
In the present case, Vermont claims that the following findings made by FERC are not supported by substantial evidence: (1) that required stream flow rates minimize to acceptable levels the adverse effects to the aesthetic qualities of the Great Falls caused by the Project’s drain on water; (2) that swimming opportunities, as a result of mitigative measures, will not be lost to a significant degree; and (3) that the Project is economically viable. These findings will be discussed in turn.
A. Flow Rates.
It is uncontested that the demands of the hydroelectric facility will significantly tap into the water currently flowing over the Falls, thereby altering their appearance. However, to balance aesthetic values with Project needs, FERC required that from October 16 to May 31, a period during which FERC determined use of the Falls was at its lowest, 5 cubic feet per second (cfs) of water flow over the falls. As FERC reasoned in the EA, rather than run at uniformly low rates, winter storms and spring rains periodically will increase the flows during this time beyond the set minimum. Substantially higher flows of 32 cfs, which FERC contends will approximate natural flows, will be required during the summer and fall to accommodate recreation and foliage tours.
Contrary to petitioner’s assertion that FERC uncritically accepted the minimum flow rates proposed by Balagur, the Commission carefully considered the appropriate minimum flow and arrived at a flow far higher than that proposed by Balagur. Indeed, FERC reviewed videotapes and photographs of the falls at flows ranging from 7 cfs to 123 cfs, as well as the recommendations of staff members who had actually visited the falls. After conducting its own study, FERC consulted with the U.S. Fish and Wildlife Service and the Vermont Department of Water Resources. On this basis, FERC determined that flow rates of 32 cfs be required over the falls during the summer months, rather than the 5 cfs flow Balagur had proposed. Although Vermont disagrees with FERC’s decision, it is clear that FERC’s conclusions regarding the adequacy of flow are not arbitrary and capricious.
Vermont also contends that FERC relied on insufficient data in determining the amount of recreational use during the winter and spring. According to Vermont, FERC overlooked people who simply drive by the Falls and appreciate the view, as opposed to those who actually engage in recreational activities. Failure to account for such sporadic and transient enjoyment does not, however, render FERC’s ultimate findings infirm or make the balance struck inappropriate.
B. Swimming and Recreation.
Vermont next argues that FERC clearly erred in finding that swimming opportunities would not be significantly curtailed. We conclude that although the “swimming hole” will be lost, FERC’s finding that overall recreational swimming will not suffer significantly is supported by substantial evidence.
The license granted to Balagur not only requires access to the site where safety permits, but also requires Balagur to “study potential sites both upstream and downstream of the project, and, after consulting with the Thetford Planning Commission, the Vermont Agency of Natural Resources, and the Corps of Engineers, to prepare a plan for the development of swimming and wading opportunities in the project area.” Vermont nevertheless contends that a license should not have been granted until the outcome of the studies and plans were reviewed, i.e., there is no basis yet to say that adequate swimming will continue. FERC has, however, demonstrated commendable concern regarding the replacement of the swimming hole. Indeed, we view Balagur’s obligation to develop plans for alternative swimming sites as entailing a further obligation to implement such plans if feasible, after consultation with the above named agencies. FERC assured this court at oral argument that since Balagur’s license depended on fulfillment of that condition, FERC would assure Balagur’s good faith compliance. Under these circumstances, we conclude there is a rational basis for FERC’s finding that the envisaged measures will compensate adequately, though perhaps not completely, for the loss of one swimming hole.
C. Economic Viability.
Vermont next argues that FERC’s decision that the Project would be economically viable is baseless because after this decision, Balagur was denied a particular rate structure by the Vermont Public Service Board. FERC responds that its decision was based on energy cost information submitted by Balagur, information gathered from New England Utilities, and on a comparison over 50 years between anticipated Project costs and fossil fuel costs. According to FERC, the “denied rate” did not enter into its economic feasibility calculations.
Resolving the issue of the economic viability of the Project “requires technical expertise and is properly left to the informed discretion of the responsible.federal agency.” Friends of the River v. FERC, 720 F.2d 93, 102 (D.C.Cir.1983). The record reflects that FERC undertook a comprehensive study of energy costs and requirements, and, consequently, FERC’s determination is not arbitrary or capricious.
III. Failure To Prepare An EIS.
Vermont next contends that FERC abused its discretion under NEPA by failing to prepare an EIS. Put differently, Vermont argues that the EA and EA Supplement findings of no significant environmental impact are erroneous. We disagree.
If an agency prepares an EA and determines that a project will have no significant impact on the human environment, a costly and time consuming EIS need not be prepared. See 40 C.F.R. § 1508.13 (1991) (environmental impact statement required for major federal actions “significantly affecting the quality of the human environment”); see also Town of Orangetown v. Gorsuch, 718 F.2d 29, 34 (2d Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 124 (1984); Hanly v. Kleindienst, 471 F.2d 823, 826 (2d Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). In determining whether a proposed major federal action will have a “significant” environmental impact, federal regulations set forth criteria that an agency should consider, including the unique nature of the project site, the degree to which the project’s effects on the environment are “highly controversial,” the degree to which the project will affect historical or cultural resources, and whether the project violates applicable environmental protection laws or requirements. See 40 C.F.R. § 1508.27(b)(3), (4), (8), & (10) (1991). Significantly, the regulations do not prescribe the weight to be given to these criteria. See River Road Alliance v. Corps of Eng’rs, 764 F.2d 445, 449 (7th Cir.1985) (“The statutory concept of ‘significant’ impact has no determinate meaning, and to interpret it sensibly in particular cases requires a comparison that is also a prediction: whether the time and expense of preparing an environmental impact statement are commensurate with the likely benefits from a more searching evaluation than an [EA] provides.”), cert. denied, 475 U.S. 1055, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986).
Judicial review of agency decisions regarding whether an EIS is needed is “ ‘essentially procedural.’ ” Town of Orangetown, 718 F.2d at 35 (citation omitted). “[0]nce an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to ensure that the agency has considered the environmental consequences.” Stryker’s Bay Neighborhood Council, Inc. v. Carlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam). Accordingly, a reviewing court must “ensure that [FERC] has taken a ‘hard look’ at the environmental consequences ... and ... assess whether the agency has convincingly documented its determination of ‘no significant impact.’” Town of Orangetown, 718 F.2d at 35.
In the present case, we conclude that FERC took the requisite “hard look” at the environmental impact of the Project on the Great Falls area. It examined the Project’s impact on the aesthetic, cultural, historical, and recreational aspects of the site; it considered inconsistencies with state environmental plans; and it proposed measures to minimize certain unavoidable environmental impacts. Under these circumstances, and given that FERC’s findings regarding the adequacy of mitigative measures are supported by substantial evidence, FERC has “convincingly documented” its finding of no significant impact. Town of Orangetown, 718 F.2d at 35.
Petitioners argue nevertheless that because the Project was “highly controversial,” one of the factors to be considered in determining significance of impact, an EIS is required. Vermont points to the opposition to the project from local residents, two governors of Vermont, and Vermont’s U.S. senators. There is, however, a difference between “controversy” and “opposition.” The term “highly controversial” refers to instances in which “a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Town of Orangetown, 718 F.2d at 39 (citation omitted). Here, there is opposition and arguably controversy surrounding the Project’s aesthetic impact. However, as explained by the court in River Road Alliance,
[ajesthetic objections alone will rarely compel the preparation of an environmental impact statement. Aesthetic values do not lend themselves to measurement or elaborate analysis. The necessary judgments are inherently subjective and normally can be made as reliably on the basis of an environmental assessment as on the basis of a much lengthier and costlier environmental impact statement. The fact that there was public opposition ... cannot tip the balance.
764 F.2d at 451 (citations omitted). Because the controversy, if any, concerns the largely subjective issue of the falls character with various flow rates, etc., we do not believe that a more extensive EIS would facilitate the agency's decision making.
IV. The Alleged Violation of Regulations.
Vermont raises several claims concerning FERC’s alleged failure to follow applicable federal regulations in preparing the EA and EA Supplement. Specifically, Vermont contends that FERC improperly failed: (1) to hold a hearing; (2) to disseminate copies of the EA Supplement; and (3) adequately to consider alternatives to the Project, We address these claims in order.
Under 40 C.F.R. § 1506.6(c) (1991), an agency “shall hold or sponsor public meetings or public hearings whenever appropriate.’’ (emphasis added). Criteria for determining when a hearing should be held “include” whether there is (1) a “[substantial environmental controversy” and (2) “[a] request for a hearing by another agency with jurisdiction over the action supported by reasons why a hearing will be helpful.” Id.
According to Vermont, both criteria for a hearing are met in the instant case: the Project’s effects are controversial and the Vermont Agency of Environmental Conservation requested a hearing in 1986. Given the arguable existence of a “controversy” surrounding the Project’s aesthetic impact, we believe that a hearing might have been beneficial. Nevertheless, we do not believe that a hearing was required. See River Road Alliance, 764 F.2d at 451; see also Hanly v. Kleindienst, 471 F.2d at 835 (“neither NEPA nor any other federal statute mandates the specific type of procedure to be followed by federal agencies. There is no statutory requirement that a public hearing be held”). An examination of the record in the instant case persuades us that the Commission’s failure to hold a public hearing did not preclude it from weighing all the factors essential to exercising its judgment in a reasonable manner. Sierra Association For Environment v. FERC, 744 F.2d 661, 664 (D.C.Cir.1984).
Pursuant to 40 C.F.R. § 1506.6(a) and (b)(1) (1991), agencies “shall” provide notice to interested parties of the availability of “environmental documents” concerning a proceeding, and “shall mail notice to those who have requested it in an individual action.” Vermont is correct in arguing that FERC failed to comply with these requirements because it did not provide Vermont with notice that the EA Supplement had been issued. However, because Vermont received the document through a Freedom of Information Act request two months in advance of the Order licensing the Project, Vermont had ample time to comment on the EA Supplement before the license was issued and to petition FERC for reconsideration and rehearing. Because Vermont cannot demonstrate prejudice from FERC’s oversight, reversal is not appropriate on this ground.
Finally, Vermont argues that FERC erred by failing to consider alternatives to the Project. Specifically, Vermont contends that FERC did not consider conservation as an alternative to the energy that the Project will produce. This argument is unpersuasive. It is well-settled that under NEPA the range of alternatives that must be discussed is a matter within an agency’s discretion. See Vermont Yankee Nuclear Power Corp. v. National Resource Defense Council, 435 U.S. 519, 551-52, 98 S.Ct. 1197, 1215-16, 55 L.Ed.2d 460 (1978). Indeed, the range of alternatives an agency must consider is narrower when, as here, the agency has found that a project will not have a significant environmental impact. See, e.g., City of New York v. United States Dept. of Transp., 715 F.2d 732, 743 n. 11, 745 (2d Cir.1983) (implicitly suggesting that considering “conservation” as an alternative to energy production is not necessary), cert. denied, 465 U.S. 1055, 104 S.Ct. 1403, 79 L.Ed.2d 730 (1984). We therefore hold that FERC’s failure to consider conservation as an alternative was not an abuse of discretion.
CONCLUSION
Based on the foregoing, the decision and order of the Federal Energy Regulatory Commission denying petitioners’ request for a rehearing is affirmed.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.01442307692307692, Costs: 0.02403846153846154
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OPINION
WHYTE, District Judge:
Appellants Japanese Village, LLC and Today’s IV, Inc. dba Westin Bonaventure Hotel (“Bonaventure”) appeal from the district court’s grant of summary judgment in favor of Appellees on Appellants’ claims under the National Environmental Policy Act, 42 U.S.C. § 4321 (“NEPA”). Appellants argue that Appellees’ environmental impact analysis for a new underground light rail line project in downtown Los Angeles was inadequate. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Metro plans to construct the Regional Connector Transit Corridor Project (“the Project”), a 1.9-mile light rail extension line in downtown Los Angeles, with federal funding from the Federal Transit Administration. The Project is intended to meet increased demand for public transit and improve transit service in the region by connecting the light rail Gold Line to the Blue and Expo Lines. The route for the extension line begins at 7th and Flower Streets and travels north on Flower Street to 2nd Street. It then continues east on 2nd Street to Central Avenue, where it turns north to intersect the Gold Line at 1st and Alameda Streets as shown below:
Appellants Japanese Village and Bonaventure own real property near the Project. The Japanese Village Plaza is a shopping center and .office complex in the Little Tokyo area at the eastern end of the proposed line, and the Westin Bonaventure Hotel occupies the block bounded by Flower, 4th, 5th, and Figueroa Streets in the Financial District.
A. NEPA Requirements
The National Environmental Policy Act requires a federal agency to prepare an Environmental Impact Statement (“EIS”) for any “major Federal aetion[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). NEPA applies to state transportation projects with significant federal funding. Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1101 (9th Cir. 2007). The EIS must include a detailed statement regarding, inter alia: (i) “the environmental impact of the proposed action”; (ii) “any adverse environmental effects which cannot be avoided should the proposal be implemented”; and (iii) “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C). Once an agency determines that an EIS is required, it must prepare a draft EIS (“DEIS”). See 40 C.F.R. § 1502.9(a). The agency then releases the DEIS to the public and other agencies for comment. Id. § 1503.1(a). After the public comment period, the agency prepares a final EIS (“FEIS”), in which it must respond to comments made during the DEIS comment period. Id. § 1502.9(b). After the FEIS is released, the agency has the option to request comments before making a final decision. Id. § 1503.1(b).
If the agency “makes substantial changes in the proposed action that are relevant to environmental concerns” or there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,” then the agency must prepare a supplemental DEIS or FEIS. Id. § 1502.9(c).
The agency ultimately produces a record of decision (“ROD”) that explains the rationale for agency’s decision. Id. § 1505.2. The ROD must include an assessment of all practicable measures for mitigating environmental harm. See id. § 1505.2(c).
B. Draft Environmental Impact Statement
In the instant case, the FTA published a Draft Environmental Impact Statement for public comment in September 2010. Metro had initially identified two build alternatives for the Project: a light rail primarily operating above ground (the “At-Grade Emphasis Alternative”) and a light rail that was primarily underground (the “Underground Emphasis Alternative”). During the DEIS drafting process, Appel-lees established a Little Tokyo Working Group, made up of leaders of the Little Tokyo Community Council and Metro staff, to discuss the impact of the Project on the community. The Little Tokyo community had concerns about the negative construction and operation impacts of both the At-Grade Emphasis Alternative and the Underground Emphasis Alternative. To address these concerns, the Little Tokyo Working Group collaborated on the development of the “Fully Underground Alternative,” which Metro staff recommended in the DEIS. After the period for public comment on the DEIS, Metro’s Board of Directors voted to designate the Fully Underground Alternative as the Locally Preferred Alternative.
C. Supplemental Environmental Assessment
Appellees continued to refine the Locally Preferred Alternative and addressed the impact of the refinements in a Supplemental Environmental Assessment/Recirculated Sections of the DEIS (“SEA”) released in July 2011. The refinements included reductions in the use of “cut and cover construction” for tunnel excavation, replaced by the use of “Tunnel Boring Machine” or “TBM” excavation.
Cut and cover construction entails excavating down from the ground surface using temporary excavation support to stabilize the ground before excavation begins. Temporary concrete decking is placed over the “cut” to allow traffic to pass above during construction; once the tunnel is complete, the excavated trench area is backfilled and the temporary decking is replaced by permanent surface. A tunnel-boring machine is a large-diameter horizontal drill that is used to excavate circular tunnel sections. Compared to the cut and cover method, tunnel boring is far less disruptive to surface traffic and adjacent land uses.
The Project refinements addressed in the SEA extended the use of TBM south along Flower Street from 2nd Street to 4th Street. The Project route was also realigned to eliminate the use of cut and cover construction on 2nd Street in Little Tokyo in favor of Closed Face TBM construction. The new route required Metro to purchase an easement for tunneling below the Japanese Village shopping center and office complex. The period for public comment on the SEA closed on September 6,2011.
D. Final Environmental Impact Statement and Record of Decision
On January 20, 2012, Appellees issued a Final Environmental Impact Statement and included responses to the public comments on the SEA. Appellees then accepted additional public comment on the FEIS and conducted a series of meetings with community stakeholders between February and April 2012. These efforts resulted in Metro staff recommending that the use of Closed-Face TBM be extended even farther south along Flower Street from 4th Street to 5th Street, budget permitting. Metro also conducted additional analysis of the extent to which mitigation measures could reduce noise and vibration in Japanese Village. In advance of the meeting to approve the Project, Metro staff recommended that the Board adopt additional mitigation measures for Japanese Village.
On April 26, 2012, the Metro Board adopted the staffs recommendations and voted to approve the project. The FTA issued its Record of Decision approving federal funding for the Project on June 29, 2012. The ROD includes a mitigation monitoring and report plan (“MMRP”) as Attachment A.
E. District Court’s Decision, Final Supplemental Environmental Impact Statement, and Supplemental Record of Decision
Japanese Village, Bonaventure, and a third plaintiff filed complaints challenging Appellees’ NEPA compliance in January 2013. The parties brought cross-motions for summary judgment. The district court granted summary judgment in favor of Appellees on all claims except for one claim on which Bonaventure prevailed. Japanese Village and Bonaventure timely appealed several aspects of the district court’s summary judgment ruling in favor of Appellees,
In December 2015, during the pendency of these appeals, Appellees published a Final Supplemental Environmental Impact Statement (“FSEIS”) and Supplemental Record of Decision. Appellees prepared the FSEIS because the district court had entered an injunction in connection with the one claim on which Bonaventure prevailed, requiring FTA and Metro to adequately analyze the open-face tunneling alternatives on Lower Flower before beginning cut and cover construction in that area. In addition to the analysis required by the district court, the FSEIS included discussion of Closed-Face TBM on Lower Flower and expressly adopted the additional mitigation measures for Japanese Village.
II, STANDARD OF REVIEW
We review the district court’s summary judgment ruling de novo. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Under the Administrative Procedure Act, a “reviewing court shall ... hold unlawful and set aside agency action, findings, and' conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[I]n making the factual inquiry concerntog whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based'on a consideration of the relevant factors and whether there has been a clear error of judgment.’ This inquiry must ‘be searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) abrogated in part on other grounds as recognized in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
III. JAPANESE VILLAGE CLAIMS
Japanese Village argues that the FTA failed to comply with NEPA’s procedural requirements for creating a Record of Decision because the ROD in this case incorporates mitigation measures by reference. More significantly, Japanese Village argues that the FEIS does not include adequate analysis and mitigation discussion of: (1) construction-related noise and vibration impacts; (2) long-term, operational noise and vibration impacts; (3) subsidence risk; and (4) parking impacts. We address these arguments in ton.
A. Judicial Notice of Material on Metro Website
As a preliminary matter, Japanese Village requests that we take judicial notice of three documents on Metro’s website: (1) a copy of the federal R.OD in this case; (2) “Attachment A: Mitigation Monitoring and Reporting Program” (or “MMRP”); and (3) a web page containing links to these two documents. Japanese Village offers these documents to show that Appellees’ “official” MMRP on the website matches one of the several versions of the MMRPs in the appellate record. Appellees argue that judicial notice is unnecessary because the FTA’s Region IX Administrator submitted a declaration identifying the correct versions of the ROD and its Attachments in the existing record. The declarant confirmed that these documents are the same ones on Metro’s website.
Judicial notice might ordinarily be appropriate for the documents on Metro’s website because the documents were “made publicly available by government entities ... and neither party disputes the authenticity of the web site[ ] or the accuracy of the information displayed therein.” Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (citing Fed. R. Evid. 201). The parties at least agree that the website contains the “official” copies of the ROD and its attachments. In this case, however, it appears that the Court need not rely on the Metro website because the documents for which Japanese Village seeks judicial notice are already in the appellate record. Accordingly, we decline to take judicial notice of the three documents on Metro’s website.
B. Adequacy of the Record of Decision’s Assembly
An ROD must “[sjtate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. A monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation.” 40 C.F.R. § 1505.2(c). Japanese Village argues that the ROD in this case fails to summarize Appellees’ monitoring and enforcement program as required, apparently because the ROD references an “Attachment A: Mitigation Monitoring and Reporting Program,” but the MMRP is not directly “attached” to the ROD. Rather, there is 'a gap in the page numbering before the MMRP appears in the administrative record, and, as noted above, the MMRP is in a separate electronic file from the ROD on Metro’s website.
Appellees argue that Japanese Village waived any argument that the FTA improperly assembled the ROD because Japanese Village failed to present this argument to the district court. “Absent exceptional circumstances,” we “generally will not consider arguments raised for the first time on appeal,” although we have discretion to do so. Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011). The Court “may exercise this discretion (1) to prevent a miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law.” Id. Japanese Village acknowledges in reply that it did not raise the issue of an ROD assembly defect with the district court. Moreover, Japanese Village does not argue that any exceptional circumstances require us to consider its assembly defect arguments. Accordingly, we decline to consider Japanese Village’s argument that the MMRP was not properly attached to the ROD.
C. Adequacy of Environmental Impact Statement
Japanese Village challenges the adequacy of the mitigation plan included with the FEIS that issued in January 2012. An EIS, which chronologically precedes an ROD, must include a discussion of possible steps to mitigate environmental harm. The U.S. Supreme Court has described the mitigation requirement as follows:
[O]ne important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. The requirement that an EIS contain a detailed discussion of possible mitigation measures flows both from the language of the Act and, more expressly, from CEQ’s implementing regulations. Implicit in NEPA’s demand that an agency prepare a detailed statement on “any adverse environmental effects which cannot be avoided should the proposal be implemented,” 42 U.S.C. § 4332(C)(ii), is an understanding that the EIS will discuss the extent to which adverse effects can be avoided.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citation omitted). As the Supreme Court and Ninth Circuit have acknowledged, NEPA “does not mandate particular results, but simply prescribes the necessary process.” Id. at 350, Í09 S.Ct. 1835 (explaining that “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs”); Conner v. Burford, 848 F.2d 1441, 1450 (9th Cir. 1988) (clarifying that “NEPA does not require that mitigation measures completely compensate for the adverse environmental effects”).
Japanese Village takes issue with four aspects of Appellees’ mitigation plan, described below.
1. Construction-Related Noise and Vibration
Japanese Village first argues that Ap-pellees have not adequately addressed noise and vibration from construction of tunnels under the Japanese Village property. As described above, the FEIS was issued in January 2012. The FEIS noted that during operation of the tunnel-boring machine, certain portions of Japanese Village could sometimes experience ground-borne vibration (GBV) of 86 VdB and ground-borne noise (GBN) of approximately 51 dBA. Japanesé Village businesses fall into a category of land use for which the federal annoyance criteria for infrequent vibration and noise are 83 VdB and 48 dbA, respectively. Id. Thus, the FEIS recognized that without some mitigation, construction could cause significant impact to Japanese Village. The FEIS described several mitigation measures, numbered with the prefix “NV-,” that could reduce noise and vibration at various construction locations. The measures include proper “maintenance and operation” of equipment and use of a “resilient mat” for delivery-trains, among others. The FEIS also provided that “Metro shall monitor GBN and GBV levels in the in the [sic] building adjacent to TBM activity during its operation in that area” and that “[d]uring the few days the TBM will be operating in this area, should GBN or GBV measurements exceed FTA annoyance criteria for short-term impacts during construction, Metro shall offer to temporarily relocate affected residents.”
During the comment period for the FEIS, Japanese Village told Metro, that the proposed noise and vibration mitigation measures described in the FEIS were inadequate. Specifically, Japanese Village argued that particular mitigation measures adopted for other construction locations, including NV-19, NV-21, NV-22, NV-23, and NV-27, should also apply to Japanese Village.
Between the time the FEIS was issued and the time Metro approved the Project on April 26, 2012, Metro conducted additional analysis, and its experts estimated the extent to which additional mitigation measures could reduce noise and vibration in Japanese Village. In advance of the meeting to approve the Project, Metro recommended that additional mitigation measures be adopted for Japanese Village, including NV-19 (maintaining machinery); NV-21 (speed of delivery trains); NV-22 (resilient mat); NV-23 (conveyor); NV-27 (resiliently supported fasteners); and TR-1 (traffic management). Ultimately, Metro approved the Project on April 26, 2012, and the FTA issued its ROD, including the MMRP described above, in June 2012.
On appeal, Japanese Village argues that Metro ignored the advice of its experts because Metro did not actually vote to approve the additional mitigation measures. Japanese Village also argues that as a matter of law, relocation cannot be used as a mitigation measure.
a. Whether Metro Adopted Mitigation Measures
Relying primarily on a transcript of Metro’s April 26, 2012 board meeting, Japanese Village argues that Metro’s board voted to defer all mitigation measures rather than adopt the additional measures its expert had recommended. We find Japanese Village’s argument unpersuasive despite the lack of clarity in the April 26, 2012 transcript, which contains several references to “unintelligible” comments. Nevertheless, the transcript indicates that the board voted to approve “Item A through D as amended.” The board’s meeting minutes clarify that “Item D” referred to utilizing additional noise and vibration mitigation measures (NV-19, NV-21, NV-22, NV-23, and NV-27, defined above) at Japanese Village. Moreover, Attachment B to the ROD, “Summary of Comments and Responses to Comments on the Final EIS,” explicitly states: “Mitigation measures NV-19, NV-21, NV-22, NV[-]23, NV-27, and TR-1 specifically apply to the Japanese Village Plaza.” Japanese Village correctly points out that a May 14, 2012 summary of the results of the board’s April 26, 2012 action omits reference to the fact that measures NV-19 and1 NV-27 apply to Japanese Village. However, Appellees explain that this was simply a drafting error.
If there were any doubt that Metro formally adopted the proposed mitigation measures, those doubts were resolved on December 15, 2015 when the FTA and Metro issued a Final Supplemental Environmental Impact Statement. While the primary goal of the FSEIS was to further analyze use of a tunnel-boring machine along Lower Flower Street as ordered by the district court, the FSEIS also corrects the earlier drafting error and explicitly specifies that mitigation measures NV-19, NV-21, NV-22, NV-23, and NV-27 apply to Japanese Village. Japanese Village’s argument that Metro has not adopted the corrected mitigation plan from 2015 is unpersuasive because, as explained above, the most reasonable reading of the record indicates that Metro adopted the relevant mitigation measures even in 2012.
We also find unpersuasive Japanese Village’s argument that Appellees failed adequately to analyze the effectiveness of proposed mitigation alternatives. The March 28, 2012 expert study that Japanese Village asserts was overlooked by Appellees estimates the reduction in noise and vibration that proposed mitigation measures would provide.
In sum, we find that Appellees analyzed and adopted additional mitigation measures for construction-related noise and vibration in Japanese Village after the release of the FEIS, and Appellees documented these measures in the June 2012 ROD. We conclude that the failure to see the need for these mitigation measures at the time the FEIS was released in January 2012, as evidenced by the fact that these measures were analyzed and adopted later, did not violate NEPA.
b. Whether Relocation is a Permissible Mitigation Measure
Notwithstanding the fact that Metro adopted measures to mitigate construction-related noise and vibration, the parties appear to agree that construction-related noise and vibration may at least temporarily exceed federal standards in parts of Japanese Village. Thus; it is quite possible that Appellees’ planned mitigation step of assisting residents and businesses with temporary relocation will be necessary. Japanese Village argues that relocation does not constitute mitigation as a matter of law.
Japanese Village and Appellees both rely on the text of the relevant NEPA regulation, which states: '
Mitigation includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
(b) Minimizing impacts by ■ limiting the degree or magnitude of the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
(d) ‘Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.-
(e) Compensating for the impact by replacing or providing substitute resources or environments.
40 C.F.R. § 1508120. Japanese Village argues that this list is exclusive and that sinqe ' relocation does not appear in 40 C.F.R. § Í508.20, it is not a valid mitigation measure. Appellees argue that relocation could fall under subdivision (e) of the regulation because relocation “provid[es] substitute ... environments” for displaced residents. Moreover, Appéllees argue, the regulation merely defines what mitigation “includes.” Appellees argue that the regulation permits mitigation measures that are not specifically enumerated in the text.
The cases cited by Japanese Village,do not directly address whether relocation is a valid mitigation measure under 40 C.F.R. § 1508.20 or NEPA generally. For exam-pie, In re Katrina Canal Breaches Consolidated Litigation, No. 05-4192, 2011 WL 651946, at *4 (E.D. La. Feb. 11, 2011) merely noted in dicta that one of the goals of a project was to “avoid and minimize relocations and other impacts to local residents and businesses to the maximum extent practicable.” As Japanese Village notes, Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178 (8th Cir. 2001) dealt with the relocation of airplanes, not people. Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Commission, 869 F.2d 719 (3d Cir. 1989), also cited by Japanese Village, simply noted that agencies should consider socioeconomic impacts of federal projects, including the impact of relocation. Finally, the district court in Monarch Chemical Works, Inc. v. Exon, 452 F.Supp. 493, 500 (D. Neb. 1978) ruled that a project required an EIS in part because of “the environmental consequences of the relocation of an entire community.”- None of these cases addresses the definition of “mitigation.”
Japanese Village also argues that in cases in which relocation is necessary, the government must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the “Relocation Act”), 42 U.S.C. §§ 4601 et seq. Japanese Village correctly points out that courts have enjoined federal projects that fail to comply with the Relocation Act. In a notice of errata filed after Japanese Village filed its reply brief, however, Japanese Village acknowledges that the EIS in the instant case actually does consider the Relocation Act. For example, a page of the Mitigation Monitoring and Reporting Program indicates 'that “Metro shall provide relocation assistance and compensation as required by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.” Japanese Village does not claim that Appellees have violated the Relocation Act, so any argument that the Project could be enjoined on that basis does not apply.
Ultimately, we need not decide whether relocation can ever be a valid mitigation measure under NEPA because “NEPA does not require that mitigation measures completely compensate for the adverse environmental effects.” Conner, 848 F.2d at 1450. The Supreme Court’s example in Robertson is instructive:
[I]t would not have violated NEPA if the Forest Service, after complying with the Act’s procedural prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent, .50 percent, or even 100 percent of the mule deer herd.
Robertson, 490 U.S. at 351, 109 S.Ct. 1835. In the instant case, regardless of whether relocation is considered a mitigation measure or a source of harm, Appellees would not have violated NEPA as long as they took a hard look at each alternative and discussed the extent to which adverse effects can be avoided. Not only did Appel-lees examine various noise and vibration mitigation measures, Appellees also went beyond NEPA’s procedural requirements and committed to implementing the mitigation measures that Japanese Village requested.
2. Operational Noise and Vibration
Japanese Village next argues that Ap-pellees violated NEPA by not specifically requiring “isolated slab track” technology (“1ST”) to mitigate operational noise and vibration from trains passing below Japanese Village. For so-called “Category 3” land uses such as the offices at Japanese Village Plaza, federal vibration and noise guidelines for “frequent” events such as a single train passing beneath are 75 VdB and 40 dBA respectively. The vibration and noise guidelines for “occasional” events such as two trains passing at once are 78 VdB and 43 dBA. Id. In a March 2011 report, Appellees’ engineers found that without mitigation, operational noise (but not vibration) could exceed these levels.
To address operational noise and vibration, in the January 2012 FEIS, Appellees’ mitigation plan included the following measures:
In the vicinity of the Hikari Lofts and Nakamura Tetsujiro Building, Metro shall conduct engineering studies during final design to verify initial estimates of GBN and shall implement high compliance resilient fasteners, floating slab trackbed, or other appropriate measures as needed to eliminate impacts and to reduce GBN below FTA annoyance criteria. (NV-28)
In the vicinity of the offices at JVP and the Broad Art Foundation Museum, currently under construction, Metro shall conduct engineering studies during final design to verify initial estimates of GBN and shall implement high compliance resilient fasteners or other appropriate measures as needed to eliminate impacts and reduce GBN below FTA annoyance criteria. (NV-29)
At the time of the FEIS, Appellees did not expect that 1ST would be necessary.
As with the construction-related noise and vibration analysis, however, an engineering report issued after the FEIS suggested that without 1ST, the noise levels at Japanese Village Plaza would exceed federal limits. Japanese Village argues that it was an abuse of discretion for the FTA to “ignore the most recent and reasoned reports from its experts” and allow the use of mitigation means other than 1ST without an appropriate explanation.
Japanese Village’s argument is unpersuasive for two reasons. First, “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.” Marsh, 490 U.S. at 373, 109 S.Ct. 1851. In this case, the January 2012 FEIS accounted for the possibility that “other appropriate measures” could be taken “as needed to eliminate impacts and reduce GBN below FTA annoyance criteria.” Second, as with the mitigation measures Japanese Village requested to reduce construction-related noise and vibration, Appellees specifically adopted 1ST for Japanese Village when the Metro board approved the Project on April 26, 2012. The meeting minutes reflect: “NV-27 — In the vicinity of the ... Japanese Village Plaza ... Metro shall use resiliently supported fasteners, isolated slab track technology, or other appropriate measures as needed to eliminate impacts and to reduce GBN below FTA annoyance criteria.” Attachment B to the ROD states: “Mitigation measures NV-19, NV-21, NV-22, NV[-]23, NV-27, and TR-1 specifically apply to the Japanese Village Plaza.” Moreover, the December 15, 2015 Final Supplemental Environmental Impact Statement explicitly states that mitigation measure NV-27, which includes 1ST, applies to Japanese Village. Accordingly, to the extent that Japanese Village complains about a lack of implementation of 1ST (as opposed to a lack of discussion in the FEIS), Japanese Village’s argument is now moot.
3. Subsidence
Japanese Village argues that Appellees’ plan to mitigate potential building subsi-denee due to tunneling under Japanese Village is not sufficiently detailed. Specifically, Japanese Village argues that the FEIS should have explicitly required that a 0.25 inch settlement in any building would trigger the use of compensation grouting.
An EIS must “discuss mitigation measures, with sufficient detail to ensure that environmental consequences have been fairly evaluated.” S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 588 F.3d 718, 727 (9th Cir. 2009) (per curiam) (citation omitted) (internal quotation marks omitted). In South Fork Band, we found an EIS inadequate where it stated that “[feasibility and success of mitigation would depend on site-specific conditions and details of the mitigation plan,” but the EIS omitted any discussion of “whether the anticipated harms could be avoided by any of the listed mitigation measures.” Id. Japanese Village argues that Appellees’ MMRP improperly defers analysis in favor of future studies and site-specific investigation.
In'the instant case, the MMRP includes three pages of measures designed to combat building subsidence. One of the measures included in the MMRP states, in relevant part:
GT-1: While engineering designs are being finalized, but before any construction, a survey of structures within the anticipated zone of construction influence shall be conducted in order to establish baseline conditions_ If assessments indicate the necessity to proactively protect nearby structures, additional support for the structures by underpinning or other ground improvement techniques shall be required prior to the underground construction. Metro shall require the construction contrac-
tor to limit movement to less than acceptable threshold values for vertical, horizontal, and angular deformation as a performance standard. These acceptable threshold values shall be established such that the risk of damage to buildings and utilities will be negligible to very slight. For buildings, these threshold values will be based on the relationship of building damage to angular distortion and horizontal strain consistent with Boscardin and Cording (1989) and qualitative factors including but not limited to the type of structure and its existing condition_! Additional data and survey information shall be gathered during final design for each building and utility main to enable assessment of the tolerance of potentially affected structures and utilities.
Another mitigation measure in the MMRP states:
GT-2: Ground improvement such as grouting or other methods shall be required to fill voids where appropriate and offset potential settlement when excess material has been removed during excavation. The criteria for implementing grouting or ground improvement measures shall be based on the analysis described in mitigation measure GT-1.
These mitigation measures are not specific to Japanese Village, and Japanese Village argues that the lack of specificity does not allow for adequate evaluation of the measures’ impact,
While, at first glance, these mitigation measures seem to lack detail, the manner in which Appellees worked to develop the measures shows that Appellees sufficiently considered the effectiveness of each proposal. After the FEIS was issued but before the ROD was signed, Metro asked an expert to assess the potential effects of underground construction on existing Japanese Village buildings. The expert concluded that without mitigation, three buildings in Japanese Village were anticipated to have “moderate” to “very severe” damage due to subsidence. The expert recommended that as “soon as buildings show a settlement value approaching 0.25 inches, compensation grouting would be activated under the building in order to counteract tunneling settlement developing under it.” The expert opined:
With the successful implementation of compensation grouting, the settlement under these buildings could be, controlled to acceptable levels. At the present level of analysis, which is empirical settlement will have to be limited to 0.25 inches for “Negligible” damage, or 0.5 in. for “Slight” damage, which by definition in practice nonstructural and cosmetically repairable.
This expert study, issued on April 9, 2012, was part of the administrative record when Appellees issued their ROD in on June 29, 2012. Unlike the EIS rejected in South Fork Band, Appellees’ proposed mitigation measures, when viewed in light of the analysis provided by Appellees’ expert, are sufficient to allow for an evaluation of effectiveness. Thus, we agree with the district court that Appellees’- analysis satisfies the purpose of NEPA, “to ensure that agencies carefully consider information about significant environmental impacts.” N. Plains Res. Council, Inc. w. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).
Our conclusion is also consistent with that of a recent case cited in Japanese Village’s notice of supplemental authority. In Protect Our Communities Foundation v. Jewell, 825 F.3d 571, 582 (9th Cir. 2016), we approved an EIS that included, among other things, an “adaptive management plan” that “provide[dj flexibility in responding to environmental - impacts through a regime of continued monitoring and inspection.” While a mere promise to develop site-specific mitigation measures in the future might not pass muster, “the use. of such a continuous monitoring system may complement other mitigation measures, and help to refine and improve the implementation of those measures as the Project progresses.” Id.
For the reasons set forth above, we conclude that Appellees’ plan to mitigate subsidence was not arbitrary and capricious; an abuse of discretion, or otherwise in violation of the law.
⅛. Parking
Finally, Japanese Village argues that Appellees failed to adequately consider the increased demand that the new Little Tokyo transit station will place on Japanese Village’s existing parking structure. Because the new transit station will not provide additional parking and will be located only 16 feet from Japanese Village’s parking structure, Japanese Village worries that the parking used by its employees and customers will be overrun by rail commuters. While Japanese Village'acknowledges that Appellees ■ conducted parking studies, it argues that Appellees’ analysis of the impact on Japanese Village’s parking structure — as opposed to other off-street and on-street parking— was insufficient.
Appellees rely on several portions of the record to support their argument that Ap-pellees’ parking analysis was adequate. For example, Appellees point out that they created a 160-page transportation analysis study, which included extensive discussion about the impact on parking. Appellees also cite the Station Planning Toolkit, attached as Appendix J to the FEIS, which notes that 600 additional parking spaces are expected in Little Tokyo as part of a new mixed-use development. The portion of Appellees’ analysis that seems most directly- responsive to Japanese Village’s concern about off-street parking is in a paragraph in Chapter 4 of the FEIS:
Typically, privately-operated parking lots are considered transitional land uses that could be developed by the owners for higher and better uses. Several other privately-operated parking lots and structures are located in the vicinity. Loss of the current parking lot may cause an inconvenience for users but it would not represent a significant impact. Parking demand in the area would be partially offset by the increased public transit access provided by the proposed project. However, Little Tokyo residents and business owners have indicated that parking spaces are important community resources, and that the loss of this parking could negatively impact the adjacent small businesses and the JANM located across the street. The community is concerned that this could, in turn, affect the economic stability and. ultimately the character of the community. Therefore, prior to construction of the alternative, Metro would conduct an annual parking capacity study of the Little Tokyo area during construction to determine if there is sufficient parking availability without these parcels. Metro would also make a portion of the Mangrove property available for valet parking to offset the parking loss. This change would not be a significant impact with respect to displacements.
Another portion of the FEIS notes the “[permanent displacement of approximately 270 off-street parking spaces” due to the Project, approximately 130 of which are in Little Tokyo. Among other things, Appellees argue that because surface parking is a “transitional land use,” long-term parking availability may decline even in the absence of the Project.
There are no NEPA thresholds for determining the significance of parking impacts, and Japanese Village has not cited any cases in which a court has found an EIS inadequate for failure to consider increased demand on an existing parking structure. The two district court cases on which Japanese Village relies arguably support Appellees’ position that their analysis was adequate. Japanese Village criticizes Appellees for “philosophizfing]” that improved transit service may reduce the need for parking. However, in California Coastal Commission v. U.S. Department of the Navy, 22 F.Supp.3d 1081, 1103 (S.D.Cal. 2014), which Japanese Village cites, the court noted that “increased public transportation in the downtown areas” may reduce demand for parking. Moreover, the court found the Navy’s parking analysis .sufficient even though the Navy found that the parking impact of the project at issue “may be unmitigable.” Id. In Crenshaw Subway Coalition v. Los Ange-les County Metropolitan Transportation Authority, No. CV 11-9603 FMO, 2015 WL 6150847, at *26 (C.D. Cal. Sept. 23, 2015), the court affirmed an agency determination, based on a parking survey, that a light rail project “will not result in a significant impact because the combination of both on- and off-street parking provides enough total parking spaces to meet the demand in the area.” Here, as noted above, Metro plans to “conduct an annual parking capacity study of the Little Tokyo area during construction to determine if there is sufficient parking availability.”
The only appellate case that we have found analyzing a parking problem even somewhat similar to the one at issue here, Chelsea Neighborhood Associations v. U.S. Postal Service, 516 F.2d 378, 387-88 (2d Cir. 1975), held that an EIS was inadequate in part because it failed to discuss where 800 residents and 1,500 employees of a planned mixed-use development would park. As explained above, however, Appel-lees in the instant case provided at least some analysis of the Project’s parking impacts and likely mitigating factors.
We conclude that Appellees’ analysis of off-street parking impacts is sufficient to pass muster under NEPA. “NEPA imposes no substantive requirement that mitigation measures actually be taken_” Robertson, 490 U.S. at 353 n.16, 109 S.Ct. 1835. Appellees estimated the number of parking spaces that could be lost in Little Tokyo due to the Project, but they also estimated the number of spaces that they expect the area to gain from other development. Appellees discussed how increased use of püblic transit would at least partially offset the need for additional parking. Appellees also discussed possible mitigation measures. The record indicates that Appellees took the requisite “hard look” at the parking impacts' of the proposed Project before it was approved.
IV. BONAVENTURE CLAIMS
Bonaventure argues that Appellees (1) failed to analyze Closed-Face TBM construction as a reasonable alternative tunneling method for the Lower Flower portion of the Project in the FEIS; (2) failed to adequately analyze certain impacts and impermissibly deferred- certain mitigation analyses in the FEIS; and (3) failed to prepare a Supplemental EIS to analyze nighttime construction. We address these arguments in turn.
A. Analysis of Closed-Face TBM on Lower Flower
“The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Friends of Yosemite Valley v. Kempthome, 520 F.3d 1024, 1038 (9th Cir. 2008) (quoting Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995)). An “agency must look at every reasonable alternative ...,” id. but an “agency need not ... discuss alternatives similar to alternatives actually considered, or alternatives which are ‘infeasible, ineffective, or inconsistent with the basic policy objectives for- the management of the area,’” N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1180-81 (9th Cir. 1990)). For alternatives that are “eliminated from detailed study,” agencies must “briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a)
1. Feasibility Determination in the FEIS
Appellees addressed Closed-Face TBM in the FEIS, adopting the construction technique for some parts of the Project but rejecting it as infeasible south of 4th Street because of three impediments: (1) the “pocket track” requirement, (2) the requirement to preserve the option of building a 5th and Flower Street station in the future, and (3) the presence of “tiebacks.” “[Technical determinations of the agency, reflecting the application of its specialized expertise, merit particular deference, ...” See Protect Our Cmtys., 825 F.3d at 581 (finding that agency reasonably excluded alternative after determining it would present “significant feasibility issues”); see also Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 871 (9th Cir. 2004) (finding that agency has discretion to reject alternatives deemed ineffective for accomplishing project’s goals). .
Despite the assessment in the FEIS, Bonaventure argues that Closed-Face TBM was a viable alternative on Lower Flower because the three impediments identified by Appellees had been eliminated before issuance of the FEIS. The record, however, does not show that the requirement to -preserve the option of building another .station in the future had been eliminated or that the issue of tiebacks had been resolved by the time Ap-pellees issued the FEIS. Therefore,- we And no basis for concluding that Appel-lees were 'arbitrary or capricious in finding that Closed-Face TBM was not feasible on Lower Flower.
a. Pocket. Track Requirement
A “pocket track” is a third track with connecting switches for train storage and passing located between two main tracks and is used to enable quick recovery of the transit system when a train has to be taken out of service. Crossover tracks allow trains traveling in either direction on either track to move to the other track and continue traveling in .the same direction without stopping and can be used to allow trains to bypass a stalled train or turn back in the opposite direction. Neither a pocket track nor a crossover track can be constructed using Closed-Face TBM..
Bonaventure argues that Closed-Face TBM became feasible for Lower Flower once the pocket track requirement south of 4th Street was eliminated from the Project in 2011. Appellees contend that although the pocket track requirement was eliminated, it was replaced with a crossover track requirement, which would similarly preclude use of Closed-Face TBM.
Although the record before us is somewhat ambiguous, it seems that neither a pocket track nor a crossover track was a Project requirement for Lower Flower by the time Appellees issued the FEIS. The DEIS and SEA contemplate a pocket track in the area of Lower Flower. But Metro’s April 2012 Draft Tunnel Study states that the pocket track requirement was eliminated in December 2011 because “[crossovers in the underground alignment would mitigate service delays and a pocket or storage tracks could be used in adjacent project locations....” The FEIS itself states that a “pocket track, which could also serve as a crossover, would be located beneath Flower Street between 4th and 6th Streets,” but also suggests that crossovers and pocket tracks “may not be needed at all of [the listed] locations” and that the Flower Street pocket track “is being considered for relocation as a refinement to the Locally Preferred Alternative.”
Assuming that the pocket and/or crossover track requirement had been eliminated or relocated, Appellees may well have violated NEPA if they had relied solely on pocket track incompatibility to find Closed-Face TBM infeasible on Lower Flower. An agency “must look at every reasonable alternative, with the range dictated by the nature and scope of the proposed action.” Alaska Wilderness Recreation, 67 F.3d at 729 (emphasis added) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 (9th Cir. 1992)). We need not decide that question, however, because Ap-pellees rejected the Closed-Face TBM as infeasible on Lower Flower for two other reasons — namely, the existence of tiebacks ha the area and the Project requirement to preserve the option of a future Flower/5th/4th Street Station.
b. Flower/5th/Ith Street Station
Bonaventure argues that Closed-Face TBM became feasible in October 2010 when the Flower/5th/4th Street' station was dropped from the Project plan. This argument ignores that the Project still required preservation of the option to'build a future Flower/5th/4th Street station. The future station option — rather than the station itself — -is Metro’s stated reason for rejecting the Closed-Face TBM alternative in the FEIS: “Using tunnel boring machine construction would also create some challenges on the ability of not precluding a 5th and Flower station as the alignment would be changed from a box structure to separate bored tunnels.”
Bonaventure suggests that the Project requirement for a future station option was not adopted until April 26, 2012 and was therefore not a legitimate reason to reject Closed-Face TBM as infeasible in January 2012. The April 26, 2012 Metro Board Meeting Minutes cited by Bonaventure list “preserving] the opportunity to install a future station north of 5th and Flower Streets” as an approved amendment to the Locally Preferred Alternative, but the Minutes do not actually show when the amendment was approved. The January 2012 FEIS itself states that “the design of the Locally Preferred Alternative would not preclude a station at 5th and Flower Streets from being built as a possible future, separate project.” ■ Therefore, the record does not establish that the requirement to preserve a future station option had been eliminated from the Project before the FEIS was issued.
c. Tiebacks
Tiebacks are temporary stabilization systems made out of steel that were typically left in place after basement construction in the area. In the DEIS, Appellees note that such “obstructions would potentially be problematic for TBM excavation on Flower Street due to the shallow depths of the tunnels, which is partly why cut and cover construction is planned for this area.” In the FEIS, Appellees stated that use of TBM “south of 4th Street would not be practicable due to the need to remove tie-backs ahead of the tunnel boring machine.”
Bonaventure’s only evidence that Appel-lees did not consider tiebacks to be an issue is Metro’s April 25, 2012 Draft Tunnel Study, which post-dates the FEIS and examines a low-alignment option that Metro developed in response to public comment on the FEIS. The profile of the low-alignment alternative ' examined in the Draft Tunnel Study “is such that it is assumed to be below all of the existing tiebacks based on available information,” but Metro notes that the low alignment option “would generate additional impacts” and “require other project changes.”
There' is no pre-FEIS evidence to show that Appellees believed that the tiebacks impediment on Lower Flower could be overcome by changing the alignment of the tunnel along Lower Flower. In fact, when Metro studied the issue in 2011, it concluded that it was “not possible to miss the tiebacks with a profile change” because the Lower Flower tunnel segment was “not long enough to permit a tunnel profile with the tunnel grades required to get down under the tiebacks.” We affirm the district court’s finding that Bonaventure has made no showing of that Appellees were arbitrary and capricious in rejecting the use of Closed-Face TBM on Lower Flower in the FEIS.
2. Effect of Post-FEIS Feasibility Admission
After the FEIS was published, Metro accepted public comment and continued to examine options for' extending the use of Closed-Face TBM on Flower south of 4th Street. During a series of community stakeholder meetings in March 2012, Metro discussed the possibility of extending the use of Closed-Face TBM ,by “deepening the vertical alignment to avoid the 4th Street piling system foundation; resulting in lowering the 2nd/Hope Street Station,” and “continu[ing] the TBM configuration from 4th Street to just south of 5th Street, assuming no or minimum tie-back encountered.” In a Draft Tunnel Study dated April 25, 2012, Metro stated that it had determined that “it was potentially possible to extend the TBM tunneling to 5th Street, subject to economic feasibility,” and had presented the low-alignment option to Metro’s Board in March 2012. On April 26, 2012, Metro’s Board adopted its staffs recommendation to extend the use of Closed-Face TBM to 5th Street, if it could'be done within the Project’s budget.
We agree, with the district court that Appellees’ post-FEIS admission of feasibility does not establish that the FEIS was procedurally deficient. “[T]he role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is.... limited ... by the time at which the decision was made.” Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Bonaventure argues that Vermont Yankee is distinguishable because it involved a party seeking to reopen agency proceedings that had been closed for over a year, while in this case, Appellees admitted the feasibility of the alternative before the FTA issued its record of decision. We are cognizant, however, that “[administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promulgated,” and if litigants could demand further analysis each time “some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.” Id. at 554-55, 98 S.Ct. 1197 (quoting Interstate Commerce Comm’n v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944)); see also Envtl. Def. Fund, Inc. v. Hoffman, 566 F.2d 1060, 1072 n.19 (8th Cir. 1977) (“[N]ot every addition to the EIS made in response to comments is such as to require a formal supplement to the EIS which must be processed in the same fashion as a new EIS for to do so would make the' NEPA review process be one without end;”).
The “ ‘touchstone’ for courts reviewing challenges to an EIS under NEPA ‘is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.’ ” Westlands, 376 F.3d at 872 (quoting California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)). In this case, the process seems to have worked. Appellees were not required to accept public comments after publishing the FEIS. See 40 C.F.R. § 1503.1 (b) (“agency may request comments on a final environmental impact statement”) (emphasis added). Yet Appel-lees engaged in continued dialogue with stakeholders and refined the Project in response to community concerns. A finding that Appellees were arbitrary and capricious in determining that Closed-Face TBM was infeasible based solely on Appel-lees’ subsequent admission that they were wrong is unlikely to foster informed decision-making and public participation; rather it is likely to discourage agencies from responding to post-FEIS public comments in the future. Nee, e.g., Block, 690 F.2d at 771 (noting that “[i]f an agency must file a supplemental draft EIS every time any modifications occur, agencies as a practical matter may become hostile to modifying the alternatives to be responsive to earlier public comment”).
To the extent Bonaventure argues that Appellees’ eventual admission of feasibility establishes that Appellees should have known Closed-Face TBM was technically feasible on Lower Flower all along, the argument is a substantive one and therefore “beyond the scope of our review.” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1159 (9th Cir. 1997). As noted by the district court, Bonaventure may have preferred that Appellees reach a different conclusion in the FEIS, but that preference does not establish that Appellees were arbitrary or capricious in determining that the alternative was not feasible.
B. Adequacy of Analysis of Project Impacts and Mitigation
Bonaventure also challenges the sufficiency of the impact analysis in the FEIS. “NEPA ‘does not mandate particular results, but simply describes the necessary process that an agency must follow in issuing an EIS.’ ” Westlands, 376 F.3d at 865 (quoting Robertson, 490 U.S. at 349, 109 S.Ct. 1835). “A court must avoid passing judgment on the substance of an agency’s decision. Its focus must be on ensur ing that agencies took a ‘hard look’ at the environmental consequences of their decisions.” Id. (quoting Robertson, 490 U.S. at 350, 109 S.Ct. 1835). Mitigation of environmental impacts must “be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.” Carmel-By-The-Sea, 123 F.3d at 1154 (quoting Robertson, 490 U.S. at 353, 109 S.Ct. 1835). An EIS, however, “need not contain a ‘complete mitigation plan’ that is ‘actually formulated and adopted.’” Id. (quoting Robertson, 490 U.S. at 353, 109 S.Ct. 1835).
1. Grade Separation Impact Analysis
Bonaventure is concerned about the impact of “grade separation” between the concrete decking — which will cover the trench created by cut and cover construction — and existing sidewalk and driveway elevations. Bonaventure argues that Ap-pellees acknowledged the possibility of grade separation in the FEIS, but then failed to quantify the possible extent or analyze the impacts it may have on freeway and garage access. The district court found that the FEIS satisfied NEPA’s “hard look” requirement. We affirm.
The FEIS states that decking “may be either flush with the existing street surface, or raised above the street surface with Americans with Disabilities Act (ADA)-compliant ramps to allow continued vehicle and pedestrian access.” The FEIS also responds to public comments about the impacts of grade separation:
• Any decking configurations would require construction of ADA-compliant ramps and accesses as well as modifications to vehicular access points to the garages and driveway along Flower Street
• Any decking configurations would be designed to safely accommodate the undercarriage and overhead clearances of vehicles using the driveways, garages, and loading docks
• Access to and from the bus stop, shuttle area, and mid-block pedestrian . crossing would be accommodated in any decking configuration.
NEPA regulations require “only brief discussion of other than significant issues.” 40 C.F.R. § 1502.2 (b) (“Impacts shall be discussed in. proportion to their significance.”). “As in a finding of no significant impact, there should be only enough discussion to show why more study is not warranted.” Id. Because Appellees explained that any “decking configuration” would be designed to avoid significant impacts, we are satisfied that no further discussion is warranted. See Protect Our Cmtys., 825 F.3d at 583 (finding NEPA’s “hard look” requirement satisfied where agency “provided less analysis of noise effects in the EIS as compared to other more significant or unmitigable environmental impacts” because agency concluded that noise effects could be effectively reduced).
Bonaventure claims that grade separation may result in severe traffic congestion. Although the FEIS includes extensive traffic impact analysis, the analysis does not touch on grade separation, We find this to be consistent with Appellees’ treatment of grade separation as not likely to cause significant impacts; the traffic impact analysis need only contain “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Cannelr-By-The-Sea, 1-23 F.3d at 1150 (emphasis added). Bonaventure cites no evidence that grade separation will result in significant traffic impacts; we have no reason to conclude, therefore, that Appellees were required to take a harder look at the issue.
Bonaventure also objects that Appellees violated NEPA by improperly deferring the choice of decking configurations and indicating that environmental factors would not be considered in making the choice: “Decking configurations will be determined during the final design phase of the project, based on cost, schedule, and construction activity phasing considerations.” Having determined that there would not be significant environmental impacts from grade separation, Appellees did not act arbitrarily and capriciously in deferring the configuration decision or selecting the listed decision criteria in the FEIS. Moreover, we note that by the time the Project was approved, it included a design refinement stating that “South of 4th Street, construction decking shall be no higher than 10[ inches], if feasible, above the existing grade, and flush with existing curb on the east and west side of Flower Street with a maximum cross gradient of 3%.”
2. Emergency Vehicle Access Impact Analysis
Bonaventure is also concerned about the impact of construction on emergency vehicle access to adjacent properties, including the Westin Bonaventure Hotel. Bonaventure argues that the analysis of such impacts in the FEIS is conclu-sory and does not explain how the impacts would be mitigated. At first glance, some of the discussion of construction .impacts on emergency response in the FEIS appears conclusory. For example,. Metro states that it “would not allow construction activities to impede safe, evacuation of the buildings or access for emergency personnel at any time.” But the FEIS contains further explanation of how such goals would be achieved.
Appellees acknowledge that “[s]treet lane closures associated with construction activities could result in increased response times for emergency services (e.g., police and fire)” and that “[a]ny increase in response times for emergency services would be a potentially adverse construction impact.” But the FEIS also discusses mitigation of the impact of street closures:
Prior to the initiation of localized construction activities, a traffic management and construction mitigation plan shall be devised. The closure schedules in the construction traffic plan shall be coordinated to minimize impacts to residences, business, special events, and traffic flow.... [The] plan shall identify, for instance, proposed closure schedule and detour routes, [and] construction traffic routes..., Traffic flow shall be maintained, particularly during peak hours, to the degree feasible. Access to adjacent businesses shall be maintained at all times during business hours, and to residences at all times.
Appellees also indicate that “access to businesses would be maintained during business operating hours throughout construction .... Metro would keep entrances and exits clear of obstructions and would ensure that adequate exit routes and safe zones are maintained at all times during construction ...” Mitigation Measure SS-15 provides that “Metro shall keep sidewalks, entrances to buildings, lobbies, corridors, aisles, doors, or exits that remain in use by the public clear of obstructions.” Appellees acknowledge “[i]t may not be possible to keep all vehicular entrances to garages open at all times during operating hours,” but state that “Metro would ensure that access is provided via other vehicular entrances during those times as part of its goal to maintain access to businesses. Metro would coordinate with garage owners to ensure safety and minimize inconvenience.”
Appellees further- explain that Metro would coordinate with emergency services “to provide appropriate safety and security of the public using the Metro system, employees, and the surrounding communities,” Appellees state:
Metro would coordinate construction activities with emergency .service personnel to ensure, -that emergency services and response times are not impacted, as indicated in Section 4.15.4.1 of the Draft EIS/EIR. This coordination has been included as mitigation measure number CN-2 in the Mitigation Monitoring and Reporting Program for the Locally Preferred Alternative (Chapter 8 of this Final EIS/EIR).
And Mitigation Measure CN-2' states, “Early notification of traffic disruption shall be given to emergency service providers. Work plans and traffic control measures shall be coordinated with emergency responders to prevent impacts to emergency response times.” We are not persuaded that these mitigation measures are insufficient.
Bonaventure argues that' these mitigation -measures address only pedestrian access, not access for vehicles, but Mitigation Measure TR-1- addresses “[t]raffic circulation disruption” that-“would occur during construction.” Mitigation Measure SS-15 discusses safety and security measures with respect to “public use of work areas involving sidewalks, entrances to buildings, lobbies, corridors, aisles, stairways, and vehicular roadways."
Bonaventure argues that Appellees’ promise to maintain access during “business operating hours” is not sufficient because the Westin Bonaventure Hotel operates around the clock. But elsewhere in the FEIS, Appellees note that “Metro would maintain access to the hotel at all times during operating hours ...and specifically explain that “business operating hours” includes operating hours of “late-night business such as the 24-hour gym.”
Bonaventure also argues that it is not helpful for Appellees to provide access through “other vehicular entrances” for the Westin Bonaventure Hotel because the hotel’s only vehicular access is to Flower Street. We note that Bonaventure does not maintain that the hotel has only a single vehicular access point — Bonaventure’s statement merely implies that all vehicular access points lead to Flower Street. Bonaventure has not identified any particular impact that would result from this circumstance — Metro could maintain vehicular access to at least one of many Flower Street access points during construction. Even in the unlikely event that hotel has only a single vehicular entrance, nothing in the FEIS suggests that Metro would not maintain access to that entrance at all times — it. clearly states that “[a]ceess to adjacent businesses shall be maintained at all times during business hours.”
Bonaventure claims that providing early notification to emergency service providers does not address the loss of access caused by the Project. As discussed above, Appel-lees have explained how they will maintain access for emergency vehicles, albeit potentially more limited access than usual. Early notification to emergency services providers would help to prepare the emergency service providers to navigate the more limited access and thereby mitigate the impact of the Project.
Therefore, we affirm the district court’s finding that the FEIS includes reasonably thorough discussion of the impact on access for emergency vehicles.
S. Deferred Monitoring and Mitigation Measures
Bonaventure contends that Appel-lees have impermissibly deferred “myriad studies, surveys and mitigation plans” in violation of NEPA. NEPA requires discussion of “mitigation of reasonably likely impacts at the outset.” S. Fork Band, 588 F.3d at 727. The district court found that these mitigation measures were not arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. We affirm.
Bonaventure argues that' Mitigation Measures GT-1, NV-2, TR-1, CN-3, and NV-13 are too vague because each measure improperly call for measures that “shall” be developed later:
• GT-1: “acceptable threshold values shall be established such that the risk of damage to buildings and utilities will be negligible to very slight.”
• NV-2: “vibration monitoring plan shall be developed.”
• TR 1: “traffic management and construction mitigation plan shall be devised.”
• CN-3: “[t]raffic management and construction mitigation plan shall be developed.”
• NV-13: “construction mitigation plan shall prohibit noise levels generated during construction from exceeding the FTA construction noise criteria.”
The record shows, however, that in addition to proposing adaptive management plans, Appellees studied baseline conditions and conducted in depth analysis of the subsidence, vibration, traffic management, and noise impacts of the Project. The FEIS includes lengthy sections describing the impacts on “Geotechnical/Sub-surface/Seismic/Hazardous ' Materials,” “Noise and Vibration,” and “Transportation.”
Furthermore, the challenged mitigation measures themselves describe how the impacts will be monitored and what Appel-lees intend to do in response:
• GT-1 explains that the subsidence monitoring threshold is tied to “the relationship of building damage to angular distortion and horizontal strain consistent with Boscardin and Cording (1989) and qualitative factors including but limited to the type of structure and its existing condition.”
• NV-2 calls for “pre-construction surveys of all buildings within 21 feet of vibration producing construction activity” and states that any damage will be repaired.
• TR-1 describes measures to notify and coordinate with community members in scheduling construction.
• CN-3 states that the traffic management and construction mitigation plans will be developed “in coordination with community” and that “[grossing guards and other temporary traffic controls shall be provided ... as appropriate to maintain traffic flow during construction.”
• NV-18 involves monitoring using “FTA construction noise criteria” and listing a variety of mitigation techniques to be used as needed in response to monitoring, including noise barriers, alarms/warning procedures, and mufflers.
As in Protect Our Communities, these mitigation measures describe “adaptive management” plans that would provide “flexibility in responding to environmental impacts through a regime of continued monitoring and inspection.” 825 F.3d at 582; see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1210-11 (9th Cir. 2004) (finding “hard look” requirement satisfied where FEIS included detailed analysis of traffic concerns and specifically provided “for ongoing traffic monitoring and a ‘Traffic Management Plan’ to set ‘specifications on construction traffic scheduling, proposed haul routes, construction parking, staging area management, visitor safety, detour routes, and speed controls’ ”).
C. Supplemental EIS for Nighttime Construction
According to Bonaventure, Appel-lees were required to prepare a supplemental EIS because Metro applied for noise ordinance variances to accommodate nighttime construction on Lower Flower after the issuance of the FEIS. The district court found that no supplemental EIS was required. We affirm.
A supplemental EIS is required if (a) the “agency makes substantial changes in the' proposed action that are relevant to' environmental concerns;” or (b) there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c). A supplemental EIS is not required if “(1) the new alternative is a ‘minor variation of one of1 the alternatives discussed in the draft EIS,’ and (2) the new alternative is ‘qualitatively within the spectrum of alternatives that were discussed in the draft [EIS].’ ” Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011) (quoting published guidance from Council for Environmental Quality publications). Like EIS compliance, an agency’s decision on whether to supplement is controlled by the “arbitrary and capricious” standard. See Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851.
Section 41.40 of the Los Angeles Municipal Code prohibits any construction during certain nighttime hours without a permit. On April 16, 2012, Metro applied to the Board of Police Commissioners for nighttime noise variance “to accommodate the construction of necessary utility reloca-tions” along Lower Flower and in several other Project areas. Metro requested permission to work from 9:00 pm to 7:00 am, Monday through Friday, and 6:00 pm to 7:00 am, Saturday through Monday. Id, The application indicated that work would start on June 1, 2012 and take approximately 1.5 years. “Understanding that the variance could not be granted for that length of time,” Metro requested a six-month permit, indicating that it would request periodic extensions. Metro listed several activities as within the scope of work, such as surveying and traffic control, sawcutting, trenching and shoring, infrastructure installation, backfilling,' and paving. Bonaventure argues this application is a substantial change .because decking and pouring concrete are the only nighttime activities discussed in the FEIS — not sawcutting, trenching, shoring, or infrastructure installation. Bonaventure also argues that FEIS only contemplated nighttime construction over short, limited period, while the requested permits would allow for 24/7 construction over 1.5 years.
• The Lower Flower variance application does not imply new plans for nighttime construction. The FEIS and DEIS already indicated that utility relocations might require “complex construction sequences and schedules,” lasting up to four months on each two-block segment, but that “[sjtreet closures would generally be limited to nighttime, weekend, and/or off peak closures and must be authorized by the .local jurisdiction.” The FEIS notes that the Municipal Code prohibits nighttime construction without a variance and states, that the contractor would “be responsible for consistency with the goals of the applicable local ordinance as it applies to all equipment to the job or related to the job.” These statements are consistent with the application for. a variance for nighttime construction associated with utility relocation that Metro submitted for Lower Flower. Furthermore, the four variance applications in the administrative record all list the same construction activities for the same time period, which suggests that Metro was seeking blanket authorization for utility relocation activities — not that utility relocation would go on continuously for 1.5" years in any one particular area.
Moreover, the FEIS already accounts for the noise and light impacts of possible nighttime construction: “This analysis considered both daytime and nighttime construction activities using the procedures and criteria for a general noise assessment presented in Chapter 12 of the FTA guidance manual (ÜSDOT 2006).” Noise measurements were obtained at the Wes-tin Bonaventure — including 24-hour noise measurements. And mitigation techniques, such as “[hjigher performance mufflers” for nighttime construction “near sensitive land uses” were discussed. The FEIS indicated that “nighttime lighting would predominantly consist of security fighting, and fight would be directed on-site,” and therefore would not cause “adverse or significant” impacts. Even if the variance application were to constitute a substantial change in the Project, no Supplemental EIS would be required because the change would not affect the environment “to a significant extent not already considered.” Marsh, 490 U.S. at 374, 109 S.Ct. 1851; see, also Russell Country Sportsmen, 668 F.3d at 1049 (finding no supplementation required because there was “very little reason to. believe the modified travel plan will have environmental impacts that the agency has not already considered”).
V. CONCLUSION
For the reasons set forth above, the district court’s grant of summary judgment in favor of Appellees on all claims is AFFIRMED.
IT IS SO ORDERED.
. The Appellees are: the Federal Transit Administration ("FTA”); Peter Rogoff, the Administrator of the FTA; Leslie Rogers, the Regional Administrator of the Region DC Office of the FTA; the U.S. Department of Transportation; Ray LaHood, the Secretary of the U.S. Department of Transportation; and the Los Angeles Metropolitan Transportation Authority ("Metro”),
. In total, the DEIS discusses five alternatives: (i) the required "No Build Alternative”; (ii) rapid bus lines between the stations (the "Transportation System Management Alternative”); (iii) the "At-Grade Emphasis Alternative”; (iv) the "Underground Emphasis Alternative”; (v) and the "Fully Underground Alternative.”
. The district found that the FSEIS adequately. addressed the open-face tunneling altorna-tives on Lower Flower and dissolved the injunction on February 5, 2016.
. VdB is a measure of vibration in decibels. dBA is a measure of noise in decibels. •
. "Category 3” land uses include "quiet office or institutional buildings,” while "Category 2” land uses include residential buildings.
. The MMRP also proposes additional mitigation measures labeled GT-3 through GT-6.
. The plaintiffs in California Coastal Commission sued under the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., not NEPA. Id. at 1086.
. Japanese Village cited Crenshaw in its June 20, 2016 Letter of Supplemental Authorities.
. Japanese Village claims that Metro declined to adopt a proposed mitigation measure, TR-1, which would provide valet service to people denied access to Japanese Village’s parking structure, among other things. As explained in the section above on noise and vibration mitigation measures, Metro actually did adopt mitigation measure TR-1, but this measure was inadvertently left out of the FEIS and ROD. The December 2015 FSEIS corrects this oversight.'
. Moreover, we note that Appellees included analysis of Closed-Face TBM at a deep alignment along Lower Flower in the December 2015 FSEIS. Even if Bonaventure’s claim had merit, this analysis would likely render Bonaventure’s claim moot.
. Bonaventure does not argue — and likely could not establish — that Appellees’ post-FEIS resolution to extend the use of Closed-Face TBM on Flower Street (budget permitting) constitutes a "substantial change” requiring a supplemental EIS under 40 C.F.R. § 1502.9(c). Bonaventure only challenges the sufficiency of the analysis in the FEIS.
. Neither party submitted or cited. Section 4.15.4,1 of the DEIS.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2714285714285714, Costs: 0
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Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WYNN and Judge HARRIS joined.
DUNCAN, Circuit Judge:
Raven Crest Contracting, LLC (“Raven Crest”) operates a surface coal mine near Racine, West Virginia, known as the Boone North No. 5 Surface Mine (“the Boone North mine”). This action challenges the adequacy of the environmental review conducted by the Army Corps of Engineers (“the Corps”) before the Corps issued a permit pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, authorizing Raven Crest to discharge fill material into waters of the United States in conjunction with that mine.
The Plaintiffs-Appellants are a consortium of environmental groups, collectively “OVEC,” that have engaged in advocacy efforts involving surface coal mining operations in West Virginia in the past. OVEC claims that the Corps violated both the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Clean Water Act by failing to consider evidence that surface coal mining is associated with adverse public-health effects in nearby communities. The district court disagreed, and granted the Corps’ and Raven Crest’s motions for summary judgment, holding that the Corps properly determined that the connection between surface coal mining and public health was an issue not properly within the scope of its environmental review. OVEC appealed. Because this case is materially indistinguishable from our precedent in Ohio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177 (4th Cir. 2009), in which we rejected a similar challenge, we affirm.
I.
At the Boone North mine, Raven Crest planned to “provide for the safe and efficient extraction of approximately 6.8 [million] tons of steam grade bituminous coal” from a 724-acre area. J.A. 93. To carry out its proposal, Raven Crest was required to obtain permits under each of four federal regulatory provisions: the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1201 et. seq.; and sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. §§ 1341, 1342, 1344. We review each of these permitting requirements below, focusing particularly on Raven Crest’s section 404 permit, as that is the specific permit OVEC has challenged in this case.
A. SMCRA Permit
SMCRA is a federal statute that mandates certain minimum requirements for state programs that regulate surface mining. If the state regulatory program meets those requirements, SMCRA grants that state “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” within the state’s borders. 30 U.S.C. § 1253. West Virginia’s federally approved SMCRA program is administered by the West Virginia Department of Environmental Protection (“WVDEP”).
Anyone wishing to undertake surface coal mining operations in West Virginia must obtain a SMCRA permit from WVDEP. Aracoma, 556 F.3d at 189 (citing 30 U.S.C. § 1256(a)). The SMCRA permit application “must provide detailed information about possible environmental consequences of the proposed operations, as well as assurances that damage to the site will be prevented or minimized during mining and substantially repaired after mining has come to an end.” Id. at 196; see 30 U.S.C. §§ 1257, 1265.
WVDEP issued a SMCRA permit to-Raven Crest on September 3, 2009, authorizing Raven Crest “to engage in surface mining” at the Boone North mine. J.A. 522.
B. 401 Certification
Section 401 of the Clean Water Act, 33 U.S.C. § 1341, requires a prospective mine operator to obtain a so-called “401 certification” from the state in which the mine will be located “stating that any discharge from the mine site will comply with all applicable water quality standards.” Aracoma, 556 F.3d at 190. Notably, the Clean Water Act requires that state water quality standards be submitted to the federal Environmental Protection Agency (“EPA”) for approval, and that they be sufficiently stringent to protect public health. See 33 U.S.C. § 1313(c). Without a 401 certification, no other “Federal license or permit to conduct any activity ... which may result in any discharge” into waters of the United States is valid. 33 U.S.C. § 1341(a).
WVDEP issued a 401 certification for the Boone North mine on May 13, 2011, representing that Raven Crest’s proposed • activities would not cause a violation of West Virginia’s EPA-approved water quality standards. J.A. 524.
C. Section 402 NPDES Permit
Under section 402 of the Clean Water Act, 33 U.S.C. § 1342, no person may discharge pollutants into the waters of the United States without a permit issued pursuant to the National Pollutant Discharge Elimination System (“NPDES”). As with SMCRA, the Clean Water Act sets up a cooperative-federalism approach in which states may administer their own NPDES permitting program so long as the state program meets certain minimum federal requirements. West Virginia’s NPDES permitting program is also administered by WVDEP.
Raven Crest’s plan for the Boone North mine involved the discharge of both treated water and stormwater runoff into several creeks and tributaries at the Boone North mine. WVDEP issued an NPDES permit on May 27, 2009, authorizing those discharges. J.A. 526.
D. Section 404 Permit
Finally, under section 404 of the Clean Water ■ Act, 33 U.S.C. § 1344, no person may discharge dredged or fill material into waters of the United States without a permit from the Corps. Raven Crest’s plan for the Boone North mine involved “mining through streams,” a process in which stream channels are “excavated in order to recover coal reserves that lie directly beneath and adjacent to them,” and then are “backfilled, regraded to [their approximate original contour] (or higher), and the affected channels restored.” J.A. 93. Because this process involves discharging fill material into streams, Raven Crest needed a section 404 permit from the Corps before it could proceed. Below, we first provide an overview of the Corps’ permitting process, then recount the specifies of Raven Crest’s efforts to obtain a section 404 permit for the Boone North mine.
In reviewing a section 404 permit application, the Corps must ensure that the proposed discharge of fill material will not cause “ ‘[significantly adverse effects’ on human health or welfare, on aquatic life and other wildlife dependent on aquatic ecosystems, on aquatic ecosystem diversity, productivity, and stability, or on recreational, aesthetic, and economic values.” Aracoma, 556 F.3d at 191 (quoting 40 C.F.R. § 230.10(c)). In addition, the Corps must conduct a “public interest review” for each permit application through which “[t]he benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.” Id. (quoting 33 C.F.R. § 320.4(a)(1)).
Because the Corps is a federal agency, its review of a section 404 permit application must also comply with NEPA, which requires agencies to produce an environmental impact statement (“EIS”) before undertaking any “major Federal action[ ] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). NEPA’s environmental-review requirements are procedural, not substantive. Thus, “even agency action with adverse environmental effects can be NEPA-compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs.” Aracoma, 556 F.3d at 191.
To determine whether an action is a “major” one requiring an EIS, agencies prepare an Environmental Assessment (“EA”), a “concise public document” meant to “provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact.” 40 C.F.R. § 1508.9(a); see Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 584 (4th Cir. 2012). If the EA results in a finding of no significant impact, the agency need not prepare an EIS.
2.
Raven Crest initiated the section 404 permitting process for the Boone North mine on October 29, 2009, by submitting a permit application to the Corps. J.A. 92. After receiving Raven Crest’s application, the Corps issued a “Public Notice” summarizing the application and soliciting public comments. J.A. 134. OVEC submitted a lengthy response letter. In that letter, it expressed a concern that “[v]arious studies have shown that coal mining has significant impacts on the health of those living in the coal fields,” and contended that “[t]hese impacts must be considered by the Corps during the permitting process.” J.A. 204.
On August 10, 2012, the Corps issued a Permit Evaluation and Decision Document that included both the section 404-re-quired “public interest review” and the NEPA-required EA, and ultimately granted Raven Crest’s section 404 permit. The public interest review portion of the document concluded that issuing the permit would not be contrary to the public interest. The EA portion of the document concluded that granting the permit would “not have a significant.impact on the quality of the human environment,” and that therefore the Corps did not need to prepare an EIS. J.A. 582-83.
The Corps did not consider the studies OVEC cited in its comment letter, explaining that the issues those studies raised regarding the relationship between surface coal mining and public health “are' not within the purview of the Corps’ regulatory authority, but are considered by WVDEP during the SMCRA permitting process.” J.A. 642.
In response, OVEC brought this action under the Administrative Procedure Act (“APA”), seeking to set aside the Corps’ actions. Specifically, OVEC sought suspension or revocation of Raven Crest’s section 404 permit, claiming that the Corps’ decision not to consider those studies violated both NEPA and section 404. Raven Crest intervened to protect its interest in the permit’s continued validity. In a lengthy order, the district court granted summary judgment to the Corps and Raven Crest, ruling that the Corps had complied with NEPA and section 404 in issuing Raven Crest’s permit. OVEC appealed.
II.
Under the APA, a court will set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Defenders of Wildlife v. N.C. Dept. of Transp., 762 F.3d 374, 393 (4th Cir. 2014). “This inquiry must be searching and careful, but the ultimate standard of review is a narrow one.” N.C. Wildlife Fed’n v. N.C. Dept. of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (internal quotation marks and citations omitted). “Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes a rational connection between the facts found and the choice made.” Aracoma, 556 F.3d at 192 (internal quotation marks and citation omitted). Although the APA standard requires deference to the agency’s decision-making, our review of the district court’s legal conclusions on summary judgment is de novo. Newport News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 434 (4th Cir. 2011).
We review the merits of OVEC’s arguments below. We begin with its argument that the Corps acted contrarily to NEPA in issuing Raven Crest’s section 404 permit, and then address OVEC’s argument that the Corps acted contrarily to section 404.
A.
OVEC argues that the Corps violated NEPA by failing to include in its EA any analysis of the studies OVEC cited as suggesting a connection between surface coal mining and adverse public health effects in nearby communities. The Corps responds that OVEC’s argument is foreclosed by our precedent in Aracoma, and we agree.
1.
Aracoma, like this case, involved a dispute about the proper scope of the Corps’ NEPA inquiry for a section 404 permit associated with a proposed surface coal mine. The mines at issue in Aracoma involved “valley fills,” a practice in which excess earth excavated from the mine is disposed of in a manner that buries an entire valley. To ensure the stability of the resulting mass, valley fills also typically involve the creation of an “underdrain system” by placing large boulders in the streams located beneath the valley fill. Aracoma, 556 F.3d at 186. This constitutes the discharge of fill material into waters of the United States, necessitating a section 404 permit.
OVEC, which was also the plaintiff in Aracoma, argued that the Corps “should have considered all environmental impacts caused by the fills” during its permit review process, “including the impacts to the upland valleys where the fills will be located.” Id. at 193. The Corps countered that it had reasonably interpreted its own regulations to limit the scope of its review to only the effects of the discharge of fill material into “the affected waters and adjacent riparian areas.” Id.
We agreed with the Corps. The Corps’ regulations provide that, in conducting its NEPA analysis, the Corps need address only “the impacts of the specific activity requiring a [section 404] permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, app. B, § 7(b)(1). Further, the Corps has “sufficient control and responsibility” to warrant review of a project as a whole, rather than just the specific activity requiring a Corps permit, when “the environmental consequences of the larger project are essentially products of the Corps pérmit action.” Id. pt. 326, app. B., § 7(b)(2). In the case of the valley fills at issue in Aracoma, we held that the “specific activity” authorized by the section 404 permit was “nothing more than the filling of jurisdictional waters for the purpose of creating an underdrain system for the larger valley fill,” and that the Corps did not have sufficient control and responsibility over the entire valley fill to warrant including the entire project in the scope of the Corps’ environmental review. Aracoma, 556 F.3d at 194-95.
In so holding, we reasoned that “[t]o say that the Corps has a level of control and responsibility over the entire valley fill project such that ‘the environmental consequences of the larger project are essentially products of the Corps permit action,’ ” would be “to effectively read out of the equation the elaborate, congressionally mandated schema for the permitting of surface mining operations prescribed by SMCRA.” Id. at 195 (quoting 33 C.F.R. pt. 325, app. B, § 7(b)(2)). In other words, because the great bulk of environmental effects associated with surface coal mining operations in West Virginia are authorized by WVDEP’s granting of a SMCRA permit, not by the Corps’ granting of a section 404 permit, it would be inappropriate to require the Corps to review aspects of those projects outside of the specific dredge-and-fill activities regulated by section 404.
2.
This case involves a very similar dispute. Here, the Corps limited its NEPA review to the environmental impacts of the dredge-and-fill activities associated with “mining through” the streams located at the Boone North mine site. OVEC, however, argues that the Corps’ review should have included consideration of the environmental impacts of surface coal mining more generally, and specifically of the studies OVEC cited showing adverse public health effects in communities near surface coal mines.
As in Aracoma, however, the activity OVEC seeks to force the Corps to study-surface coal mining — is neither the “specific activity” authorized by Raven Crest’s section 404 permit nor an aspect of the Boone North mine over which the Corps has “sufficient control and responsibility to warrant Federal review.” See 33 C.F.R. pt. 325, app. B, § 7(b)(1). The Corps has no jurisdiction to authorize surface coal mining; SMCRA makes clear that only WVDEP can do that in West Virginia. The specific activity the Corps authorized was simply the dredging and filling of certain stream beds at the Boone North mine. Thus, the reasoning and holding in Araco-ma are equally applicable to this case: the Corps properly limited its NEPA review to only those environmental impacts associated with the specific discharge of fill material authorized at the Boone North mine.
Nevertheless, OVEC seeks to distinguish this case from Aracoma in two ways, neither of which is persuasive. First, OVEC claims that the “specific activity” authorized by the section 404 permit in this case is not simply the discharge of fill material into streams, but rather the actual coal mining that creates the fill material to be discharged. According to OVEC, the Corps itself “repeatedly described the activity being permitted as the mine-through of streams on the site to recover coal reserves.” Appellants’ Br. at 22.
This first proposed distinction fails because it overlooks the core holding of Ara-coma, which is that the Corps’ jurisdiction relates only to fill activities associated with surface coal mining; the mining itself is regulated exclusively by WVDEP pursuant to SMCRA. Coal mining cannot be the “specific activity” authorized by Raven Crest’s section 404 permit, because the Corps has no jurisdiction to authorize coal mining; under SMCRA, only WVDEP can do that. In reaching this conclusion, we are in accordance with the Sixth Circuit which, in a case that also involved mining through streams, held that Aracoma “strongly and persuasively supported] the Corps’[ ] decision to limit its scope of analysis” to include only the fill activities associated with the mining, and not the mining itself. Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698, 710 (6th Cir. 2014).
Second, OVEC argues that Aracoma is inapposite because its claims in that case “were limited to the Corps’ duty to consider water quality impacts of the authorized valley fills and related mining,” whereas here they relate to human health. Appellants’ Br. at 33. According to OVEC, Ara-coma allowed the Corps to “rely on existing statutory schemes that ... adequately address” the water quality concerns, id. but no such statutory schemes exist to address the impacts of surface coal mining on human health.
This assertion is simply incorrect. Section 401 of the Clean Water Act requires a certification by the State of West Virginia that a proposed mine will not cause a violation of state water-quality standards, which are developed with human-health effects in mind. WVDEP issued such a certification here.
Moreover, even if human-health impacts were not considered elsewhere in the permitting process, Aracoma would not require the Corps to consider them. OVEC misreads Aracoma as saying that the Corps must consider any effects of coal mining that are not sufficiently studied by other agencies. To the contrary, as we have explained, Aracoma holds that the Corps need not consider the effects of surface coal mining because the Corps’ issuance of a section 404 permit cannot authorize surface coal mining; only a SMCRA permit can do that. We therefore conclude that OVEC’s attempts to distinguish Aracoma in this regard are unavailing.
B.
Finally, OVEC argues that two provisions of the Corps’ regulations implementing section 404 require the Corps to consider the connection between surface coal mining and adverse public health effects during its permitting process. First, OVEC cites 40 C.F.R. § 230.10(c), which prohibits the Corps from issuing a section 404 permit for discharges of fill material that “will cause or contribute to significant degradation of the waters of the United States,” including discharges that will involve “[significantly adverse effects ... on human health or welfare.” Second, OVEC cites 33 C.F.R. § 320.4(a)(1), which requires the Corps to conduct a “public interest review” that involves a weighing of “[t]he benefits which reasonably may be expected to accrue from the proposal ... against its reasonably foreseeable detriments.”
These provisions certainly require the Corps to take into account the public-health effects of a proposed discharge of fill material before granting a section 404 permit. They do not, however, create an obligation for the Corps to study the effects of activities beyond the proposed discharge itself. Thus, OVEC’s section 404 argument fails for the same reason its NEPA argument fails: it seeks to require the Corps to study the effects of surface coal mining, an activity it cannot authorize and over which, under SMCRA, WVDEP has exclusive jurisdiction. Accordingly, we also affirm the district court’s holding that the Corps did not violate the Clean Water Act in granting Raven Crest’s section 404 permit.
III.
For the reasons stated above, the judgment of the district court is
AFFIRMED.
. OVEC includes the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch, and the Sierra Club.
. Although the requirements to obtain SMCRA permits, 401 certifications, and NPDES permits are all based on federal law, those three permits are issued by state agencies — in this case, WVDEP — and thus are not subject to NEPA.
. For example, OVEC quoted one study finding that "[a]dult hospitalizations for chronic pulmonary disorders and hypertension are elevated as a function of county-level coal production, as are rates of mortality; lung cancer; and chronic heart, lung, and kidney disease.” J.A. 204. It quoted another that found "cancer clusters ... corresponding] to areas of high coal mining intensity.” Id.
. OVEC asserted additional claims related to the Boone North mine’s potential effects on water quality, but those claims have been settled and are not before us on appeal.
. Factually, we note that the mines at issue in Aracoma had a substantially larger environmental footprint than the Boone North mine in that they involved valley fills, and affected 68,841 linear feet of streams. See 556 F.3d at 187. The Boone North mine, in contrast, involves no valley fills and affects only 15,079 linear feet of streams.
. We also reject OVEC’s argument that the Corps violated NEPA because it considered the economic benefits of the proposed mine as a whole, but limited its consideration of environmental impacts solely to the authorized discharge of fill material. For this argument, OVEC relies on a Corps regulation requiring that the scope of NEPA analysis "used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.” 33 C.F.R. pt. 325, App. B., § 7(b)(3). But that regulation is inapplicable because the Corps’ discussion of economic benefits occurred not in its NEPA analysis, but rather as part of its section 404 “public interest review.” See J.A. 551.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.2272727272727273, Costs: 0
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Easterbrook, Circuit Judge.
Wisconsin proposes to renovate a 7.5-mile stretch of Highway 164 (formerly known as Highway J), a two-lane road in southern Washington County. It was built in the 1960s with 5 to 6.5 inches of asphalt, a pavement expected to last 22 years, and resurfaced in 2000 with another 2.5 to 3.5 inches, expected to extend the road's life by 12 years. The new project entails repaving, reconstruction near hill crests where drivers cannot see approaching traffic, widening the lanes, making the shoulders flatter and two feet wider, improving sight lines, updating guardrails, adding rumble strips, and introducing turn or bypass lanes at some intersections. A 141-page environmental report prepared between 2013 and 2015 concluded that the renovation would not cause any significant environmental effects but would reduce the accident and injury rate. (Accidents are 63% more likely, per vehicle mile traveled, on this stretch than on Wisconsin's other rural highways, and crashes that occur are 45% more likely to produce an injury.)
The Federal Highway Administration approved the environmental report and federal funding in 2015, finding that it is unnecessary to prepare an environmental impact statement. See 40 C.F.R. § 1508.4 (neither an environmental impact statement nor an "environmental assessment," a sort of junior-varsity environmental impact statement, is needed for projects that "do not individually or cumulatively have a significant effect on the human environment"). See also 23 C.F.R. § 771.117(c)(26) (highway-renovation projects come within the § 1508.4 exclusion, with qualifications), § 771.117(d)(13) (same).
One local resident and two groups filed this suit, contending that more study is essential. After denying a motion for a preliminary injunction, see 2016 U.S. Dist. LEXIS 132388 (E.D. Wis. Sept. 27, 2016), the district judge read into the record an oral opinion granting summary judgment for the defendants. The judge concluded that the environmental report shows that the project fits the criteria for categorical exclusion from the need for a more comprehensive study. Plaintiffs have appealed. They want Wisconsin to abandon the project, contending that reducing the speed limit to 45 miles per hour would do enough to curtail accidents. But this suit concerns environmental effects, not the project's wisdom. Plaintiffs offer two principal arguments: that the Agency's failure to write a decision separate from the report shows that it has yet to give the project independent consideration, and that the report does not analyze cumulative effects of multiple highway-renovation projects.
The underlying statute (the National Environmental Policy Act or NEPA) calls for an environmental impact statement to accompany recommendations or reports on proposals for "major Federal actions significantly affecting the quality of the human environment". 42 U.S.C. § 4332(2)(C). Renovating 7.5 miles of an existing two-lane road does not stand out as a major cause of a significant effect. Regulation 1508.4 establishes a "categorical exclusion" of projects that are not "major". Here is the language:
Categorical exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
Section 1508.4, promulgated by the Council on Environmental Quality, covers all federal agencies. The Federal Highway Administration implemented it through 23 C.F.R. § 771.117. The Administration believes that renovating existing roads generally does "not individually or cumulatively have a significant effect on the human environment". The point of the years-long, 141-page study was not to question the validity of the regulations but to find out whether this renovation, in particular, needs a thorough evaluation because it would cause "[s]ignificant environmental impacts" ( § 771.117(b)(1) ) or exceed "the constraints in paragraph (e) of this section" ( § 771.117(d)(13) ).
The report concludes that the renovation of Highway 164 would not have a significant environmental effect. After the work is done it will be the same road, in the same place, with the same two lanes, and a little wider so that larger vehicles can safely use the shoulders (and are less likely to hit each other if they veer from the middle of a lane). Widening the road and improving sight lines by clearing some obstructions at roadside will use 38 acres of land in total (or 5 acres per mile of road). Of those 38 acres, 1.655 are wetlands, which will be filled; that's bad for some animals and plants, but the state will create 2.825 acres of new wetlands at another site. No threatened or endangered species would be adversely affected. The area through which the highway runs would remain hilly and forested. All in all, the report concluded, not much bad could happen, while drivers and their passengers would become safer. The report added that reducing the speed limit on this stretch of road might endanger drivers, because although some would obey the lower limit many would not, and data show that a variance in different vehicles' speeds is a major cause of accidents.
Plaintiffs tell us that, by signing off without writing a separate explanation, the Administration showed that it had not taken this matter seriously. Yet neither a statute nor a rule requires the agency to write its own analysis. (Approving federal funding for a highway is neither adjudication nor rulemaking subject to the Administrative Procedure Act's requirements under 5 U.S.C. §§ 553, 554.) The principal questions the Administration had to decide were whether the project will have "[s]ignificant environmental impacts" ( § 771.117(b)(1) ) or flunk the analysis under § 771.117(d)(13). It was not necessary to add to what the report said about those subjects. And as judicial review of the agency's finding is deferential, see Marsh v. Oregon Natural Resources Council , 490 U.S. 360, 375-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ; Sierra Club v. EPA , 774 F.3d 383, 393 (7th Cir. 2014), its conclusion must be respected.
It would be unwarranted to infer from the lack of a separate writing that the subject has been slighted. District judges and magistrate judges frequently sign search warrants without writing opinions, but no one should infer that judges are automata who sign whatever is placed in front of them. They read and think but often find that the papers speak for themselves. Or consider this court. The vast majority of decisions are issued by three-judge panels, yet only one judge signs the opinion; the other two join silently. (In the United Kingdom, by contrast, every judge writes in many cases. Seriatim opinions were common in the United States, too, until John Marshall became Chief Justice.) Silence by a majority of the judges does not imply inattention, however. To the contrary, all members of the court read the materials carefully and ensure that each decision is sound before they approve it. Just so with the Federal Highway Administration. The Administration's staff was active in preparing the report, commenting on drafts and making suggestions. Only when the whole process was complete, to its satisfaction, did the Administration sign off. No statute or rule requires more.
As for the argument that the 141-page report didn't analyze the cumulative effects of many different highway-repair projects: that's true but irrelevant. The Administration must analyze cumulative effects when deciding whether the category (renovating highways) comes within the exclusion. That's what the first sentence of § 1508.4 says. But once a categorical decision has been made-and plaintiffs do not contest the Administration's finding in § 771.117 that road renovations cumulatively do not amount to major federal actions with significant environmental effects-the remaining question is whether a particular project flunks the constraints of § 771.117(e) or otherwise has "[s]ignificant environmental impacts" ( § 771.117(b)(1) ). That's what this report investigated. As we've said already, judicial review is deferential, and we lack a compelling basis to upset the Administration's finding that the categorical exclusion of § 1508.4 and § 771.117 applies to this project. See also Sierra Club v. United States Forest Service , 828 F.3d 402, 410-11 (6th Cir. 2016) (an agency need not analyze cumulative effects when the categorical exclusion itself considers them).
Trying to include all cumulative effects of every project when analyzing any project is not feasible. And Kleppe v. Sierra Club , 427 U.S. 390, 409-15, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), holds that the exercise is not necessary. The Justices wrote that, although cumulative effects matter, the agency has discretion to consider when and how they are considered. It is not necessary to look at the Big Picture when evaluating every proposed project, the Court held. They said that about a huge project entailing the development of millions of coal-rich acres in the Powder River Basin; the point is no less true about a road project in Wisconsin that uses 38 acres of land and adds about one net acre of wetlands.
One final subject calls for brief mention. Section 771.117(b)(2) requires analysis when a project occasions "[s]ubstantial controversy on environmental grounds". Plaintiffs say that their own opposition to the project, coupled with letters from several other organizations, adds up to "[s]ubstantial controversy on environmental grounds". The Administration did not act arbitrarily, however, in deciding that the environmental report was itself an adequate response to that controversy. Section 771.117(b) does not require an environmental impact statement whenever someone opposes a project; it requires only "appropriate environmental studies". The lengthy report is such a study.
AFFIRMED
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.09090909090909091, Costs: 0.04545454545454546
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SAM D. JOHNSON, Circuit Judge:
The City of Baton Rouge and the Parish of East Baton Rouge (Baton Rouge) have petitioned this Court to review an order issued by the Environmental Protection Agency (EPA). The order required Baton Rouge to comply with a National Pollutant Discharge Elimination System (NPDES) permit issued to it by the EPA under 33 U.S.C. § 1342. We dismiss the petition for want of jurisdiction.
I.
Section 1311(a), title 33, proscribes the discharge of pollutants except in compliance with NPDES permits issued under section 1342. Effective November 21, 1974, the EPA issued an NPDES permit to Baton Rouge, authorizing Baton Rouge to discharge wastewaters from its central sewage treatment plant into the Mississippi River. The NPDES permit requires Baton Rouge .to maintain “adequate safeguards to prevent the discharge of untreated or inadequately treated waste during electrical power failures, either by means of alternate power sources, standby generators or retention of inadequately treated effluent.” The permit also prohibits Baton Rouge from allowing any discharge to bypass treatment facilities, “except (i) where unavoidable to prevent loss of life or severe property damage or (ii) where excessive storm drainage or runoff would damage any facilities necessary for compliance with the terms and condition of [the] permit . . . .” Baton Rouge did not contest the validity of or seek to alter its NPDES permit when it was issued.
Baton Rouge, pursuant to the requirements of its NPDES permit, has reported to the EPA 49 separate violations of its permit over the period of time from December 1976 to January 1979. These violations consisted of discharging untreated or undertreated effluent into the Mississippi. The reasons for these violations, or bypasses, were usually heavy rain flow, power failure, or mechanical failure.
Section 1319(a)(3), title 33, authorizes the EPA to issue compliance orders, requiring those in violation of their NPDES permits to comply with their permits. As a result of Baton Rouge’s violations of its NPDES permit, the EPA issued an administrative order requiring Baton Rouge to comply with its permit. The order directed Baton Rouge to submit, within thirty days, a program for preventing the occurrence of bypassing due to power failures. The order also directed Baton Rouge to submit a documented schedule for eliminating bypassing including copies of contracts, work orders, and purchase orders needed to execute the schedule. Baton Rouge filed with this Court its petition for review of the EPA order. EPA responded with a motion to dismiss, claiming this Court lacked jurisdiction to review the issuance of the administrative order. By order of this Court, EPA’s motion to dismiss has been carried along with the case.
II.
This Court has only the jurisdiction that Congress has conferred upon it by statute. 15 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3901 (1976). The only possible statutory basis for our direct review of the EPA order in this case is 33 U.S.C. § 1369(b)(1). That subsection provides:
Review of Administrator’s Actions
Review of the Administrator’s action
(A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pre-treatment standard under section 1317 of this title, (D) in making any determination as to a state permit program submitted under section 1342(b) of this title, (E) in approving or promulgating an effluent limitation or other limitation under Section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day.
None of the specific clauses in § 1369(b)(1) describe the EPA’s issuance of an order pursuant to § 1319(a)(3) requiring compliance with a NPDES permit. Given the specificity of the review provisions of § 1369(b)(1) and the absence of any mention of compliance orders from those provisions, we hold that § 1369(b)(1) does not confer upon this Court jurisdiction for direct review of compliance orders issued by the EPA pursuant to § 1319(a)(3).
This Court and the Second Circuit have previously held that the Court of Appeals lack power to review actions of the EPA over which § 1369(b)(1) does not specifically grant review. In Save the Bay, Inc. v. Administrator of EPA, 556 F.2d 1282 (5th Cir. 1977), this Court held that the decision of the Administrator of the EPA not to veto a permit issued under a state NPDES program was not “within the limited category of administrative action of which . 33 U.S.C. § 1369 grants this Court original jurisdiction.” In Bethlehem Steel v. Environmental Protection Agency, 538 F.2d 513, 514 (2d Cir. 1976), the Second Circuit held that it lacked power to review the EPA’s approval of state water quality standards. The court reasoned that, “In view of the specificity of the judicial review provision,” the omission of review of this EPA action “presents Bethlehem with considerable difficulty in establishing jurisdiction in this court.” Id.
Thus, the rule is clear: the Courts of Appeals have jurisdiction for direct review only of those EPA actions specifically enumerated in 33 U.S.C. § 1369(b)(1). The issuance of a compliance order is not enumerated in Section 1369(b)(1). This Court lacks jurisdiction over Baton Rouge’s petition for review.
PETITION DISMISSED.
. 33 U.S.C. § 1311(a) has several other exceptions, none of which are relevant here. It reads as follows:
Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.
. The permit expired on November 20, 1979. This raises the question whether this case is moot. The EPA asserted at oral argument that the case is not moot because Baton Rouge’s application for renewal of the permit postponed its expiration. The dismissal of this case on other grounds makes it unnecessary to address the mootness question.
. 33 U.S.C. § 1319(b) authorizes the EPA Administrator to commence a civil action in district court for any violation for which he can issue a compliance order. The Administrator in such an action can seek any appropriate relief, including an injunction. The EPA concedes that it can subject Baton Rouge to civil penalties for violations of its NPDES permit only through an action in the district court. This court will have jurisdiction of a timely appeal from a final decision by the district court in an action brought by the EPA pursuant to § 1319(b). 28 U.S.C. § 1291. We therefore reject- Baton Rouge’s contention that § 1369(b)(1) is unconstitutional because it does not provide for review of compliance orders.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0
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PER CURIAM:
California appeals a district court judgment rejecting its challenges to certain aspects of the preparation, by the Department of the Interior (Interior), of a programmatic environmental impact statement (PEIS) pursuant to the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. § 4321 et seq., for accelerated oil and gas leasing on the outer continental shelf. Because we conclude that California lacks standing to raise these claims, we dismiss the appeal, vacate the judgment of the district court, and remand for consideration of dismissal of the complaint.
California originally sought to compel Interior to file a PEIS before proceeding with its accelerated leasing program for areas of the outer continental shelf off the Southern California coast. By the time of trial, Interior had issued a PEIS; California then claimed that the PEIS was both untimely and inadequate. The district court refused to enjoin Interior’s impending leasing of certain offshore tracts (Lease Sale 35), and rendered judgment for Interior. California ex rel. Younger v. Morton, 404 F.Supp. 26 (C.D.Cal.1975). The lease sale thereafter took place; this appeal followed. We asked for supplemental briefing in part on the question of California’s standing in this case.
Interior has brought to our attention section 23 of the Outer Continental Shelf Lands Act Amendments, 43 U.S.C.A. § 1349 (West Supp.1979), enacted in 1978, limiting review of certain of the actions of the Secretary of the Interior to an appropriate court of appeals. Subsections 1349(c)(1) and (2) provide for such review of action of the Secretary “to approve a leasing program pursuant to section 1344 of this title” or “to approve, require modification of, or disapprove any exploration plan or any development and production plan under this subchapter.” We conclude, however, that these subsections do not apply to this case. California alleged that the Secretary had violated NEPA but did not challenge Secretarial action with respect to a leasing program, exploration plan, or development and production plan itself. Thus, section 1349 contains nothing that would suggest that this case was not properly before the district court in the first instance, and it is now properly before us on appeal.
The question of California’s standing presents a greater jurisdictional hurdle. Federal courts are courts of limited jurisdiction, and “the presumption is that [we are] without jurisdiction unless the contrary affirmatively appears.” Fifty Associates v. Prudential Insurance Co. of America, 446 F.2d 1187, 1190 (9th Cir. 1970). We require at least that the plaintiff “have alleged (a) a particularized injury (b) concretely and demonstrably resulting from defendants’ action (c) which injury will be redressed by the remedies sought.” Bowker v. Morton, 541 F.2d 1347, 1349 (9th Cir. 1976) (footnote omitted). Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 474 & n. 6 (9th Cir. 1979).
We asked California to demonstrate its standing to raise the questions of PEIS timing and adequacy at issue here and to specify those portions of the record supporting its standing. But California has told us only that it relinquishes neither its claims regarding the timing and adequacy questions nor its claims regarding Lease Sale 35. It has not told us what injury it suffers from the asserted violations of NEPA; indeed, it has specifically said that it does not desire to “undo” outer continental shelf leasing activity which has occurred. The requirement of injury is imposed by the constitutional limitations on our jurisdiction, Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 260-61, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), and here California’s failure even to articulate that injury is fatal to its claims.
We recognize that we have created a “broad test” for determining whether an asserted injury in fact is sufficient to support standing where failure to prepare an EIS is at issue. City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975). But we have not eliminated the requirement of injury. “[B]roadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972).
Because California has failed to articulate the injury it suffers, we conclude that we have no jurisdiction over this case. We dismiss the appeal for lack of standing. We cannot discern from the record before us whether California had standing in the district court. Therefore, we vacate the judgment of the district court and remand for consideration of dismissal of the action for lack of jurisdiction.
APPEAL DISMISSED; VACATED AND REMANDED.
. We asked California to brief the question of the effect of this new section on its action, but it failed to do so.
. Though the district judge ordered the action dismissed, 404 F.Supp. at 33, it is apparent that this followed judgment for Interior.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.06666666666666667, Costs: 0
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JOHN P. MOORE, Circuit Judge.
The sole question presented by this appeal is whether a compliance order issued by the Environmental Protection Agency (EPA) under the Clean Water Act (CWA) is subject to judicial review. Following the lead of our sister circuits which have already considered this issue, we conclude the CWA provides no basis for such a proceeding, despite strong due process arguments advanced by the appellant. We therefore affirm the judgment of the district court.
Plaintiff Laguna Gatuna, Inc., is a New Mexico Corporation whose sole business is disposing of industrial waste water. It dumps the water in a “sinkhole” known as Laguna Gatuna, to which the company has appropriate rights. Defendants are the Environmental Protection Agency and its Administrators.
In 1987, Laguna’s predecessor in interest inquired of the EPA whether the sinkhole was included in “waters of the United States” as defined by 40 C.F.R. § 122.2, subjecting it to EPA jurisdiction. The EPA responded by letter that it was not, based on the representation the sinkhole was “not hydrologically connected” to other waters and there were “no recreational, industrial, or other uses that could affect interstate commerce.” In 1991, in the course of a study of playa lakes in New Mexico, the EPA discovered dead migratory birds near the sinkhole. In 1992, the EPA issued a compliance order to Lagu-na, directing it to cease dumping wastes into the sinkhole. Laguna complied with the order and discontinued operations.
Laguna filed an action for declaratory relief in district court, claiming the EPA had no jurisdiction to regulate the sinkhole because it was not “waters of the United States,” and the issuance of the compliance order violated Laguna’s procedural and substantive due process rights. The district court dismissed the action for lack of subject matter jurisdiction. This appeal was brought to review that dismissal.
Questions of jurisdiction are reviewed de novo. Community Action of Laramie County, Inc. v. Bowen, 866 F.2d 347, 351 n. 1 (10th Cir.1989). When deciding a question of jurisdiction, a court must construe all relevant allegations in the light most favorable to the plaintiff. See Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Accordingly, the facts set forth above are as alleged in the complaint. Laguna has asserted federal question jurisdiction under 28 U.S.C. § 1331.
This court has not yet spoken on this precise issue. But see Child v. United States, 851 F.Supp. 1527 (D.Utah 1994); Howell v. United States Army Corps of Eng’rs, 794 F.Supp. 1072 (D.N.M.1992). We follow the authority of our sister circuits in Southern Ohio Coal Co. v. Office of Surface Mining, 20 F.3d 1418 (6th Cir.), cert. denied, — U.S. -, 115 S.Ct. 316, 130 L.Ed.2d 278 (1994); Rueth v. United States EPA 13 F.3d 227 (7th Cir.1993); and Southern Pines Assocs. v. United States, 912 F.2d 713 (4th Cir.1990). Accordingly, we affirm the dismissal for lack of jurisdiction.
In Southern Pines, the EPA issued a compliance order to cease dumping in the wetlands on its land in Chesapeake, Virginia, required Southern Pines to commence restoration, and requested further information to make a “final determination” about the wetlands. 912 F.2d at 714. Southern Pines filed a complaint for declaratory and injunctive relief, and the district court dismissed for lack of subject matter jurisdiction. Id. Based on the legislative history and language of the CWA, and analogous authority concerning the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Air Act (CAA), the court was “persuaded that Congress meant to preclude judicial review of compliance orders under the CWA.” Id. at 716. Southern Pines argued lack of review was a denial of due process, but the court rejected this argument. Id. at 717.
In Rueth, the EPA issued Rueth a compliance order to cease discharges into a wetlands area and to commence restoration of the wetlands. 13 F.3d at 228. Rueth sought an injunction in district court against enforcement of the order, and the case was dismissed for lack of jurisdiction. Id. On appeal to the Seventh Circuit, Rueth challenged the EPA’s jurisdiction to regulate the wetlands, claiming, as Laguna does in the instant case, that the wetlands were not part of the “waters of the United States.” Id. at 231. The Seventh Circuit nevertheless upheld the dismissal. Id.; see also Hoffman Group, Inc. v. EPA 902 F.2d 567 (7th Cir.1990).
In Southern Ohio, the plaintiff coal company proposed to discharge “untreated and minimally treated” floodwater from a coal mine into tributaries of the Ohio River. 20 F.3d at 1420. The Office of Surface Mining, Reclamation and Enforcement of the Department of the Interior (OSM) issued a cessation order against the company. The company filed suit seeking a temporary restraining order against OSM. The cessation order was vacated, and Southern Ohio began pumping. Id. at 1421. The EPA then threatened to issue a cease and desist order if Southern Ohio did not cease pumping. Southern Ohio joined the EPA as a party and obtained a restraining order against the EPA as well. The EPA moved to vacate the order for lack of jurisdiction. Id. at 1422. The district court denied the motion.
On appeal, the Sixth Circuit joined the Fourth and Seventh Circuits in holding Congress did not intend to allow judicial review of compliance orders. Id. at 1427. It reversed, noting the “enforcement provisions of the CWA were modeled after the enforcements provisions of the Clean Air Act,” and “review of the caselaw under the CAA reveals the uniform holding that judicial review of pre-enforcement orders, similar to those issued under the CWA, is not available.” Id. at 1426.
Laguna argues Southern Ohio is distinguishable because it involved a different quality of waste water from that discharged into the sinkhole in the instant case. This argument goes to the merits of Laguna’s dispute with the EPA, not to the federal court’s jurisdiction to hear that dispute. Laguna further argues Rueth and Southern Pines are distinguishable because in the instant case the EPA is not in the process of conducting any fact-finding and has issued a final response to Laguna. However, these distinctions speak to the issue of finality, not reviewability. The EPA accurately points out that finality and reviewability are separate issues. Thunder Basin Coal Co. v. Reich, — U.S. -, - n. 23, 114 S.Ct. 771, 782 n. 23, 127 L.Ed.2d 29 (1994). A decision must be final to be reviewable, but all final decisions are not reviewable.
We consider Rueth, Southern Pines, and Southern Ohio to be indistinguishable from this case. The plaintiffs in those cases made challenges to the compliance orders similar to those brought by Laguna: that their land lay without the definition of “waters of the United States” and that the compliance order and lack of federal review violated guarantees of substantive and procedural due process. Our sister circuits held there was no jurisdiction to make such challenges, and we see no reason to disagree.
Laguna argues Riverside Irrigation Dist. v. Stipo, 658 F.2d 762 (10th Cir.1981), is binding authority for the proposition judicial review is available when “the penalties are so severe that they foreclose a testing of authority by proceeding with the work.” Id. at 767. However, Laguna takes this proposition out of context. Riverside is factually distinguishable: it did not involve a compliance order; it involved denial of a nationwide permit for which there was no application procedure; and it involved the contemplated construction of a water reservoir requiring a large capital outlay. Riverside is doctrinally distinguishable: it was written before the 1987 amendment to the CWA providing for judicial review of civil penalties; and like Laguna’s arguments on appeal, Riverside addressed the issue of finality, not reviewability-
Laguna’s policy argument that it should not be necessary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken. Nevertheless, following the reasoning of our sister circuits, we reject Laguna’s conclusion such a situation is “constitutionally intolerable.” Judicial review of every unenforced compliance order would undermine the EPA’s regulatory authority.
The law in other circuits squarely precludes jurisdiction on these facts. The district court’s order dismissing this case is AFFIRMED.
. The Water Quality Act of 1987 added a mechanism for the assessment of administrative penalties and judicial review in federal court of any such penalties. Pub.L. No. 100-4, Title III, § 314(a), 101 Stat. 48 (1987) (codified as amended at 33 U.S.C. § 1319(g)).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.09482758620689655, Costs: 0.04310344827586207
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Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge MOTZ and Senior Judge YOUNG joined.
OPINION
MURNAGHAN, Circuit Judge:
The appeal before the court concerns South Carolina’s attempt to limit the amount of hazardous waste generated out-of-state and buried within its borders by promulgating a series of executive orders, statutes, and one regulation (collectively “the South Carolina laws”) which, as compared to treatment of waste generated within South Carolina, burden out-of-state waste. The discriminating state laws would impact the operations of three commercial hazardous waste facilities owned and operated by members of the ap-pellee-plaintiff Environmental Technologies Council (“ETC”). ETC filed a lawsuit challenging South Carolina’s laws under the Commerce Clause of the United States Constitution, art. I, § 8, cl.3, the Supremacy Clause, art. VI, cl. 2, and the Privileges and Immunities Clause, art. IV, § 2 el.l, and 42 U.S.C. § 1983 (1988). The question before the court on appeal is whether South Carolina’s laws violate the Commerce Clause.
We previously considered a motion by ETC for a preliminary injunction in this same lawsuit based on a Commerce Clause violation. Hazardous Waste Treatment Council v. State of South Carolina, 945 F.2d 781 (4th Cir.1991) (“HWTC”). While remanding to the district court, we, for the most part, affirmed the district court’s grant of a preliminary injunction in favor of ETC. On remand, the district court has granted summary judgment in favor of ETC, issuing a permanent injunction as to all the challenged provisions. Environmental Technologies Council v. South Carolina, 901 F.Supp. 1026 (D.S.C.1995) (“ETC”). South Carolina and several intervenors have appealed. For the following reasons, we affirm.
I
Disposing of hazardous wastes is a national problem which raises complex technological and political issues. South Carolina is one of few states which contain commercial hazardous waste treatment, storage, and disposal facilities. Thus, South Carolina absorbs a large amount of the hazardous waste that other states export.
South Carolina’s attempt to limit the level of out-of-state hazardous waste entering its borders occurs against a backdrop of congressional legislation addressing the national hazardous waste problem. Congress has enacted three sets of laws which are relevant here: (1) the Resource Conservation and Recovery Act of 1976 (“RCRA”), as amended, 42 U.S.C. §§ 6901-6992k (1988); (2) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended, 42 U.S.C. §§ 9601-75 (1988); and (3) the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-499, 100 Stat. 1613 (1986). We briefly describe each law in so far as it is relevant to the question before us.
A. RCRA
RCRA establishes a cradle-to-grave regulatory program for hazardous waste management administered by the Environmental Protection Agency (“EPA”). It attempts to deal with hazardous waste before it becomes a problem by establishing minimum federal standards for the generation, treatment, storage, transportation, and disposal of hazardous waste, and the permitting of facilities to treat hazardous waste. HWTC, 945 F.2d at 783. RCRA also allows a state to implement its own program in lieu of the federal program if the state’s program is “equivalent to” and “consistent with” the federal or state programs applicable in other states and provides for “adequate enforcement of compliance.” 42 U.S.C. § 6926(b).
Congress delegated to EPA the task of reviewing and authorizing state programs as consistent with the federal program. The EPA’s regulation explaining how a state’s program must be consistent with the federal program is of particular relevance to the present controversy. It requires that a state program not unreasonably impede interstate commerce.
B. CERCLA and SARA
Passed by Congress in 1980, CERCLA establishes a cleanup program for hazardous waste which has already been disposed of improperly. CERCLA created a fund of federal money available for state cleanup efforts (“Superfund”).
Finding that more was still needed to address the hazardous waste problem, Congress amended CERCLA in 1986 by enacting SARA SARA requires that each state submit a proposal to EPA demonstrating that over a 20-year period the state will have either: (1) adequate capacity available to dispose of hazardous wastes generated within the state; or (2) arrange for the disposal of wastes generated in-state in other states through interregional agreements. 42 U.S.C. § 9604(c)(9) (1995). The required plans are referred to as Capacity Assurance Plans (“CAPs”). Failure to submit an acceptable CAP results in the state becoming ineligible to receive Superfund money for remedial cleanup of hazardous waste within the state. Congress promulgated no other sanctions or incentives for states to submit CAPs.
To obtain approval, a State program must be consistent with the Federal program and State programs applicable in other States and in particular must comply with the provisions below ...
(a) Any aspect of the State program which unreasonably restricts, impedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage, or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsistent.
C. South Carolina’s Restrictions on the Interstate Flow of Hazardous Waste
Because South Carolina is one of the few states which has large existing hazardous waste treatment and disposal facilities, it contends that it has borne an unfair share of the national hazardous waste burden. As a result, South Carolina has attempted, through a series of measures, to reduce the amount of hazardous waste entering its borders. South Carolina’s legislature passed two statutes, its Governor signed two Executive Orders, and the South Carolina Department of Health and Environmental Control (“DHEC”) promulgated one regulation — all of which were designed to limit the level of out-of-state hazardous wastes entering South Carolina for burial within the state.
The first measure enacted was a blacklisting provision, prohibiting entry into the state of certain out-of-state wastes. Section 9 of Act No. 196 of 1989 prohibits “any person who owns or operates a waste treatment facility within” South Carolina from accepting
any hazardous waste generated in any jurisdiction which prohibits by law the treatment of that hazardous waste within that jurisdiction or which has not entered into an interstate or regional agreement for the safe treatment of hazardous waste pursuant to the federal [CERCLA].
The Act codified a prior executive order, No. 89-17.
The second measure, Act No. 590 of 1990, established a limit on all waste buried within the state. The limit reduces the existing statutory authorization for hazardous waste disposal by burial from 135,000 tons within the state in a year to 120,000 tons from July 1, 1990 to July 1, 1991. After July 1, 1991, the authorization drops to 110,000 tons per year. The limit on waste burial can be lifted, however, upon certification that the burial of more waste is necessary to protect the health and safety of the citizens of South Carolina or that 110,000 tons of the waste buried in South Carolina during the relevant time period was generated in South Carolina only.
The same Act also discriminates between waste generated in-state versus out-of-state by establishing a floor for in-state wastes and a ceiling for out-of-state wastes. All hazardous waste facilities must reserve for waste generated in-state at least the same capacity used during the previous year. On the other hand, no more hazardous waste may be buried from out-of-state than the amount buried in the previous year.
The third measure, executive order No. 89-25, promulgated on July 6, 1989, imposes quota preferences for in-state wastes. It requires instate facilities to reserve at least 54,000 tons per year of the then current statutory maximum of 135,000 tons for waste generated within South Carolina. It also limits the waste generated from any one state to 35,000 tons per year, and 10,000 tons per quarter.
The fourth and final measure, DHEC Regulation 61-99, effective January 12, 1990, imposes a needs requirement for all permits to establish or expand hazardous waste treatment and storage facilities. Need may be demonstrated by reference to only in-state need.
D. EPA’s Response
In 1985, EPA approved South Carolina’s hazardous waste program under RCRA despite the presence of a discriminatory fee imposed on waste generated out of state. 50 Fed.Reg. 46437 (1985); HWTC, 945 F.2d at 785 & n. 2. In 1989, EPA expressed concern that the blacklisting provision (Act No. 196 and Exec. Order No. 89-17) could render South Carolina’s hazardous waste management program inconsistent with RCRA. Thus, the EPA requested an opinion from the South Carolina Attorney General and certification by the state that the provision was consistent with RCRA. The South Carolina Attorney General responded with an opinion that the provision was “consistent.” The record contains no response by EPA or further EPA action.
Shortly thereafter, on October 17, 1989, South Carolina submitted to EPA its proposed CAP. EPA approved the CAP in May 1990, with certain conditions. That approval was granted in the context of an EPA policy of using the CAP process as its first step in addressing state actions which may be inconsistent with RCRA.
Subsequently, in 1995, EPA issued a notice that it had made a final decision, subject to public review and comment, that the agency intended to find that South Carolina’s hazardous waste program revisions satisfied all of the requirements necessary for final authorization under RCRA 60 Fed.Reg. 42046 (Aug. 15, 1995). While the notice does not directly address the provisions at issue here, the notice does indicate that the EPA continues to approve South Carolina’s hazardous waste program under RCRA.
II
We review the district court’s summary judgment ruling under a de novo standard of review. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.1995); Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.1993). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only where there are no genuine issues of material fact. In conducting our analysis, we review the record in the light most favorable to the nonmoving party.
South Carolina and the intervenors appeal on several grounds. First, South Carolina argues that the district court erred by applying a dormant Commerce Clause analysis because RCRA, CERCLA, and SARA override the dormant Commerce Clause, rendering the Clause inapplicable. Second, South Carolina asserts that even assuming a dormant Commerce Clause analysis applies, there were genuine issues of material fact and, therefore, summary judgment was premature. Third, South Carolina argues that even assuming its laws violate the dormant Commerce Clause, two portions of the laws-the overall limit on in-state waste burial and the needs requirement for new permits-are neutral nondiscriminating provisions and, therefore, should be severed from the invalid provisions and upheld. Finally, South Carolina argues that the district court should not have ruled, on the constitutionality of the laws, but instead referred the entire lawsuit to the EPA under the doctrine of primary jurisdiction. We address each argument in turn.
We caution at the beginning of our discussion that, as we recognized in our previous opinion in this case, "whatever our own view may be about the effectiveness of what Congress or [South Carolina] has done [and the seriousness of the hazardous waste management problem that plagues our nation], we can only apply the law." HWTC, 945 F.2d at 783 (citing National Solid Wastes Management Ass'n v. Alabama Dep't of Envtl. Management, 910 F.2d 713, 715-16 (11th Cir.1990), as modified upon denial of reh'g, 924 F.2d 1001 (11th Cir.1991), cert. denied, 501 U.S. 1206, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991)).
A. The Dormant Commerce Clause
The Commerce Clause provides that "[t]he Congress shall have Power [t]o regulate Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. Although "phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a `negative' aspect that denies the States the power unjustiflably to discriminate against or burden the interstate flow of articles of commerce." Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, -, 114 S.Ct. 1345, 1349, 128 L.Ed.2d 13 (1994). Thus, with certain exceptions, the negative or dormant Commerce Clause prohibits states from discriminating against the free flow of interstate commerce.
Where Congress has acted in an area specifically authorizing state or local government action, the dormant Commerce Clause is, however, inapplicable, even if the state action interferes with interstate commerce. Northeast Bancorp, Inc. v. Board of Governors of the Fed. Reserve Sys., 472 U.s. 159, 174, 105 S.Ct. 2545, 2553-54, 86 L.Ed.2d 112 (1985); White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 213, 103 S.Ct. 1042, 1047, 75 L.Ed.2d 1 (1983). South Carolina contends that through enacting RCRA, CERCLA, and SARA, Congress created a federal scheme to address the disposal of hazardous wastes which authorized the state laws challenged here, thus displacing the dormant Commerce Clause.
In order for a state law to be removed from the reach of the dormant Commerce Clause, however, congressional intent to authorize the discriminating law must be either "unmistakably clear" or "expressly stated." South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92, 104 S.Ct. 2237, 2242-43, 81 L.Ed.2d 71 (1984). Congress need not state that it intends to override the dormant Commerce Clause, but it must affIrmatively have contemplated the otherwise invalid state legislation. Id.
South Carolina contends that Congress did just that on a number of levels. First, South Carolina insists that under RCRA, Congress has expressly authorized any state law or program addressing hazardous wastes which meets EPA's consistency standard of "reasonableness." 40 C.F.R. § 271.4. Second, South• Carolina argues that through delegating the authorization of state programs to the EPA under RCRA and CEROLA, Congress created a system of checkpoints for a state's hazardous waste program. South Carolina contends that by providing the checkpoints, Congress has “affirmatively” authorized the state laws because they are contained in an EPA-approved RCRA program and CAP. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 155, 102 S.Ct. 894, 910-11, 71 L.Ed.2d 21 (1982). Finally, South Carolina argues that the CAP requirement affirmatively contemplates and sanctions states discriminating against other states’ wastes. Regional agreements, South Carolina asserts, will require that states set aside capacity for states party to the agreement, thus necessitating discrimination among the states. Furthermore, South Carolina contends it must favor its own wastes in order to assure the capacity for in-state wastes it has demonstrated in its CAP.
We previously found at the preliminary injunction stage that RCRA, CERCLA, and SARA did not contain any language indicating “an unmistakably clear congressional intent to permit states to burden interstate commerce.” HWTC, 945 F.2d at 792. Neither South Carolina, nor the intervenors have come forward with any further persuasive evidence indicating that Congress intended to permit the states, directly or by EPA authorization, to engage in actions otherwise violative of the Commerce Clause. Id.
More specifically, we reject, as we did before, South Carolina’s argument that EPA’s reasonableness standard should displace a constitutional dormant Commerce Clause analysis. The EPA’s position on what constitutes “reasonableness” has changed over time. While EPA may change its position on what “consistency” entails, the Constitution has not changed and, in the absence of a clear Congressional statement authorizing discrimination by the states with respect to hazardous wastes, we must apply the Constitution’s dictates. See C & A Carbone, 511 U.S. at-, 114 S.Ct. at 1691-92 (O’Connor, J. concurring) (emphasizing high degree of specificity with which Congress must “explicitly” authorize state law otherwise violating the Commerce Clause).
We also find that Congress has not provided a series of checkpoints which authorize discrimination by South Carolina against other states’ hazardous wastes. South Carolina relies on Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), for the proposition that a series of congressionally created checkpoints for a state’s law authorizes the state to discriminate against interstate commerce. The facts of Merrion, however, are distinguishable.
In Merrion, the Court upheld, in the face of a Commerce Clause challenge, a tax imposed by the Jicarilla Apache Indian Tribe on oil and gas extracted from tribal reservation land. The Court found that the Tribe had the power as an independent sovereignty to impose the tax. Id. at 136-52,102 S.Ct. at 901-10. The Court also noted that the tax would survive dormant Commerce Clause scrutiny, if applied, because Congress had displaced the Commerce Clause by providing a series of precise federal checkpoints that must be cleared before such a tax could be implemented. Id. at 154-56, 102 S.Ct. at 910-11. Congress required that under the Indian Reorganization Act, 25 U.S.C. §§ 476, 477, “a tribe ... obtain approval from the Secretary [of the Interior] before it adopts or revises its constitution to announce its intention to tax nonmembers.” Id. at 155, 102 S.Ct. at 911. Congress was also aware that Indian tribes impose taxes of the sort in question. Id. at 156, 102 S.Ct. at 911. Furthermore, the tax had been expressly approved by the Secretary through the checkpoints established for such taxes. Id. at 155-56, 102 S.Ct. at 910-11. Thus, Congress expressly authorized such taxes being implemented by Indian Tribes if approved by the Secretary of the Interior.
In contrast, here, one cannot say that Congress expressly contemplated or authorized violations of the dormant Commerce Clause by states limiting access to their hazardous waste facilities when it enacted RCRA, CERCLA, and SARA. Thus, no eongres-sionally established “checkpoints” expressly anticipate or authorize the challenged state laws. Furthermore, the EPA has not expressly approved any of the contested South Carolina laws.
We also reject South Carolina’s argument that the CAPs requirement contemplates and requires that South Carolina discriminate against out-of-state waste in order to assure capacity for its in-state waste and to fulfill its interregional agreements. In our prior opinion, HWTC, 945 F.2d at 794-95, we stated that CERCLA requires only
an “assurance” of twenty-year availability of arranged adequate capacity. It does not [require] that the state must ensure that hazardous waste actually is treated and disposed of either in-state or pursuant to an interstate or regional agreement. CERCLA § 104(c)(9) contemplates that adequate national capacity will exist if each state can assure that it has adequate ea-pacity for in-state generated waste after taking into consideration out-of-state waste that it has agreed to import and in-state waste that it has agreed to export. However, no part of § 104(c)(9) appears to permit or require a state to limit its actual in-state capacity to in-state waste to receive Superfund money. See OSWER Directive 9010.OOa at 4, 6. In fact, it appears that, if a state refuses to build in-state facilities or make alternate arrangements, it wifi be denied Superfund money, even if, in reality, all instate generated waste is safely exported. If congressional intent had been to subject citizens of recalcitrant states to environmental danger by barring export of otherwise untreated and undis-posed of hazardous waste, it could have been easily made clear: "A state not in compliance with this section may not export any waste." In the absence of such intent, we suspect that Congress believed the penalty of no access to federal Super-funds for waste cleanup would be sufficient.
South Carolina has not presented any evidence sufficient to dissuade us of our prior thinking. Furthermore, as the Eleventh Cir-cult noted in response to a similar argument, if the state's CAP depends on capacity provided by a commercial, privately owned management facility, the state can contract with that private facility for that capacity, instead of blocking the private facility from accepting wastes from other states. National Solid Wastes Management Ass'n, 910 F.2d at 720-21 (rejecting similar argument that SABA expressly authorized state law discriminating against out-of-state hazardous waste); Alabama v. EPA, 871 F.2d 1548, 1555 n. 3 (11th Cir.) (finding that Congress had not overridden Commerce Clause through enacting CERCLA), cert. denied, 493 U.S. 991, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989). Thus, we apply a dormant Commerce Clause analysis to South Carolina's laws.
B. Application of Do'rinant Commerce Clause
We apply a two-tiered analysis to state actions allegedly violating the dormant Commerce Clause. The first tier, "a virtually per se rule of invalidity," applies where a state law discriminates facially, in its practical effect, or in its purpose. Wyoming v. Oklahoma, 502 U.S. 437, 454-55, 112 S.Ct. 789, 800, 117 L.Ed.2d 1 (1992) (quoting City of Philadelphia, 437 U.S. at 624, 98 S.Ct. at 2535). In order for a law to survive such scrutiny, the state must prove that the discriminatory law "is demonstrably justified by a valid factor unrelated to economic protectionism," New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274, 108 S.Ct. 1803, 1808, 100 L.Ed.2d 302 (1988), and that there are no "nondiscriminatory alternatives adequate to preserve the local interests at stake," Hunt, 504 U.S. at 342, 112 S.Ct. at 2014 (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977)). To date, the Supreme Court has upheld such discriminatory laws only where the discrimination was justified by the threat of death or disease. See, e.g., Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (upholding Maine's prohibition on importing live baitfish because of the potential for destruction of Maine's fisheries); Clason v. Indiana, 306 U.S. 439, 59 S.Ct. 609, 83 L.Ed. 858 (1939) (upholding Indiana's restrictions on transporting dead animals without a license because of the potential for disease).
The second tier applies if a statute regulates evenhandedly and only indirectly affects interstate commerce. In that case, the law is valid unless the burdens on commerce are "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).
The line between the per se rule and the Pike balancing test is not clear. Nonetheless, most of the provisions at issue here are not close calls-they clearly discriminate against out-of-state waste either facially, in effect, or in purpose. The blacklisting provision, floor for in-state wastes, ceiling for out-of-state wastes, and quotas for out-of state and in-state wastes facially discriminate against out-of-state wastes by refusing admittance into South Carolina of certain wastes and giving express preference over South Carolina capacity to in-state wastes. Their effect, if implemented, would also clearly discriminate against out-of-state wastes. As for purpose, we have no reason to reverse the district court's finding that the laws in question constitute "an integrated and interconnected discriminatory program," ETC, 901 F.Supp. at 1029, whereby South Carolina has "attempted `to isolate itself from a problem common to [the nation] by erecting a barrier against the movement of interstate trade'," HWTC, 945 F.2d at 791 (quoting City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2537-38).
A state cannot achieve a legitimate economic goal through "the illegitimate means of isolating the State from the national economy." Wyoming, 502 U.S. at 456-57, 112 S.Ct. at 801 (quoting City of Philadelphia, 437 U.S. at 627, 98 S.Ct. at 2537). The relevant economic unit is the nation, and the Commerce Clause prohibits states from bal-kanizing into separate economic units. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38, 69 S.Ct. 657, 664-65, 93 L.Ed. 865 (1949). Thus, South Carolina faces a heavy burden in justifying its discriminatory practices. To survive summary judgment, South Carolina must demonstrate issues of fact regarding whether the laws are justffied by a valid factor unrelated to economic protectionism and, if so, that there are no neutral alternatives available.
While South Carolina failed to articulate precisely its purpose in discriminating against out-of-state waste, the district court found several motivating concerns. The district court first found that South Carolina was motivated by the state's concern for the "health, safety, and welfare of its citizens." ETC, 901 F.Supp. at 1033-34. There is "no basis to distinguish out-of-state waste from domestic waste" over concern for citizens' health, safety, and welfare, however. Hazardous waste is equally dangerous whether generated within South Carolina or out-of-state. See Chemical Waste Management, 504 U.S. at 344-45, 112 S.Ct. at 2015-16 (holding that hazardous waste's danger to the health and safety of Alabama's citizens "does not vary with the point of origin of the waste"); HWTC, 945 F.2d at 792 (citing City of Philadelphia, 437 U.S. at 629, 98 S.Ct. at 2538).
The State's second concern was with preserving existing disposal capacity for waste generated within South Carolina. ETC, 901 F.Supp. at 1034. Natural resources, however, may not be hoarded under the Commerce Clause. "[A] State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders." City of Philadelphia, 437 U.S. at 627, 98 S.Ct. at 2537; see also New England Power Co. v. New Hampshire, 455 U.S. 331, 338, 102 S.Ct. 1096, 1100, 71 L.Ed.2d 188 (1982). Thus, "[t]he burden ... of conserving the State's remaining landfill space should not fall disproportionately on out-of-state interests." HWTC, 945 F.2d at 792 (citing City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2537-38).
The third concern the district court found was South Carolina's worries about "transportation risks." ETC, 901 F.Supp. at 1034. Just as with the State's concern with health and safety, there is little to distinguish out-of-state waste from in-state waste in this regard. Furthermore, neutral alternatives exist for regulating transportation of all has-ardous waste regardless of origin. Chemical Waste Management, 504 U.S. at 345-46, 112 S.Ct. at 2015-16.
Finally, there was South Carolina's concern that it is shouldering an unfair burden of the nation's hazardous wastes. ETC, 901 F.Supp. at 1034. The Commerce Clause does not purport to require fairness among the states in interstate commerce. The "apparent Congressional intent of RCRA and SARA would seem" to be "that hazardous waste be treated and disposed of somewhere, even if spread disproportionately among the states." HTwC, 945 F.2d at 792.
On appeal, South Carolina reframes its purposes as: (1) complying with the CAP by guaranteeing capacity; and (2) addressing “orphan” wastes — hazardous waste from a state which prohibits its disposal and has failed to enter into a CAP for its disposal. As previously explained, the CAP requirement does not require or contemplate that a state discriminate against out-of-state waste in order to comply. Nor does the Commerce Clause allow states to punish other states for not disposing of their wastes through a CAP or otherwise. That task is left exclusively to Congress.
In briefing its appeal, South Carolina pointed to no specific issue of fact as to any potential purpose for discriminating against out-of state waste. Rather, the State merely argued that it is entitled to present evidence that it has no alternative but to differentiate among out-of-state wastes to protect its citizens’ health and safety and to comply with CERCLA.
At the summary judgment stage, South Carolina has a burden to demonstrate disputed issues of material fact. South Carolina has failed to meet its burden. None of the affidavits South Carolina submitted even purport to justify South Carolina’s discriminatory treatment of out-of-state wastes. ETC, 901 F.Supp. at 1030. Nor do any of the affidavits purport to demonstrate that no neutral alternatives exist to discrimination.
C. Limit on Waste Buried In-State and Needs Requirement
As for two portions of the South Carolina laws, it is not so obvious, however, that they discriminate either facially, in effect, or in purpose, such that the per se test applies. South Carolina therefore argues that even if we find that the dormant Commerce Clause applies and that the laws are invalid, portions of the laws — the overall limit imposed by Act No. 590 and the needs requirement imposed by DHEC regulation 61-99 — do not diseriminate against interstate commerce. Therefore, South Carolina contends, the valid portions should be severed from the invalid portions and remain in effect. We disagree.
1. Limit
An evenhanded cap or limit uniformly burdens both in-state and out-of-state interests. See, e.g., Chambers Medical Technologies of S.C. v. Bryant, 52 F.3d 1252, 1258 (4th Cir.1995). Thus, the Supreme Court has held that the dormant Commerce Clause allows a state to impose “an evenhanded cap on the total tonnage landfilled” with hazardous waste when it “curtailfs] volume from all sources.” Chemical Waste Management, 504 U.S. at 345, 112 S.Ct. at 2015. South Carolina contends that its reduction of the statutory authorization of 135,000 tons per year to 120,000 tons and then 110,000 tons is an evenhanded neutral limit that does not burden interstate commerce any more than intrastate commerce.
The limit South Carolina seeks to have upheld, however, is not as evenhanded and neutral as the state would have the court believe. The limit does not have the same effect on in-state as out-of-state wastes because the limit can be lifted upon certification that it is necessary to protect South Carolina’s citizens, S.C.Code Ann. § 44-56-60(a)(3)(A) (Law Co-op Supp.1995), or that the entire statutory authorization of buried waste during the relevant 12-month period was generated in South Carolina, S.C.Code Ann. § 44-56-60(a)(3)(B) (Law Co-op Supp. 1995). The same exceptions are not granted to out-of-state interests. The Supreme Court has declared that “[t]he commerce clause forbids discrimination, whether forthright or ingenious. In each case it is our duty to determine whether the statute under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186,- -, 114 S.Ct. 2205, 2215-16, 129 L.Ed.2d 157 (1994) (citing Best & Co. v. Maxwell, 311 U.S. 454, 455-56, 61 S.Ct. 334, 334-35, 85 L.Ed. 275 (1940); Maryland v. Louisiana, 451 U.S. 725, 756, 101 S.Ct. 2114, 2134, 68 L.Ed.2d 576 (1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 147, 98 S.Ct. 2207, 2224-25, 57 L.Ed.2d 91 (1978)). Here, the exception favors in-state interests over out-of-state interests. Thus, the overall limit is not facially neutral, but rather discriminatory and, therefore, subject to the same per se test applied to the other discriminatory provisions of Act 590. The limit fails to survive such scrutiny for the same reasons that the floors and ceilings in Act 590 failed.
2. Needs Requirement
The needs regulation requires that a permit application for new or expanded hazardous waste facilities demonstrate need by reference to the level of waste generated in South Carolina only. South Carolina contends that the needs requirement is neutral, functioning similarly to an evenhanded cap and therefore valid. In our earlier opinion, we found that “[o]n its face [the needs requirement] appears not to regulate evenhandedly. It permits South Carolina to refuse to allow new construction if all of its waste can be disposed of by exportation. The ‘practical effect’ ... of the regulation may be to favor in-state interests over out-of-state interests.” HWTC, 945 F.2d at 791 n. 14 (citation omitted). Indeed, currently, the practical effect may be to establish a ban on building new capacity.
We find that the needs requirement is not similar to an evenhanded cap with the same effect on both in-state and out-of-state interests. The effect on out-of-state interests is to prohibit facilities from expanding to meet out-of-state needs, but to allow expansion to meet in-state needs. Thus, just as with the overall limit in question, the needs requirement contains an exception for in-state needs allowing expansion or a raise in the limit where in-state needs dictate such a rise. While the limit once imposed applies equally to out-of-state and in-state wastes, in effect, it guarantees in-state generators of waste space because the limit can always be raised in order to meet in-state needs.
Therefore, we apply the per se test to Regulation 61-99. The needs regulation does not survive the per se test for the same reasons the remainder of the challenged South Carolina laws failed to survive. South Carolina has raised no issue of fact as to a state rationale unrelated to the origin of the waste for its needs requirement.
D. Primary Jurisdiction
Finally, South Carolina attempts to persuade us that the district court erred by failing to defer under the doctrine of primary jurisdiction to the EPA in the first instance as to whether South Carolina’s laws are constitutional. “No fixed formula exists for applying the doctrine of primary jurisdiction.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). Generally speaking, the doctrine is designed to coordinate administrative and judicial decision-making by taking advantage of agency expertise and referring issues of fact not within the conventional experience of judges or cases which require the exercise of administrative discretion. Id.; Commonwealth of Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir.1995); Mashpee Tribe v. New Sear bury Corp., 592 F.2d 575, 580 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979), and cert. denied, 464 U.S. 866, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983).
The district judge refused to refer the instant lawsuit to the EPA under the doctrine of primary jurisdiction because he found that there were no issues of fact. Primary jurisdiction, he held, applied only to the referral of factual, not legal, issues. He further reasoned that the “constitutional issues ... [at stake were more] properly within the traditional purview of an Article III court, and are not those to which EPA could conceivably lend some degree of expertise.” ETC, 901 F.Supp. at 1029. We review the district court’s decision declining to refer the lawsuit to the EPA under the doctrine of primary jurisdiction for abuse of discretion. In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1162 (3d Cir.1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 921, 127 L.Ed.2d 215 (1994).
The district court did not abuse its discretion. The EPA’s special expertise is not needed to decide a question of law in a constitutional matter.
Accordingly, the district court’s judgment is
AFFIRMED.
. ETC was formerly known as the Hazardous Waste Treatment Council (“HWTC”). ETC is a non-profit association of commercial firms that provide services for the treatment, recycling, and disposal of hazardous wastes.
. Because the district court addressed only the Commerce Clause question and our ruling on the Commerce Clause renders the challenged laws invalid, we do not reach the validity of the laws under the Supremacy Clause, Privileges and Immunities Clause, or 42 U.S.C. § 1983.
. We instructed the district court on remand “(1) to modify the order by striking the words that confusingly imply a declaration of invalidity, (2) to modify the order to apply only to the specific portions of the executive orders and statutes challenged as violating the Commerce Clause, and (3) to consider explicitly the balance of hardships with respect to Regulation 61-99." HWTC, 945 F.2d at 795.
. The Resource Conservation and Recovery Act of 1976 ("RCRA") defines "hazardous waste" as
a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5).
The increasing problem of disposing of solid wastes — hazardous and non-hazardous — is evidenced by the number of recent lawsuits involving states’ or localities' attempts to limit wastes entering their borders. See, e.g., C & A Carbone, Inc. v. Town of Clarkstown, New York, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) (local solid waste flow control ordinance requiring all nonhazardous waste to be deposited at locally-owned facility); Oregon Waste Sys., Inc. v. Department of Envtl. Quality of Oregon, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994) (Oregon statute imposing additional fee on solid waste generated outside the state and disposed of within the state); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992) (Michigan law prohibiting private landfill operators from accepting solid waste that originates outside county in which facilities are located unless specifically authorized by the receiving county’s plan); Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992) (Montana statute imposing additional fee on all hazardous waste generated out of state and disposed of within state); City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (New Jersey statute prohibiting importation of most solid or liquid waste generated out of state); National Solid Wastes Management Ass’n v. Alabama Dep't of Envtl. Management, 910 F.2d 713 (11th Cir.1990), as modified upon denial of reh'g, 924 F.2d 1001 (11th Cir.), cert. denied, 501 U.S. 1206, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991) (Alabama statute blacklisting certain hazardous wastes generated out of state). In each case listed above a state or locality attempted to discriminate against waste generated out-of-state, and in each case the discriminatory action was ruled a violation of the Commerce Clause.
. 40 C.F.R. § 271.4. provides:
.42 U.S.C. § 9604(c) provides:
(9) Siting
Effective 3 years after October 17, 1986, the President shall not provide any remedial actions pursuant to this section unless the State in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities which—
(A)have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 20-year period following the date of such contract or cooperative agreement and to be disposed of, treated, or destroyed,
(B) are within the State or outside the State in accordance with an interstate agreement or regional agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of subtitle C of the Solid Waste Disposal Act.
. The court refers the reader to its prior opinion in this litigation, HWTC, 945 F.2d at 783-85, for further background on RCRA, CERCLA, and SARA.
. The limit is most often referred to as a cap. We have used the term “limit” here in order to prevent confusion between "cap" and the acronym for Capacity Assurance Plan, "CAP.”
. That fee is not challenged in the instant lawsuit.
. Memorandum from Lee M. Thomas to Regional Administrators, "Policy Regarding Hazardous Waste Management Capacity and RCRA Consistency Issues” (December 23, 1988).
. At oral argument, South Carolina asserted that the EPA 1995 RCRA approval specifically addressed one of the challenged provisions at 60 Fed.Reg. 42048, checklist item 17E. Checklist ítem 17E addresses the federal requirement for "location standards for salt domes, salt beds, underground mines and caves.” The federal RCRA regulations addressed were promulgated by EPA on July 15, 1985. The state authority to administer the federal requirements is found at South Carolina Code §§ 44-56-30, 44 — 56-60(a-c), and 44 — 56-120. We surmise that South Carolina is referring to § 44-56-60 as being specifl-cally authorized by EPA. Act No. 590 amended § 44-56-60 in 1990 to include the overall limit on waste disposed of by land burial, a ceiling on out-of-state waste, and a floor on in-state waste. From the information before the court, however, we do not presume that EPA specifically addressed and authorized the discriminatory provisions in question here, which were enacted in 1990 and not addressed specifically to the location standards for salt domes, salt beds, underground mines and caves. We do not view the EPA finding as to the particular federal regulation governing location standards for salt domes, salt beds, underground mines and caves as specifically addressing and authorizing the overall limit on hazardous waste burial and the ceilings and floors in question. Thus, based upon the record before the court, we disagree with South Carolina’s contention that EPA has specifically addressed and authorized some of the challenged provisions.
. The Commerce Clause applies to the interstate flow of hazardous waste. Chemical Waste Management, 504 U.S. at 340 n. 3, 112 S.Ct. at 2012 n. 3.
. The Supreme Court has not yet addressed this question. In Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992), the Supreme Court preter-mitted the issue raised by the amici curiae in that case of whether Congress had authorized a discriminatory fee Alabama imposed on out-of-state hazardous wastes disposed of at commercial facilities located in Alabama. Id. at 346 n. 9, 112 S.Ct. at 2016 n. 9. Applying the dormant Commerce Clause, the Supreme Court held that the discriminatory fee violated the Commerce Clause and declared the law unconstitutional. The Court refused to consider the question of whether the Commerce Clause did not apply at all because that issue had not been a basis for the lower court’s decision or briefed and argued by the parties.
. EPA has taken seemingly contradictory positions at different times on how it will apply and interpret the consistency requirement. In 1980, EPA adopted the approach taken in a then recent Supreme Court opinion, City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), which applied the dormant Commerce Clause to strike down state statutes discriminating against out-of-state liquid or solid wastes. The Court’s approach rested on the premise that state regulations which discriminated facially, in effect or in purpose, were virtually per se invalid. City of Philadelphia, 437 U.S. at 624-27, 98 S.Ct. at 2535-37. Following that precedent, EPA pronounced that under its consistency regulation, § 271.4, any state program which “operates as a ban on the interstate movement of hazardous waste is automatically inconsistent.” HWTC, 945 F.2d at 793 (citing 45 Fed. Reg. 53395 (1980)).
In 1985, EPA “altered” its approach to the consistency requirement. That year, EPA ruled that under its consistency regulation, the agency would apply a "reasonableness” test to interstate commerce restrictions. HWTC, 945 F.2d at 794 (citing 50 Fed.Reg. 46439 (1985)). Thus, EPA announced that it did “not agree that any disparity in treatment between in-state and out-of-state wastes is per se unreasonable" seemingly abandoning its prior constitutional standard. Id.
.The instant case is distinguishable from the opinion on which South Carolina places a great deal of reliance, White v. Massachusetts Council of Constr. Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), for its proposition that Congress has authorized the State's laws through RCRA and CERCLA. In White, the May- or of Boston, Massachusetts issued an executive order requiring all construction projects funded by the city to be performed by workers at least half of whom were bona fide residents of Boston. The order was challenged as violating the Commerce Clause. The Supreme Court upheld the Mayor's order, finding that Boston acted as a market participant in spending the city’s money. There is a well-settled exception to the dormant Commerce Clause for states or cities acting as market participants as opposed to government regulators of the market. Id. at 206-08, 103 S.Ct. at 1043-45. Additionally, the Court noted that although federal funds were also implicated, Congress had specifically contemplated and directed that those funds be used in a similar manner to the city's money: to stimulate economic recovery; to create permanent jobs; to retain jobs that would be lost; to provide jobs to lower income persons and minorities, including the unemployed; and to retrain workers. See, e.g., 42 U.S.C. §§ 3131, 5318. Furthermore, the regulations implementing Congress’s directives contained similar mandates, affirmatively permitting the type of parochial favoritism contained in the Mayor’s executive order. White, 460 U.S. at 213-14 n. 11, 103 S.Ct. at 1047 n. 11. Thus, the preference for local employment had been expressly contemplated and authorized by Congress. In contrast, here, Congress merely contemplated that state RCRA programs be consistent with the federal and other states' approved programs. Congress did not contemplate nor direct that state RCRA programs implement economic barriers to hazardous waste from other states. Nor do the EPA's regulations affirmatively and expressly authorize economic barriers to the interstate movement of hazardous wastes.
. The Court further concluded that the tax would survive Commerce Clause scrutiny because it did not discriminate against interstate commerce in violation of the Commerce Clause. Merrion, 455 U.S. at 156-58, 102 S.Ct. at 911-12. The tax had a substantial nexus with the taxing Tribe, was fairly apportioned, related to the services provided by the Tribe, and was nondiscrim-inatoiy because it was imposed on minerals sold on the reservation and minerals transported off the reservation before sale. Id.
. Even if EPA had expressly approved the laws in question, we could not do so without express congressional authorization.
. For example, the stated purpose of Act No. 196 (blacklisting provision) is to "give preference to hazardous waste generators within" South Carolina. Act No. 590 gives the same preference to hazardous waste generators within the state.
. South Carolina merely presents a series of affidavits that describe its hazardous waste program; the amount of wastes buried in state, broken down by in-state and out-of-state wastes; and similar statistics.
. South Carolina also contends that we expressly excluded the overall limit as one of the items properly enjoined in our previous opinion addressing the preliminary injunction. HWTC, 945 F.2d at 787 n. 9. While we referenced the statutory section containing the limit in our list of sections to be enjoined, we specifically referred to another subsection. Today, however, for the reasons set forth below, we clarify that the limit is included as one of the items that violates the Commerce Clause.
. Even if the limit were nondiscriminatory, it would not be severable. State law governs the severability of a state statute. Muller v. Curran, 889 F.2d 54, 57 (4th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1027 (1990). Thus, in determining whether the overall limit can be severed, we turn to South Carolina law. Under South Carolina law, "[t]he test for severability is whether the constitutional portion of the statute remains ‘complete in itself, wholly independent of that which is rejected, and is of such a character as that it may fairly be presumed that the Legislature would have passed it independent of that which is in conflict with the Constitution.' " Thayer v. South Carolina Tax Comm'n, 307 S.C. 6, 413 S.E.2d 810, 814-15 (1992) (citing Shumpert v. South Carolina Dep’t of Highways & Public Transp., 306 S.C. 64, 409 S.E.2d 771 (1991)) (footnote omitted).
We cannot fairly presume that the South Carolina legislature would have passed the overall limit without the provision allowing the limit's increase if South Carolina wastes exceeded the cap. Nor can we assume that the limit would have been passed without the remaining provisions of the statute, which include floors for instate-wastes and ceilings for out-of-state wastes. By protecting capacity for in-state interests, the legislature may have quelched in-state political interests that might otherwise have lobbied against the overall limit. Thus, we conclude that the limit provision is not severable.
. South Carolina’s reliance on Chambers Medical Technologies of South Carolina v. Bryant, 52 F.3d 1252 (4th Cir.1995), does not aid its cause. South Carolina seeks to establish that the needs regulation is similar to South Carolina's fluctuating cap for infectious waste based on the amount of waste generated in South Carolina alone. In Chambers, we held that the fluctuating cap for infectious waste might pass Commerce Clause scrutiny if it regulated in an evenhanded fashion and had only incidental effects on interstate commerce; whereas it would not be constitutional if it discriminated facially, in effect, or in purpose, thus necessitating that the per se test be applied. Id. at 1262. Here, the regulation discriminates in effect. Thus, the per se test applies.
Furthermore, significantly, we noted that the fluctuating cap in Chambers did not operate as a ban on the expansion of facilities. 52 F.3d at 1262. It merely limited the amount of infectious waste any one facility could process. While the South Carolina Code required that a permit be obtained in order to build a new facility and that infectious waste generated out-of-state could only be considered in the needs calculations with DHEC approval, the Chambers court assumed that the DHEC would not deny a permit on a basis violating the Commerce Clause. Id. at 1262 n. 15. Thus, in dicta, we suggested in Chambers that outright bans on expansion based on in-state needs only will most likely not survive dormant Commerce Clause scrutiny.
. As conceded in oral argument, however, South Carolina has not requested that the EPA intervene in this case as an amicus curiae, nor has the EPA sought intervention.
. South Carolina contends that the district court’s refusal to apply the doctrine of primary jurisdiction was based wholly on erroneous conclusions of laws and should therefore be reviewed de novo. "[D]espite what the term [primary jurisdiction] may imply, [it] does not speak to the jurisdictional power of the federal courts. It simply structures the proceedings as a matter of judicial discretion, so as to engender an orderly and sensible coordination of the work of agencies and courts.” In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d at 1162 (quoting United States v. Bessemer & Lake Erie R.R. Co., 717 F.2d 593, 599 (D.C.Cir.1983)). Thus, the decision not to refer a lawsuit to an agency under the doctrine of primary jurisdiction is a discretionary matter which we review for abuse of discretion. Furthermore, because the matter at issue is a constitutional question which lies within this court's expertise, the district court correctly applied the law.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1666666666666667, Costs: 0
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POSNER, Chief Judge.
This appeal requires us to consider the scope and application of the doctrine of exhaustion of administrative remedies. We simplify the facts slightly. On January 17, 1990, the supervisor of the Shawnee National Forest in southern Illinois authorized a sale of timber. Under the regulations of the Department of Agriculture (of which the U.S. Forest Service is a part), a person objecting to the sale had 45 days within which to file a notice of appeal to the Regional Forester, 36 C.F.R. § 217.7(b)(1), stating among things the reasons for the objection. 36 C.F.R. § 217.9(b). On February 1, Joseph Glisson filed a notice of appeal that did not contain a statement of the reasons for his objection, so on February 15 the notice was dismissed. He was promptly informed of this action, though we do not know exactly when. He had until March 5 or 8 (we are not certain which) to file a timely, conforming notice of appeal with the Regional Forester. But he filed nothing until September 11, 1991, more than a year and a half later, when he tried to renew his appeal on the basis of “new information” — which the Regional Forester determined was not new. Before this determination, while his renewed appeal was pending, Glisson brought this suit in federal district court to enjoin the sale, which had not yet taken place. The ground for the suit was that the sale would violate several different federal statutes. After the Regional Forester rejected Glisson’s belated appeal as untimely, the court, without considering the merits of the suit, which Glisson had standing to bring as a recreational user of the Shawnee National Forest, Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir.1995), dismissed it on the ground that Glisson had failed to exhaust his administrative remedies. The court made the dismissal with prejudice because it was too late for Glisson to cure the problem that had caused the dismissal by exhausting those remedies. The doors of the agency were closed to him because of his failure to file a timely appeal to the Regional Forester.
Exhaustion of administrative remedies is a doctrine — originally and still to a large extent judge-made though now codified in cases governed by the Administrative Procedure Act by section 10(c) of the Act, 5 U.S.C. § 704 — under which a court asked to invalidate an administrative order will stay its hand until the plaintiff has exhausted whatever internal remedies the agency provides. Reiter v. Cooper, — U.S. -, -, 113 S.Ct. 1213, 1220-21, 122 L.Ed.2d 604 (1993); McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992). The doctrine cuts down on the work of the courts, preserves the integrity and autonomy of the administrative process, and ensures that when the administrative proceeding does come before the court, the court will have before it the mature, considered, and final articulation of the basis of the agency’s action. Id. at 145-46, 112 S.Ct. at 1086-87; Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); In re Establishment Inspection of Kohler Co., 935 F.2d 810, 812 (7th Cir.1991). The doctrine is closely related to the doctrines of finality, mootness, and primary jurisdiction, all of which are designed to postpone judicial intervention until the plaintiffs need for judicial help is clear and the record is adequate to enable the intelligent performance of the judicial function.
Exhaustion of administrative remedies is a sensible doctrine and we are not disposed to give it a grudging interpretation. But to the extent that it is a doctrine of federal common law rather than the inflexible command of a statute, it is to be applied with due regard for its underlying purpose and for considerations that may in particular eases counsel for a waiver. Weinberger v. Salfi, supra, 422 U.S. at 765, 95 S.Ct. at 2466; Bowen v. City of New York, 476 U.S. 467, 484, 106 S.Ct. 2022, 2032, 90 L.Ed.2d 462 (1986). If circumstances make it unreasonable to require the plaintiff to run the gauntlet of internal administrative appeals — perhaps because the internal appellate tribunals were not authorized to give him the relief he sought (the most common reason), or because the agency had placed unreasonable restrictions on access to them, or because the delay entailed by exhaustion would cause him irreparable harm — then the doctrine is not applied. McCarthy v. Madigan, supra, 503 U.S. at 147-48, 112 S.Ct. at 1087-88. The judgment of the district court on the question of waiver is entitled to considerable deference by the court of appeals, since the question is of a highly particularistic, case-specific character. Powell v. AT & T Communications, Inc., 938 F.2d 823, 825 (7th Cir.1991); Massengale v. Oklahoma Board of Examiners, 30 F.3d 1325, 1328 (10th Cir.1994); Committee of Blind Vendors v. District of Columbia, 28 F.3d 130, 133 (D.C.Cir.1994).
Given the specialized technical or scientific character of a decision on when and how to harvest timber with minimum damage to environmental concerns, the district court was right, or at least reasonable, in refusing to countenance Mr. Glisson’s extremely long delay in pursuing his administrative appeals, as a result of which the appellate process within the Forest Service is now closed to him. Had Glisson complied with the Service’s not unreasonable requirements for filing an appeal, then even if he had gone on to lose before the agency at least the district court would have had a much more informative record of the Service’s reasons for authorizing the timber sale. Glisson has not given any reason for his failure to comply with the 45-day appeal period. His argument that the failure was technical and insubstantial is unpersuasive. Without a statement of the objector’s reasons, the agency cannot evaluate the strength of the objection. It is true that notices of appeal in the federal courts do not require a statement of reasons. But there the notice of appeal kicks off a leisurely, full-blown appellate process. Administrative remedies, here as usually, are more summary in character, as otherwise the interval between initial agency action and ultimate resolution on judicial review would be interminable.
Thus far we have treated the ease, as have the parties, as involving the federal common law doctrine of exhaustion of administrative remedies, rather than a statutory doctrine of exhaustion. But two years ago the Supreme Court held, in a decision not discovered by either party to our case, that when the basis of judicial review of administrative action is the Administrative Procedure Act, the Act’s provision on exhaustion (section 10(e), cited earlier) is exclusive. Darby v. Cisneros, — U.S. -, -, 113 S.Ct. 2539, 2544-45, 125 L.Ed.2d 113 (1993). (We are astonished that the Department of Justice, representing the Forest Service, should have overlooked Darby.) And that section, as interpreted by the Court, provides that “final” in the sense of definitive agency action is reviewable even if an administrative appeal is available unless either a statute or the agency’s rules require exhaustion as a prerequisite to judicial review. Without such a requirement, the Court reasoned (trying to reconstruct the sense behind the provision), parties to administrative proceedings would not know when they could go to court. For example, it would often be unclear whether asking the agency for reconsideration of its decision was a remedy that had to be exhausted.
Although Glisson by not citing section 10(e) might be thought to have waived it as a basis for jurisdiction, the usual rule is that if a court has jurisdiction it must retain a case even if the parties have failed to identify the correct basis of the court’s jurisdiction. Smith v. U.S. District Court, 956 F.2d 647, 649 (7th Cir.1992); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1210, p. 121 (2d Ed.1990); cf. Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1195-96 (7th Cir.1987). It is true that the Supreme Court said in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n. 6, 106 S.Ct. 3229, 3233 n. 6, 92 L.Ed.2d 650 (1986), that “jurisdiction may not be sustained on a theory that the plaintiff has not advanced.” But in context it is apparent that what the Court meant is simply that if the plaintiff chooses to base his claim on state law, the defendant cannot obtain federal jurisdiction by showing that the claim could have been based on federal law instead, unless it is one of those cases in which federal law has so far occupied the field as to extinguish any remedy under state law for the injury of which the plaintiff complains. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93, 107 S.Ct. 2425, 2429-30, 96 L.Ed.2d 318 (1987); Saturday Evening Post Co. v. Rumbleseat Press, Inc., supra, 816 F.2d at 1195.
But the principle that federal jurisdiction does not depend on identifying the correct basis of federal jurisdiction cannot help Glis-son. The agency’s regulations are explicit that an appeal to the Regional Forester from the decision of the supervisor of a national forest to sell lumber is a prerequisite for seeking judicial review. “It is the position of the Department of Agriculture that any filing for Federal judicial review of a decision subject to review under this part is premature and inappropriate unless the plaintiff has first sought to invoke and exhaust the procedures available under this part. This position may be waived upon a written finding by the Chief [of the Forest Service].” 36 C.F.R. § 217.18. So section 10(c) required exhaustion, and Glisson failed to exhaust.
The agency’s refusal to reopen the proceeding on the basis of Glisson’s allegedly new information is not before us, and we express no view on Glisson’s judicial remedies, if any, against that refusal. Nor do we wish to disparage his concern with the decline of the Midwest’s songbird population as a consequence, it is widely believed, of a reduction in forest cover. This suit, however, is barred by the Administrative Procedure Act’s provision concerning exhaustion of administrative remedies. •
AFFIRMED.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.03571428571428571, Costs: 0.01785714285714286
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OPINION
SMITH, Chief Judge.
Appellants, Crystal Spring Ecosystem, Highland Township Municipal Authority, and Citizens Advocating a Clean Healthy Environment, Inc.—ail represented by the Community Environmental Legal Defense Fund (“CELDF”)—sought to intervene on the side of Defendant-Appellee Township of Highland (the “Township”) in defense of the legality of the Highland municipal ordinance known as the “Community Bill of Rights.” The Community Bill of Rights, among other things, prohibited Plaintiff-Appellee Seneca Resources Corporation from using a well to store waste from fracking. The District Court denied Appellants’ motion to intervene, holding that the Township adequately represented Appellants’ interests in defending the Community Bill of Rights. Appellants moved for reconsideration. While the motion for reconsideration was pending, the Township repealed the Community Bill of Rights and entered into a settlement with Seneca that culminated in a consent decree adopted by the District Court. Appellants filed a motion, for reconsideration of the Consent Decree, which the District Court denied along with Appellants’ motion for reconsideration of their motion to intervene.
Appellants now appeal four orders: (1) the denial of their motion to intervene, (2) the denial of the motion for reconsideration of their motion to intervene, (3) the District Court’s adoption of the Consent Decree, and (4) the denial of the Appellants’ motion for reconsideration of the Consent Decree. Appellants’ original .motion to intervene is now moot because there is no longer an (Ordinance to defend. In their reply brief and at oral argument, Appellants fell back on the argument that they had a right to intervene because the Consent Decree purportedly “establishes] ... the legality or illegality of [Appellants’] protected rights.” Appellants’ 'Reply Br. 8. But the Consent Decree does not bind any of the Appellants nor does it deprive them of any rights after the Community Bill of Rights has been repealed. Because Appellants cannot intervene, they are nonparties. Because they are nonparties, they cannot appeal the Consent Decree. Therefore, we will affirm the District Court’s order denying Appellants’ motion for reconsideration of the order denying intervention. We lack jurisdiction to review the remaining three orders because of mootness and standing issues.
BACKGROUND
I. ACTORS
Plaintiff-Appellee Seneca Resources Corporation is a Pennsylvania corporation engaged in oil and natural gas exploration and production. Seneca sought to convert a natural gas well in Highland Township into a Class'll underground injection control well in which to store waste from fracking.
Defendants-Appellees are Township of Highland and the Highland Board of Supervisors. Highland is a township located in Elk County, Pennsylvania,. The Board of Supervisors is its three-person governing body. See 53 P.S. § 65601 (“Townships shall be governed and supervised by boards of supervisors. Boards of supervisors shall consist of three members or, if approved by the electors under section 402(b), five members.” (footnote omitted)).
CELDF advocates that communities pass laws that assert community rights against corporations and others engaged in activity disfavored by members of the community. CELDF appears, to have drafted the ordinance at issue here. CELDF represented the Township earlier in this litigation, dnd a different CELDF lawyer has represented Appellants.
Appellants are Crystal Spring Ecosystem, Highland Township Municipal Authority, and Citizens Advocating a Clean Healthy Environment, Inc. :
Crystal Spring Ecosystem “encompasses [a natural] spring, as well as the surrounding hillside and riparian forests, soils, and bedrocks, [and] the residents of James City who drink from Crystal Spring.” Appellants’ Br. 21; accord App.197-98 (Mot. Intervene) ¶ 14. , ¡
Highland Township Municipal Authority is a municipal government • agency that provides water from Crystal Spring for unincorporated James City, a city within Highland Township,
Citizens Advocating a Clean Healthy Environment, Inc. (“CACHE”) is a nonprofit corporation that “is, and has been, the primary advocate” for the Community Bill of Rights. App.197 (Mot. Intervene) ¶¶ 9-13. Its three directors are residents of Highland Township who “own property in James City connected to the Municipal Authority water supply.” App.197 (Mot. Intervene) ¶ 11.
II. FACTUAL AND PROCEDURAL HISTORY
On January 9, 2013, the Township enacted a far-reaching ordinance that, among other things, prohibited “disposal injection wells” from existing within Highland. App. 046-50 (2013 Ordinance).
On-June 17, 2014, the EPA issued a final, ten-year permit to Seneca to allow it to operate a Class II-D injection well. Part 1.A of the permit says, “Issuance- of this permit does not .., authorize ... any infringement of State or local law or regulations.” App.082 (Permit).
Sometime between November 3, 2014, and January 8, 2015, the Highland Township Board of Supervisors wrote to the EPA, stating that the EPA permit was invalid under the Township’s ordinance. See App.095-96 (Letter).
Senecá sued the Township and the Board of Supervisors on February 18, 2015, alleging that the ordinance was invalid. Seneca sought damages, attorneys’ fees, and an injunction prohibiting the Township from enforcing the ordinance. The Township and the Board of Supervisors were represented by CELDF lawyers.
On March 24, 2015, the Township adopted the Community Bill of Rights as an amendment to the January 9, 2013 ordinance. The. Community Bill of Rights established a right to water and clean air for persons, natural communities and ecosystems and stated that any resident could enforce an ecosystem’s rights “to exist and flourish.” App.119 (Community Bill ‘ of Rights). Section 3 of the Community Bill of Rights made it illegal for any corporation or government to deposit waste from “oil and gas extraction’,’ “within Highland Township” and further claimed to invalidate any “permit, license, privilege, charter, or other authority” that violated the Community Bill of Rights. App.120 (Community Bill of Rights). Section 4(b) of, the Community Bill of Rights stated that any resident could enforce the rights of the Township. App.120 (Community Bill of Rights). Section 4(c) of the Community Bill of Rights stated that any resident of Highland Township could “enforce or defend the rights of ecosystems.” App.120 (Community Bill of Rights). Section 5(a) of the Community Bill of Rights stated that “[c]orporations that violate this Ordinance, or that seek to violate this Ordinance, shall not be deemed to be ‘persons’ ” and that those corporations did not have the “power to assert state or federal preemptive laws in an attempt to overturn” the Community Bill of Rights. App.120 (Community Bill of Rights). The Community Bill of Rights called for “amendment of the Pennsylvania Constitution and the federal Constitution to recognize a right to local self-government free from governmental preemption and or nullification by corporate ‘rights.’ ” App.121 (Community Bill of Rights).
On April 6, 2015, Seneca filed an amended complaint. The Amended Complaint took note of the Community Bill of Rights and further alleged that the Township told the Pennsylvania Department of Environmental Protection that the original ordinance would preclude the DEP from issuing a state permit. Seneca claimed that the Township’s communication with the DEP was causing the DEP to delay issuance of the state permit. The Amended Complaint alleged the same claims and requested the same relief as the original complaint. See App.106-15 (Am. Compl.).
On August 11, 2015, Appellants, represented by a different CELDF lawyer than the lawyer who represented the Township and the Board of Supervisors, filed their motion to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure in order to defend the legality of the ordinance. See Oral Arg. at 7:04 (“[Appellants] tried to come into this case on the side of the Government with the interests of defending the ordinance....”).
On December 81, 2015, one of the three members of the Board of Supervisors died.
On March 29, 2016, the District Court denied the Appellants’ motion to intervene because Appellants failed to show that the Township and the Board of Supervisors did not adequately represent Appellants’ interests. See Seneca Res. Corp. v. Highland Township, No. 15-60 Erie, 2016 WL 1218605, at *2-3 (W.D. Pa. Mar. 29, 2016).
On April 26, 2016, Appellants moved for reconsideration of the March 29, 2016 order denying their motion to intervene. Appellants alleged there had been “a material change in the relevant facts” because “the composition of the Highland Township Board of Supervisors changed.” App.317 (Mot. Reconsideration Denial Mot. Intervene). According to Appellants, the new replacement supervisor expressed the view that the Community Bill of Rights was likely invalid and therefore the Board majority was opposed to continuing to defend the Community Bill of Rights. Under these new circumstances, Appellants argued, the Township would no longer adequately represent Appellants’ interests. App.318-19 (Mot. Reconsideration Denial Mot. Intervene). On May 13, 2016, a CELDF lawyer filed a response to the motion for reconsideration on behalf of the Township and the Board of Supervisors. In the response, the Township and the Board said that they supported the motion for reconsideration because “it is unlikely that the Township’s aggressive defense of the Ordinance will continue.” App.345 (Response).
On May 30, 2016, CELDF moved to withdraw as counsel of record for the Township and its Board of Supervisors. CELDF claimed that Defendants “have ceased to communicate with their counsel, despite multiple attempts by counsel to contact the clients,” which apparently included the period during which Defendants filed their “response” supporting Appellants’ motion for reconsideration. App.348-50 (Mot. Withdrawal). On June 2, 2016, CELDF informed the court that Defendants said they were hiring new counsel.
The Board of Supervisors repealed the Community Bill of Rights on the night of August 10, 2016.
The following day, Seneca and Defendants filed a stipulation and consent decree under which the Township stipulated that much of the Community Bill of Rights was “an impermissible exercise of Highland’s legislative authority,” “unconstitutional,” or “unenforceable.” App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-(g). Additionally, under the Consent Decree, the Township and the Board of Supervisors withdrew their objection to Seneca’s DEP permit applications and withdrew their counterclaims, and Seneca withdrew its counterclaims against the Township and the Board of Supervisors. App.389-90 (Stipulation and Consent Decree) ¶ 13(i)— ffi. The parties also requested that the Court “adopt ... as its findings and opinion regarding the merits of Seneca’s claims” the parties’ stipulations about why specific parts of the Community Bill of Rights were unlawful. See App.390 (Stipulation and Consent Decree) ¶ 16.
That same day, the District Court entered an order designated as the final judgment. The order adopted Paragraph 13(a)-(g) of the Consent Decree as the Court’s findings and opinion. Paragraph 13(a)-(g) were the portions of the Consent Decree that concluded that much of the Community Bill of Rights was unenforceable.
On August 15, 2016, Appellants filed a motion for reconsideration of final judgment arguing that the Township and the Board of Supervisors were not considering the long-term interests in clean water, that Appellants had rights to be parties in the case, and that Appellants would have participated in settlement negotiations.
On August 16, 2016, the District Court denied Appellants’ motion for reconsideration of the denial of their motion to intervene. Before ruling on the motion to intervene in this case, the District Court denied intervention in a similar case, Pennsylvania General Energy Co., LLC v. Grant Township, No. 14-cv-209ERIE, 2015 WL 6002163 (W.D. Pa. Oct. 14, 2015). In Pennsylvania General Energy, we affirmed the denial of the motion to intervene in a nonprecedential order. Without addressing changed circumstances or Appellants’ new arguments in this case, the District Court explained that our affirmance in Pennsylvania General Energy gave it confidence in its original decision to deny intervention to Appellants. See App.022-23 (Order).
That same day, the District Court denied-Appellants’ motion for reconsideration of the order approving the Consent Decree because, the Appellants were, not parties.
On September 12, 2016, Appellants appealed the following: the March 29, 2016 order denying, the motion to intervene; the August 16, 2016 order denying the motion to reconsider the order denying the motion to intervene; the August 12, 2016 final order adopting the Consent Decree; and the August' 16, 2016 memorandum opinion denying reconsideration of the adoption of the Consent Decree.
Although litigation in the District Court relating to the Community Bill of Rights has concluded, a second, very similar case is now before the same District Court. On November 8, 2016,. the Township adopted a Home Rule Charter that prevented Seneca from storing fracking waste in Highland. See Compl. ¶ 1, Seneca Res. Corp. v. Highland Township, No. 16-289 (W.D. Pa. Nov. 30, 2016), ECF No. 1; see also See Compl. Ex. A § 401, No. 16-289 W.D. Pa. Nov. 30, 2016), ECF No. 1-1 (“It shall be unlawful within Highland Township for any corporation or government to engage in the depositing of waste from oil and gas extraction.”). In response to .the Home Rule Charter, Seneca brought, a separate lawsuit against the Township and the Board of Supervisors. In that litigation, two of the Appellants—Citizens Advocating a Clean Healthy Environment, Inc., and the Crystal Spring Ecosystem—have moved to intervene.
JURISDICTION
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. Appellants claim we have appellate jurisdiction to review the District Court’s decisions under 28 U.S.C. § 1291. As discussed below, fatal standing or mootness problems prevent us from taking appellate jurisdiction except to the extent that we hold that the District Court did not abuse its discretion when it denied Appellants’ motion for reconsideration of the order denying intervention.
STANDARD OF REVIEW
Our “continuing obligation” to assure that we have jurisdiction requires that we raise issues of standing and mootness sua sponte. Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 211 (3d Cir. 2007); see also Chong v. Dist. Dir., INS, 264 F.3d 378, 383 (3d Cir. 2001). We assess our own appellate jurisdiction in the first instance. Cf. Freedom from Religion Found., Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 475 n.4 (3d Cir. 2016) (“We exercise de novo review over legal conclusions concerning standing and mootness.”).
We review denials of motions for reconsideration of denials of motions for intervention as of right under a “more stringent” abuse of discretion review. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987); see McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 245 n.9 (3d Cir. 2014) (“Because an appeal from a denial of a Motion for Reconsideration brings up the underlying judgment for review, the standard of review varies with the nature of the underlying judgment.” (quoting McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992))); Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998) (“We will reverse a district court’s determination on a motion to intervene as of right if the court has abused its discretion by applying an improper legal standard or reaching a conclusion we are confident is incorrect.” (citing Harris, 820 F.2d at 597)).
ANALYSIS
. There are two sets of rulings Appellants dispute: (1) two rulings on motions relating to intervention and (2) two rulings on motions relating to the Consent Decree. The second set is linked, to the first because, to appeal rulings related to the Consent Decree, Appellants must, among other things, be “parties] ... aggrieved by the district court’s judgment.” Armotek Indus., Inc. v. Emp’rs Ins. of Wausau, 952 F.2d 756, 759 n.3 (3d Cir. 1991) (emphasis omitted). Appellants are not parties.
Appellants contend that they should have been parties because the District Court should have granted their motion to intervene. Their main claim to intervene in the District Court and their only claim in their opening brief .here relates to their interest in defending the Community Bill of Rights. Because the Community Bill of Rights has been repealed, this argument is moot. In a sentence in their reply brief and at length at oral argument, Appellants argued they should be able to intervene to challenge the District Court’s adoption of Paragraph 13(a)-(g) of the Consent Decree. Appellants argue that the District Court could not adopt findings and holdings to which the parties agreed. Because the Consent Decree does not bind Appellants or deprive them of rights, the District Court did not abuse its discretion in denying their motion for reconsideration of the denial of intervention to challenge those aspects of the Consent Decree.
Finally, because Appellants cannot intervene for either of the two reasons they advanced for intervention, they lack standing to challenge the Consent Decree.
I. APPELLANTS CANNOT INTERVENE
Appellants cannot intervene either to save the ordinance or to challenge the adoption of the Consent Decree.
A. Intervention To Defend the Ordinance Is Moot
“The doctrine of mootness requires that ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” Brown v. Phila. Hous. Auth., 350 F.3d 338, 343 (3d Cir. 2003) (quoting N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985)).
The party asserting mootness bears a heavy burden to show the case is moot. See Burns v. PA Dep’t of Corr., 544 F.3d 279, 284 (3d Cir. 2008) (“Such lack of specificity, along with the fact that the Department of Corrections urges us to refrain from vacating the favorable decision entered by the District Court, counsels against the conclusion that the Appellees have met the ‘“heavy,” even “formidable” burden’ that a party alleging mootness must bear.” (quoting United States v. Gov’t of V.I., 363 F.3d 276, 285 (3d Cir. 2004))).
After the party asserting mootness bears that burden, the burden-shifts to the party opposing mootness to explain why the case is not moot. See Richardson v. Bledsoe, 829 F.3d 273, 283 n.4 (3d Cir. 2016) (“Richardson has not carried his burden of showing that he fits into either the ‘capable of repetition yet evading review’ or the ‘inherently transitory’ exceptions to mootness.”).
On August 10, 2016, the Board repealed the ordinance that Appellants wanted to defend. Appellants originally stated that their purpose for seeking to intervene was to defend the Community Bill of Rights. Appellants have never argued that this Court could revive the Community Bill of Rights or that Appellants had any right to prevent the repeal. Cf. Util. Contractors Ass’n of N.J., Inc. v. Toops, 507 F.2d 83, 86 (3d Cir. 1974) (“In the absence of this lawsuit, had any of the municipalities chosen voluntarily to change its building code, the appellants’ monetary interests would not have conferred legal standing to prevent such governmental action.”). Therefore, Appellees have met their burden of showing Appellants’ defense of the Community Bill of Rights would be moot.
Appellants raise three defenses to mootness: (1) that the intervention issue is “capable of repetition yet evading review”; (2) that this lawsuit is a matter of “public interest”; and (3) that we can ignore mootness because “the resolution on the merits” of the intervention issue “is clear.” Appellants’ Reply Br. 5-7. All of these fail. Therefore, Appellants cannot carry their burden to explain why the case is not moot.
First, the issue here does not “evade review.” An issue evades review when the issue cannot be resolved in time to fully contest the challenged action. See Richardson, 829 F.3d at 283 n.4 (“Richardson has not shown ... that the amount of time an inmate spends in the SMU Program is typically so brief as to evade review by becoming moot before a District Court can rule on class certification”). Appellants argue that they are unable to get a court ruling on their motions to intervene in subsequent litigation because a case could become moot before any ruling is issued. For instance, Appellees could settle the Home Rule Charter litigation, Seneca Res. Corp. v. Highland Township, No. 16-289 (W.D. Pa.), before the District Court rules on the motion to intervene in that case. Appellees’ argument is speculative at best. There is enough time for the District Court to rule on CACHE and the Ecosystem’s motion to intervene in the Home Rule Charter litigation. See, e.g., County of Morris v. Nationalist Movement, 273 F.3d 527, 534 (3d Cir. 2001) (“The District Court conducted hearings on an expedited basis and rendered an opinion in time to guide the parties’ conduct during that event. With respect to any dispute that might arise in connection with future Independence Day activities, the parties, if unable to resolve their differences, would have ample opportunity to bring a new lawsuit and to develop a record reflective of the particular circumstances attendant on that dispute.”). Thus, the issue is not so fleeting as to evade review.
Second, Appellants cite a dated, out-of-eircuit case for the proposition that the public interest in the resolution of a case can be an exception to mootness. See Alton & S. Ry. Co. v. Int’l Ass’n of Machinists,
463 F.2d 872, 880 (D.C. Cir. 1972) (“But when the particular controversy has expired, so that there is no duty or obligation of the court to maintain the appeal, an application of the doctrine permitting maintenance of appeals of recurring controversies in cases of public interest necessarily identifies judicial latitude.”). That case also appears to be about the “capable of repetition yet evading review” exception. See id. at 878 (“[T]here is a strong counter-current of doctrine under which the court continues an appeal in existence, notwithstanding the lapse in time of the particular decree or controversy, when the court discerns a likelihood of recurrence of the same issue, generally in the framework of a ‘continuing’ or ‘recurring’ controversy, and “public interest” in maintaining the appeal.”). Were that case to stand for a broader “public interest” principle, it would not avail Appellants. The Third Circuit has never adopted a standalone public interest exception to mootness. See N.J. Turnpike Auth., 772 F.2d at 30 (“Although we recognize that the substantive issues are of considerable public interest, we believe that this alone does not impart Article III justiciability when there is ‘no reasonable expectation that the wrong will be repeated.’ ” (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953))); Campbell Soup Co. v. Martin, 202 F.2d 398, 399 (3d Cir. 1953) (“[E]ven if this were a subject of public interest we do not think that the exception [to mootness] could be applied in a federal court.”).
Third, Appellants argue that we can ignore mootness when “the resolution on the merits is clear.” Appellants’ Reply Br. 6 (quoting Pickus v. U.S. Bd. of Parole, 543 F.2d 240, 242 (D.C. Cir. 1976) (internal quotation mark omitted)). But “[u]nder Article III of the Constitution, this Court has no authority to give opinions upon moot questions.or abstract propositions, or, to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)) (internal quotation marks omitted); see also Elliott v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir. 2012) (explaining that, we cannot opine on a ease over which we have no jurisdiction). Thus, even were the resolution of Appellants’, original intervention motion glaringly, obvious, we cannot rule on it because it is moot. ⅛
B, The District Court Did Not Abuse Its Discretion in Denying the Appellants’ Motion To Intervene To Challenge the Consent Decree
Perhaps recognizing that they could no longer rely on their interests in defending the Community Bill of Rights, Appellants now focus heavily on the District Court’s adoption of part of Paragraph 13 of the Consent Decree as the basis for their right to intervene. The .District Court “adopt[ed]- as its findings, and as the opinion and order of this Court, those matters stipulated to in ¶¶13(a)-(g) of the Stipulation and Consent Decree.” App.021 (Order, Seneca Res. Corp. v. Highland Township, No. 1:15-cv-60-SPB (W.D. Pa. Aug. 12, 2016), ECF No. 84). In turn, Paragraph 13(a)-(g) stated that the parties “stipulate and agree” that various sections of the Community Bill of Rights were invalid for various reasons. App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-(g).
Appellants now claim that they must be allowed to intervene because the portion of the District Court’s order that adopted Paragraph 13(a)-(g) “establishes] ... the legality or illegality of [Appellants’] protected rights.” Appellants’ Reply Br. 8. More specifically, Appellants argue that the .District Court lacked the power to enter that order because the parties were no longer adverse to each other when the Consent Decree was adopted,
We cannot reach that argument because the District Court did not abuse its discretion in denying Appellants’ motion to reconsider the order denying théir motion to intervene. Appellants do not have a legally protectable interest in the purportedly substantive elements of the Consent Decree sufficient to allow them to intervene to argue that the case was moot when the Consent Decree was adopted.
“To justify intervention as of right, the applicant must have an interest ‘relating to the property or transaction which is the subject of the action’ that is ‘significantly protectable.’ ” Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998) (quoting Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), superseded on other grounds by 26 U.S.C. § 7609 as stated in Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 316, 105 S.Ct. 725, 83 L.Ed.2d 678 (1985)); accord Fed. R. Civ. P. 24(a)(2). “It is not sufficient that the claim be incidentally affected; rather, there must be ‘a tangible threat’ to the applicant’s legal interest.... [Tjhis factor may be satisfied if, for example, a determination of the action in the [proposed intervenors’] absence will have a significant stare decisis effect on .their claims, or. if the [proposed intervenors’] rights may be affected by a proposed remedy.” Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123 (3d Cir. 1992) (citation omitted) (quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)); see also Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 226-27 (3d Cir. 2005).
The Consent Decree does not establish Appellants’ legal rights. Were Appellants to find themselves in á position to argue the merits of the Community Bill of Rights (or a law like the Community Bill of Rights), Appellants would not be barred by (1) estoppel, (2) stare decisis, (3) judicial consequences of the Consent Decree, or (4) any contractual consequences largely because Appellants were not parties .to the Consent Decree. Because the Consent Decree does not—and cannot—affect Appellants’ rights, the District Court did not abuse it discretion in denying Appellants’ motion for reconsideration of the denial of the motion to intervene.
First, there are no estoppel consequences to Appellants here because Appellants were not parties to this case and have not had a full and fair opportunity to litigate any issue regarding the merits of the case. See, e.g., Peloro v. United States, 488 F.3d 163, 175 (3d Cir. 2007) (“For defensive collateral estoppel—a form of non-mutual issue preclusion—to apply, the party to be precluded must have had a ‘full and fair’ opportunity to litigate the issue in the first action.” (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 328, 332, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979))); Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 889 A.2d 47, 50-51 (2005) (requiring “the party against whom the plea is asserted was a party or in privity with a party in the prior case” and “the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding”); Therefore, the District Court’s declaration does not estop any party from defending the Ordinance except 'potentially the Township and the Board of Supervisors.
Second, stare decisis does not affect Appellants here because “[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or' even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (quoting 18 James W. Moore et al., Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)); accord Daubert v. NRA Grp., LLC, 861 F.3d 382, 394-95, 2017 WL 2836808, at *8 (3d Cir. July 3, 2017); see also Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir. 1991) (“[I]t is clear that there is no such thing as ‘the law of the district.’ ”); Ashley v. City of Jackson, 464 U.S. 900, 902, 104 S.Ct. 255, 78 L.Ed.2d 241 (1983) (Rehnquist, J., dissenting from denial of certiora-ri) (“The decree may be scrutinized by the judge for fairness prior to his approval, but there is no contest or decision on the merits of the issues underlying the lawsuit. Such a decree binds the signatories, but cannot be used as a shield against all future suits by nonparties seeking to challenge conduct that may or may not be governed by the decree.”).
Third, there are no judicial consequences to Appellants flowing from the Consent Decree. That is, Appellants could not be held in contempt for violating the Consent Decree because, on its face, “the consent decree here does not bind [Appellants] to do or not to do anything, nor does it impose any legal obligations on [Appellants].” Johnson v. Lodge #93 of the Fraternal Order of Police, 393 F.3d 1096, 1107 (10th Cir. 2004).
Fourth, there are no contractual consequences of the Consent Decree for Appellants. “[U]nder Pennsylvania law, a consent decree is an agreement only between parties and does not bind or preclude the claims of non-parties.” Sullivan v. City of Pittsburgh, 811 F.2d 171, 181 (3d Cir. 1987) (citing Sabatine v. Commonwealth, 497 Pa. 453, 442 A.2d 210 (1981)). Appellants are nonparties.
Because the Consent Decree does not impair Appellants’ ability to protect any interest they may have in defending laws like the Community Bill of Rights, the District Court did not abuse its discretion in denying the motion for reconsideration of the denial of the motion to intervene.
II. APPELLANTS LACK STANDING TO CHALLENGE THE CONSENT DECREE
Because Appellants were not permitted to intervene, they did not become parties to this lawsuit. Because Appellants are not parties to this lawsuit, they may not challenge the Consent Decree. See, e.g., Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113 (3d Cir. 1992) (noting that the Third Circuit dismissed the appeal of a consent decree by attempted intervenors for lack of appellate jurisdiction and citing Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir. 1976), for the proposition that an “appellant must have been granted permission to intervene in order to appeal merits of case”); cf. Diamond v. Charles, 476 U.S. 54, 63-64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court •without a ‘case’ or ‘controversy’ between [intervenor-]appellees and the State of Illinois.” (footnote omitted)); Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 229 (3d Cir. 2016) (“We conclude that, for purposes of appeal, Appellants were no longer ‘parties’ to the case after they were dismissed without prejudice from Halle’s proceeding. Appellants therefore cannot pursue an appeal from Steven Halle’s individual judgment.” (citation omitted)).
Appellants focus on the fact that we have held that we lacked jurisdiction over an appeal on the merits when an appellant is “properly denied the status of intervenor.” Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir. 1976) (emphasis added). They argued that because they were improperly denied the right to intervene, these holdings do not apply to them. Because, as we held above, Appellants were not improperly denied the right to intervene, Appellants’ argument fails. We have no appellate jurisdiction to review the Consent Decree.
CONCLUSION
Appellants’ motion to intervene is moot. The District Court’s denial of the motion for reconsideration of the order denying Appellants’ motion to intervene was not an abuse of discretion. Therefore, Appellants are nonparties and lack standing to challenge the Consent Decree. Accordingly, we will affirm the judgment of the District Court relating to the denial of the motion for reconsideration of the denial of intervention and dismiss the remainder of this appeal for lack of jurisdiction.
. "[F]racking[] is a method used to stimulate production of a well. A specially blended liquid is pumped down the well and into a formation under pressure high enough to cause the formation to crack open, forming passages through which oil or gas can flow into the wellbore.” T.W. Phillips Gas & Oil Co. v. Jedlicka, 615 Pa. 199, 42 A.3d 261, 264 n.1 (2012); see also U.S. EPA, Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States 3-4 (2016) (executive summary), http://ofmpub. epa.gov/eims/eimscomm.getfile?p_download_ id=530285.
. On March 26, 2015, the parties filed consents to trial and jurisdiction before a magistrate judge. See Seneca Res. Corp. v. Highland Township, No. 15-60 Erie, 2016 WL 1213605, at *1 n.1 (W.D. Pa. Mar. 29, 2016) ("[T]he parties have voluntarily consented to have a United States Magistrate Judge conduct proceedings in this case, including the entry of a final judgment.”); 28 U.S.C. § 636(c). Because the Magistrate Judge has the full power of the District Court, we refer to the Magistrate Judge as the District Court where appropriate.
. See, e.g., Uma Outka, Intrastate Preemption in the Shifting Energy Sector, 86 U. Colo. L. Rev. 927, 959-60 (2015) (referring to CELDF-sponsored antifracking legislation in Pittsburgh, Pa., Mora, N.M., and Lafayette, Colo.); Catherine J. Iorns Magallanes, Foreword: New Thinking on Sustainability, 13 N.Z. J, Pub. & Int’l L. 1, 12 (2015) (“160 communities in the United States have adopted such rules that have been drafted by the CELDF.... ”).
. Appellants claim that the Ecosystem ' has standing under the Community Bill of Rights. Because of the way this appeal is terminated and because Citizens Advocating a Clean Healthy Environment, Inc., would be a proper intervenor were it to meet the standards under Rule 24(a) of the Federal Rules of Civil Procedure, we do not need to resolve whether an ecosystem can have standing or is a proper party under Rule 17 of the Federal Rules of Civil Procedure. Cf. Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 466 n.2 (3d Cir. 1997) (“It is not .disputed that the human plaintiffs have standing to sue under the ESA, and therefore we need not consider the standing to sue of the animals named as plaintiffs.”).
. The Community Bill of Rights provided that:
All residents, natural communities and ecosystems in Highland Township possess the right to sustainably access, use, consume, and preserve water drawn from natural'water cycles that provide water necessary to sustain life within the Township.
... All residents, natural communities, and ecosystems in Highland Township possess the right to breathe air untainted by toxins, carcinogens, particulates, and other substances known to cause harm to health.
App.119 (Community Bill of Rights § 2(a)— (b)).
. The relevant portions of the stipulation and consent decree state as follows:
a. Section 3 of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013) constitutes an impermissible exercise of Highland’s legislative authority and is therefore invalid and unenforceable;
b. Section 3 of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013) is also invalid and unenforceable in that it is de jure exclusionary in seeking to prohibit entirely the exercise of a legitimate and lawful business activity (to-wit, the development of oil and gas resources and the management of related waste materials);
c. Section 4(b) and (c) of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013) constitute an impermissible exercise of Highland's legislative authority and are therefore invalid and unenforceable;
d. Sections 5(a) and (b) of the Highland Community Bill Of Rights Ordinance, as amended (Amendment and Revision of Ordinance No. 1-9 of 2013), are unenforceable as preempted by state law;
e. Section 5(a) of the Highland Community Bill Of Rights Ordinance is, on its face, unconstitutional (under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania);
f. Section 6 of the Highland Community Bill Of Rights Ordinance is, on its face, unconstitutional (under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania);
g. Section 7 of the Highland Community Bill Of Rights Ordinance is, on its face, unconstitutional (under both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania); ....
App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-(g).
. The Home Rule Charter was apparently passed in a popular vote, 55% to 45%, with 94 citizens turning out. See Katie Weidenboerner, Highland Township Votes in Home Rule Charter, Courier Express (DuBois, Pa.) (Nov. 9, 2016), http://www.thecourierexpress.com/ news/local/highland-township-votes-in-home-rule-charter/article_833142ae-bl55-55fa-8477-5864bde37281.html.
, Were we to reach the merits of the issue as to whether Appellants could intervene to defend the ordinance, we would have serious doubts that the Township of Highland's decision to seek a settlement made them inadequate representatives of the Appellants’ interests. We have repeatedly stated that a party is entitled to settle its lawsuit without inviting intervenors where settlement is the only reasonable course of action. See, e.g., Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123-24 (3d Cir. 1992) ("The contention that the school officials have not actively litigated this case must be rejected as a basis for finding inadequate representation.... Defendants are fully entitled to choose to negotiate a consent decree rather than litigate the case on the merits.”); Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976) ("Even if the injunction had been characterized as a consent decree, inadequate representation would not be established ipso facto; any case, even the most vigorously defended, may culminate in a consent decree. As the Seventh Circuit has observed, a consent decree may be simply 'the inescapable legal consequence of application of fundamental law to [the] facts. That [intervenors] would have been less prone to agree to the facts and would have taken a different view of the applicable law does not mean that the [defendants] did not adequately represent their interests in the litigation.’ ” (quoting United States v. Bd. of Sch. Comm’rs, 466 F.2d 573, 575 (7th Cir. 1972))).
At oral argument, Appellants’ counsel essentially conceded that the Amended Ordinance was unlawful under existing law:
THE COURT; You would agree, wouldn't you, that there are some portions of the Amended Ordinance here that clearly were unlawful?
COUNSEL; Your Honor, those are the issues that we’d like to litigate before the Court but unfortunately we [UNINTELLIGIBLE]— ■
THE COURT: You think that there’s an arguable position to be taken that there was no preemption in some of the laws here.
COUNSEL; Your Honor, that would be like being in 1907 and arguing against Lochner.
THE COURT; Taking away corporation’s personhood? • ...
COUNSEL: Again, that would be like being in 1900, arguing against separate but equal. So, yes, we’re challenging corporate constitutional rights, making a good faith claim for changing the law.
Oral Arg. at 8:20 (emphasis added).
. Appellants raised the issue that they should' .have been allowed to intervene because the District Court lacked power to adopt the Consent Decree for the first time before us in their reply brief. See Appellants' Reply Br. 8. As such, we need not consider it. See, e.g., Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 139 n.8 (3d Cir. 2017) (explaining that we could ignore an argument raised fleetingly in the district court and for the first time before us in a reply brief). We do so because Appellants’ interest in 'the Consent Decree is an issue of law and their concerns about ultra vires district court action are important.
. For this reason, even if Appellants were parties, they would lack standing to challenge the consent decree. "The general rule is that a nonsettling party has no standing to appeal a consent decree which does not bind him and interferes with no legal relationship between the nonsettling party and the settling parties, even though the nonsettling party may have sustained some economic loss as a result of the consent decree.” Milonas v. Williams, 691 F.2d 931, 944 (10th Cir. 1982) (citing Util. Contractors Ass’n of N.J., Inc. v. Toops, 507 F.2d 83 (3d Cir. 1974)); see also In re Sch. Asbestos Litig., 921 F.2d 1330, 1332 (3d Cir. 1990) ("To establish standing to appeal a settlement, a non-settling defendant may not merely claim an interest in the lawsuit but must show some cognizable prejudice to a legal relationship between it and the settling parties.”).
We have held that intervenors do not need to show Article III standing where a party on the same side has Article III standing, see King v. Governor of N.J., 767 F.3d 216, 245-46 (3d Cir. 2014), cert. denied sub nom. King v. Christie, — U.S. —, 135 S.Ct. 2048, 191 L.Ed.2d 955 (2015), but "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III,” Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986).
. Therefore, if the consent decree did encroach on Appellants’ rights, they could bring a collateral attack. See Martin v. Wilks, 490 U.S. 755, 763-65, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (holding that allowing collateral attacks by nonparties on consent decrees was a "principle” that was “incorporat[ed]" into the Federal Rules of Civil Procedure), superseded by statute for Title VII purposes as recognized in United States v. City of Detroit, 712 F.3d 925, 933 (6th Cir. 2013); see also United States v. City of New York, 198 F.3d 360, 366 (2d Cir. 1999) ("Those who are not parties to a consent decree are free to challenge the decree and actions taken under it.” (citing Martin, 490 U.S. at 762, 109 S.Ct. 2180)); Interfaith Cmty. Org. Inc. v. PPG Indus., Inc., 702 F.Supp.2d 295, 313 n.22 (D.N.J. 2010) ("It appears the general principle underlying Wilks remains....”).
Crystal Spring Ecosystem; Highland Township Municipal Authority; Citizens Advocating a Clean Healthy Environment, Inc., Appellants
(Pursuant to Rule 12(a) Fed. R. App. P.)
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.130952380952381, Costs: 0.02380952380952381
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SPRECHER, Circuit Judge.
These cases concern approximately forty-three acres of land which defendant Kerr-McGee Chemical Corporation owns and operates within the limits of the City of West Chicago, Illinois. The site consists of eight acres containing twenty-one factory and other buildings, twenty-seven acres used for waste disposal, and eight acres separating the factory and disposal areas. Since at least World War II, the facility has been used by Kerr-McGee and its predecessor companies to produce various compounds derived from radioactive natural ores. These activities generated large quantities of solid and liquid wastes.
Since 1956 the facility has been licensed by the Atomic Energy Commission (AEC) and its successor, the Nuclear Regulatory Commission (NRC). Kerr-McGee ceased all operations on the site in 1973 but continued, under license from the NRC, to possess and store thorium ores there. Since 1975 Kerr-McGee has been working, at the NRC’s direction, to formulate a plan for decommissioning and stabilizing the site. Both the State of Illinois and the City of West Chicago have commented on the proposed plan, and the NRC is currently preparing an environmental impact statement on the project.
On April 28, 1980, the State of Illinois filed a complaint against Kerr-McGee in the Circuit Court of Illinois for DuPage County. The complaint alleged that Kerr-McGee’s operation and maintenance of the site violate the Illinois Environmental Protection Act, Ill.Rev.Stat. ch. 111%, § 1001 et seq., and other state statutes pertaining to the disposal of hazardous wastes. On June 13, 1980, the City of West Chicago filed suit in the same court, charging Kerr-McGee with maintenance of a public nuisance, unlawful condemnation of public property, and violation of state and city regulations.
Kerr-McGee petitioned to have both cases removed to federal court. With regard to the City of West Chicago’s case, the grounds for removal were that the complaint stated a controversy arising under the laws of the United States and that there was diversity of citizenship between the parties. Removal of the state’s suit was based solely on the argument that the complaint raised a federal question.
The city did not contest removal of its suit. The state, however, moved to remand to state court, arguing that it had pleaded no federal cause of action. Denying the state’s motion for remand, the district court found that the federal regulatory scheme under the Atomic Energy Act has preempted state regulation of radioactive waste disposal. Since the state’s complaint necessarily involved the interpretation of federal law, the district court held that the case was properly removed. Illinois v. Kerr-McGee Chemical Corp., No. 80 C 2776 (N.D.Ill. Aug. 15, 1980).
Kerr-McGee subsequently moved to dismiss both complaints. The district court granted the motions, finding that federal law conferred exclusive jurisdiction upon the NRC to regulate radiation hazards and, therefore, preempted state and local legislative and administrative regulatory schemes. Illinois v. Kerr-McGee Chemical Corp., Nos. 80 C 2776 and 80 C 3357 (N.D.Ill. Jan. 8, 1981). These appeals followed. Because we decide the state’s and the city’s appeals on different grounds, we will consider each case separately.
I
Illinois v. Kerr-McGee Chemical Corp., No. 81-1110
The State of Illinois argues that the case was improperly removed to federal court and that federal law has not preempted the state regulatory scheme at issue. We find that the state’s case against Kerr-McGee was improperly removed to federal court. We have no occasion, therefore, to consider the question of preemption with regard to the state’s case.
A
Under 28 U.S.C. § 1441(a) and (b), any or all defendants may remove a civil action brought in state court to federal court if the action is founded on a claim “arising under” federal law or if none of the defendants are citizens of the state where the action was brought. Removal jurisdiction is thus keyed to the federal courts’ original jurisdiction over federal question and diversity suits. The general rule is that a case can be removed from state court only if the federal court would have had original jurisdiction over the action had it been brought there initially. Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 189, 22 S.Ct. 47, 48, 46 L.Ed. 144 (1901); First National Bank v. Aberdeen National Bank, 627 F.2d 843, 848 (8th Cir. 1980). Because there can be no diversity of citizenship between the State of Illinois and Kerr-McGee, we will examine only the removability of claims “arising under” federal law.
The current removal statute, 28 U.S.C. § 1441, is heir to a large body of case law that began with interpretations of the 1887 removal statute. Act of Mar. 3, 1887, ch. 373, 24 Stat. 552. That case law embodies a number of principles used by federal courts in deciding whether a case involves a federal question warranting removal. First among these principles is that the existence of a federal question must appear on the face of the plaintiff’s complaint. See Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 127, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974); Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Tennessee v. Union and Planters’ Bank, 152 U.S. 454, 460, 14 S.Ct. 654, 656, 38 L.Ed. 511 (1894); Nuclear Engineering Co. v. Scott, 660 F.2d 241, 249 (7th Cir. 1981). Thus a defendant’s assertion of an issue of federal law in the pleadings or in the petition for removal does not create a federal question. Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974); Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 188, 22 S.Ct. 47, 48, 46 L.Ed. 144 (1901); Nuclear Engineering Co. v. Scott, 660 F.2d 241, 249 (7th Cir. 1981). A plaintiff who has both federal and state causes of action may choose to ignore the federal claims and pursue only the state claims in state court. See Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 663, 81 S.Ct. 1303, 1307, 6 L.Ed.2d 584 (1961); Great Northern Railway Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239, 62 L.Ed. 713 (1918); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). The defendant is entitled to have the case removed to federal court, however, if the plaintiff is attempting to avoid having an essentially federal claim adjudicated in a federal forum merely by artfully drafting the complaint in terms of state law. See Nuclear Engineering Co. v. Scott, 660 F.2d 241, 249 (7th Cir. 1981); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). Nevertheless, the federal question must be an essential element of the plaintiff’s complaint to provide grounds for removal. Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 127, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974); Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Nuclear Engineering Co. v. Scott, 660 F.2d 241, 249 (7th Cir. 1981); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).
A problematic aspect of removal jurisdiction is that it is derivative, that is, a case can be removed to federal court only if it was properly before the state court. If the state court lacks jurisdiction over either the subject matter or one of the parties, the federal court cannot acquire jurisdiction on removal. This is true even if the case properly could have been brought in federal court in the first instance. See Lambert Run Coal Co. v. Baltimore & Ohio Railroad Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922); Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 658 (9th Cir. 1972); Koppers Co. v. Continental Casualty Co., 337 F.2d 499, 501 (8th Cir. 1964). As others have noted, this is exactly the type of “legal tour de force” that lay persons abhor. See, e.g., Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 658 (9th Cir. 1972). However, the rule is so well-entrenched now that it would take legislative action to dislodge it. 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3722, at 576 (1976).
One final principle to be considered is that the removal statute should be construed narrowly and against removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 188, 22 S.Ct. 47, 49, 46 L.Ed. 144 (1901); La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 344 (3d Cir. 1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975). This has been the policy of Congress since at least 1887, and it is evident in successive versions of the removal statute. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). The Supreme Court has been loathe to expand the federal courts’ removal jurisdiction and has continually refused to recognize exceptions to the general principles discussed above. See, e.g., Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974). Indeed, almost all Supreme Court decisions expounding the law of removal have been in the context of holding that removal was unwarranted. With these principles in mind, we turn to consideration of Illinois’ complaint to determine if a federal claim has been asserted.
Illinois’ complaint alleges that Kerr-McGee’s operation of the West Chicago facility violates state law by improperly maintaining and disposing of solid and liquid hazardous wastes, by creating a water pollution hazard, by failing to register the site in accordance with state regulations, and by creating a public nuisance. These claims are grounded in the Illinois Environmental Protection Act, Ill.Rev.Stat., eh. IIIV2, § 1001 et seq., its predecessor statute, the Illinois Refuse Disposal Act, Ill.Rev.Stat., ch. IIIV2, § 471 et seq. (repealed by P.A. 76-2429, § 50, effective July 1, 1970), the Illinois Public Nuisance Act, Ill.Rev.Stat., ch. IOOV2, § 26, regulations of the Illinois Pollution Control Board and the Illinois Department of Public Health, and common law nuisance. Nowhere in its complaint does the state rely on or even allude to federal statutes or case law. Nor can we find any basis for concluding that the state has artfully drafted its complaint in order to defeat removal. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). We find, therefore, that the state’s complaint pleads only state causes of action and does not raise a federal question justifying removal of the case to federal court.
B
Our decision that Illinois has not stated a federal claim warranting removal of this case to federal court does not end our inquiry, however. Kerr-McGee argues that, by raising the issue of preemption, it has created a federal question that must be decided in federal court regardless of the claims appearing on the face of the state’s complaint. Kerr-McGee contends that preemption is different from defenses on the merits in that the question of whether or not state law is preempted depends entirely on the interpretation of federal statutes and cases. If preemption appears to be a determinative element in the case, Kerr-McGee argues, the action can be characterized as one “arising under” federal law, and removal is therefore proper under 28 U.S.C. § 1441.
We cannot accept Kerr-McGee’s argument. The company is correct in saying that if state law is preempted by federal law, a plaintiff may seek a remedy in federal court. We do not agree, however, that a defendant can have a state law claim removed to federal court merely by uttering the word preemption. No such result has been authorized by statute, nor has it been sanctioned by the Supreme Court. Although the Court has never faced the issue directly, certain opinions have suggested that the defense of federal preemption does not create a federal question for the purpose of removal. See, e.g., Gully v. First National Bank, 299 U.S. 109, 116, 57 S.Ct. 96, 99, 81 L.Ed. 70 (1936). Indeed, in Bailey v. Logan Square Typographers, 441 F.2d 47 (7th Cir. 1971), a suit for the wrongful appropriation of intellectual property, this circuit found that the issue of preemption was a defense to the claim, rather than a part of the claim itself. Such a federal defense to a state claim was held not to be a sufficient basis for the exercise of removal jurisdiction. In the course of his opinion, then Judge Stevens said, “It is well settled that a federal prohibition against the prosecution of a state claim is not a basis for removal to the federal court.” Id. at 51-52 (quoting Gully v. First National Bank, 299 U.S. 109, 116, 57 S.Ct. 96, 99, 81 L.Ed. 70 (1936)).
Kerr-McGee has cited a number of cases in which removal of suits to federal court was permitted because state law had been preempted. To the extent that these cases are in conflict with our decision here, we decline to follow them. Rather, we reaffirm our decision in Bailey and join at least two other circuits and a number of district courts in holding that the issue of federal preemption is merely a defense to state law claims. We can see no reason for treating a defense of federal preemption differently than any other defense based on federal law, and a defense to a state law claim cannot be a ground for removal. Accord, Johnson v. First Federal Savings & Loan Association, 418 F.Supp. 1106, 1109 (E.D.Mich.1976). As the Supreme Court stated in Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 22 S.Ct. 47, 46 L.Ed. 144 (1901), “When Federal questions arise in cases pending in the state courts, those courts are competent, and it is their duty, to decide them.” Id. at 190-91, 22 S.Ct. at 49. We know of nothing in the intervening years to cause us to doubt the state court’s ability to apply federal law here.
We hold, therefore, that Illinois v. Kerr-McGee Chemical Corp., No. 81-1110, was improperly removed to federal court. The order of the district court denying remand of the state’s case is Reversed, and the case is Remanded to the district court with instructions to remand it to the state court.
II
City of West Chicago v. Kerr-McGee Chemical Corp., No. 81-1152
The City of West Chicago appeals the dismissal of its suit on the ground of preemption, arguing that federal law does not preempt the city’s authority to enforce local ordinances and to abate public nuisances. For the reasons set forth below, we find that the city’s suit against Kerr-McGee is not barred by federal preemption.
A
Although the basic rules governing whether or not federal law has preempted state law in a particular area are relatively easy to understand, the application of these rules to specific situations is difficult. One begins with the presumption that an act is valid if done in exercise of a state’s legitimate police powers. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); Kelly v. Washington, 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3 (1937). This is particularly true when a state acts to promote public health and safety. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). Thus preemption of the states’ police powers by federal statute must not be assumed, but exists only if “ ‘that was the clear and manifest purpose of Congress,’ ” Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)); Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903, 919 (9th Cir. 1981), or if there is a direct conflict between federal and state law that cannot be reconciled. Kelly v. Washington, 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3 (1937). Courts are not to seek out conflicts where none necessarily exist, Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852 (1960), and even when federal law is found to be preemptive, state law is invalid only to the extent that it clearly has been preempted. See Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903, 919 (9th Cir. 1981).
Congress may evince a purpose to preempt state law in three ways. First, Congress may expressly state that federal authority over a particular subject is to be exclusive. Second, federal preemption may be inferred from the language of the statute, the legislative history, or the objects of the federal regulatory scheme. Finally, if it is impossible to comply with both federal and state law, federal law will prevail and state law must yield. See Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1146-47 (8th Cir. 1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). With these factors in mind, we turn to an examination of the Atomic Energy Act, 42 U.S.C. § 2011 et seq., and the extent to which it has preempted state and local law.
B
The history of the regulation of atomic energy and its hazards in the United States has been explored thoroughly elsewhere. Here we shall include only a brief recital of the pertinent facts. The original Atomic Energy Act of 1946, Pub.L.No.79-585, 60 Stat. 755, created a government monopoly over atomic energy and radioactive materials, primarily because of their use in weapons development. By 1954, however, Congress had recognized the value of the peaceful uses of atomic energy. Congressional policy behind the Atomic Energy Act of 1954, therefore, was to encourage private development of that form of energy. 42 U.S.C. § 2011. The federal government’s monopoly over nuclear materials was to be shared only with those who complied with the strict licensing scheme administered by the Atomic Energy Commission. Not until 1959 did Congress create a role for the states in the regulation of atomic energy and its hazards. What is now 42 U.S.C. § 2021 clarified the areas of state and federal responsibility and set out the circumstances under which the Commission would relinquish its authority over certain aspects of atomic energy regulation.
The section of the current Atomic Energy Act most relevant to the question of federal and state regulation of the hazards associated with atomic energy is 42 U.S.C. § 2021. Section 2021(b) provides for agreements between the states and the Commission under which the state can assume much of the Commission’s regulatory authority “for the protection of the public health and safety from radiation hazards.” 42 U.S.C. § 2021(b). Because Illinois has not entered into such an agreement, it appears that the Commission has surrendered none of its authority to regulate nuclear materials or their hazards within the state. Section 2021(k), however, states that “[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” 42 U.S.C. § 2021(k). Thus, regardless of whether or not a state has entered into a § 2021(b) agreement with the Commission, the state retains its authority to regulate non-radiation hazards.
The legislative history of the bill that contained what became 42 U.S.C. § 2021 sheds further light on federal and state responsibilities in the area of atomic energy regulation. In the Senate report, the committee recognized “the dangers of conflicting, overlapping, and inconsistent standards in different jurisdictions, to the hinderance [flic] of industry and jeopardy of public safety.” S.Rep.No.870, 86th Cong., 1st Sess., reprinted in [1959] U.S.Code Cong. & Ad.News 2872, 2879. The committee made it clear that:
It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards by regulating byproduct, source, or special nuclear materials. The intent is to have the material regulated and licensed either by the Commission, or by the State and local governments, but not by both.
Id. The same reports’ description of the purpose of subsection (k), however, made it equally clear that the states were to retain their authority to regulate non-radiation hazards.
Subsection k. provides that nothing in the new section 274 [§ 2021] shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards. This subsection is intended to make it clear that the bill does not impair the State authority to regulate activities of AEC licensees for the manifold health, safety, and economic purposes other than radiation protection. As indicated elsewhere, the Commission has exclusive authority to regulate for protection against radiation hazards until such time as the State enters into an agreement with the Commission to assume such responsibility.
Id. at 2882-83.
The NRC’s regulations establish that the Commission’s view of its own jurisdiction is consistent with the language of the statute and the Senate report. The Commission repeatedly claims exclusive authority “to license or regulate, from the standpoint of radiological health and safety, byproduct, source, and special nuclear material or production and utilization facilities” in non-agreement states. 10 C.F.R. § 8.4(j). The Commission does not state, however, that its authority extends to the regulation of non-radiation hazards.
The few eases interpreting the rights of the states and the federal government to regulate atomic energy and its related hazards support the view that the Atomic Energy Act does not totally preempt state law as to non-radiation hazards. In Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972), a nuclear-fueled electric generating plant on the banks of the Mississippi River was operated under a permit from the AEC. Despite this permit, the State of Minnesota attempted to impose more stringent limitations on radioactive effluents from the plant than were imposed by the AEC. In finding Minnesota’s regulations preempted by federal law, the Eighth Circuit held that a state has no authority to regulate radiation hazards unless it has entered into an agreement pursuant to 42 U.S.C. § 2021(b). Id. at 1148-49. Because radioactive discharges from a nuclear power plant clearly constituted a radiation hazard, regulation of those effluents was the exclusive responsibility of the AEC.
In a more recent opinion, Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903 (9th Cir. 1981), the Ninth Circuit agreed with the Eighth Circuit in Northern States that Congress intended the Atomic Energy Act to preempt state regulation of radiation hazards, but further held that the states retained the authority to regulate other matters. Id. at 923. The Ninth Circuit rejected challenges to a California statute that required utilities to submit three alternate sites for proposed power plants and that declared a temporary moratorium on the construction of any new nuclear power plants. The three-site rule and the moratorium provision were held to be legitimate exercises of the state’s authority to regulate the generation of electricity in the public interest. Id. at 925. Moreover, the statute was found not to impinge on the exclusive federal control of radiation hazards. Id. at 925-26. California’s regulatory scheme was therefore not preempted by federal law.
Thus, an examination of the Atomic Energy Act, the relevant sections of its legislative history, NRC regulations, and the two major cases, reveals that the Commission has exclusive authority to regulate radiation hazards associated with the materials and activities covered by the Atomic Energy Act unless the state has agreed to assume some of the responsibility for that regulation. Even absent such an agreement, however, the state retains the right to regulate non-radiation hazards. In line with the opinions in Northern States and Pacific Legal Foundation, we hold that the Atomic Energy Act has expressly and impliedly preempted regulation by the states of the radiation hazards associated with nuclear materials. Regulation ■ of non-radiation hazards by the states or their political subdivisions has not, however, been preempted. We think it unwise to formulate in abstract terms the distinction between radiation hazards and non-radiation hazards. We must, therefore, examine closely the facts of this case to determine whether the City of West Chicago’s suit against Kerr-McGee is barred by federal preemption.
C
The city’s complaint alleges violations of state law and city ordinances by Kerr-McGee with regard to two distinct problems. Counts I through V concern the buildings and grounds at Kerr-McGee’s West Chicago facility. Counts VI and VII relate to the alleged dumping of industrial byproducts by Kerr-McGee or its predecessors at various places throughout the City of West Chicago. Because these two sets of allegations raise different factual and legal considerations, we will consider them separately.
1
Counts I through V of the city’s complaint allege a number of dangerous conditions existing at Kerr-MeGee’s factory site in West Chicago:
10. The said current conditions which exists [sic] on the factory area are as follows:
a) open pits filled with refuse and chemicals
b) holes in floors two through four of building nine, averaging three feet in diameter
c) loose glass in windows
d) broken glass on pavement below windows
e) boards off windows
f) animal litter scattered throughout the buildings
g) fallen walls, debris, abandoned equipment and chemicals
h) fallen,' collapsed, and sagging roofing
i) scattered empty beer cans and bottles
11. The said current conditions include accessibility by the public through and over fences, and no lighting exists in a majority of the buildings.
City of West Chicago’s Brief, App. at 7. The city alleges that these conditions constitute a public nuisance and render the buildings “unsafe structures” in violation of city ordinances. Nothing in the city’s complaint mentions the radiation hazards that may exist at Kerr-McGee’s West Chicago facility, nor is there any attempt to directly regulate radioactive materials. The prayer contained in each of the five Counts requests only the imposition of a civil penalty and that the violation be corrected and the nuisance abated “in compliance with the rules, regulations, procedures and ordinances of all interested governmental entities.” See, e.g., id. at 8.
Kerr-McGee argues that the city’s suit necessarily impinges upon the Commission’s authority to regulate the radiation hazards associated with the West Chicago facility. We do not agree. None of the alleged violations directly involved radiation hazards. Nothing in the record indicates that the measures necessary to remedy the alleged violations would interfere with NRC regulation of radiation hazards. However, to the extent that it is established on remand that an actual conflict exists between the Commission’s authority and the city’s suit, the Commission must, of course, prevail.
Given our ruling that the authority of state and local governments to regulate non-radiation hazards has not been preempted by federal law, the city has set forth actionable claims under common law and city ordinances in Counts I through V of its complaint and may proceed with its suit concerning Kerr-McGee’s West Chicago facility.
2
Counts VI and VII of the city’s complaint allege that at some point certain industrial byproducts were removed from Kerr-McGee’s West Chicago facility and deposited by Kerr-McGee or its predecessors as fill in various places throughout the City of West Chicago. The city has identified seventy-five such off-site dumps where the public right to use and enjoy the property has been infringed. The city claims the dumping of hazardous material as fill constitutes reverse condemnation of public property and the creation of a public nuisance. We do not believe the doctrine of reverse condemnation applies in this instance and consider only the city’s nuisance claim.
We cannot determine from the record whether these off-site dumps pose radiation or non-radiation hazards. We will assume for the purposes of this discussion that both types of hazards are involved. If the off-site dumps indeed constitute a radiation hazard, the NRC would appear to have exclusive authority to regulate that hazard. Under 42 U.S.C. § 2280, the Commission is authorized to seek a permanent or temporary injunction against a person who, in the judgment of the Commission, “has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or any regulation or order issued thereunder.” Id. The language of the section clearly authorizes the granting of an injunction directed at past conduct as well as continuing conduct. This conclusion is reinforced by the NRC’s own regulations, which state that the Commission may seek an injunction or other court order against any violation of the Atomic Energy Act or regulations issued thereunder. 10 C.F.R. § 20.601. These provisions, coupled with the NRC’s exclusive authority to regulate radiation hazards, lead us to believe that the NRC could exercise control over the radiation hazards associated with the off-site dumps.
The city’s brief and the record in this case, however, include a series of memoranda generated by the NRC in which the Commission asserts that it has no authority to require Kerr-McGee to clean up the off-site contamination that has occurred in the City of West Chicago. See City of West Chicago’s Brief, App. at 27-36. It is unclear from the record why the Commission believes it lacks such authority over these unlicensed dumps, although there is some indication that the dumping may have occurred before the Atomic Energy Act and its regulatory scheme took effect. See City of West Chicago’s Brief, App. at 27, 31-32. Despite the NRC’s asserted lack of authority to require clean-up of the off-site dumps, the memoranda indicate that any action which is taken affecting the off-site materials must be done pursuant to a license issued by the NRC.
Kerr-McGee argues that exclusive NRC jurisdiction over radiation hazards and the fact that any clean-up would require a Commission license mean that only the NRC has any authority over the dump sites and that state remedies are preempted. Therefore the fact that the NRC might be unable to require any clean-up of the off-site contamination is unimportant. We disagree. When Congress gave the Commission exclusive authority to regulate radiation hazards, it did not intend to create a situation in which some hazards could go unremedied. Congress’ concern was to avoid dual regulation of radiation hazards. See S.Rep.No.870, 86th Cong., 1st Sess., reprinted in [1959] U.S.Code Cong. & Ad. News 2872, 2879. We can find no expression of a congressional intent to leave certain hazards beyond the scope of any control whatsoever. Indeed, such a result would be absurd given the enduring and potentially destructive hazards posed by radioactive materials.
On the basis of the record that is before us, it is impossible to determine whether the NRC does indeed have jurisdiction to order the clean-up of the off-site materials. On remand, the district court must decide this question based on its findings as to the nature of the materials at the off-site locations and, if relevant, the dates when the dumpings occurred. To the extent that the court finds that the NRC is without power to require the clean-up of the hazards of the off-site dumps, whether radiological or non-radiological, the City of West Chicago can maintain its suit against Kerr-McGee for the alleged nuisance. To the extent that the NRC does have the authority to regulate the radiation hazards associated with such sites, the city’s attempts at independent regulation are, of course, preempted. If the off-site dumps pose any non-radiation hazards, the city may pursue its own remedies only to the extent that they do not conflict with NRC regulation of radiation hazards.
The order of the district court dismissing the city’s suit is, therefore, Reversed and the case of City of West Chicago v. Kerr-McGee Chemical Corp., No. 81-1152, is Remanded to the district court for further proceedings consistent with this opinion.
. The Atomic Energy Commission (AEC) was abolished by the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5891. In its place Congress created the Nuclear Regulatory Commission (NRC), which assumed the regulatory functions of the AEC, and the Energy Research and Development Administration, which took responsibility for the promotion and development of atomic energy. In this opinion we use the terms Atomic Energy Commission (AEC) for periods before 1974 and Nuclear Regulatory Commission (NRC) for periods after 1974. The term “the Commission” is used to refer to either body.
. The Atomic Energy Act of 1954, 42 U.S.C. § 2011. et seq., defines thorium as a nuclear “source material”, 42 U.S.C. § 2014(z), which is subject to regulation by the Commission.
. 28 U.S.C. § 1441 provides:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein or, in its discretion, may remand all matters not otherwise within its original jurisdiction.
. 28 U.S.C. § 1331 defines the original jurisdiction of the federal courts over civil actions involving questions of federal law. 28' U.S.C. § 1332 performs the same function for suits in which there is diversity of citizenship.
. It is well-established that a state is not considered a citizen of any state for the purposes of diversity jurisdiction. Thus there can be no diversity jurisdiction when a state is a real party in interest to a lawsuit. See State Highway Comm’n v. Utah Constr. Co., 278 U.S. 194, 200, 49 S.Ct. 104, 106, 73 L.Ed. 262 (1929); 1A Moore’s Federal Practice ([ 0.161[1], at 525 (2d ed. 1981).
. The derivative jurisdiction doctrine is a problem for Kerr-McGee because the company has argued both that the case was properly removed to federal court and that federal law governing nuclear hazards has completely preempted the state regulatory scheme at issue here. If Kerr-McGee is correct that the case was properly removed to federal court, it must be that the state court had jurisdiction and state law has not been preempted. If, on the other hand, state law has been preempted, then the case was never properly before the state court and the federal court cannot have jurisdiction on removal. Because we find it unnecessary to reach the issue of preemption with respect to this particular case, we are able to avoid this tangled web of legal casuistry.
. In the removal statute of 1887, Act of Mar. 3, 1887, ch. 373, 24 Stat. 552, Congress clearly reduced the federal courts’ removal jurisdiction after twenty years of expansion. In 1867, in response to the bitter sectional animosity engendered by the Civil War, the removal statute had been amended to allow for removal of suits to federal court if it appeared that either party would be unable to obtain justice in the state court because of “prejudice or local influence.” Act of Mar. 2, 1867, ch. 196, 14 Stat. 558 (amending Act of July 27, 1866, ch. 288, 14 Stat. 306). The 1875 removal statute, Act of Mar. 3, 1875, ch. 137, 18 Stat. 470, had further expanded removal jurisdiction by permitting either party to remove a case to federal court if there was a federal question or diversity of citizenship. In contrast, the 1887 removal statute evinces a conscious purpose on the part of Congress to limit federal removal jurisdiction by allowing only defendants to have cases removed to federal court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106-07 and n.2, 61 S.Ct. 868, 871 and n.2, 85 L.Ed. 1214 (1941) (quoting H.R.Rep.No.1078, 49th Cong., 1st Sess. 1 (1887)).
. See, e.g., Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Gully v. First Nat’l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); General Inv. Co. v. Lake Shore & Michigan Southern Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244 (1922); Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671 (1922); Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918); Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 22 S.Ct. 47, 46 L.Ed. 144 (1901); Tennessee v. Union and Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894). The only case we have found in which the Supreme Court appears to expand the removal jurisdiction of the federal courts is Avco Corp. v. Aero Lodge 735, Int’l Ass’n. of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). The reasons we feel Avco does not govern this case are discussed infra, at n.10.
. The state has pleaded a cause of action under a statute that is no longer in force in an apparent attempt to reach alleged violations that may have occurred before the Illinois Environmental Protection Act was enacted. See Count V of the State of Illinois’ Complaint.
. See, e.g., Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir. 1973); Bailey v. First Fed. Sav. & Loan Ass’n, 467 F.Supp. 1139, 1141 (C.D.Ill.1979); Rettig v. Arlington Heights Fed. Sav. & Loan Ass’n, 405 F.Supp. 819, 823 (N.D.Ill.1975); Sweeney v. Morgan Drive Away, Inc., 394 F.Supp. 1216, 1218 (D.Colo. 1975); Sylgab Steel & Wire Corp. v. Strickland Transp. Co., 270 F.Supp. 264, 271 (E.D.N.Y. 1967).
Kerr-McGee places great reliance on the Supreme Court’s opinion in Avco Corp. v. Aero Lodge 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Avco held that because federal substantive law was controlling on the issue of whether an employer could enforce a no-strike clause in a collective bargaining agreement, the suit was properly removed to federal court. We do not read Avco to say, however, that a defendant can always have a case removed to federal court merely by arguing that state law has been preempted. First, the Supreme Court has not utilized Avco to expand the federal courts’ removal jurisdiction. See, e.g., Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974). Second, the Court’s own criticism of its decision in Avco causes us to question the applicability of the case outside the area of labor relations. See Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 244-45, 90 S.Ct. 1583, 1589, 26 L.Ed.2d 199 (1970). Finally, we do not think the Supreme Court in Avco intended to effect a wholesale expansion of the federal courts’ removal jurisdiction without so much as mentioning over eighty years of judicial precedent to the contrary. See cases cited in note 8 supra. Accord, First Nat’l Bank v. Aberdeen Nat’l Bank, 627 F.2d 843, 852-53 (8th Cir. 1980).
. See, e.g., First Nat’l Bank v. Aberdeen Nat’l Bank, 627 F.2d 843, 853 (8th Cir. 1980); Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 660 (9th Cir. 1972); Turner v. Bell Fed. Sav. & Loan Ass’n, 490 F.Supp. 104, 105 (N.D.Ill.1980); Connecticut v. Levi Strauss & Co., 471 F.Supp. 363, 367 (D.Conn.1979); Nevada v. King, 463 F.Supp. 749, 751 (D.Nev.1979); Johnson v. First Fed. Sav. & Loan Ass’n, 418 F.Supp. 1106, 1109 (E.D.Mich.1976).
. Because the state’s case should not have been removed from state court to federal court, the district court’s consideration of the issue of preemption with regard to the state’s case was improper.
. Kerr-McGee had the city’s suit removed from state to federal court on the grounds that the complaint raised a federal question and that there is diversity of citizenship between the parties. We express no opinion on the federal question issue, for it appears that removal was proper under the federal court’s diversity jurisdiction. Kerr-McGee is a Delaware corporation with its principal place of business in Oklahoma. The City of West Chicago is an Illinois municipal corporation. It is well-settled that, for the purposes of determining diversity jurisdiction, a corporation is deemed a citizen of its state of incorporation and of the state where it has its principal place of business, and a municipal corporation is a citizen of the state which creates it. See 1A Moore’s Federal Practice j| 0.161[3.-1], at 581-82 (2d ed. 1981).
. Similar principles of federal preemption have applied since the birth of the republic. As Alexander Hamilton said in The Federalist:
The principles established in a former paper teach us that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.
The Federalist No. 82 (A. Hamilton) (Modern Library Edition) at 534-35 (footnote omitted).
. See, e.g., Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1147-49 (8th Cir. 1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972); Murphy & LaPierre, Nuclear "Moratorium” Legislation in the States and the Supremacy Clause: A Case of Express Preemption, 76 Colum.L.Rev. 392, 394-415 (1976); Estep & Adleman, State Control of Radiation Hazards: An Intergovernmental Relations Problem, 60 Mich.L.Rev. 41, 42-44, 58 (1961).
. It should be noted that the Atomic Energy Act is unlike most federal statutes that preempt state law. In the usual case, federal law steps in to preempt an area traditionally reserved to state regulation. The regulation of atomic energy and its hazards, on the other hand, began as the exclusive province of the federal government. Only gradually have the states been allowed to play a part. Analysis of the preemptive effect of other federal legislation is, therefore, not very helpful in resolving the issue here.
. We recognize that other sections of the Atomic Energy Act may appear to conflict with the retention of limited regulatory authority by the states as mandated in 42 U.S.C. § 202 l(k). See, e.g., 42 U.S.C. § 2114(a)(1) (giving the Commission the power to protect the public from both the radiological and non-radiological hazards of certain byproduct materials). Such conflicts are inevitable in a complicated and much-amended statute such as the Atomic Energy Act. We are guided, however, by the Supreme Court’s admonition that “[statutory interpretation requires more than concentration upon isolated words; rather, consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions.” Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 250, 90 S.Ct. 1583, 1592, 26 L.Ed.2d 199 (1970). Furthermore, repeals by implication are disfavored. If statutory provisions are capable of co-existence, courts must give effect to each. Administrator, Federal Aviation Administration v. Robertson, 422 U.S. 255, 265-66, 95 S.Ct. 2140, 2147, 45 L.Ed.2d 164 (1975). Recognizing these principles, we believe that our interpretation of § 2021 correctly states the intent of Congress without doing violence to other sections of the Atomic Energy Act.
. Although the Supreme Court merely affirmed Northern States without opinion, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972), it subsequently reasserted its adherence to the holding of that case in Train v. Colorado Pub. Interest Research Group, 426 U.S. 1, 14-17, 96 S.Ct. 1938, 1944-1945, 48 L.Ed.2d 434 (1976).
. The city claims authority to bring this suit under various Illinois statutes granting municipalities the right to define, prevent, and abate nuisances, Ill.Rev.Stat. ch. 24, § 11-60-2; to cause the demolition, repair, or enclosure of dangerous and unsafe buildings, Ill.Rev.Stat. ch. 24, § 11-31-1; and to seek an .injunction to force compliance with municipal ordinances in the interest of public health and safety, Ill.Rev. Stat. ch. 24, § 11-31-2.
. A reverse or inverse condemnation action is one brought by a landowner whose land has been appropriated in some fashion by a public agency for public use without any compensation being paid to the landowner. Kerr-McGee is not a public agency with any eminent domain powers, nor has there been any appropriation of land for public use. The doctrine of reverse or inverse condemnation, therefore, is not appropriately applied in this suit. See, e.g., Dep’t of Transp. v. Shaw, 36 Ill.App.3d 972, 981-82, 345 N.E.2d 153, 160 (1976), aff'd in part and rev’d in part, 68 Ill.2d 342, 12 Ill.Dec. 177, 369 N.E.2d 884 (1977); Van Alstyne, Statutory Modification of Inverse Condemnation: The Scope of the Legislative Power, 19 Stan.L. Rev. 727, 730-31 (1967); Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wis.L.Rev. 3, 3-6 (1966).
. We find support for our position in the recent case of Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir. 1981). There the Tenth Circuit approved the imposition of tort liability for property damage that had occurred as a result of the escape of a quantity of plutonium from a nuclear plant site. At least one reason for the court’s ruling was that the NRC has no power to award compensation to a victim of such an incident, yet such a remedy is clearly needed. Id. at 920.
. It is entirely possible that the NRC has exclusive authority to regulate any disposition of these materials that actually occurs, but is without authority to require that action be taken to protect the public health and safety from these alleged hazards absent a licensing request. The city’s only recourse then might be to begin the potentially costly clean-up itself under license from the NRC. If Kerr-McGee or one of its predecessors is responsible for the off-site contamination, such a result would be intolerable. Kerr-McGee cannot avoid answering the city’s suit by retreating behind so uncertain a claim of federal preemption.
We note with approval the statements made at oral argument by Kerr-McGee’s counsel to the effect that Kerr-McGee has offered to assist in the clean-up of the off-site dumps. Such benevolent expressions of intent are to be encouraged and may be helpful in settlement negotiations, but they are irrelevant to our determination of whether or not the city’s nuisance action has been preempted by federal law.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.04761904761904762, Costs: 0
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EDWARD S. SMITH, Senior Circuit Judge.
The North Buckhead Civic Association, et al., appeal the June 13, 1989, Order of the United States District Court for the Northern District of Georgia denying their motions to enjoin construction of the Georgia 400 Extension, a proposed multi-lane highway with a median designed to acco-modate heavy rail mass transit. Appellants oppose the highway but support the mass transit element, and contend that the district court erred in finding that the ap-pellees complied with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.. Specifically, appellants assert that the Environmental Impact Statement (EIS) for the project is inadequate for the following reasons: (1) all alternatives were not properly considered in the preparation of the EIS, (2) the administrative record does not support the traffic projections and environmental impact studies contained in the EIS, and (3) the Urban Mass Transit Administration was improperly excluded during the development of the EIS. We affirm the district court’s denial of the motion for an injunction.
I. Facts and Historical Background
The Federal-Aid Highway Act and the Urban Mass Transportation Act set forth guidelines for the planning and development of urban highway and mass transit systems. Under these sections, the Secretary of Transportation cannot approve any state or local transportation improvement project for federal funding unless he finds "... such projects are based upon a continuing and comprehensive transportation planning process carried on cooperatively by States and local communities....” The local concerns must develop transportation improvement plans which consider social, economic, environmental, and energy conservation goals; the probable effect on land use and future development must also be included in any proposal.
In order to implement these provisions, the Federal Highway Administration (FHWA) and the Urban Mass Transit Administration (UMTA) have promulgated unified regulations with which state and local planners must comply to secure federal aid for transportation projects. Initially, the Governor of the State must designate a Metropolitan Planning Organization (MPO) as a planning agency and federal grant recipient for each urban area. The MPO for the Atlanta area is the Atlanta Regional Commission (ARC). The members of ARC include local government officials such as the Mayor of Atlanta and the members of the Boards of Commissioners of each metropolitan Atlanta county. A staff of technical and policy committees report to the ARC members, who are responsible for comprehensive transportation planning in the Atlanta metropolitan region.
The ARC strategy included three plans, each with increasing specificity: (1) a prospectus and multiyear urban planning work program (RDP); (2) a regional transportation plan (RTP) including both long and short term elements; and (3) an annually updated transportation improvement program (TIP) developed in cooperation with state and local officials.
The FHWA and UMTA will approve urban transportation projects for federal funding only if the projects have been drawn from the TIP and only if the process used in identifying them has been properly certified. Certification, however, only preserves eligibility for federal funding. The federal agencies are not thereby committed to funding the proposed project; likewise, the state and local governments may opt to fund particular projects with non-federal money. The federal government exercises no control over the substantive aspects of the systems planning process, but is concerned only with whether the planning process complies with Part 450 of the unified regulations.
The need for improved transportation service within the North Atlanta Corridor has been recognized by planning agencies, transportation agencies, public officials and private citizens for over three decades. These needs range from the immediate, localized need for improved peak hour operating conditions to the long range provision of planned, orderly development for the metropolitan Atlanta region. The extremely heavy traffic demand in the area has overburdened the surface street network, congesting major intersections and resulting in unstable traffic patterns. Early Regional Development Plans noted the inadequacy of the street system in the North Atlanta Corridor and called for the development of a multi-lane limited access highway from 1-85 south of Lenox Road north to the interchange of 1-285 and Georgia 400. The RDP also called for the development of an exclusive two lane busway in conjunction with the highway project. The RTP approved in August 1977 included the roadway as a long range project.
The proposed project was briefly suspended for several years to allow for completion of other highway construction in the Atlanta area, but in 1981 the North Atlanta Corridor Transportation Study (NACTS) was undertaken by the ARC staff. The NACTS was conducted within the regular transportation planning framework for the Atlanta region, with participation by all jurisdictions, agencies, and the public. The project examined various transportation alternatives which purported to solve the traffic congestion problems in the North Metropolitan area. The study recommended that a multi-lane limited access highway joining 1-285 and 1-85 (North Atlanta Parkway) be constructed to (1) relieve traffic congestion and reduce accidents on local streets; (2) improve access to major traffic generators and local businesses; and (3) maximize transit efficiency to encourage balanced travel. As a result of the NACTS, the ARC Board amended the RTP in 1983 to include the North Atlanta Parkway.
In June 1984, the ARC advanced the Parkway and other transportation improvements to the TIP to allow for federal funding. The RTP was finally amended in March 1985 to increase the total number of lanes in the Parkway to six and to allow for the inclusion of a MARTA rail line in the Parkway median. Before the Federal Highway Administration (FHWA) would make federal funds available, however, an Environmental Impact Statement (EIS) which conformed to the requirements of NEPA had to be prepared. The EIS, which contained information concerning the social and economic impacts as well as the physical impacts of the proposed project, was prepared by the applicant, the Georgia Department of Transportation (GDOT), with review by the FHWA.
The preparation of the EIS is essentially a cooperative effort with a number of various agencies contributing in an area of particular expertise. Preparation began in the summer of 1984 when the GDOT initiated the scoping process. During this process, federal, state and local agencies and the general public met to identify issues which might possibly arise. Then, before a draft of the EIS was written, studies were conducted, analyses done, pertinent data accumulated, and alternative means of attaining the established project goals were considered. The draft EIS, after review by the FHWA and the Office of Environmental Policy, was circulated among other federal and state agencies and released to the public in October 1986. Comments on both substance and presentation were solicited. The final EIS contained these comments and a response. In August 1987, the Environmental Programs Manager for FHWA signed the final EIS, having concluded that proper procedures had been followed in its preparation and that the concerns of the public had been appropriately addressed. He signed only after receiving the concurrence of the Office of Environmental Policy and the Office of Secretary of Transportation. The EIS in its final form was, then, made available to the public, the Environmental Protection Agency and other governmental agencies; additional comments were also accepted. The last step, the signing of the Record of Decision by FHWA’s Environmental Programs Manager, was taken in October 1987.
The alternative recommended in the EIS was the North Atlanta Parkway (Georgia 400 Extension), a proposed 6.25 mile limited access, six-lane tollway that will connect Interstate 1-85 and Interstate 1-285 in Northeast Atlanta. The proposed tollway included a transit median for possible inclusion of a MARTA rail line as well a new connecting road system (Buckhead Loop and Glenridge/Perimeter Connector).
In December 1988, North Buckhead Civic Association, a neighborhood organization whose members live in the project area and two individuals whose property will be affected by the highway construction, filed an action for declaratory and injunctive relief under The National Environmental Policy Act challenging the sufficiency of the EIS. After a four-day evidentiary hearing, the district court found that the EIS met the requirements as set out in NEPA and dismissed the complaint. Plaintiffs appeal.
II. Standard of Review
The district court, after reviewing the lengthy, complex administrative record, concluded that the agencies’ actions were not “outside their authority or outside the requirements of the law.” Our legal duty is to review the district court’s conclusion, but at the outset we must decide what standard to apply in this review process.
The issue first involves the question of what standard reviewing courts should apply to the agency’s decisions. Appellants assert that a “rule of reason” is appropriate, which presumably means that the reviewing court must make its own determination of reasonableness to ascertain whether the agency action complied with the law. The “reasonableness” standard of review has been used by several circuits, including the Eleventh Circuit. The appellees counter that the reviewing court need only decide whether the agency decision was “arbitrary and capricious”.
In Marsh v. Oregon Natural Resources Council, the Supreme Court considered the question of judicial review under NEPA and explicitly rejected the reasonableness standard. The Court adopted instead the arbitrary and capricious standard as set forth in § 706(2)(A) of the Administrative Procedure Act. We, therefore, adopt the arbitrary and capricious standard when reviewing agency action in NEPA cases; if the agency action was not arbitrary or capricious, it should not be set aside.
To determine whether an agency decision was arbitrary and capricious, the reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” This inquiry must be “searching and careful,” but “the ultimate standard of review is a narrow one.” Along the standard of review continuum, the arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal; “[a]dministrative decisions should be set aside in this context ... only for substantial procedural or substantive reasons as mandated by statute, ... not simply because the court is unhappy with the result reached.” The agency must use its best judgment in balancing the substantive issues. The reviewing court is not authorized to substitute its judgment for that of the agency concerning the wisdom or prudence of the proposed action.
Appellant, relying on Sierra Club v. United States Army Corps of Engineers, further maintains that “because of the conflict in views” among commenting agencies, the findings and actions recorded in the administrative record should be accorded little or no deference. We disagree. In Sierra Club the preparer of the final EIS apparently ignored and failed to respond to the conflicting views of other commenting agencies having relevant expertise; therefore, the district court concluded that the environmental impact of the proposed project was not considered sufficiently. The district court made no such finding in the case sub judice. The court found that the lead agency made a reasoned decision based on its evaluation of the significance — or lack of significance — of the information submitted by the commenting agencies. “When specialists express contrary views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”
Next, we must determine the standard that an appellate court should apply to the district court’s decision upholding the agency. In the present case, the district court conducted a four-day evidentiary hearing in which witnesses from the various federal and state agencies involved in the project testified about the preparation of the EIS. Witnesses for the plaintiffs also testified about the anticipated effects that the proposed project would have on the North Atlanta community. Counsel for each party had an opportunity to cross examine witnesses. The district court reached its conclusion on the adequacy of the EIS from the testimony of these knowledgeable witnesses and from submitted documentary evidence. Factual inferences drawn from such sources should not be disregarded on appeal unless clearly erroneous.
A court of appeals review of a district court review of an administrative agency’s record is indeed an “awkward legal animal,” but when the district court’s judgment turns on factual matters, or upon the testimony of witnesses, or even upon lengthy evidentiary proceedings, the court of appeals should hesitate to reverse. This court will reverse a district court’s finding that an EIS is adequate only if the district court’s decision is based on an erroneous legal standard or upon clearly erroneous findings of fact
III. NEPA
Prior to the passage of the The National Environmental Policy Act (NEPA), environmental considerations were systematically underrepresented in the federal agency decision making process. Consistent with traditional notions of natural resource allocation, the benefits of development were overstressed and less environmentally damaging alternatives for meeting program objectives were often given limited consideration. NEPA declares a broad national commitment to protecting and promoting environmental quality. This commitment is implemented by focusing government and public attention on the environmental effects of proposed agency action; the Act ensures that important environmental consequences will not be “overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” In short, NEPA requires that the evaluation of a project’s environmental consequences take place early in the project’s planning process.
NEDA establishes some important “action forcing procedures” designed to compel an agency to commit to the Act’s expressed goals of protecting and promoting environmental quality. These procedures require that an agency prepare detailed statements evaluating a proposed project’s environmental impact. The requirement that agencies prepare detailed environmental impact statements satisfies the “twin aims” of NEPA: (1) ensuring that agency attention will be focused on the probable environmental consequences of the proposed action and (2) assuring the public that the agency has considered environmental concerns in its decision making process. Most importantly, the detailed EIS also serves as a springboard for public comment and incorporates the critical views of other federal, state, and local agencies. The document offers these bodies notice of the program’s expected environmental consequences and the opportunity to plan and implement corrective measures in a timely manner.
NEPA’s statutory scheme does not rely on substantive, results-based standards to insure that environmental concerns will be adequately addressed. The Act’s action forcing provisions impose essentially procedural requirements on federal agencies. “Although these procedures are almost certain to affect the agency’s substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” The adequacy of an EIS depends on whether the agency followed the procedure required by law in its preparation. Courts will require only the statutory minima and will undertake their review with a recognition that Congress did not mandate perfection.
“If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Congress requires only that the agency take a “hard look” at the environmental consequences before undertaking a major action; environmental concerns need not be elevated above all others. Our only role is to insure that the agency has taken a “hard look” at the environmental consequences of the proposed action. “NEPA merely prohibits uninformed— rather than unwise — agency action.”
A. Alternatives
Section 102(2)(C)(iii) of NEPA specifically requires that an EIS contain a detailed statement of alternatives to the proposed action. The regulations which are promulgated by the Council on Environmental Quality (CEQ) to implement NEPA identify the alternative section as “the heart of the EIS”. The regulations require that the environmental impacts of the proposal and the alternatives be presented in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. Consideration of other realistic possibilities forces the agency to consider the environmental effects of a project and to evaluate against the effects of alternatives.
Unfortunately, NEPA provides little guidance in determining what alternatives must be considered. The CEQ regulations require only that an agency “[rjigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” This procedural requirement is bounded by “some notion of feasibility”, and consideration need be given only to reasonable, non-speculative alternatives. Thus, an EIS is satisfactory if the treatment of alternatives, when judged against a “rule of reason”, is sufficient to permit a reasoned choice among the various options. The district court, applying a “rule of reason”, found the agencies’ consideration of alternatives to be adequate. The appellants take issue with this finding, claiming that the EIS failed to give satisfactory treatment to the alternative of a heavy rail transit extension (without a companion multi-lane highway) along the North Atlanta Corridor. Appellants’ position is not supported by the record.
(1) Need and Purpose
According to appellants, the agencies defined the “Need and Purpose” of the project in such a way that the highway was conclusively presumed to be required; the no build/heavy rail alternative was then perfunctorily dismissed for its failure to fully satisfy the project objective. This objection to the “Need and Purpose” section of the EIS reflects a fundamental misapprehension of the role of federal and state agencies in the community planning process established by the Federal-Aid Highway Act (FAHA). The FAHA contemplates a relationship of cooperation between federal and local authorities; each governmental entity plays a specific role in the development and execution of a local transportation project. As discussed above, the statutes were not intended to impose requirements on the completed plans but only to regulate the planning process. Likewise, NEPA does not confer the power or responsibility for long range local planning on federal or state agencies. “An obvious and indeed central aspect of this relationship must be respect for the sovereignty of local authorities.”
In the present case, the record is replete with documents indicating that the agencies consulted with and cooperated with local authorities. The district court found that “[t]he transportation demand in the corrido»’ and the goals of the project were developed by the ARC and are set out in the Need and Purpose section of the FEIS ... The Georgia DOT took the goals as developed by ARC and did a feasibility study to try and fulfill them.” There is no evidence in the record to indicate that FHWA officials acted arbitrarily in certifying the project. The district court correctly found that federal, state and local officials complied with federally mandated regional planning procedures in developing the need and purpose section of the EIS.
(2) Alternatives Considered
Appellants further assert that the district court erred as a matter of law in holding that the EIS need not consider as a possible alternative a proposal that would only partly fulfill the stated project objective. The two alternatives discussed with greatest detail in the EIS were the preferred alternative, a six-lane tollway with transit median, and the “no build” alternative. Traffic studies cited in the EIS found that while the no build/heavy rail alterna-' tive advocated by appellants would provide additional capacity to the overall North Atlanta Corridor transportation system, it would provide little relief for the congestion in the existing street network. The congestion remaining on surface streets after completion of the no build/heavy rail option was determined to be virtually the same throughout the project corridor as for the no build condition. The traffic studies concluded that “both a highway and a mass transit element were necessary to relieve the congestion in the North Atlanta Corridor; either element standing alone would fail to meet the transportation demand.” In short, the no build/heavy rail alternative was eliminated from further detailed consideration because it did not fully meet the transportation needs as set forth in the “Need and Purpose” section of the EIS.
Appellants cite various authorities for the proposition that NEPA requires a full assessment of alternatives that only meet a portion of the stated need and purpose of a project. The district court identified the rationale behind the interpretation of NEPA urged by appellants: a discussion of alternatives that would only partly meet the goals of the project may allow the decision maker to conclude that meeting part of the goal with less environmental impact may be worth the tradeoff with a preferred alternative that has greater environmental impact. This argument is well taken, but appellants have failed to show that such a situation exists in this case. The record is devoid of evidence that the no build/heavy rail alternative will have a less severe overall environmental impact than the preferred alternative. Appellants state that mass transit is generally less environmentally damaging than multi-lane highways, but such policy arguments in favor of mass transit are unconvincing and better reserved for those legislative bodies having responsibility for local planning.
We agree with the district court’s conclusion that an alternative partially satisfying the need and purpose of the proposed project may or may not need to be considered depending on whether it can be considered a “reasonable alternative”. Under the circumstances here, it was not necessary for the EIS to restate the conclusions of all the experts, or to engage in a rethinking of the regional and city-wide transportation plans. There is no evidence here that heavy rail transit alone is a reasonable alternative to the construction of the Georgia 400 extension in the North Atlanta corridor. While mass transit lines would provide additional transportation capacity in the corridor, the problems of surface street congestion would remain completely unresolved. The administrative record contains a large amount of scientific data that shows the no build/heavy rail alternative was rejected because the existing streets would not be able to accomo-date future traffic volumes. The administrative record shows that the FHWA and GDOT took a hard look at the alternatives and that the decision to eliminate the no build/heavy rail alternative from consideration was not arbitrary and capricious. The final EIS that resulted fulfilled its purpose of providing the ultimate decision maker with sufficient environmental information to aid in choosing between the various available alternatives. Although the EIS does not contain what appellants feel is a detailed and careful analysis of the environmental consequences of the proposed action and the possible alternatives, we cannot find error in the district court’s conclusion that NEPA did not require a detailed discussion of the no build/heavy rail alternative in the EIS.
B. Substantive Content of the EIS
Appellants next contend that the EIS should be set aside because the agencies’ review of the available traffic and environmental information was incomplete or inaccurate. As an initial matter, appellants argue that the clearly erroneous standard should not be applied to the district court’s findings on the adequacy of the traffic projections and environmental studies in the present case since the issues “involve errors of law by the district court which are subject to de novo review in this court.”
Resolution of this dispute requires analysis of the relevant environmental documents and traffic projections, so we cannot accept appellants’ contentions that our review is of a legal question. The questions presented for review in this section are classic examples of “a factual dispute the resolution of which implicates substantial agency expertise, so we must defer to the informed discretion of the responsible agencies.” Accordingly, as noted above, the agencies’ decisions on the adequacy of the environmental and traffic data should not be set aside unless arbitrary and capricious.
We also cannot accept appellants’ contention that the district court erred in placing on them the burden of introducing affirmative evidence in court to prove that the assumptions underlying the traffic and environmental data were incorrect. As plaintiffs in the district court proceeding, appellants were required to establish by a preponderance of the evidence that the EIS was inadequate. In this court, Appellants shoulder the burden here of demonstrating that the district court’s findings on the adequacy of the traffic and environmental data were clearly erroneous and this they have failed to do.
(1) Traffic Projections
The traffic projections relied on in rejecting the no build/heavy rail alternative were derived from an analysis of present traffic amounts and projections of future amounts. The ARC provided the applicant, GDOT, with projections of system wide traffic amounts for 1990 and 2000 calculated from ARC’S computer model. This computer modeling system, accepted by the FHWA, was utilized for other important Atlanta area road construction projects including the Presidential Parkway. The GDOT first calculated a growth trend for the years 1990-2000 from the ARC model. The GDOT projected highway use statistics for the year 2010 by assuming that the calculated growth trend would continue into the next century and by incorporating planned improvements from the RTP. Highway capacity was determined using the transportation research board capacity manual, a national standard for capacity analysis and methodology. In October 1986, the ARC indicated its agreement with the traffic estimate, finding it “consistent with 1990 and 2000 system traffic assignments and with 2010 RDP socio-economic and land use forecasts.”
Appellants’ attack on the traffic projections centers around GDOT’s extrapolated growth trend calculation. According to the appellants, the assumptions underlying these projections are questionable because the computer model ignored the possible beneficial effect of mass transit on surface traffic in in the North Atlanta Corridor. The appellants offer no alternate method of computation and point to no specific errors in the calculations.
In Druid Hills Civic Assn. v. Fed. Highway Admin., this court was called on to determine the propriety of competing traffic projection methodologies. The court recognized that it could not expect the district court to designate itself as a “super professional transportation analyst” to determine the proper traffic planning technique. The same result must obtain here. After reviewing all the evidence, the district court concluded in this case that the plaintiffs failed to show that the traffic computations were unreasonable. The choice of methodology was determined to have a rational basis and was consistently applied in an objective manner. Our review of the record convinces us that this finding is not clearly erroneous.
(2) Environmental Data
Appellants next argue that the EIS is inadequate because environmental impacts of MARTA rail line extensions outside the project corridor were not fully considered. This argument turns on whether the Medical Center Station which lies beyond the right-of-way north of the highway corridor was given an adequate environmental assessment. The EIS did evaluate the combined environmental effects of the transit median and the multilane highway where their routes were congruent. In addition, MARTA studies detailing the environmental consequences of the proposed station outside the right-of-way were incorporated by reference into the EIS. Witnesses at the evidentiary hearing testified that the MARTA environmental studies were considered in conjunction with the EIS in reaching a decision on the merits of the proposed project. It is apparent that the district court, after considering all the evidence in the record before it, found that the cumulative impacts of portions of the project both inside and outside the corridor right-of-way were adequately considered. We see no error in this conclusion.
C. Exclusion of the UMTA
Finally, appellants contend that the EIS is invalid because UMTA did not participate more fully in the development of the EIS. The FHWA invited UMTA to become a cooperating agency when preparation of the EIS began because MARTA officials were interested in securing federal funding for the construction of the mass transit element of the project. UMTA participated in the scoping process, then reviewed and commented on the draft EIS. Later, however, the agency withdrew from the EIS drafting process. Since the agency had not had an opportunity to review or comment on the study methodologies or the drafts of supporting technical documents related to the transit element of the EIS, UMTA felt that it would be inappropriate for it to be listed as a cooperating agency on the draft EIS. UMTA requested that its name be removed from the list of cooperating agencies before the draft EIS was circulated publicly.
Appellants argue on appeal that had UMTA remained a cooperating agency throughout the preparation of the Georgia 400 EIS, the environmental impact statement would have included a broader alternatives analysis with consideration of heavy rail only. According to appellants, the FHWA excluded UMTA from serving as a bonafide cooperating agency and accepted the agency’s withdrawal because the FHWA and the Georgia DOT sought to avoid compliance with UMTA’s “New Start” regulations in preparing the EIS. Appellants contend that UMTA’s “New Start” regulations would have required a more rigorous and detailed analysis of alternatives and cost effectiveness. As a result, appellants argue, the FHWA excluded UMTA from an active role as a cooperating agency even though UMTA had special expertise in the projection of mass transit ridership numbers and a special interest in the extension of the MARTA system.
The district court resolved this issue through analysis of federal regulations implementing FAHA and NEPA, which define a cooperating agency as “any Federal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal ... for legislation or other major Federal action significantly affecting the quality of the human environment.” If an agency has authority to
approve, veto, or finance all or part of the proposal, it has jurisdiction by law. This agency must be invited to become a cooperating agency If, however, an agency has statutory responsibility, agency mission, or related program expertise, it has special expertise. An agency with special expertise may be asked to become a cooperating agency.
The district court correctly found that UMTA’s involvement as a cooperating agency was not required by the regulations since UMTA did not have jurisdiction by law once MARTA officials decided to use only local funds in the construction of the mass transit portion of the project. The court also found that the FHWA acted within its discretion when it did not seek UMTA’s special expertise in projecting ridership numbers; the FHWA had direct access to the transit ridership numbers that UMTA used in making its projections since UMTA would rely on MARTA to supply these numbers.
We agree with the court’s conclusion that “the EIS cannot be invalidated because UMTA did not participate more fully in the process.” We find that FHWA did not violate any requirement of the federal regulations when it accepted UMTA’s request to withdraw as a cooperating agency.
IV. Conclusion
As discussed above, this court’s role is very limited in the present case. We are not authorized to weigh the relative merits of highways and mass transit or even to determine whether the Georgia 400 Extension should be built at all. These policy decisions are reserved for city and county transportation planning officials. We are required to decide, however, whether the governmental agencies made their decisions concerning the highway in cooperation with these local officials and in conformance with the law. The record indicates that the agencies prepared an EIS which provided a close objective appraisal of the issues suggested in the systems planning process. In the document, the agencies thoroughly evaluated extensive environmental and traffic data in deciding which of the available alternatives would best relieve the traffic congestion in the North Atlanta Corridor. While they may not be satisfied with the result, appellants have failed to prove by a preponderance of the evidence that NEPA has been violated. We agree with the district court’s conclusion that the EIS is adequate in light of the purposes it and NEPA were intended to serve; accordingly, the denial of appellants’ motion for an injunction and the dismissal of the complaint are AFFIRMED.
. 23 U.S.C. §§ 101-156.
. 49 U.S.C.App. §§ 1601-1618.
. 23 U.S.C. § 134, 49 U.S.C.App. § 1607.
. 23 U.S.C. § 134.
. See 23 C.F.R. Part 450; 49 C.F.R. Part 613; Atlanta Coalition on the Transp. Crisis, Inc. v. Atlanta Regional Comm’n., 599 F.2d 1333, 1338 (5th Cir.1979).
. 23 C.F.R. § 450.106 (1989).
. 23 C.F.R. § 450.114.
. 23 C.F.R. § 450.116.
. 23 C.F.R. § 450.118.
. See 23 C.F.R. § 450.122. Certification involves an annual joint review by the agencies to determine if a proposed project “meets or substantially meets” the requirements of Part 450. 23 C.F.R. § 450.122(b).
. Atlanta Coalition, 599 F.2d at 1340.
. Id.
. FEIS, vol. I at 45.
. Id.
. North Buckhead Civic Assn. v. Skinner, No. 88-2744, at 42 (N.D.Ga. June 13, 1989) (order denying motion for injunction).
. Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691-92 (11th Cir.1986); National Wildlife Fed’n v. Marsh, 721 F.2d 767, 782 (11th Cir.1983); see also Northern Plains Resource Council v. Lujan, 874 F.2d 661, 665 (9th Cir.1989); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir.1987); Sierra Club v. Marsh, 769 F.2d 868, 871 (1st Cir.1985); Monarch Chem. Works v. Thone, 604 F.2d 1083, 1087-88 (8th Cir.1979).
. — U.S. -, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377 (1989).
. 109 S.Ct. at 1861, n. 23.
. 5 U.S.C. § 706(2) provides in pertinent part that a reviewing court shall: “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ..."
. We also agree with the Court’s conclusion in Marsh that the difference between the two standards is "not of great pragmatic consequence”, 109 S.Ct. at 1861, n. 23. The differences between the two standards may be “difficult to discern.” Manasota-88, Inc. v. Thomas, 799 F.2d 687, 692, n. 8 (11th Cir.1986). As is so often the case, there does not appear to be a tincture of difference in the conclusion to be reached in the present case if we apply either of the advocated standards of review.
. Marsh, 109 S.Ct. at 1861, citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
. Id.
. SSIH Equip., S.A. v. United States Int'l Trade Comm’n, 718 F.2d 365, 383 (Fed.Cir.1983) (additional comments by Nies, J.).
. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978).
. Druid Hills Civic Ass’n v. Federal Highway Admin., 772 F.2d 700, 709 (11th Cir.1985), cert. denied, -U.S.-, 109 S.Ct. 60, 102 L.Ed.2d 38 (1988).
. Id.
. 701 F.2d 1011, 1030-31 (2nd Cir.1983).
. Marsh, 109 S.Ct. at 1861.
. Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir.1985); citing Fed.R.Civ.P. 52(a) ("due regard shall be given the opportunity of the trial court to judge the credibility of the witnesses”); Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) (clearly erroneous standard applies even when district court factfinding is based on "documentary evidence or inferences from other facts”).
. Sierra Club v. Marsh, 769 F.2d at 871-72.
. Id.
. Druid Hills, 772 F.2d at 709, citing Sierra Club v. Morton, 510 F.2d at 818. See also Northern Plains Resource Council v. Lujan, 874 F.2d 661, 665 (9th Cir.1989).
. Tarlock, Balancing Environmental Considerations and Energy Demands: A Comment on Calvert Cliffs’ Coordinating Committee v. AEC, 47 Ind.LJ. 645 (1972).
. Robertson v. Metkow Valley Citizens Council, — U.S.-, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989).
. Robertson, 109 S.Ct. at 1845; Marsh v. Oregon Natural Resources Council, — U.S. -, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989).
. California v. Block, 690 F.2d 753, 761 (9th Cir.1982).
. Robertson, 109 S.Ct. at 1844-45; See 42 U.S.C. § 4332(2)(C) (1977).
. Id.
. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252-2253, 76 L.Ed.2d 437 (1983); Robertson, 109 S.Ct. at 1845.
. Robertson, 109 S.Ct. at 1845-46; See also 40 C.F.R. § 1503.1 (1987).
. Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219.
. Robertson, 109 S.Ct. at 1846.
. Sierra Club v. Morton, 510 F.2d 813, 820 (5th Cir.1975).
. Id.
. Baltimore Gas & Electric, 462 U.S. at 97, 103 S.Ct. at 2252.
. Stryckers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (per curiam).
. Druid Hills, 111 F.2d at 709.
. Robertson, 109 S.Ct. at 1846.
. 42 U.S.C. § 4332(2)(C)(iii) (1977).
. 40 C.F.R. § 1502.14 (1989).
. Id.
. Piedmont Heights Civic Club Inc. v. Moreland, 637 F.2d 430, 436 (5th Cir.1981).
. 40 C.F.R. § 1502.14(a) (1989).
. Piedmont Heights, 637 F.2d at 436, citing Vermont Yankee, 435 U.S. at 551, 98 S.Ct. at 1215.
. Druid Hills, 111 F.2d at 713.
. See Coalition Against a Raised Expressway v. Dole, 835 F.2d 803, 809 (11th Cir.1988).
. See Isle of Hope Historical Ass'n, Inc. v. United States Army Corps of Eng'rs, 646 F.2d 215, 221 (5th Cir. Unit B May 1981) (per curiam).
. Id.
. North Buckhead, No. 88-2744, at 14-15.
. EIS at page 46.
. North Buckhead, No, 88-2744, at 25-26.
. See Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 93 (2nd Cir.1975); Natural Resources Defense Council v. Morton, 458 F.2d 827, 834-35 (D.C.Cir.1972).
. North Buckhead, No. 88-2744 at 27 n. 5.
. South La. Envtl. Council v. Sand, 629 F.2d 1005, 1011 (5th Cir.1980) citing Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219.
. Other courts have found this adequate justification for eliminating a no build alternative from consideration. See Lake Heffner Open Space Alliance v. Dole, 871 F.2d 943, 947 (10th Cir.1989) and cases cited therein.
. Coalition Against a Raised Expressway v. Dole, 835 F.2d 803, 808 (11th Cir.1988).
. Druid Hills, 772 F.2d at 713.
. Marsh, 109 S.Ct. at 1860-61.
. Id.
. Druid Hills, 772 F.2d at 709; Sierra Club v. Morton, 510 F.2d at 818.
. North Buckhead, No. 88-2744, at 18.
. 772 F.2d at 711.
. Id.
. Druid Hills, 772 F.2d at 711.
. EIS at pp. 47, 229, 283; See 40 C.F.R. § 1502.21.
. 40 CFR § 1508.5.
. 40 CFR § 1508.15.
. 23 CFR § 771.111(d).
. 40 CFR § 1508.26.
. 23 CFR § 771.111(d)
. North Buckhead, No. 88-2744, at 39.
. Coalition Against a Raised Expressway, 835 F.2d at 812.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.02564102564102564, Costs: 0.01282051282051282
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CANBY, Circuit Judge:
Kilroy appeals from a summary judgment in favor of the state and federal defendants. Kilroy had challenged the adequacy of the Los Angeles/Orange County Metropolitan Area Environmental Impact Statement (LA/OMA EIS).
FACTS
This ease is part of a series of lawsuits brought by Pacific Legal Foundation (PLF) and Kilroy, a member of PLF’s board of directors. The underlying dispute is over which disposal medium — the sea, the land, or the air — can best accept sewage sludge from the City of Los Angeles Hyperion Wastewater Treatment Plant (Hyperion).
Hyperion discharges sludge into Santa Monica Bay through an outfall pipe extending seven miles into the ocean. It does so pursuant to a national pollutant discharge elimination system (NPDES) permit issued by the Environmental Protection Agency (EPA) and the California Regional Water Quality Control Board in August 1975. The permit required that the discharge cease by April 1978; it also established interim goals for sludge discharge reduction, and required full secondary treatment of wastes by October 1979.
When the City failed to meet the various permit deadlines the United States sued to compel compliance. United States v. City of Los Angeles, (C.D.Cal. No. CV77-304-HP). In 1980, the parties entered into a consent decree which requires the City to terminate all ocean disposal of sludge no later than July 1, 1985. The City applied for and received a new NPDES permit consistent with the consent decree deadline.
To meet the 1975 permit interim requirements for phasing out sludge discharge, the City proposed an interim project under which sludge would be centrifugally dewatered and then trucked to sanitary landfills. PLF filed two separate actions now before us as challenges to the interim project: Kilroy v. Ruckelshaus and PLF v. Watt. In the first of these two actions, Kilroy claimed: (1) that the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., required EPA to prepare an EIS on the interim project before taking steps to implement it; (2) that NEPA required EPA to prepare an EIS on its decision to eliminate ocean disposal of sewage sludge; and (3) that EPA failed to consider ocean dumping of sewage sludge as an alternative to the interim project, in violation of both NEPA and the Clean Water Act, 33 U.S.C. § 1251 et seq.
For reasons unrelated to the lawsuits, the interim project was never implemented, and it was replaced by the Hyperion Energy Recovery System (HERS), which involves thermal processing of sludge. Kilroy v. Ruckelshaus did not become moot, however, because Kilroy continued to assert his claims against the new Hyperion proposal.
Kilroy sought a preliminary injunction, which was denied. PLF v. Quarles, 440 F.Supp. 316 (C.D.Cal.1977). We affirmed. Kilroy v. Quarles, 614 F.2d 225 (9th Cir.), cert. denied, 449 U.S. 825, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980). While that appeal was pending, the final EIS was completed for the Hyperion Project. After remand, the federal and state defendants filed motions for summary judgment on “all claims” raised by Kilroy, and Kilroy cross-moved for a partial summary judgment declaring the final EIS to be inadequate. On May 25, 1982, the district court entered judgment for defendants on all claims raised by Kilroy, and upheld the validity of the final EIS for the Hyperion project. Kilroy has appealed and that appeal is now before us as Kilroy v. Ruckelshaus. Kilroy sought an injunction and stay pending appeal, but these were denied.
The second action contesting the abandoned interim project was PLF v. Watt, challenging the project on the ground that it violated the Endangered Species Act, and also challenging the adequacy of the EIS. The district court granted summary judgment to PLF on all grounds except that challenging the adequacy of the EIS. This court reversed in part and vacated in part. PLF v. Watt, 703 F.2d 576 (9th Cir.1983) (memorandum). On remand, PLF continued to assert the inadequacy of the EIS, now for the substituted Hyperion project. The district court ruled that its judgment in Kilroy v. Ruckelshaus was res judicata on that issue, and precluded relitigation of the adequacy of the EIS. By agreement of the parties, PLF has taken this appeal, now before us, as a protective measure, so that the district court’s ruling of res judicata could be undone if Kilroy v. Ruckelshaus were reversed. The merits of the entire controversy, involving both appeals, can therefore be dealt with by addressing, as we now do, the issues raised by Kilroy v. Ruckelshaus.
ISSUES
1. Whether the district court deprived Kilroy of a full and fair opportunity to present his case.
2. Whether the district court erred in granting EPA summary judgment on all claims raised by Kilroy.
3. Whether the district court erred in holding the EIS adequate.
DISCUSSION
I. Full and Fair Opportunity to Present Case
A. Notice
Kilroy argues that the documents filed by the parties did not provide notice that the adequacy of the EIS would be decided by way of summary judgment. He contends that by granting summary judgment in favor of EPA the district court deprived him of a full and fair opportunity to present his case.
Kilroy was on notice that EPA had requested summary judgment “on all claims raised by plaintiff.” The first amended complaint does not directly address the adequacy of the EIS because the EIS was not completed at that time. Nonetheless, when Kilroy wanted to raise the issue in his own motion for partial summary judgment, he claimed that the adequacy of the EIS was raised by his complaint and that EPA had notice of that fact. We fail to see how the adequacy issue was raised by his motion for partial summary judgment but was not a claim addressed by EPA’s motion for summary judgment. It was therefore not error for the district court to rule upon the adequacy of the EIS.
This is not a case where summary judgment was granted on an issue as to which the losing party had no opportunity to present argument. See, e.g., Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971 (1949). Nor is this a case where the court entered summary judgment in favor of a party who had not made such a request. See, e.g., Matter of Hailey, 621 F.2d 169 (5th Cir.1980). Kilroy’s reliance on these cases is misplaced.
B. Local Rules
Kilroy further claims that the district court violated local rule 3.14.4. This rule provides that material facts which are adequately supported by the moving party are admitted to exist without controversy except to the extent that they are included in a statement of genuine issues and controverted by affidavit or other written evidence. Because EPA did not controvert Kilroy’s “proposed findings of fact,” Kilroy contends that the district court should have accepted them as true.
Our reading of Kilroy’s proposed findings of fact reveals that they are actually legal conclusions relating to the adequacy of the EIS and were disputed by EPA in its memoranda. The district court was not obligated to accept Kilroy’s legal conclusions as true simply because he characterized them as statements of fact. The local rules were not violated.
II. Summary Judgment
We may affirm a summary judgment only if, after viewing the evidence in the light most favorable to the party opposing the motion, we find that there were no genuine issues of material fact. United States v. Standard Oil Co. of California, 618 F.2d 511, 519 (9th Cir.1980). Kilroy argues that the district court in rendering summary judgment adjudicated disputed material facts by ruling that the EIS adequately discussed (1) the appropriate “no project” alternative; and (2) ocean dumping alternatives. Even when the evidence is viewed in the light most favorable to Kilroy, there are no genuine issues of material fact. While Kilroy doubtless disputed these rulings, they are conclusions of law and not findings of fact.
Kilroy also argues, for the first time on appeal, that the EIS conceals air pollution data. EPA, however, moved and was granted summary judgment on all claims raised by Kilroy. Kilroy stated in his motion for partial summary judgment that there were no undisclosed factual issues left to be resolved. Where the moving papers do not reveal the presence of a factual controversy, the unsuccessful adversary cannot assert it as a ground of his appeal. DeBardeleben v. Cummings, 453 F.2d 320, 324 (5th Cir.1972).
III. Compliance with NEPA EIS Requirements
A. Standard of Review
The district court’s review of an EIS is governed by the Administrative Procedure Act, 5 U.S.C. § 706(2)(D); agency action may be set aside if it was undertaken without observance of procedures required by law. Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir.1974) (en banc). Courts are not to “flyspeek” EISs. “The preparation of such a statement necessarily calls for judgment, and that judgment is the agency’s. But the courts can, and should, require full, fair, bona fide compliance with NEPA.” Id.
We review the district court’s conclusion that the EIS is adequate to determine whether that conclusion is based upon an erroneous legal standard or upon clearly erroneous findings of fact. Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir.1981).
B. Compliance with National Environmental Policy Act (NEPA)
1. “No action” alternative
NEPA, 42 U.S.C. §§ 4321 et seq. (1976 and Supp. V 1981) and EPA regulations require the EIS to discuss the “no action” status quo alternative. See 40 C.F.R. 6.203(c). This alternative is the standard by which the reader may compare the other alternatives’ “beneficial and adverse impacts related to the applicant doing nothing.” Id. The Hyperion EIS discusses the dewatering and trucking interim project, which was never implemented, as the “no action” alternative. Kilroy argues that it clearly should have presented the existing outfall disposal method as the “no action” alternative, and that this omission is fatal to the EIS.
While Kilroy’s argument has some facial appeal, it suffers from two major flaws. First, the EIS does include some discussion of the existing outfall disposal method in its description of the interim project. The dewatering and trucking interim project requires anaerobically digested sludge in excess of dewatering capacity to be discharged to the ocean through existing outfall systems. Dewatered sludge in excess of downstream composting capacity would be trucked to sanitary landfills for disposal. Therefore, although the existing outfall disposal method was not depicted as the status quo alternative, it was discussed because the design of the interim project incorporated use of the existing system.
The second and greater flaw in Kilroy’s argument is that it overlooks the relevant legal restrictions imposed on the existing outfall disposal method. Over the years, Congress has shown increasingly less tolerance for the discharge of sludge into marine waters. The strongest expression of this policy came in December 1981 when Congress amended the Clean Water Act by the “Municipal Wastewater Treatment Construction Grant Amendments of 1981.” H.R. 4503, 97th Cong., 1st Sess. (1981), U.S.Code Cong. & Admin.News 1981, p. 2629, 2656, 127 Cong.Rec. H 9515 (daily ed. Dec. 14, 1981). The amendments address the question of discharges into territorial waters and provide, inter alia, that “[n]o permit issued under this subsection [§ 301(h) ] shall authorize the discharge of sewage sludge into marine waters.” Id., § 22(c), 127 Cong.Rec. at H 9518, codified at 33 U.S.C. § 1311(h). The Joint Explanatory Statement of the Committee of Conference states that under this amendment “no permit issued under Section 301(h) shall authorize the discharge of sludge into marine waters from outfalls.” 127 Cong. Rec. at H 9520. Thus, once the NPDES permit currently authorizing the seven mile Hyperion outfall expires, it cannot be renewed. Congress’ express intent is to terminate all sludge discharge through outfalls.
In addition to the legislative barrier to outfall sludge disposal, the City of Los Angeles entered into a consent decree with the United States which requires the City to terminate all ocean sludge disposal no later than July 1, 1985. United States v. City of Los Angeles, (C.D.Cal. No. CV77-304-HP). The current NPDES permit is consistent with the consent decree deadline.
We agree that these legal barriers to the continuance of the present method of disposal do not automatically render discussion of that alternative unnecessary. In some cases an alternative may be reasonable, and therefore required by NEPA to be discussed in the EIS, even though it requires legislative action to put it into effect. See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C.Cir.1972). But in deciding whether an alternative is reasonable, we may certainly take into account the strength and vitality of legislation that forbids it. “We do not suppose Congress intended an agency to devote itself to extended discussion of the environmental impact of alternatives so remote from reality as to depend on, say, the repeal of the antitrust laws.” Id; see Sierra Club v. Adams, 578 F.2d 389, 396 (D.C.Cir.1978).
Here Congress has made a considered and recent choice to prohibit sludge discharge through ocean outfalls. See 33 U.S.C. § 1311(h). While that legislation may not be quite as impregnable as the antitrust laws, it nevertheless renders the outfall alternative substantially remote from reality. It is buttressed by a consent decree that forbids continuance of the existing outfall disposal. In the face of these obstacles, we cannot conclude that continuance of outfall disposal was a reasonable alternative that was required to be set out in the EIS. Nor would it have been accurate to depict continuance of the outfall disposal method as the “no action” alternative. As the district court stated in its order granting summary judgment:
The Water Act and the consent decree prohibit the City from disposing of sludge into the ocean from the Hyperion outfall. Even if the City took no action to develop a new disposal system — the situation the no action alternative is required to describe — the City would still be prohibited from disposal of sludge into the ocean through the Hyperion outfall and would have to use some alternative method such as the disposal of dewatered sludge into sanitary landfills. Thus, the no action alternative statement accurately describes what would occur if the City took no action toward developing a new sludge disposal project.
Thus the dewatering and trucking interim project with its concomitant discussion of the existing outfall was an appropriate and reasonable benchmark against which to measure the other available alternatives. The discussion was sufficient to enable the decision-makers, with public participation, to make a reasoned choice. See California v. Block, 690 F.2d 753, 761 (9th Cir.1982); Save Lake Washington v. Frank, 641 F.2d at 1334.
2. Discussion of Ocean Dumping Alternatives
Kilroy claims that both the EIS and the district court dealt too superficially with the ocean dumping alternatives. The district court’s analysis, however, properly rests on whether ocean dumping is a reasonable alternative and whether, in the context of this case, it was accorded a reasonable discussion in the EIS. See Sierra Club v. Adams, 578 F.2d at 396. The district court concluded that the extent to which the EIS should have addressed ocean disposal alternatives depended on the extent of the restrictions imposed by the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. §§ 1412 et seq., (1976 & Supp. V 1981), the NPDES permit, and the consent decree.
After analyzing the legal restrictions, the district court stated that while it may be reasonable to require the EIS to mention ocean disposal, it would be unreasonable and wasteful to require extensive development and discussion of such a remote alternative. We agree. See State of California v. Block, 690 F.2d at 767. In addition, the district court found that, contrary to Kilroy’s claim, the EIS did discuss ocean disposal in considerable detail.
The district court’s conclusion relied in part on prior opinions issued in earlier stages of this litigation which harmonized the Marine Protection Act and the Clean Water Act with NEPA. Although the Marine Protection Act does not completely ban deep ocean dumping, the district court’s prior opinion stated:
[I]t would mock Congress’ long-range comprehensive goal of water quality improvement to require the EPA to order the cessation of sludge disposal from deep ocean outfalls while requiring the EPA to consider, as an alternative disposal method, the dumping of this same sludge by vessel into the deep ocean at the pipe’s end or at any other place on the face of the water.
[A]s long as there exists a practical land disposal method, the EPA need not evaluate the alternative of deep ocean dumping when it formulates conditions for an NPDES permit or when it authorizes a grant of federal funds to develop a project designed to achieve compliance with the Water Act.
Pacific Legal Foundation v. Quarles, 440 F.Supp. at 328, aff'd, Kilroy v. Quarles, 614 F.2d 225 (9th Cir.), cert. denied sub nom. Kilroy v. Costle, 449 U.S. 825, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980).
We continue to agree with this assessment. Our review of the EIS reveals more than sufficient discussion of ocean disposal alternatives to permit a reasoned choice.
CONCLUSION
Kilroy had a full and fair opportunity to present his case before the district court. The district court’s grant of summary judgment in Kilroy v. Ruckelshaus in favor of EPA rested on proper legal standards and is AFFIRMED. The district court’s ruling in PLF v. Watt that the judgment in Kilroy v. Ruckelshaus precludes PLF from relitigating the adequacy of the Final LA/OMA EIS is also AFFIRMED.
. The federal defendants are EPA; William Ruckelshaus, in his official capacity as EPA administrator; and Paul DeFalco, in his official capacity as EPA regional administrator. The state defendants are the State Water Resources Control Board; John E. Bryson, in his official capacity as Chairman; Region IV of the California Regional Water Control Board; and Raymond M. Hertel, in his official capacity as Executive Officer.
For clarity and convenience, we refer to all defendants as "EPA."
. Other cases filed by PLF and Kilroy concerning ocean disposal of sludge are:
a. Pacific Legal Foundation v. Costle, 586 F.2d 650 (9th Cir.1978), rev’d in part, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329, reh’g denied, 446 U.S. 947, 100 S.Ct. 2177, 64 L.Ed.2d 804 (1980).
b. Pacific Legal Foundation v. Watt, No. 78-3464-AAH (SX) (C.D.Cal. March 16, 1982).
c. Pacific Legal Foundation v. Costle, No. 5-79-429-PCW (E.D.Cal. October 31, 1979).
d. Pacific Legal Foundation v. Costle, No. 79-7304, renumbered and consolidated with Natural Resources Defense Council, Inc. v. EPA, No. 79-1639 (D.C.Cir.1981). Decision was rendered in Natural Resources Defense Council v. EPA, 656 F.2d 768 (D.C.Cir.1981).
e. Pacific Legal Foundation v. Costle, No. K-80-2 (D.C.Alaska, June 26, 1981).
. Permit extensions were granted and these extensions were challenged and upheld in PLF v. Costle, 586 F.2d 650 (9th Cir.1978), rev’d in part, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980).
. In addition to this discussion in the EIS of the existing outfall there also was discussion of a twelve mile outfall pipe. EPA contends that that discussion provides similar information regarding outfall disposal.
. The Clean Water Act defines "territorial seas” as "the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.” 33 U.S.C. § 1362(8).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0, Costs: 0.05
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PER CURIAM:
The Movement Against Destruction (MAD) along with other community associations and individuals prayed an injunction and declaratory judgment from the District Court in October 1972, to bar further construction of the “3-A System”, or segments thereof, of the Federal Aid Interstate System in Baltimore, Maryland, until the defendants— the Secretary of the Department of Transportation of the United States and the Chief of the Interstate Division for Baltimore — had satisfied the Court that they were complying with the aims and exactions of: The National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., The Federal-Aid Highway Act, as amended, 23 U.S.C. § 101 et seq., The Clean Air Amendments of 1970, particularly 42 U.S.C. § 1857 et seq., and The Department of Transportation Act, as amended, 49 U.S.C. § 1651 et seq.
A class action was made of the suit by order of February 28, 1973, admitting as plaintiffs certain persons seeking to represent those citizens of Baltimore directly or adversely affected by such construction. The City was also allowed to intervene. Eventually, the suit was consolidated with two others which posed some of the questions presented in the master cause. The order of February 28, 1973 also framed the issues at stake.
The consolidated litigation was heard by District Judges Thomsen and Miller, sitting together. Their findings and conclusions are stated in an opinion filed June 22, 1973 and reported as Movement Against Destruction v. Volpe, D.C., 361 F.Supp. 1360. It comprises a strikingly comprehensive compendium of the multi-factual context of the suit, with lucid resolution of the many legal complications.
By a final order dated June 26, 1973 injunctive relief was denied in each of the combined actions. Also, the Court refused a declaratory judgment of violation by the defendants of any of the statutes heretofore listed. The two suits joined with the MAD action were left upon their respective calendars for adjudication as to issues not decided in the consolidated cause. Further, a reservation appears in the final order as follows:
“The Complaint in Movement Against Destruction, et al. v. John A. Volpe, Secretary of Transportation, et al., Civil No. 72-1041-M, be and the same is hereby dismissed, without prejudice to the right of the Plaintiffs originally named therein, or any of them, to file an Amended Complaint on or before November 1, 1973, with respect to any of the roads or segments in the 3-A configuration, raising any points which have not been theretofore decided.”
On this appeal from the final order we affirm upon the opinion of the District Court. We decline to award plaintiffs counsel fees and we deny the petition for an injunction pending appeal which had been deferred for hearing along with the final argument of the appeal.
In oral argument appellant’s counsel noted that since the entry of the final order, officials of the Federal Executive Department have promulgated regulations, and the Maryland legislature has passed laws, that might affect certain aspects of the proposed means of transportation in Baltimore. See e. g.: Presidential Executive Order No. 11,748, December 4, 1973, and Environmental Protection Agency’s revised regulations, 39 Fed.Reg.No. 10, Part 3, Jan. 15, 1974; 41 Maryland Code Anno. 15B, as amended November 13, 1973; Executive Order, Governor of Maryland, effective February 12, 1974. Defendants, in this connection, refer to the Emergency Highway Energy Conservation Act, Pub.L. 93-239, § 3, 87 Stat. 1046, 42 USLW 21 (1974), and to Presidential messages reported as 10 Pres.Docs. 72, 122, 140, 161 and 165. The District Court, of course, did not consider these matters and we express no, opinion upon their relevancy to the issues presented on this appeal.
Affirmed.
ORDER DENYING PETITION FOR REHEARING
Upon consideration of the petition of the appellants, Movement Against Destruction, et al., for a rehearing, the Court concludes that it presents no ground warranting modification of the original decision and opinion herein, and the petition should be and is hereby denied. This order does not foreclose the District Court, should it be so advised, from considering the effect, if any, in this case of any laws and regulations enacted and promulgated while this appeal was pending.
BUTZNER and WIDENER, Circuit Judges, concur.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1666666666666667, Costs: 0.02777777777777778
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PER CURIAM.
Arthur J. Rocque, Jr., the Commissioner of the Connecticut Department of Environmental Protection, appeals from a decision of the United States District Court for the District of Connecticut, Warren W. Egin-ton, Senior District Judge, dated July 1, 1998. Judge Eginton’s order granted reconsideration of, but adhered to, an order dated June 12, 1997, issued by Robert N. Chatigny, District Judge, which denied Eleventh Amendment immunity to the Commissioner. For the reasons stated below, we vacate and remand this case to the district court.
I. Background
Farricielli, through a company of which he is president, has a financial interest in a parcel of land in Hamden, Connecticut (the site). In December 1992, the site was leased to Quinnipiac Group (Q Group). In September 1994, Q Group began using the property to operate a bulky waste disposal facility. The contract between Farricielli and Q Group required Q Group to obtain and comply with all permits necessary to operate the facility. In July 1996, Farri-cielli brought this suit against Q Group, arguing that it was operating the facility in violation of several environmental laws. The complaint alleges, inter alia, that Q Group unlawfully discharged contaminated water from ponds on the site, failed to submit the required reports to the Connecticut Department of Environmental Protection, operated an open dump at the site, contributed to imminent and substantial pollution at the site, and violated state hazardous and solid waste laws.
In two counts of the ten-count complaint, Farricielli also named as a defendant Sidney J. Holbrook, at that time the Commissioner of the Connecticut Department of Environmental Protection (Commissioner). The complaint alleged that the Commissioner had “taken no effective action” regarding Q Group’s violations' of environmental law, and further that the Commissioner had “no intention of taking enforcement action in response to these violations.” Farricielli claimed that the Commissioner’s failure to act violated the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B) (1994), and the Connecticut Environmental Protection Act (CEPA), Conn. GemStat. § 22a-14 et seq. (2000). Farricielli also alleged that the Commissioner directed the dumping of improper waste at the site. The complaint sought (1) a permanent injunction restraining the Commissioner from contributing to endangerment at the site, through act or omission; and (2) an order requiring the Commissioner to clean up the site.
In August 1996, the Commissioner moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), contending that the Eleventh Amendment barred Farricielli’s claims under RCRA and CEPA. While this motion was pending, there were a number of significant developments in the case. First, the Commissioner and Q Group agreed in October 1996 to a Consent Order requiring Q Group to remove certain waste from the site. The Consent Order noted that the Commissioner had twice — in August 1996 and April 1996 — issued Notices of Violation finding that Q Group was not in compliance with state environmental law. Second, Q Group vacated the site, on or about November 1, 1996, and has not operated any facility on the site since that time. Third, the Commissioner commenced an environmental enforcement action against Q Group in state court on November 4, 1996, contending that it had failed to comply with the Consent Order, and seeking substantial monetary penalties.
Farricielli then filed a first amended complaint in the district court on November 25, 1996, asserting additional factual allegations based on the Consent Order. Farricielli repeated his allegations against the Commissioner, but now alleged that the Commissioner had “no intention of taking meaningful enforcement action in response to these violations.” (Emphasis added.) In December 1996, the Commissioner moved to dismiss the amended complaint, again contending that the Eleventh Amendment barred Farricielli’s claim.
In March 1997, Judge Chatigny denied as moot the Commissioner’s initial motion to dismiss the complaint. In June 1997, Judge Chatigny denied the Commissioner’s second motion to dismiss Farricielli’s RCRA claim (Count IX), but granted the Commissioner’s motion to dismiss the state CEPA claim. Judge Chatigny’s brief memorandum endorsement denying the Commissioner’s motion to dismiss Farri-cielli’s RCRA claim stated, in full:
Count IX may stand, however, because the Eleventh Amendment does not bar a suit alleging violations of federal law if only prospective injunctive relief is sought. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Although a. state official has broad discretion in determining how to implement state law, that discretion does not extend to permitting violations of applicable federal law. So ordered.
Roughly two weeks later, the Commissioner moved for reconsideration, arguing that the district court had overlooked the Supreme Court’s decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
Although the motion for reconsideration addressed a decision issued by Judge Cha-tigny, the case was transferred to District Judge Christopher F. Droney in October 1997. The case was then transferred again, to Senior District Judge Eginton, in May 1998. In July 1998, Judge Eginton denied reconsideration, stating that, “Although Seminole Tribe was not cited in his endorsement order, it is clear that Judge Chatigny considered that decision in his ruling....” Judge Eginton further distinguished Seminole Tribe by reasoning that the federal statute at issue in that case created an “ ‘intricate remedial scheme,’ ” Seminole, 517 U.S. at 74, 116 S.Ct. 1114, whereas the enforcement provisions of RCRA were not an “ ‘intricate remedial scheme.’ ” Judge Eginton also granted a pending motion by Farricielli to file a second amended complaint that asserted additional claims against three new defendants, waste haulers who allegedly contributed to the pollution at the site.
The Commissioner filed a timely appeal from Judge Eginton’s decision. Although this case is still pending in the district court, we have jurisdiction to hear this appeal because an order denying immunity under the Eleventh Amendment is immediately appealable. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993).
II. Discussion
The central issue on appeal is whether the Eleventh Amendment bars Farricielli’s RCRA claim against the Commissioner. The Eleventh Amendment provides that: “The Judicial power of the United States shall not be .construed to extend to any suit in law or equity, commenced or prosecuted against one .of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. This immunity also protects a state from suits brought by its own citizens, see Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), such as this one, and extends to state officers who act on behalf of the state, see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), as the Commissioner argues in this case.
The Eleventh Amendment does not, however, confer immunity on state officials acting in violation of federal law. Under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), “ ‘the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution or laws.’ ” Burgio & Campofelice, Inc. v. New York State Dep’t of Labor, 107 F.3d 1000, 1006 (2d Cir.1997) (quoting 13B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3566, at 102 (1984)). RCRA clearly contemplates that aggrieved citizens may bring suit to enforce its provisions, where applicable. Section 6972 states that “any person may commence a civil action on his own behalf ... against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the [Eleventh [Ajmendment to the Constitution” to redress violations of RCRA. 42 U.S.C. § 6972(a), (a)(1)(B). As this language makes clear, however, RCRA does not abrogate Eleventh Amendment immunity. See Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir.1999); see also Natural Resources Defense Council v. California Dep’t of Transp., 96 F.3d 420, 423 (9th Cir.1996) (cited in Burnette).
Before this action can proceed against the Commissioner, therefore, Farricielli must identify the federal constitutional or statutory law the Commissioner threatens to violate. The record in this case does not provide sufficient guidance on this point. In his first amended complaint, Farricielli generally alleged that the Commissioner contributed to imminent and substantial endangerment of the environment because he had “no intention of taking meaningful enforcement action in response to [Q Group’s] violations.” Far-ricielli also specifically alleged that:
DEP [the Department of Environmental Protection] directed at least one waste hauler to dispose of potentially hazardous “sludge-like material” at the Property without proper characterization of that material.
DEP has prohibited Farricielli, or others acting on Farricielli’s behalf, from inspecting and, as warranted, from preventing shipments of improper and unlawful wastes onto the Property for disposal, wastes which may present an imminent and substantial endangerment to health and the environment.
These allegations do not specify the provisions of RCRA that the Commissioner is alleged to have violated.
On appeal, Farricielli explains that the Commissioner’s .actions violated the “citizen suit” provision of RCRA quoted above, 42 U.S.C. § 6972, and a provision requiring state plans submitted to the federal government to prohibit the establishment of new open dumps, see id. § 6943(a)(2). The federal government has approved Connecticut’s environmental plans under RCRA. See, e.g., 58 Fed.Reg. 65,591 (Dec. 15, 1993) (approving solid waste permit program); 55 Fed.Reg. 51,707 (Dec. 17, 1990) (approving hazardous waste management program). Key issues in this case, therefore, include whether the allegations based on the citizen suit provision of RCRA or the federal laws and regulations concerning the plan that the state submits to the federal government, either alone or in combination, suffice to state a violation of federal law as required by Ex Parte Young. The decisions of the district court in this case do not address these, and many other, significant issues.
In these circumstances, we believe it is sound judicial administration to vacate the decision of the district court and remand for development of these and other relevant arguments before the district court. For example, the Commissioner argues, relying on Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), that (1) under the Eleventh Amendment, the United States cannot compel the State of Connecticut to enforce a federal regulatory program for solid or hazardous waste; and (2) even assuming that it can, RCRA does not impose such a duty. See id. at 925, 117 S.Ct. 2365 (“[T]he Federal Government may not compel the States to implement, by legislation or by executive action, federal regulatory programs.”). Similarly, the Commissioner points out that the “citizen suit” provision, 42 U.S.C. § 6972(a)(1)(B) is so broadly worded that it cannot, by itself, constitute the required allegation of violation of a federal law under the Ex Parte Young doctrine.
Further, it is not clear to us whether Farricielli is alleging ongoing violations of federal law or merely objecting to the Commissioner’s past decisions to exercise his discretion. Famcielli’s allegation that the Commissioner intends to take no meaningful action against Q Group is belied by the fact that the Commissioner issued Notices of Violation, brought an enforcement action, and obtained a fine in the amount of over half a million dollars for Q Group’s violations. Moreover, it is arguable that the object of Famcielli’s suit is not to compel the Commissioner to cease ongoing violations of federal law, as Q Group no longer operates a facility on the site, but to require the State of Connecticut to clean up the site to compensate for the Commissioner’s alleged failure to monitor the site. We express no view on this question. However, the Eleventh Amendment prohibits “an award of damages for a past violation of federal law, even though styled as something else.” Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (citations omitted).
It is our settled practice to allow the district court to address arguments in the first instance. See, e.g., Herman v. Davis Acoustical Corp., 196 F.3d 354, 357-58 (2d Cir.1999); Devlin v. Transportation Communications Int’l Union, 175 F.3d 121, 128 (2d Cir.1999). On remand, the district court should begin its analysis of whether this case falls within the Ex Parte Young exception to Eleventh Amendment immunity by determining whether Farricielli has properly identified both a specific and ongoing violation of federal law by the Commissioner.
Conclusion
For the foregoing reasons, we vacate the decision of the district court denying the Commissioner’s motion to dismiss Count IX of the complaint and remand for further proceedings consistent with this opinion.
. Arthur J. Rocque, Jr. was not named as a defendant below. He appealed from the district court’s decision "in his official capacity as Commissioner of the Department of Environmental Protection.” For ease of reference, we will refer to both Holbrook and Rocque as "the Commissioner.”
. In February 1998, Q Group stipulated to payment of a $550,000 penalty, and judgment was entered pursuant to the settlement by order of Judge Aurigemma, Connecticut Superior Court.
. Farricielli has since filed a third amended complaint in this action, naming as an additional plaintiff his company Quinnnipiack Real Estate and Development Corporation.
. At least one court has concluded that the legislative history of the “open dumping” provision indicates that the state should not be subject to suit under the "open dumping” provision. See Ringbolt Farms Homeowners Ass'n v. Town of Hull, 714 F.Supp. 1246, 1258-60 (D.Mass.1989).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.02272727272727273, Costs: 0.02272727272727273
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Nos. 08-2370 and 09-1928 dismissed; No. 09-2113 affirmed by published opinion. Judge WYNN wrote the opinion, in which Judge GREGORY and Judge DAVIS concurred.
OPINION
WYNN, Circuit Judge:
In this Clean Air Act case, Duke Energy Carolinas, LLC (“Duke Energy”) challenges an attorneys’ fees award by attacking the nature of the victory supporting the award, as well as the merits order on which the fee award was based — summary judgment in favor of Plaintiffs Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conversation Association, Natural Resources Defense Council, and the Sierra Club (“Plaintiffs”). With its summary judgment victory, Plaintiffs forced Duke Energy to submit to administrative evaluations by the North Carolina state regulators who administer the Clean Air Act. Those administrative proceedings constituted some success and thus supported an award of attorneys’ fees under the Clean Air Act. And nothing this Court might hold with regard to the merits of the summary judgment determination could undo those proceedings or nullify Plaintiffs’ success. We therefore affirm the district court’s fee award.
I.
Duke Energy is a regulated public utility that produces electricity. It operates the Cliffside Steam Station, located on the border of Cleveland and Rutherford Counties in North Carolina.
In 2005, Duke Energy applied to the North Carolina Utilities Commission for a certificate to build a new 800-megawatt coal-fired power plant at Cliffside. The application was granted, but before it could begin constructing the new plant, called Unit 6, Duke Energy had to obtain a construction permit from the State of North Carolina under the Clean Air Act.
The Clean Air Act governs air quality and emissions standards throughout the United States. Congress created that act “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare.... ” 42 U.S.C. § 7401(b)(1). Section 112(g) of the Clean Air Act includes procedural and substantive requirements for ensuring that new major and potential major sources of hazardous air pollution are designed to maximally reduce their emissions. Those Maximum Achievable Control Technology (“MACT”) provisions (and others) are administered by the states, under State Implementation Plans approved by the Environmental Protection Agency. See 42 U.S.C. §§ 7407(a), 7410.
In North Carolina, the Department of Environmental Resources’ Division of Air Quality administers and enforces the State Implementation Plan. Among other things, the Division of Air Quality is responsible for issuing permits to air emissions sources. See, e.g., 15A N.C. Admin. Code 2Q.0301; 15A N.C. Admin. Code 2Q.0308; 15A N.C. Admin. Code 2Q.0501; 15A N.C. Admin. Code 2Q.0502. It also oversees the construction and operation permitting process for new major sources of hazardous air pollution. Id.; see also N.C. Gen. Stat. § 143-215.108. Duke Energy applied to the Division of Air Quality for a construction permit in December 2005 and revised its application in March 2007. On January 29, 2008, after completing various review procedures, the Division of Air Quality issued Duke Energy a permit authorizing construction of Unit 6, and Duke Energy “promptly” began construction. Brief of Appellant p. 20.
On July 16, 2008, Plaintiffs Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conservation Association, Natural Resources Defense Council, and the Sierra Club filed a complaint against Duke Energy. Plaintiffs alleged that Duke Energy was violating the Clean Air Act by constructing Unit 6 without a determination that the facility would achieve a level of air pollution control that satisfied the act’s MACT requirements. With their federal suit, Plaintiffs sought to have the district court: declare Duke Energy’s construction of Unit 6 without a MACT determination illegal under the Clean Air Act; enjoin Duke Energy from further construction of Unit 6 until it complies with the Clean Air Act and any other applicable regulations; and assess civil penalties against Duke Energy for violating the Clean Air Act.
In August 2008, Plaintiffs moved for summary judgment on the basis that Duke Energy was violating the Clean Air Act by constructing a new major source of hazardous air pollution without first obtaining a determination from the State of North Carolina that the pollution source, Unit 6, was designed to control its hazardous emissions to the maximum extent possible. Duke Energy, in turn, moved to dismiss the complaint, arguing that Section 112(g) of the Clean Air Act, under which Plaintiffs brought their suit, did not apply and that Plaintiffs’ complaint constituted an improper attack on the state permitting process.
On December 2, 2008, the district court denied Duke Energy’s motion to dismiss but granted Plaintiffs’ motion for summary judgment. The court held that the Clean Air Act applied and required determinations as to whether Unit 6 was a major or minor source and, if a major source, whether MACT had been achieved. The court noted that “[wjhether Unit 6 is, or will be, at best a ‘minor source’ of pollution, as Defendant alleges, and not a ‘major source’ ... has yet to be determined in the appropriate proceeding required by § 112(g)(2)(B), 42 U.S.C. § 7412(g)(2)(B).” The district court therefore ordered Duke Energy to engage in proceedings under Section 112(g) of the Clean Air Act.
In July 2009, in response to Duke Energy’s motion for summary judgment and Plaintiffs’ motion to enforce the order granting summary judgment in their favor, the district court dismissed the case. The court emphasized that the facts were notably different from those at the case’s inception. Specifically, by July 2009, Duke Energy had undergone the MACT evaluation with the state, and the parties were contesting the resulting permit before the North Carolina Office of Administrative Hearings. The issues raised and relief sought before the Office of Administrative Hearings were essentially the same as those before the district court. The court determined that North Carolina had a strong interest in the issues and that the state administrative proceeding was adequate to address them. The district court therefore decided to abstain from further involvement in the case.
Following the district court’s dismissal of the case, Plaintiffs moved for $886,089 in attorneys’ fees and costs. Plaintiffs argued that they were entitled to the fees because, among other things, they had succeeded on the merits in subjecting Unit 6 to the Clean Air Act and forcing Duke Energy to participate in a MACT determination. Duke Energy contended that Plaintiffs’ summary judgment victory was merely procedural and trivial and that Plaintiffs, who also pursued a state court claim, should not be rewarded for their litigiousness.
The district court disagreed with Duke Energy and held, among other things, that Plaintiffs prevailed when the court held that Unit 6 was subject to the Clean Air Act and required Duke Energy to participate in a MACT proceeding. The court therefore awarded Plaintiffs their attorneys’ fees through the December 2008 grant of summary judgment, as well as for their efforts to win their attorneys’ fees and costs. The award totaled $483,073.88. Duke Energy appealed the district court’s fee ruling, as well as its summary judgment and dismissal rulings.
II.
This case comes to us in an unusual posture. The district court initially granted summary judgment in favor of Plaintiffs. It later dismissed the suit on abstention grounds but thereafter granted Plaintiffs’ motion for attorneys’ fees. The only relief Duke Energy seeks in these consolidated appeals is the reversal of the attorneys’ fees award. Indeed, Duke Energy stated in its opening brief that “[t]he ultimate issue in this case is whether the district court erred in awarding attorneys’ fees to the plaintiffs” and called its appeal “a challenge to a decision by the district court awarding nearly $500,000 in fees to plaintiffs, based on a temporary procedural victory....” Brief of Appellant p. 2, 4. One of Duke Energy’s main arguments for overturning the award is that the district court, in its December 2008 memorandum and order, erred in not abstaining early on and granting Plaintiffs summary judgment, which served as the basis of the fee award.
Duke Energy asks us to revisit the district court’s merits determinations solely for the purpose of setting aside the district court’s attorneys’ fee award. Fee determinations are generally distinct from merits determinations. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). Indeed, it has been recognized that a merits determination on which a fee award is based generally cannot be revisited on appeal from the fee award. See Attia v. Soc’y of N.Y. Hosp., 12 Fed.Appx. 78, 79-80 (2nd Cir.2001) (“Plaintiff ... appeals from an order ... awarding defendants ... attorneys’ fees and costs.... [Plaintiff] seeks to revisit the merits of his copyright infringement action. Those arguments are foreclosed by the prior dismissal of his claims, which has been affirmed on appeal.”); Schwarz v. Sec’y of Health & Human Sens., 73 F.3d 895, 902 (9th Cir.1995) (“[N]othing in Hensley [v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ] suggests that we should revisit the merits of each previously dismissed claim before characterizing it as ‘unsuccessful.’ It would neither be practical, nor consistent with Hensley, to do so; every fee application would otherwise become another battle over the merits....”); Naekel v. Dep’t of Transp., 884 F.2d 1378, 1379 (Fed.Cir.1989) (“Although the government reargues the merits, a request for attorney’s fees should not result in a second major litigation.” (internal quotation marks omitted)). Thus, Duke Energy’s fee award appeal cannot serve as a vehicle for reviewing the merits of earlier orders.
As Duke Energy points out, it appealed not only from the fee award, but also from the December 2008 memorandum and order granting summary judgment for Plaintiffs. On Plaintiffs’ motion, to which Duke Energy did not object, we held that appeal in abeyance and reinstated it when Duke Energy appealed the fee award. Nevertheless, the only relief Duke Energy seeks on appeal is the reversal of the fee award. “We review de novo the question of whether a party is eligible for an award of attorneys’ fees under a fee-shifting statute.” W. Va. Highlands Consenancy, Inc. v. Kempthome, 569 F.3d 147,152 (4th Cir.2009).
Under the Clean Air Act’s citizen suits provision, a court may award attorneys’ fees “whenever the court determines such award is appropriate.” 42 U.S.C. § 7604(d). “The discretion afforded courts and agencies under the ‘whenever appropriate’ statutes is not unbounded, however.” W. Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239, 244 (4th Cir.2003) (affirming a fee award under the “whenever appropriate” provision of the Surface Mining Control and Reclamation Act). In Ruckelshaus v. Sierra Club, also a Clean Air Act case, the Supreme Court held that “absent some degree of success on the merits by the claimant, it is not ‘appropriate’ for a federal court to award attorney’s fees.... ” Ruckelshaus v. Sierra Club, 463 U.S. 680, 694, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Stated differently, the citizen suits attorneys’ fees provision “was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties — parties achieving some success, even if not major success.” Id. at 688, 103 S.Ct. 3274.
Regarding what constitutes “some success,” “ ‘[w]henever appropriate’ attorneys’ fees statutes ‘eliminate ... the necessity for case-by-case scrutiny by federal courts into whether plaintiffs prevailed “essentially” on “central issues,” ’ or ‘essentially succeeded] in obtaining the relief [they] seek [] in [their] claims on the merits.’ ” Kempthome, 569 F.3d at 154 (quoting Ruckelshaus, 463 U.S. at 688, 103 S.Ct. 3274). It is therefore sufficient success to support attorneys’ fees, for example, where an agency is ordered to carry out one of its regulatory duties such as adequately investigating complaints — regardless of the outcome of the investigation. Id. at 152-54 (citing Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313 (4th Cir. 1988) and Norton, 343 F.3d 239).
Indeed, in Hanson, 859 F.2d 313, this Court affirmed an attorneys’ fee award where the plaintiffs brought a citizen suit under the Clean Water Act, alleging that the U.S. Army Corps of Engineers failed to adequately evaluate whether a tract of land contained wetlands. Id. at 315-17. The district court directed the Corps to make a properly informed wetlands determination and awarded the plaintiffs fees. Id. This Court affirmed based on the plaintiffs’ success in obtaining a remand ordering the Corps to undertake a proper investigation — regardless of the investigation’s outcome. Id. at 317. And in Ohio River Valley Envtl. Coal., Inc. v. Green Valley Coal Co., 511 F.3d 407 (4th Cir. 2007), this Court found attorneys’ fees supported where a coal company took remedial action after environmental groups filed suit, even though the suit was ultimately voluntarily dismissed.
With this federal suit, Plaintiffs sought, among other things, a determination that Duke Energy, in constructing Unit 6, was subject to and in violation of Section 112(g) of the Clean Air Act, as well as enforcement of the Clean Air Act, penalties, and costs and fees. In its December 2008 memorandum and order, the district court determined that Duke Energy was subject to the Clean Air Act and was violating it by building Unit 6 without any determination as to whether Unit 6 constituted a minor or major source and, if major, without a MACT determination. The district court ordered Duke Energy to comply with the Clean Air Act, and specifically, to participate in a MACT assessment by North Carolina regulators.
The district court’s order included substantive determinations and imposed a real burden on Duke Energy, which had up till then denied that it was subject to Section 112 by virtue of when it-obtained its permit for Unit 6. It forced Duke Energy to participate in formal administrative evaluations pursuant to the Clean Air Act; those evaluations were one of Plaintiffs’ goals with this suit. As a result of the administrative proceedings that the district court ordered, new limits were placed on Unit 6’s hazardous emissions. If those limits are exceeded, Unit 6 will be subject to MACT requirements. Further, additional emissions monitoring, testing, and record-keeping were required. The district court’s December 2008 ruling was, therefore, neither a “merely procedural” victory nor “trivial,” as Duke Energy contends. Plaintiffs achieved some success supporting an award of attorneys’ fees.
Nothing this Court could do with regard to the merits of the district court’s December 2008 memorandum and order could change the fact that Plaintiffs achieved some success in this litigation. Duke Energy was subject to state administrative proceedings as a consequence of Plaintiffs’ suit. Regardless of their outcomes, those proceedings alone would support attorneys’ fees. See Hanson, 859 F.2d at 317 (holding that a remand to an agency, regardless of outcome, supported a fee award). Those proceedings — a core objective of Plaintiffs’ suiU-have occurred and cannot be undone. Where “no action taken by this court can change the fact that [the plaintiff] has accomplished the objectives of [the] litigation” and “[n]o future proceedings involving the merits of the controversy will change this result,” the underlying merits should not be reached. Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979) (internal quotation marks and citation omitted) (declining to reach the underlying merits where the plaintiff had obtained a hearing, a goal of her litigation which could not be undone, and therefore had achieved success supporting an attorneys’ fee award). Because Duke Energy’s merits arguments are irrelevant to our determination that Plaintiffs achieved some success supporting the fee award— the reversal of which is Duke Energy’s sole goal on appeal — we need not reach them. We hold that Plaintiffs’ successes properly supported the award of attorneys’ fees and costs and affirm the district court.
Nos. 08-2370 and 09-1928 DISMISSED
No. 09-2113 AFFIRMED
. Under the Clean Air Act, a major source is one "that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” 42 U.S.C. § 7412(a)(1). New sources that do not meet Section 112(a)(l)'s major source thresholds are considered minor sources. An initial determination, therefore, must be made as to whether a new source is major or minor for purposes of Section 112(g). That determination may require public notice and comment and a hearing. 15A N.C. Admin.Code 2Q.0306.
. Duke Energy challenges no other aspect of the fee award, such as the amount, which we therefore do not address.
. Plaintiffs also contend that Duke Energy's merits arguments are moot. Because we find those arguments irrelevant to our analysis of the fee award, "the ultimate issue in this case,” we do not address Plaintiffs' mootness argument.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.25, Costs: 0.1136363636363636
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ORR, Circuit Judge.
Appellant is an anthropologist who spent several years in the early 1950’s studying the effects of radiation on the survivors of the Hiroshima and Nagasaki atomic bomb blasts. In 1958 the Atomic Energy Commission was conducting a series of nuclear tests at the Eniwetok Proving Grounds in the Pacific. In connection with these tests the Commission on April 11, 1958, promulgated a regulation barring United States citizens from entering a 390,000 square mile “Danger Area” surrounding the proving grounds, except with the express approval of appropriate officials. This regulation is set out in the footnotes.
It was purportedly issued under and authorized by § 161 (i) of the Atomic Energy Act of 1954, 42 U.S.C.A. § 2201 (i), which provides:
“§ 161. In the performance of its functions the Commission is authorized to—
“(i) prescribe such regulations or orders as it may deem necessary (1) to protect Restricted Data received by any person in connection with any activity authorized pursuant to this Act, (2) to guard against the loss or diversion of any special nuclear material acquired by any person pursuant to section 53 or produced by any person in connection with any activity authorized pursuant to this Act, and to prevent any use or disposition thereof which the Commission may determine to be inimical to the common defense and security, and (3) to govern any activity authorized pursuant to this Act, including standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property;”
Section 223 of the Atomic Energy Act of 1954, 42 U.S.C.A. § 2273, provides:
“§ 223. Whoever willfully violates, attempts to violate, or conspires to violate, any provision of this Act for which no penalty is specifically provided or of any regulation or order prescribed or issued under section 65 or subsections 161 (b), (i) or (p) shall, upon conviction thereof, be punished by a fine of not more than $5,000 or by imprisonment for not more than two years, or both, except that whoever commits such an offense with intent to injure the United States or with intent to secure an advantage to any foreign nation, shall, upon conviction thereof, be punished by a fine of not more than $20,000 or by imprisonment for not more than twenty years, or both.”
Appellant testified that he believed nuclear testing was creating grave dangers to the human race, that freedom of the seas and freedom of navigation on the seas were being threatened by the Commission’s regulation, and that the regulation was illegal and unconstitutional. On July 2, 1958, appellant sailed his yacht, the Phoenix, into the prohibited area, after first notifying the Coast Guard that he was entering the area as a protest against nuclear testing. He was arrested and charged with violating 42 U.S.C.A. 2273 (§ 223 of the Atomic Energy Act of 1954, supra), which prohibits wilful violations of any regulation prescribed under section 161 (i) of the Act (supra). Appellant was tried and convicted in August of 1959; the trial court had theretofore refused to grant a motion for continuance in order to allow appellant’s chosen counsel to represent him at the trial. Appellant was sentenced to two years imprisonment with suspension of the last eighteen months on probation. Appellant claims (1) that § 161 (i) of the Atomic Energy Act of 1954 did not authorize the Atomic Energy Commission to issue the regulation heretofore set out in footnote one (supra), (2) that if it did so authorize, § 161 (i) is too vague and indefinite to satisfy constitutional requirements for statutes which have criminal penalties, (3) that this regulation deprives appellant of his First and Fifth Amendment rights of peaceable protest and freedom of movement, (4) that appellant was denied a fair trial on the issue of wilfulness, and (5) that he was denied his right under the Sixth Amendment to be defended by the counsel of his choice. We have reached the conclusion that ground (1) is meritorious and dispositive of this appeal.
§ 161 (i) authorizes the Commission to issue regulations (1) to protect Restricted Data received by any person in connection with any activity authorized pursuant to this Act, (2) to guard against loss or diversion of any special nuclear material acquired by any person pursuant to § 53, 42 U.S.C.A. § 2073 (which allows the Commission to issue licenses for the possession of special nuclear material and to distribute such material to qualified applicants) or produced by any person in connection with any activity authorized pursuant to this Act, and to prevent any use or disposition thereof which the Commission may determine to be inimical to the common defense and security, and (3) to govern any activity authorized pursuant to this Act, including standards and restrictions governing design, location and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property. The Atomic Energy Act of 1954 gives the Commission power to authorize private industry to participate in developing peaceful uses of atomic energy and to own or possess various nuclear materials and production facilities in so doing. Appellant argues that the sole purpose of § 161 (i) is to allow the Commission to enact security and safety regulations to govern the private parties who are so authorized to participate in the atomic energy program. Hence it is contended that § 161 (i) gives no authority to enact regulations dealing solely with the Commission’s own activities, and especially not a regulation forbidding what is essentially nothing more than a trespass upon property being utilized by the Commission itself. This contention is supported by the fact that a separate trespass section was added to the Act by an amendment in 1956. § 229, 42 U.S. C.A. § 2278a. The Government takes the position that § 161(i) authorizes any and all regulations designed to protect Restricted Data, to guard against loss or misuse of special nuclear material, or to protect health and safety, in connection with any activity under the Atomic Energy Act, whether an activity of licensees or of the Commission itself. It further asserts that § 229 could not have applied to the situation involved here and that § 229 refers to mere trespasses per se while § 161 (i) deals with those involving dangers to Restricted Data, special nuclear material, or the health and safety of the public. For a solution we resort to an examination of the 1954 Atomic Energy Act, the 1956 amendments to the Act, and their respective legislative histories.
We first notice that § 161 (i) was not part of the original Atomic Energy Act. The original Atomic Energy Act was enacted in 1946; it contained provisions almost identical to § 91(a) of the 1954 Act, 42 U.S.C.A. § 2121(a), which authorizes the Commission to produce and test atomic weapons, but it contained no provision similar to § 161 (i). See S.Rep. No. 1699, 83rd Cong. 2d Sess. 55, 76, U.S.Code Cong. & Adm. News 1954, p. 3456. § 161 (i) originated with the 1954 Act, which was the first major overhaul of the 1946 Act. A key to the meaning of this section, then, is found in the purpose of the overhaul which produced it.
The first event leading to the passage of the Atomic Energy Act of 1954 was a message from the President of the United States to Congress on February 17, 1954. 100 Cong.Rec. 1921-1924 (1954), U.S.Code Cong, and Adm.News 1954, p. 1642. The President stated that conditions had changed since 1946 when the United States had a monopoly on the atom bomb and wanted to keep it, and that the present national interest made it desirable to amend the 1946 Act to provide for sharing of information with our allies and to provide for and encourage greater participation by private industry in the development of peaceful uses of atomic energy, "with proper security safeguards” in both cases. 100 Cong.Rec. at 1921. Speaking of domestic development of atomic energy the President said “in this undertaking, the enterprise, initiative and competitive spirit of individuals and groups within our free economy are needed to assure the greatest efficiency and progress at the least cost to the public.” 100 Cong. Rec. at 1923. He went on to say that various private corporations had shown interest in attempting to develop various types of reactors, especially if the way were open to private investment in such reactors. “In amending the law to permit such investment, care must be taken to encourage the development of this new industry in a manner as nearly normal as possible, with careful regulation to protect the national security and the public health and safety.” 100 Cong. Rec. at 1923 (Emphasis added). “I recommend amendments to the Atomic Energy Act which would: 1. Relax statutory restrictions against ownership or lease of fissionable material and of facilities capable of producing fissionable material. 2. Permit private manufacture, ownership, and operation of atomic reactors and related activities, subject to necessary safeguards and under licensing systems administered by the Atomic Energy Commission. 3. Authorize the Commission to establish minimum safety and security regulations to govern the use and possession of fissionable material. 4. Permit the Commission to supply licensees special materials and services * * * at prices estimated to compensate the Government adequately * * *. 5. Liberalize the patent provisions of the Atomic Energy Act, principally by expanding the area in which private patents can be obtained to include the production as well as utilization of fissionable material, * * *.” 100 Cong.Rec. at 1923-1924. (Emphasis added).
Thus it apears that one of the two major purposes of the proposed new act was to provide for increased private participation in the atomic energy program under safeguards to be promulgated and administered by the Commission. The job of holding hearings and submitting proposed amendments to Congress was then turned over to the Joint Committee on Atomic Energy, a permanent committee composed of both House and Senate representatives. At the very outset of the hearings the Atomic Energy Commission itself submitted to the Joint Committee proposed drafts for the new amendments, which the Commission had prepared and the White House had approved. 100 Cong.Rec. 10286-10290 (1954). Certain sections of the draft dealing with development of peacetime uses of atomic energy are important for purposes of the issue involved here:
Preamble: “Widespread participation and investment will speed the Nation’s progress toward this objective [the development of industrial applications of atomic energy]. However, the continuing significance of atomic weapons for military purposes and the unique safety problems associated with the utilization of fissionable material require public regulation of such participa> tion.”
“§ 4(c) [The Commission is authorized to enter into contracts with private parties obligating or authorizing them to produce or utilize fissionable material in facilities owned by the Commission.]. Any contract entered into under this section shall contain provisions (i) * * * (2) obligating the contractor to * * * comply with all safety and security regulations which may be prescribed by the Commission.”
Ҥ 6. Section 7 of the Atomic Energy Act of 1946, as amended is amended to read as follows:
Licenses
“§ 7. (a) Authority: In order to encourage the development and to insure the exploitation of atomic energy for peacetime purposes, the ■Commission may issue licenses authorizing persons to utilize, process or produce fissionable material within or under the jurisdiction of the United States for the production of •energy, scientific research and development, medical therapy, the production of byproduct materials or other similarly constructive purposes in accordance with the provisions of this section.
“(b) Issuance of licenses: The ■Commission is authorized to issue and renew licenses, on a nonexclusive basis, to applicants (1) * * * and (2) who are equipped to observe such security standards to guard against the loss or diversion of such material and such safety standards to protect health and to minimize danger from explosion or other hazard to life or property as the Commission may establish. * * *
“(c) Regulation of licensed activities: The Commission is authorized and directed to issue or prescribe such regulations or orders as it may deem necessary:
“(1) to control the dissemination of restricted data by any person Licensed pursuant to this section in such a manner as to assure the common defense and security and to prevent access to such data by unauthorized persons.
“(2) to prohibit or control the production, possession, use, transfer or export of any byproduct material produced or capable of being produced incident to any activity Licensed pursuant to this section, to the extent the Commission deems the control of such material to be necessary in the interest of the common defense and security; and
“(3) to establish such standards and instructions governing activities Licensed pursuant to this section, including standards and instructions governing the design, location and operation of facilities used by the licensee in the conduct of such activities, as the Commission may deem necessary to protect health and to minimize danger from explosion or other hazard to life or property.”
Ҥ 11. Section 16(b) of the Atomic Energy Act of 1946, as amended, is amended to read as follows:
“(b) Whoever willfully violates, attempts to violate, or conspires to violate, any provision of this act * * *, or of any regulation or order prescribed or issued under sections 4(h), 5(a) (7), 7(b) (4), 7(c), 10(c), or 12(a) (2) shall, upon conviction thereof, be punished by a fine of not more than $5000 or by imprisonment for not more than two years, or both, except that whoever commits such an offense with intent to injure the United States or with intent to secure an advantage to any foreign nation shall, upon conviction thereof, be punished by a fine of not more than $20,000 or by imprisonment for not more than 20 years, or both.”
100 Cong.Ree. at 10287-10290. (Emphasis added.)
The above extracts form a logical, consistent pattern for carrying out the goals specified by the President in his message to Congress. Provision is made for widespread participation by private industry in developing peaceful uses of atomic energy, and at the same time each licensee is subjected to such regulations as the Commission may from time to time enact in the interests of national security and the health and safety of the public. It is apparent that the whole plan is concerned solely with the activities of private licensees, and not the activities of the Commission itself. Of particular significance is the proposed § 7(c), which would appear to be the model for § 161 (i) and which clearly specifies that only the regulation of licensees is being provided for.
Examination of the 1954 statute eventually enacted indicates that the same basic plan was followed there. Section 2(b) says, “In permitting the property of the United States to be used by others, such use must be regulated in the national interest and in order to provide for the common defense and security and to protect the health and safety of the public.” 42 U.S.C.A. § 2012(b). Sections 31, 41, 53, 63, 81, 103 and 104 then follow and give the Commission power to foster private research, provide for the production of nuclear material by private parties, license private possession and use of special nuclear materials, source materials and byproduct materials, and grant widespread commercial licenses to manufacture, acquire, possess, and transfer utilization or production facilities. As to each of these activities there is some provision made to the effect that the private parties shall be subject to safety and security regulations enacted by the Commission. Therefore, § 161 (b) and § 223 fall naturally into place, permitting the Commission to enact safety and security regulations to govern the activities so authorized, and making it a felony to wilfully violate such regulations. The very language of § 161 (i) indicates it is only dealing with licensees, for it speaks of persons receiving Restricted Data or producing special nuclear material pursuant to the Act.
Thus the whole legislative history of the Atomic Energy Act of 1954 supports the conclusion that the “[activities] authorized pursuant to this Act” which § 161 (i) refers to are those activities of private industry authorized by the Atomic Energy Commission pursuant to the powers granted to it in sections 31, 41, 53, 81, 103 and 104. The President’s message set forth the goals to be attained, the Commission’s draft furnished a model to work from, and the finished product accomplished those goals. We find nothing to indicate that § 161 (i) was meant to apply in any way to the Commission’s own activities or to give the Commission power to prohibit unauthorized entry into a huge area being used as a testing ground by the Commission itself, with felony sanctions for violating such an order.
During the course of the Joint Committee hearings on the 1954 Act, the Commission submitted nine additional proposals of provisions to be included in the Act, but only six of these were adopted. See Hearings on S. 3323 and H.R. 8862 Before the Joint Committee on Atomic Energy, 83rd Cong. 2d Sess. 608-613 (1954). One of those not adopted was a proposal making it a misdemeanor to trespass or introduce weapons upon restricted Commission property. Testifying before the Joint Committee in regard thereto, Commissioner E. M. Zuckert said:
“We also proposed an amendment which would make it a misdemeanor to trespass upon any Commission property that the Commission by regulation has designated as a restricted area, or to introduce weapons, explosives, or other dangerous items onto any Commission property that the Commission by regulation has designated as a prohibited area. Notice of such regulations would have to be conspicuously and appropriately posted.
“This proposal is designed to supplement, from the security standpoint, other Federal statutes protecting against espionage, sabotage, or depredation of Government property. It would give the Commission useful standby authority that it does not now have for dealing with these types of problems. For example, it would be quite useful in furnishing a sound legal basis for prosecuting trespassers on Commission property in the absence of any Federal trespass statute of general applicability.” Ibid, at 612. (Emphasis added).
Later on in the hearing Representative Van Zandt inquired whether this amendment stemmed from an earlier incident in which someone had trespassed upon an A.E.C. installation and the Commission had been unable to prosecute him. Counsel for the Commission replied that this amendment would apply to such a situation and give the Commission authority to prosecute such an individual, assuming appropriate security regulations barring such a trespass had been enacted.
The trespass amendment was not adopted in 1954 with the other provisions of the Act, but the Commission continued to request it, and in 1956 the following new § 229 was enacted, along with several other amendments to the Atomic Energy Act of 1954:
“Sec. 229. Trespass Upon Commission Installations.—
“a. The Commission is authorized to issue regulations relating to the entry upon or carrying, transporting, or otherwise introducing or causing to be intoduced any dangerous weapon, explosive, or other dangerous instrument or material likely to produce substantial injury or damage to persons or property, into or upon any facility, installation, or real property subject to the jurisdiction, administration, or in the custody of the Commission. Every such regulation of the Commission shall be posted conspicuously at the location involved.
“b. Whoever shall willfully violate any regulation of the Commission issued pursuant to subsection (a.) shall, upon conviction thereof, be punishable by a fine of not more than $1,000.
“c. Whoever shall willfully violate any regulation of the Commission issued pursuant to subsection (a.) with respect to any installation or other property which is enclosed by a fence, wall, floor, roof, or other structural barrier shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not to exceed $5000 or to imprisonment for not more than one year, or both.”
Public Law 84-1006, sec. 6, 70 Stat. 1070, 42 U.S.C.A. § 2278a. (Emphasis added.)
The Senate Report accompanying this amendment contains the following statement:
“Section 6 amends the enforcement, chapter of the Atomic Energy Act of 1954 to provide two new criminal sections: Section 229 — Trespass. Upon Commission Installations * * *. Under section 229, the Commission is given specific authority to issue regulations relating to the. entry upon or carrying, transporting or introducing any dangerous; weapon or material into or upon any facility or installation subject to the-administration, jurisdiction, or in the custody of the Commission. * * * This authority is not intended to be used at residential or commercial lands sites, but only at sites which are directly employed by the Commission in the atomic energy program.” S.Rep.No.2530, 84th Cong., 2d Sess. 2 (1956), U.S.Code Cong. & Adm.News, p. 4427.
The report proceeds to adopt the statement presented by the Commission during the 1954 hearings to the effect that this amendment gives the Commission power it does not now have for dealing with such things as trespass upon Commission property. It goes on to say:
“The Commission has sought these trespassing and photographing amendments in previous sessions of Congress. The most recent request was in 1954 when these items were included in the miscellaneous amendments that the Commission asked to be included in the 1954 bill. In the 1954 hearings the Commission stated that it held no special brief for including the trespassing and photographing amendments in the 1954 bill if the result could be achieved by amending other statutes, but expressed the hope that their substance could be incorporated in legislation during that session of Congress. The amendments were not included in the bill, and no other legislation was adopted that took care of the Commission request.” S.Rep.No.2530, 84th Cong., 2d Sess. 5 (1956), U.S.Code Cong. & Adm. News 1956, p. 4431. (Emphasis added.)
Thus in 1956, two years after the enactment of the 1954 Act and § 161 (i), there was enacted an amendment granting the Commission power to deal with trespasses, accompanied by a Congressional statement that nothing then existed which did so. The Government argues that this amendment was only intended to deal with simple trespasses per se while § 161 (i) deals with those involving dangers to health or security. Two considerations refute this: (1) Health and security, interpreted broadly as the Government would have us do (despite all the contrary indications previously discussed), could be applied to cover almost every trespass upon Commission installations, thereby making § 229 unnecessary. (2) The very wording of § 229 refutes the Government’s contention: (a) It speaks of weapons or materials “likely to produce substantial injury or damage to persons or property.” (b) It only applies to "restricted” areas and it provides a greater penalty for trespasses within enclosed areas, where dangers to safety and security would normally be greater.
Finally, to interpret sections 161 (i) and 229 as the Government argues would create a situation where the introduction of dangerous weapons or explosives upon unenclosed Commission property, thereby endangering the lives and safety of many people, would only be a misdemeanor subject to a $1000 fine, while the mere entry upon such an area, with danger only to the trespasser, would be a felony and subject the offender to two years' imprisonment! Surely Congress cannot be deemed to have created such an anomaly. Conversely, our interpretation of sections 229 and 161 (i) leads to a logical result: § 229 deals with all trespasses and makes them all misdemeanors (except, of course, those falling within other Federal, statutes protecting against espionage, sabotage, and depredation of Government property). § 161 (i) deals with licensees who are authorized to handle and utilize facilities and materials potentially capable of causing disasters to public safety and security; it gives the Atomic Energy Commission power to regulate such licensees in the national interest and, in conjunction with § 223, it makes wilful violations of such regulations a felony.
We conclude that when appellant sailed his ship into the Eniwetok testing grounds, he committed no more than a “trespass” upon grounds being used by the Commission. The legislative history of the Atomic Energy Act of 1954 and the 1956 amendments thereto make it clear that § 161 (i) did not authorize a regulation barring such a trespass and thereby making it a felony. The 1954 Act was designed to increase private participation in this nation’s atomic energy program, and § 161(i) was designed to allow Commission regulation of that private activity. The Act contained no provision for dealing with trespassers on Commission property except § 161(q), a catch-all provision allowing the Commission to make such rules and regulations as might be necessary to carry out the purposes of the Act, and § 161 (q) had no criminal sanction attached to it. This situation was rectified in 1956 by the addition of § 229 making such trespasses misdemeanors.
The regulation appellant was convicted of violating was not authorized by the statute under which it was purportedly issued and was therefore invalid. It follows that the conviction of appellant thereunder is without legal authority and it must be set aside and the judgment reversed.
Reversed.
. The regulation reads in relevant part:
“To avoid any unnecessary delay or interruption of [the Hardtack nuclear test series to be conducted at the Eniwetok Proving Ground] and to protect the health and safety of the public, the Atomic Energy Commission is issuing the following regulations which will be effective until the Hardtack test series is completed :
“In view of the importance of these tests to the national defense, the potential hazard to the health and safety of individuals who enter the danger area, and the early starting date of the tests, [the usual notice and public procedure are being dispensed with],
* * * * *
“Authority: §§ 112.1 to 112.4 issued under sec. 161, 68 Stat. 948, as amended; 42 U.S.C. 2201. Interpret or apply secs. 2, 3, 91, 68 Stat. 921, as amended 922, 936; 42 U.S.C. 2012, 2013, 2121. For the purposes of sec. 223, 68 Stat. 958, 42 U.S.C. 2273, § 112.4 issued under see. 161 i, 68 Stat. 949, 42 U.S.C. 2201(i).
“112.1 Purpose. The regulations in this part are issued in order to permit the Atomic Energy Commission in the interest of the United States to exercise its authority pursuant to section 91.a of the Atomic Energy Act of 1954, as efficiently and expeditiously as possible with a minimum hazard to the health and safety of the public. [§ 91.a authorizes the Commission to produce and test atomic weapons.]
* * * * *
“112.4 Prohibition. No United States citizen or other person who is within the scope of this part shall enter, attempt to enter or conspire to enter the clanger area during the continuation of the Hardtack test series, except with the express approval of appropriate officials of the Atomic Energy Commission or the Department of Defense.”
23 Fed.Reg. 2401. (Emphasis added).
. According to Senator Hickenlooper, Vice Chairman of the Joint Committee and the Senate sponsor of the Atomic Energy Act of 1954, the basic plan of the Commission’s proposed draft was carried over into the bill which was presented to and enacted by Congress. “The general provisions and the general policy and theory contained in the two drafts sent to the Joint Committee by the Atomic Energy Commission have effectively been placed into the bill which we are considering now.” 100 Cong.Rec. 10287 (1954).
. 42 U.S.C.A. §§ 2051, 2061, 2073, 2093, 2111, 2133 and 2134.
. The following are extracts from these various sections of the Act:
§ 41(b), 42 U.S.C.A. § 2061(b). “Any contract entered into under this section shall contain provisions (1) * * * (2) obligating the contractor * * * (C) to comply with all safety and security regulations which may be prescribed by the Commission.”
§ 53(e), 42 U.S.C.A. § 2073(e). “Each license issued pursuant to this section shall contain and be subject to the following conditions * * * (7) special nuclear material shall be distributed only pursuant to such safety standards as may be established by rule of the Commission to protect health and to minimize danger to life or property; * *
§ 81, 42 U.S.C.A. § 2111. “The Commission shall not permit the distribution of any by product material to any licensee, and shall recall or order the recall of any distributed material from any licensee, who is not equipped to observe or who fails to observe such safety standards to protect health as may be established by the Commission or who uses such material in violation of law or regulation of the Commission * *
§ 103(b), 42 U.S.C.A. § 2133(b). “The Commission shall issue such licenses on a nonexclusive basis to persons applying therefor (1) * * *; (2) who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property as the Commission may by rule establish; ® *
§ 104(b), 42 U.S.C.A. § 2134(b). “In issuing licenses under this subsection, the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public * *
. Commissioner Henry D. Smyth of the Atomic Energy Commission, testifying before the Joint Committee on Atomic Energy on June 2, 1954, said:
“The President also recommended changes designed to encourage private participation in this country in the development of peaceful industrial applications of atomic energy. The important components of legislation in this area are (1) authority for private manufacture, ownership and operation of facilities producing or utilizing fissionable material, under necessary safeguards and licensing systems administered by the Atomic Energy Commission, (2) authority to make fissionable material available for private use, subject to appropriate safety and security regulations, and (3) liberalization of the patent provisions of the act. The pending bills would carry out the basic objectives of the President’s message in this area.” Hearings on S. 3323 and H.R. 8862 Before the Joint Committee on Atomic Energy, 83rd Cong., 2d Sess. 563 (1954).
. Earlier in the hearing the Commission had testified in favor of § 161 (i). Ibid at 601. This indicates that the Commission thought that the two sections were independent and that both were necessary.
. The following is the exchange referred to:
“Rep. Van Zandt: Does this amendment concern the experience the Commission had a year or so ago when someone deliberately entered an AEC installation and the Commission found themselves without the authority to prosecute?
“Mr. Strauss: Mr. Van Zandt, may I ask the General Counsel to reply to that?
“Mr. Price: Mr. Van Zandt, I think it would relate to that kind of a situation.
“Rep. Van Zandt: In other words, the language of this amendment would give to the AEC the necessary authority to prosecute such an individual?
“Mr. Price: Under appropriate security regulations governing entering the security areas of these facilities.”
Ibid, at 670.
. The report states:
“This proposal is designed to supplement, from the security viewpoint, other Federal statutes protecting against espionage, sabotage, or depredation of Government property. It would give the Commission useful standby authority that it does not now have for dealing with these types of problems. For example, it would be quite useful in furnishing a sound legal basis for prosecuting trespassers on Commission property in the absence of any Federal trespass statute, of general applicability.” S.Rep. No. 2530, 84th Cong., 2d Sess. 5 (1956), U.S.Code Cong. & Adm.News, p. 4430. (Emphasis added.)
. The Government argues that § 229 could not have been applied to the particular situation involved in the present case because § 229 is limited to properties owned or leased by the Commission, which doesn’t include the 390,000 square miles of ocean involved here. Whether this is true is beyond the scope of this opinion, but it seems clear that Congress could not have intended to make trespass upon property owned or leased by the Commission a misdemeanor but trespass upon property merely being used by it a felony.
. The Government has at no time questioned Dr. Reynolds’ motivation or charged that he was attempting to steal nuclear materials or impair national security in any other way than by postponing the tests.
. Ҥ 161. In the performance of its functions the Commission is authorized to
“q. make, promulgate, issue, rescind, and amend such rules and regulations as may be necessary to carry out the purposes of this Act.”
42 U.S.C.A. § 2201 (q).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.01785714285714286, Costs: 0.01785714285714286
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ALARCON, Circuit Judge:
James M. Fejes appeals from the judgment entered following his felony convictions for conspiracy to violate the Lacey Act under 18 U.S.C. § 371, and two substantive violations of the Lacey Act under 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1)(B), and 18 U.S.C. § 2. The jury found that Fejes sold caribou in violation of the Lacey Act by providing guide services to two hunters that took the caribou in violation of Alaska law. Fejes contends that the district court erred by failing to instruct the jury that the illegal taking of the caribou must have preceded his sale of guide services in order for criminal liability to apply. We hold that a “sale” of wildlife for purposes of 16 U.S.C. § 3373(d)(1)(B) encompasses not only the agreement to provide guide or outfitting services, but also the actual provision of such services. We conclude that the district court properly instructed the jury, and thus affirm Fejes’s convictions.
I
Fejes was indicted along with three co-defendants in a three count indictment on October 22, 1998. The defendants were charged with conspiracy and two substantive violations of the Lacey Act. The indictment also alleged a forfeiture under 16 U.S.C. § 3374(a)(1)-(2).
Fejes is a licensed hunting guide in Alaska. In the summer of 1996, Fejes agreed to take two out-of-state hunters, Jon “Buck” McNeely and Michael Doyle, on a guided caribou hunt in Alaska. Doyle paid Fejes $8500 for the hunt when Doyle first arrived in Alaska on August 16, 1996. McNeely, who produces a syndicated “out-doorsman” television show, did not pay cash for the guided hunt, but agreed to give Fejes a 30-second advertising spot on McNeely’s show in exchange for Fejes’s services. McNeely estimated the value of the advertising spot to be approximately $2750.
On August 18, 1996, Fejes and his employees flew McNeely and Doyle to a remote “spike camp” to hunt caribou. Also in the party were John Helgren, a videog-rapher hired by McNeely to film the hunts, and Blaine Morgan, a licensed hunting guide employed by Fejes. After Fejes dropped off McNeely, Doyle, Helgren, and Morgan at the spike camp, Fejes flew off to another location. Shortly thereafter, Morgan guided McNeely, Doyle, and Hel-gren in pursuit of caribou. Doyle shot and killed a caribou, in violation of an Alaska regulation that prohibits hunting on the same day that a hunter is airborne. See Alaska Admin. Code tit. 5, § 92.085(8) (2000).
The hunting party hiked back to the spike camp, where they met up with Fejes. Morgan immediately told Fejes about the caribou kill, and Fejes testified that he recognized that there was a “problem” because “same-day airborne is not legal.” Fejes and his employees then flew the hunting party, along with meat and the antlers from Doyle’s caribou, back to the base camp.
On August 20, 1996, Fejes piloted McNeely from the base camp to look for caribou from the air. Fejes and McNeely spotted a caribou, and Fejes landed the airplane nearby. Cameraman Helgren was in another airplane piloted by one of Fejes’s employees which also landed at the site. A few minutes later, McNeely shot and killed a caribou that he and Fejes had spotted from the air. Fejes testified that McNeely was carrying a gun as he approached the caribou, but that he expected Helgren to film the caribou. He did not know that McNeely intended to kill it. Helgren testified, however, that Fejes told him that morning that “[wje’re going out to kill a caribou here today.” Helgren also testified that Fejes congratulated McNeely for killing the caribou. Fejes and McNeely then posed for a photograph standing over the dead caribou, both with their thumbs up.
Morgan field-dressed the caribou, and Fejes and his employees flew the caribou meat back to base camp. Neither Fejes, McNeely, Doyle, nor any of Fejes’s employees reported either of the illegal hunts to state authorities. Doyle and McNeely took caribou meat from their kills back to their home states. The Doyle and McNeely hunts were featured on McNeely’s syndicated television program, which aired twice. An advertisement for Fejes’s guide services was shown at the conclusion of both airings.
Prior to trial, Fejes’s three codefendants pleaded guilty to misdemeanor violations of the Lacey Act. Fejes proceeded to trial. The jury convicted him of felony conspiracy to violate the Lacey Act and felony violations of the Lacey Act under 18 U.S.C. § 871, 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1)(B), and 18 U.S.C. § 2. The district court sentenced Fejes to serve six months and one day in prison, followed by two years of supervised release, and imposed a fine of $5000. Fejes filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II
Fejes contends that the district court erred by failing to instruct the jury that the illegal taking of wildlife must precede the sale of guide services to fall within the criminal provisions of the Lacey Act. The district court instructed that to convict Fejes, the jury must find (1) that Fejes “knowingly engaged in conduct that involved a sale or purchase of the caribou,” (2) that Fejes “knew that the caribou had been taken, possessed, transported or sold” in violation of law, (3) that the market value of the caribou exceeded $350, and (4) that Fejes “knowingly sold or transported the caribou in interstate commerce.” Fejes objected to the court’s instruction on the grounds that it incorrectly stated the elements required for criminal liability under the Lacey Act. We review de novo whether a jury instruction misstates elements of a statutory crime. See, e.g., United States v. Frega, 179 F.3d 793, 806 n. 16 (9th Cir.1999), cert, denied, — U.S.-, 120 S.Ct. 1247, 146 L.Ed.2d 105 (2000), and cert, denied sub nom. Adams v. United States, — U.S.-, 120 S.Ct. 1443, 146 L.Ed.2d 331 (2000).
The Lacey Act makes it unlawful to transport, sell, or purchase “in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State....” 16 U.S.C. § 3372(a)(2)(A). A “sale” of wildlife includes the offer or provision of “guiding, outfitting, or other services ... for the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife.” 16 U.S.C. § 3372(c)(1). The Lacey Act imposes felony penalties if the defendant “knowingly” engages in conduct that involves the sale of wildlife “with a market value in excess of $350, knowing that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of ... any underlying law, treaty or regulation .... ” 16 U.S.C. § 3373(d)(1)(B) (emphasis added).
Fejes argues that we must reverse the judgment of conviction because McNeely and Doyle took caribou in violation of Alaska’s same-day shooting ban after Fejes agreed to guide their hunts. Fejes contends that this interpretation is mandated both by a plain reading of the statute, and by United States v. Romano, 137 F.3d 677 (1st Cir.1998). The First Circuit held in Romano that “a hunter who purchases guiding or outfitting services to assist him in a prospective unlawful taking of wildlife can neither know nor have reason to know at the time of his purchase that the wildlife he has constructively purchased by operation of 16 U.S.C. § 3372(c) “were taken’ (or, for that matter, ‘possessed’ or ‘transported’) in violation of state law.” Id. at 681. The Romano court reasoned that “Congress’ use of the word ‘were’[in the criminal statute] implies that, at the time of the purchase, the underlying taking, possession, or act of transport cannot still be in prospect; it must have already occurred.” Id.
“In determining the scope of a statute, we look first to its language.” United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246, (1981). “If the statutory language is unambiguous, in the absence of ‘a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’” Id. (citation omitted). We agree with the First Circuit that the plain language of 16 U.S.C. § 3373(d)(1)(B) limits the felony liability under that section to instances where a defendant knows that wildlife “were” illegally taken before he “sells” or “purchases” the wildlife.
This is not the end of our inquiry, however. We must also determine when a “sale” of wildlife is deemed complete for purposes of § 3373(d)(1)(B). The Romano court considered this issue in regards to a purchaser—not a seller like Fejes—-and concluded that it is “obvious, or at least plausible, that Romano ‘engag[ed] in’ this [purchase] ... only for so long as it took him to consummate his purchases of services.” 137 F.3d at 681 (citation omitted). We reject Fejes’s contention that this definition of a “purchase” by a hunter controls our interpretation of a “sale” made by a guide or outfitter.
The Lacey Act defines a sale of wildlife to encompass the situation where “a person for money or other consideration to offer or provide ... guiding, outfitting, or other services ... for the illegal taking [of wildlife].” 16 U.S.C. § 3372(c)(1)(A) (emphasis added). The plain language of the statute indicates that the provision of guide services for the illegal taking of wildlife constitutes a sale, not merely making financial arrangements for such services. The legislative history of the 1988 amendment to the Lacey Act is in accord. The Senate Report indicates that the amendment was intended to make the “providing of guiding services used in the illegal taking of wildlife or the issuance of illegal hunting or fishing licenses .... subject to the enforcement provisions of the Lacey Act.” S.Rep. No. 100-563, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 5366, 5370. Similarly, the House Report on the 1988 amendment states that the purpose of 16 U.S.C. § 3372(c) is to render “the providing of guiding, outfitting, and transportation services ... used in the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife” subject to the felony enforcement provisions of the Lacey Act. H.R.Rep. No. 100-732, at 12 (1988). Thus, both the plain language of the statute and the legislative history indicate that the provision of guiding or outfitting services for the illegal taking of game unambiguously falls within the criminal enforcement provisions of the Lacey Act.
Moreover, Fejes’s proposed construction would lead to absurd results. For example, if we were to construe the word “sale” as suggested by Fejes, guides and outfitters would be immune from criminal liability even if they became aware before a hunt, but after financial arrangements were made, that their customers intended to take game illegally. We must reject this construction because nothing in the statute or its legislative history suggests that Congress intended such an absurd result. See United States v. Rocha-Leon, 187 F.3d 1157, 1159 n. 3 (9th Cir.1999) (stating that “interpretation that ‘is consistent with the language of the statute and avoids absurd results’ is preferred when ‘nothing in the language or history’ of the statute ‘suggests] Congress intended the absurd results possible under [the other proposed] construction’”) (quoting United States v. Alfeche, 942 F.2d 697, 698-99 (9th Cir.1991)) (alteration in original).
Accordingly, we hold that “sale” for purposes of 16 U.S.C. § 3373(d)(1)(B) includes both the agreement to receive consideration for guiding or outfitting services and the actual provision of such guiding or outfitting services. Because we determine that the plain language of § 3373(d)(1)(B) is unambiguous, Fejes may not invoke the doctrine of lenity. We conclude that the district court did not erroneously instruct the jury on this issue.
Ill
Fejes contends that the district court erred by instructing the jury that felony liability could be imposed for either the transportation or sale of wildlife taken in violation of state law. We review de novo Fejes’s claim that the district court’s instruction misstates elements of the statutory crime. See Frega, 179 F.3d at 806 n. 16.
In one of the jury instructions, the district court stated that the Lacey Act “makes it a crime to import, export, transport, sell, receive, acquire, or purchase wildlife” and that the jury could convict Fejes if he “committed an offense charged by only one of these means (for example, transport or sell)... .” Fejes argues that these statements improperly instructed the jury that they could substitute “transport” for “sale” as the overlying criminal conduct under 16 U.S.C. § 3873(d)(1)(B). The district court properly instructed that to convict Fejes, the jury must find that he sold or purchased the caribou. The district court also properly instructed the jury that it must find an underlying violation of the Lacey Act, namely that Fejes knowingly sold or transported the caribou in interstate commerce. The language cited by Fejes properly instructs that the jury could find the underlying violation to be either the knowing sale or transportation of caribou in interstate commerce. Accordingly, we determine that the district court did not erroneously instruct the jury as to the elements of § 3373(d)(1)(B).
Fejes also contends that the district court erred by failing to instruct that the jury must unanimously agree as to the method by which Fejes violated the Lacey Act. Because Fejes failed to request a unanimity instruction at trial, this claim is reviewed under the plain error standard. See United States v. Bryan, 868 F.2d 1032, 1038 (9th Cir.1989). The general rule is that the district court need not instruct the jury “that a single set of facts on a single theory of liability must be agreed upon.” United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983). Fejes fails to demonstrate that the facts of this case are so complex as to require a special instruction. Thus, we conclude that the district court did not commit plain error by failing to give a unanimity instruction.
IV
Fejes contends that the district court erred by refusing to instruct the jury that he was required by Alaska law to transport the caribou from the field. “[A] defendant is entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence.” United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995) (quoting United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992) (quoting United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990))). If the parties dispute whether the required factual foundation exists, we review for abuse of discretion. See id. If the defendant’s theory of defense is supported by the evidence, we review de novo whether the district court’s instructions adequately cover it. See id.
Alaska law provides that “a person may possess and transport game or parts of game taken in violation of [state law] for the sole purpose of salvaging and surrendering that game or parts of that game to a representative of the state.... ” Alaska Admin. Code tit. 5, § 92.140(d) (emphasis added); accord Alaska Admin. Code tit. 5, § 92.220(h) (stating that a person who takes game in violation of state laws or regulations shall “immediately transport [portions of the game] from the field directly to the nearest office of the Department of Fish and Game ... or the Department of Public Safety ... and shall surrender them to a department representative.”). Neither Fejes nor others from his hunting party surrendered the illegally taken caribou to state representatives. Fejes testified that he transported the caribou back to base camp with the belief that McNeely would surrender the caribou to authorities. Fejes contends that the district court erred by not permitting the jury to consider whether he possessed the illegally taken caribou “for the sole purpose of salvaging and surrendering” it.
We must first determine whether Fejes’s proposed instruction is supported by evidence in the record. To convict Fejes under § 3373(d)(1)(B) based on an underlying violation of § 3372(a)(2)(A), the jury had to find that he knowingly sold or transported the caribou in interstate commerce. The jury also had to find that Fejes knowingly engaged in conduct that involved a sale or purchase of the caribou. Thus, even if Fejes proved a complete defense to “transporting” the caribou, the jury necessarily found that he “sold” the caribou. The uncontested evidence offered at trial indicated that Fejes sold his guide services to two hunters that lived outside of Alaska. A primary purpose of that sale was that Fejes would help the hunters transport the meat and horns of the caribou from the field to their home states. Fejes and his employees accomplished this end by flying the meat and horns out of the field. Moreover, after the hunts had concluded, Fejes accepted nationwide television advertising of his business in exchange for his services. Fejes offered no evidence to support any reasonable conclusion other than that he sold the caribou in interstate commerce. See United States v. Atkinson, 966 F.2d 1270, 1275 (9th Cir.1992) (interstate commerce element satisfied if defendant “knew that [wildlife] would be transported in interstate commerce and took the steps that began their travel to interstate markets”) (quoting United States v. GayLord, 799 F.2d 124, 126 (4th Cir.1986)) (alteration in original). We conclude that the district court did not abuse its discretion by refusing to give Fejes’s proposed instruction because there was no foundation for the jury to find that the sale did not involve interstate commerce.
Y
Fejes contends that the trial court erred in failing to instruct on lesser included misdemeanor violations of the Lacey Act. We analyze the district court’s refusal to instruct on a lesser included offense using a two part test. First, “the defendant must prove that the offense on which instruction is sought is a lesser-included offense of that charged[.]” United States v. Vaandering, 50 F.3d 696, 703 (9th Cir.1995) (quoting United States v. Pedroni, 958 F.2d 262, 267 (9th Cir.1992)). There is no dispute that misdemeanor violations of the Lacey Act are lesser-included offenses of the charged crimes. Second, “the defendant must show that the jury rationally could conclude that the defendant was guilty of the lesser-included offense but not of the greater.” Id. (quoting Pedroni, 958 F.2d at 267-68). We review the second step of the inquiry for abuse of discretion. See id.
There are three substantive differences between a felony offense under § 3373(d)(1)(B) and a misdemeanor offense under § 3373(d)(2) of the Lacey Act. First, a felony requires proof that the defendant knew that wildlife was taken, possessed, transported, or sold in violation of state law. A misdemeanor only requires proof that the defendant should have known of the violation. Second, a felony requires proof that the defendant engaged in the sale or purchase of wildlife. Third, a felony requires proof that the wildlife has a market value of at least $350. See 16 U.S.C. §§ 3373(d)(1)(B)-(d)(2). The district court addressed only one of the three differences, finding that “no reasonable jury could ... fail to come to the conclusion that ... this is either a ... knowing violation or isn’t a violation at all.” Fejes does not contest this finding, but argues that the district court’s failure to consider the other differences constitutes an abuse of discretion.
It was undisputed at trial that Fejes sold his guiding services to McNeely and Doyle, and that those services were worth over $350. Because there was no evidence on which the jury could reasonably conclude that Fejes had not “sold” wildlife with a market value of at least $350, the district court did not abuse its discretion by declining to instruct on the lesser included offense. •
Fejes also contends that the district court erred by instructing the jury that it could determine the market value of the caribou by considering the value of Fejes’s guiding services. This argument fails because, where the commodity sold is the opportunity to hunt game with the assistance of a guide, the value of an animal “sold” for purposes of § 3372(c) “is best represented by the amount a hunter is willing to pay for the opportunity to participate in the hunt.” Atkinson, 966 F.2d at 1273 (citing United States v. Todd, 735 F.2d 146,152 (5th Cir.1984)).
CONCLUSION
We hold that a “sale” of wildlife for purposes of 16 U.S.C. § 3373(d)(1)(B) encompasses both the agreement to receive consideration for guiding or outfitting services and the actual provision of such services. We reject Fejes’s contention that the district court committed instructional error. Accordingly, the district court’s judgment is AFFIRMED.
. A spike camp is a temporary hunting camp erected in the field.
. Section 92.085(8) provides that "a person who has been airborne may not take or assist in taking a big game animal until after 3:00 a.m. following the day in which the flying occurred[.]” Alaska law prohibits taking game unless permitted by Alaska statutes or regulations. See Alaska Stat. § 16.05.920(a) (1999).
. Romano considered "purchase” as defined by 16 U.S.C. § 3372(c)(2), which mirrors "sale” as defined by 16 U.S.C. § 3372(c)(1).
. We need not consider at this time whether "sale” and "purchase” as defined by 16 U.S.C. § 3372(c)(1)-(2) have similar temporal scope.
. The district court's instruction ambiguously stated that the Lacey Act “makes it a crime to import, export, transport, sell, receive, acquire, or purchase wildlife....” The Lacey Act makes it unlawful to commit any of these acts, but requires a mens rea element to impose criminal penalties. See 16 U.S.C. §§ 3372(a)(2), 3373(d)(l)-(3). The district court properly instructed the jury on the elements of felony liability, however, and any ambiguity did not render the instructions as a whole "misleading or inadequate to guide the jury's deliberation.” Frega, 179 F.3d at 806, n. 16.
. 16 U.S.C. § 3373(d)(1)(B) imposes felony penalties only if the defendant "knowingly engag[es] in conduct that involves the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase, fish or wildlife or plants with a market value in excess of $350....” Transportation of wildlife could never be the sole overlying conduct for a felony under this provision.
. Fejes’s proposed instruction was also incorrect as a matter of law. The proposed instruction stated that the Government must prove that Fejes “did not possess [the caribou] with the purpose of salvaging and transporting the game to a representative of the state as required [by Alaska law.]” However, the juiy could convict Fejes if it found that Fejes either transported or sold the caribou in interstate commerce.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.15625, Costs: 0.0625
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BRIGHT, Circuit Judge.
The defendant-appellant, Donald Charles Seest, owns and operates a farm in Polk County in west central Minnesota. A quarter section of his land is subject to an easement in favor of the United States Department of Interior, U.S. Fish and Wildlife Service, Bureau of Sport Fisheries and Wildlife. That easement, designed to preserve the land as a waterfowl production area, prohibits the owner from draining, ditching, or filling the land. In 1977, Seest engaged in construction work, installing drain tile and digging pits in the easement land in order to obtain water for an irrigation system on his farm lands. Subsequently the United States, by information, charged that Seest did knowingly disturb and injure and destroy real property of the United States in an area within the National Wildlife Refuge System by draining a waterfowl production area included within the easement land, in violation of 16 U.S.C. § 668dd (1976).
On a bench trial the district court found Seest guilty and sentenced Seest to six months’ imprisonment and to pay a fine of $500, but provided that the sentence of imprisonment would be suspended and the defendant placed on probation subject to conditions that defendant pay the fine and “restore wetlands to their natural state.”
On this appeal appellant argues a number of issues, as follows:
1) That he was entitled to a jury trial;
2) That the trial should have been held at Fergus Falls in the District of Minnesota, not St. Paul, Minnesota;
3) That the evidence was not sufficient to prove his guilt of the charge;
4) That the sentence was excessive, and, additionally, that the terms of probation are excessive or that it is physically impossible or unnecessary for wildlife purposes to restore the area to its original and natural state.
We affirm the conviction, but remand the terms of probation to the district court for further consideration.
The record in this case shows that the defendant interfered with the natural state of the land under easement by digging two large pits on that land to store water for irrigation pumping purposes. The evidence indicates that although the amount of surface water on the easement land may not have diminished, both surface and subsurface waters have drained into the pits. Thereafter, Seest has used this water to irrigate his farm lands. Moreover, this work by Seest has altered the natural state of those waters. The easement provides, among other things, that the owners will “cooperate in the maintenance of the aforesaid land as a waterfowl production area by not draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water * * * now existing * * * due to natural causes on the above-described tract, by ditching or any other means[.]”
We think it is clear that the ditching and trenching and use of drain tile altered the flow of natural waters, both surface and subsurface, and constituted a clear violation of the easement. Accordingly, we reject the appellant’s claim that the Government has not established a violation of law in this case.
The allegations of error relating to appellant’s right to trial by jury or change of place of trial are without any substantial merit.
The constitutional guarantee of a trial by jury does not apply to a prosecution of a “petty offense.” Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974); Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1504, 23 L.Ed.2d 162 (1969). The offense charged here, violation of 16 U.S.C. § 668dd, possesses all the indi-cia of a petty offense. The defendant faced a maximum penalty of six months in prison or a $500 fine, or both. See Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 1887, 26 L.Ed.2d 437 (1970) (plurality opinion) (severity of maximum penalty most relevant criteria in defining petty offense). Further, this offense is considered malum prohibitum rather than malum in se and cannot be regarded a serious moral offense. See United States v. Floyd, 477 F.2d 217, 221-22 (10th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 550, 38 L.Ed.2d 336 (1973). See also United States v. Bullock, 579 F.2d 1116, 1118 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978). Because he was charged with a petty offense, defendant was not entitled to a jury trial.
In a criminal trial, the district court judge is vested with discretion to determine where, within the district, a trial will be held. Fed.R.Crim.P. 18. Defendant failed to show that he was prejudiced or that the trial judge abused his discretion. We find no error in the denial of this motion.
Appellant objects to the terms of probation as excessive. He asserts that the provisions call for an expenditure in excess of $20,000 and, further, that the term requiring restoration of the land to its natural state is impossible to meet. Appellant offers to prove that restoring the land to its natural state cannot be accomplished without causing harm to existing wildlife in the area.
Under probation the offender may be required to make restitution or reparation to aggrieved parties. 18 U.S.C. § 3651 (1976). However, such provision ought to be definite in its requirements, United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978), and must be limited to the actual damage or loss caused by the offense. United States v. Tiler, 602 F.2d 30, 33 (2d Cir. 1979); United States v. Boswell, 565 F.2d 1338, 1343 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). Under the circumstances here, we think the district court should spell out the reasonable requirements for restitution so that the offender will know with definiteness what he must do to avoid imprisonment.
The conviction stands affirmed. The terms of probation are to be reviewed and clarified by the district court.
.The operative section, in pertinent part, reads:
(c) No person shall knowingly disturb, injure, cut, burn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in any area of the [National Wildlife Refuge] System[.]
The penalty provision of that law calls for a fine of not more than $500 or imprisonment of not more than six months, or both.
. The Hon. Edward J. Devitt, Chief Judge, United States District Court for the District of Minnesota.
. This offense fits the statutory definition of “petty offenses.” 18 U.S.C. § 1(3) provides:
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.
. Both St. Paul, the place of trial, and Fergus Falls, the requested place of transfer, lie within the Minnesota District.
. The district court may determine the obligation on remand or, at its option, it may suspend the existing probation term of “restoring wetlands to their natural state” until determination of a similar question in a pending civil suit in which the Government is seeking injunctive relief. Should it determine the issue without awaiting the ruling in the civil action, the district court may hear additional evidence on that question.
However, because the land is owned jointly by Seest and his wife, both of whom are parties in a civil action against the United States now pending before the same trial judge, it would be preferable to suspend the existing probation term of “restoring wetlands to their natural state” until final judgment in the civil case. This probation condition could be changed to require restitution to the extent and in the manner found to be necessary in the final judgment of the civil action.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.04310344827586207, Costs: 0
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OPINION OF THE COURT
FISHER, Circuit Judge.
Cleve-Allan George and Dylan C. Starnes appeal from judgments of conviction and sentence entered against them following a jury trial in the United States District Court for the District of the Virgin Islands. Although these appeals have not been formally consolidated, we resolve them together because they arise from a common set of facts. For the reasons set forth below, we will affirm the judgments.
I. Background
In 1999, the Virgin Islands Housing Authority (VIHA) received a HOPE VI grant from the United States Department of Housing and Urban Development (HUD) for the demolition of the Donoe Housing Community, a low-income public residential community located on St. Thomas, U.S. Virgin Islands. The following year, VIHA issued an invitation for bids on the Donoe demolition project. The invitation for bids included the project’s specifications— which provided, among other things, that work on the project was to be “performed in strict accordance with all federal, state and local regulations and ordinances”— and a report detailing a 1996 asbestos survey that Induchem Environmental Services had conducted at Donoe, which revealed the presence of friable asbestos-containing materials in the ceilings of eighty-six of the community’s eighty-eight structures, as well as nonfriable asbestos-containing materials throughout the structures.
VIHA eventually awarded the demolition contract to Alvin Williams Trucking & Equipment Rental, Inc. That company, with the consent of VIHA, subcontracted the asbestos-abatement portion of the project to the Virgin Islands Asbestos Removal Company (VIARCO), a company owned by George. VIARCO’s bid for the subcontract specified that George would be the general manager of the asbestos-abatement project and listed his credentials, which included prior experience managing similar asbestos-abatement projects, the completion of comprehensive training courses for “asbestos workers” and “asbestos contractors/supervisors,” familiarity with all federal regulations relating to asbestos, and all-around “competenfce] in all aspects of ... asbestos abatement.” VIARCO’s bid also referenced the applicable regulations promulgated by the EPA and the Occupational Safety and Health Administration (OSHA) and indicated that YIARCO had “joined forces” with Environmental Contracting Company (ECC), a company run by Starnes.
Starnes had extensive experience in many aspects of asbestos abatement, having even taught courses on the subject. As he personally informed VIHA after George brought him on board, among his various areas of responsibility on the Donoe project was oversight of air-quality monitoring. To this end, Starnes recruited Thrideo Sukhram, a former student, to collect air samples at the Donoe site. Starnes also contacted Carlos Carcamo, who had previously worked for Starnes as a course instructor, and offered him the job of project manager. Carcamo promptly accepted the position and, at Starnes’s request, set about recruiting a work crew for the Donoe project. When some of those workers arrived in St. Thomas, Starnes met them at the airport and took them to the Donoe site, where he explained to them the work they would be doing on the project and promised them each a $2,000 bonus if the project was completed on time.
Work on the Donoe project was slated to begin on January 2, 2001, but did not get under way in earnest until January 10, 2001. George and Starnes directed Carcamo to instruct the work crew to use a “pressure washer” to dislodge asbestos-containing materials from the site’s structures. This removal method, although time-efficient, generated a substantial amount of debris-filled wastewater, which the crew pumped into toilets and bathtubs. But those fixtures rapidly clogged, causing wastewater to pour out and accumulate on the buildings’ balconies. In response, George constructed a drainage system out of PVC pipes, which permitted the waste-water to flow off the balconies and down to the ground. When the wastewater evaporated, it left a dusty white residue clinging to the facades of the buildings and the surrounding sidewalks and grass.
On January 24, 2001, VIHA sent a noncompliance notice to George’s attention. Under OSHA rules regulating occupational exposure to asbestos in the construction industry, 29 C.F.R. § 1926.1101, VIARCO was obligated to monitor airborne concentrations of asbestos by collecting and analyzing air samples from the Donoe site, and the notice sent by VIHA indicated that the company had failed to file daily reports detailing the results of its air monitoring, as required by the project specifications. The following day, twelve air-monitoring reports — each corresponding with a work day between January 9, 2001 and January 25, 2001, and each signed by Starnes, attesting that he had analyzed air samples collected at the Donoe site — were delivered to VIHA.
On January 31, 2001, an air-quality specialist with the Virgin Islands Department of Planning and Natural Resources (DPNR) visited the Donoe site and observed the deplorable conditions there, including liquid seeping from a trailer used to store removed asbestos-containing material and unprotected workers covered in white powder. He soon returned to the site accompanied by an OSHA inspector and saw workers using shovels to remove chunks of dry asbestos-containing ceiling material from apartments, causing visible emissions to emanate from the material. On February 9, 2001, after the assistant director of DPNR also inspected the Donoe site and saw that conditions were essentially unchanged, DPNR issued a stop-work order, shutting down the project. DPNR then referred the matter to the EPA for further investigation.
On March 27, 2002, Agent Justus Derx of the EPA’s Criminal Investigation Division executed a search warrant at Starnes’s office in Chamblee, Georgia, during which he seized copies of the twelve air-monitoring reports that were transmitted to VIHA. The layered fax-header information on the copies indicated that George had faxed blank air-monitoring report forms to Starnes in Florida on January 25, 2001 and that Starnes faxed the completed forms back to George approximately seventeen minutes later.
On February 6, 2003, a grand jury in the District of the Virgin Islands returned a sixteen-count indictment against George and Starnes. Counts One through Four of the indictment charged the defendants with knowingly violating EPA work-practice standards for the handling and disposal of regulated asbestos-containing material, 40 C.F.R. §§ 61.145, 61.150, subjecting them to criminal liability under the Clean Air Act, 42 U.S.C. §§ 7412 and 7413(c)(1). Counts Five through Sixteen charged them with knowingly and willfully making materially false, fictitious or fraudulent statements and representations in a matter within the jurisdiction of the executive branch of the United States by transmitting twelve falsified air-monitoring reports to VIHA, in violation of 18 U.S.C. § 1001(a).
Both defendants pleaded not guilty to all charges, and were tried together to a jury in June 2005. At trial, the government introduced evidence that Starnes flew from St. Thomas to Atlanta, Georgia on January 9, 2001, and from Atlanta to Tampa, Florida on January 24, 2001. Sukhram testified that before Starnes left St. Thomas he gave Sukhram a few air-monitoring devices, each of which was essentially an air pump attached to a filter cassette. Sukhram testified that Starnes taught him how to activate the air-monitoring devices and how to insert and remove the cassettes. Armed with this basic understanding of the devices, Sukhram continued, he set up the devices, removed the cassettes on a daily basis, labeled and dated them, and then passed them on to George, who was responsible for sending them to Starnes for analysis. When Sukhram soon ran out of cassettes, George alerted Starnes, who then told Sukhram to reuse the old cassettes (even though, as the evidence showed, each cassette could only be used once). Sukhram testified that he never saw any indication that the cassettes were analyzed but that Starnes nonetheless instructed him to complete a number of air-monitoring reports as if the observed results fell within legal limits.
The jury also heard testimony from David Dugan, a regional technical coordinator with the EPA’s National Enforcement Investigation Center. Dugan testified that in February 2002 he took samples of suspected asbestos-containing material from ceilings in Building 31, a structure at the Donoe site which had yet to be demolished. The evidence showed that the samples collected by Dugan contained asbestos concentrations ranging from 4.1 to 6 percent. Both defendants’ attorneys objected to Dugan’s testimony on relevance grounds, arguing that it should be stricken because Dugan took the samples approximately a year after the conduct charged in the indictment, from a building in which VIARCO did not work. Starnes’s attorney also objected on the ground that any probative value the testimony might have was substantially outweighed by the danger of unfair prejudice. The District Court, after consideration, ultimately overruled those objections.
At the conclusion of the trial, each defendant moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on all counts. The District Court denied George’s motion in its entirety and denied Starnes’s motion as to all counts except Count Four. Following deliberations, the jury found George and Starnes guilty on all counts the District Court permitted it to consider.
The United States Probation Office prepared a presentence investigation report (PSR) for each defendant. For both defendants, the Probation Office began with a base offense level of eight under U.S.S.G. § 2Q1.2 and recommended a six-level enhancement under U.S.S.G. § 2Q1.2(b)(l)(A), a four-level enhancement under U.S.S.G. § 3Bl.l(a), and a two-level enhancement under U.S.S.G. § 3B1.3. In addition, the Probation Office recommended for Starnes a four-level enhancement under U.S.S.G. § 2Q1.2(b)(4). For George, this resulted in a total offense level of twenty, which, combined with George’s criminal history category of I, yielded an advisory Guidelines range of thirty-three to forty-one months of imprisonment. For Starnes, the resulting total offense level of twenty-four, combined with his criminal history category of I, yielded an advisory Guidelines range of fifty-one to sixty-three months of imprisonment.
Starnes’s sentencing hearing was held first, on July 27, 2007. The District Court largely adopted the PSR prepared for Starnes, but rejected the Probation Office’s recommendation that it enhance his base offense level by four levels under U.S.S.G. § 2Q1.2(b)(4), resulting in a total offense level of twenty and an advisory Guidelines range of thirty-three to forty-one months. The District Court sentenced Starnes to thirty-three months of imprisonment, three years of supervised release, and a special assessment of $1,600.
George’s sentencing hearing was held on February 26, 2008. The District Court found the PSR prepared for George to be factually and legally accurate, and its calculations to be appropriate and correct. While noting the government’s position that George’s acts were more egregious than those of Starnes, the District Court nonetheless imposed on George the same sentence that it had imposed on Starnes.
These appeals followed. The District Court had subject matter jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. §§ 1291, 1294(3) and 18 U.S.C. § 3742(a).
II. Discussion
George and Starnes raise several challenges to their convictions. Specifically, Starnes contends that the District Court should have granted his motion for judgment of acquittal in full because the evidence presented at trial was insufficient to support his convictions on both the Clean Air Act counts and the false-statement counts. George likewise contends that the District Court erred in denying his motion for judgment of acquittal on the false-statement counts. Both defendants challenge the District Court’s decision to admit the testimony of David Dugan. Each defendant also attacks the District Court’s determination of his sentence.
A. Challenges to the Sufficiency of the Evidence
We turn first to the defendants’ challenges to the sufficiency of the evidence supporting their respective convictions.
We exercise plenary review over a district court’s grant or denial of a motion for judgment of acquittal based on the sufficiency of the evidence, applying the same standard as the district court. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005). In reviewing a sufficiency-of-the-evidence claim, therefore, we must “examine the totality of the evidence, both direct and circumstantial,” and “interpret the evidence in the light most favorable to the government as the verdict winner.” United States v. Miller, 527 F.3d 54, 60, 62 (3d Cir.2008) (citations and internal quotation marks omitted). We must uphold the jury’s verdict if there is substantial evidence from which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Id. at 60 (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993)); United States v. Greenidge, 495 F.3d 85, 100 (3d Cir.2007). “The burden on a defendant who raises a challenge to the sufficiency of the evidence is extremely high.” United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.2008) (internal quotation marks omitted); accord United States v. Hodge, 321 F.3d 429, 439 (3d Cir.2003) (“Our review of the sufficiency of the evidence after a guilty verdict is ‘highly deferential.’ ” (quoting United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001))).
1. Counts One Through Three — Convictions for Violations of the Clean Air Act
Starnes argues that the District Court erred in denying his motion for judgment of acquittal on Counts One through Three because the evidence presented at trial was insufficient to permit the jury to conclude beyond a reasonable doubt that he was an “owner or operator” of the Donoe asbestos-abatement project within the meaning of the Clean Air Act. We disagree.
Under the Clean Air Act, an “owner or operator of a demolition or renovation activity” is subject to criminal liability for knowingly violating the EPA work-practice standards for the handling and disposal of regulated asbestos-containing material. See 42 U.S.C. § 7413(c)(1); 40 C.F.R. §§ 61.145, 61.150. In this regard, the EPA defines the term “owner or operator of a demolition or renovation activity” as “any person who owns, leases, operates, controls, or supervises the facility being demolished or renovated or ... the demolition or renovation operation, or both.” 40 C.F.R. § 61.141. We have previously explained, albeit in the related context of a civil enforcement action under 42 U.S.C. § 7413(b), that “a non-owner can still be liable as an ‘operator’ ” if he or she has “significant or substantial or real control and supervision of a project.” United States v. Anthony Dell'Aquilla, Enters. & Subsidiaries, 150 F.3d 329, 333 (3d Cir. 1998) (characterizing as “axiomatic” the availability of operator liability under the Clean Ar Act). We see no reason the same should not hold true in the present context of a criminal prosecution under 42 U.S.C. § 7413(c)(1). Cf. United States v. Dipentino, 242 F.3d 1090, 1096 (9th Cir. 2001) (upholding the conviction of a non-owner defendant under 42 U.S.C. § 7413(c)(1) where the evidence established that he “had significant or substantial or real control and supervision” over an asbestos-abatement project and that he knowingly violated 40 C.F.R. § 61.145).
Our review of the record in this case reveals substantial evidence by which a rational juror could conclude that Starnes exercised significant control and supervision over the Donoe asbestos-abatement project. For instance, the evidence showed that Starnes: (1) recruited Sukhram to collect air samples at the Donoe site, gave him rudimentary direction on the use of the air-monitoring devices, and instructed him to falsify some air-monitoring reports; (2) recruited Carcamo to be the manager of the project, told him to assemble a crew to work on the project, and directed him to instruct the crew to use a “pressure washer” to strip asbestos-containing materials from the Donoe site’s structures; and (3) met several workers at the airport and took them to the Donoe site, where he explained to them the work they would be doing on the project and promised them each a bonus if the project was completed on time.
This evidence, viewed in the light most favorable to the government and in the context of the totality of the evidence in the record, supports a finding that Starnes was an operator of the Donoe project within the meaning of the Clean Air Act. We will therefore affirm the District Court’s denial of his motion for judgment of acquittal on Counts One through Three.
2. Counts Five Through Sixteen— Convictions for Violations of 18 U.S.C. § 1001(a)
George and Starnes contend that the District Court erred in denying their motions for judgment of acquittal on Counts Five through Sixteen, which charged them with violating 18 U.S.C. § 1001(a) by knowingly and willfully transmitting twelve falsified air-monitoring reports to VIHA. Specifically, both defendants assert that the evidence supporting their respective convictions on these counts was insufficient to establish falsity or federal-government jurisdiction, necessary elements of a § 1001(a) violation. George also claims that there was insufficient evidence to prove that he had the requisite mens rea. Again, we disagree.
a. Falsity
Both defendants argue that no rational juror could have found beyond a reasonable doubt that the air-monitoring reports were actually false because the government failed to adduce any evidence that airborne asbestos fibers were found at the Donoe site on the relevant days in concentrations exceeding the permissible exposure limits set by OSHA. See 29 C.F.R. § 1926.1101(c). This argument is without merit. For one thing, it rests on the faulty premise that the defendants were charged with, and convicted of, falsely representing the amounts of airborne asbestos found in air samples taken at the site. To the contrary, the crux of the government’s case on the false-statement counts was that the reports falsely represented that Starnes had analyzed the air samples in the first place — to the extent any were even collected — when in fact he had not, a proposition that Starnes does not contest and that George concedes in his appellate brief.
Even if we were to recharacterize this argument to focus on the proper theory underpinning the government’s case, it would still fail. The record reflects that there was ample evidence to establish that Starnes did not analyze the samples, despite the presence of his signature on each of the twelve reports attesting that he had done so. For example, the government introduced evidence demonstrating that Starnes could not have analyzed the samples without having physical access to the filter cassettes from the air-monitoring devices but that he was in the continental United States from January 9, 2001 through January 26, 2001 — that is, during the period in which he ostensibly analyzed the air samples described in the reports— and that no packages were sent to him after January 11, 2001. We have no difficulty concluding that there was sufficient evidence of falsity.
b. Federal-Government Jurisdiction
Both defendants also argue that the evidence at trial was insufficient to establish that the air-monitoring reports pertained to a matter “within the jurisdiction” of the executive branch of the federal government because the reports were sent to VIHA, not to a federal agency. This argument is also without merit.
It is well settled that a false statement or representation may pertain to a matter “within the jurisdiction” of the executive branch for purposes of § 1001(a) even if it was not made to an agency (or other component) of the executive branch. See United States v. Waters, 457 F.2d 805, 805-06 (3d Cir.1972); see also, e.g., United States v. Shafer, 199 F.3d 826, 828-29 (6th Cir.1999); United States v. Petullo, 709 F.2d 1178, 1180 (7th Cir.1983); United States v. Candella, 487 F.2d 1223, 1227 (2d Cir.1973); Ebeling v. United States, 248 F.2d 429, 434 (8th Cir.1957). Indeed, it is enough that the statement or representation pertain to a matter in which the executive branch has “the power to exercise authority.” United States v. Rodgers, 466 U.S. 475, 479, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984); see United States v. Atalig, 502 F.3d 1063, 1067 (9th Cir.2007).
The evidence presented at trial' — ■ including the uncontroverted testimony of Monique Farrell, a VIHA official — established that HUD, an agency within the executive branch, provided the funding for the Donoe project to VIHA and had the power to exercise authority over the project, had it chosen to do so. “[I]t is the existence of federal supervisory authority that is important, not necessarily its exercise.” Petullo, 709 F.2d at 1180; see United States v. Canel, 708 F.2d 894, 897-98 (3d Cir.1983). We are satisfied that the record contains substantial evidence from which a rational juror could find that the false representations in the air-monitoring reports submitted to VIHA were made within the jurisdiction of HUD.
c. “Knowingly and Willfully”
George alone challenges the sufficiency of the evidence to establish that he “possessed the requisite mens rea, specific intent ... to violate § 1001(a).” Before we evaluate this factual challenge we must consider the soundness of the legal proposition on which it is premised, namely that the statutory terms “knowingly and willfully” required the government to prove that George acted with “specific intent.”
To support that proposition, George relies exclusively on a dictum in United States v. Barr, 963 F.2d 641, 645 (3d Cir. 1992), that “[a] conviction under § 1001 requires ... [proof of] specific intent.” But Barr does nothing to give context to the phrase “specific intent” and George gives no indication of what, exactly, he believes that phrase means in this context. The government, for its part, agrees that it must prove “specific intent” and likewise cites to Barr, although it takes the additional step of attempting to put some flesh on the bones left bare by that case (if not color on the flesh) by pointing to United States v. Curran, 20 F.3d 560, 567 (3d Cir.1994), where we addressed, in passing, the “requisite intent” that the government must prove under § 1001.
“Specific intent” is usually distinguished from “general intent.” United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). As most commonly understood, a general-intent crime is one that requires “proof of knowledge with respect to the actus reus of the crime,” Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000), while a specific-intent crime, in contrast, is “one whose definition requires a special mens rea above and beyond that which is required for the actus reus of the crime,” United States v. Dollar Bank Money Mkt. Account No. 1591768456, 980 F.2d 233, 237 (3d Cir.1992). Both concepts are somewhat elusive, with “specific intent” being particularly susceptible to a wide variety of meanings. See generally 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.2(e) (2d ed. 2003 & Supp. 2008) (discussing various meanings attributed to the phrases “general intent” and “specific intent”). While the “traditional dichotomy of general versus specific intent” is a venerable one, in many situations it can be more perplexing than helpful. Dixon v. United States, 548 U.S. 1, 7, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (citing Bailey, 444 U.S. at 403-04, 100 S.Ct. 624); cf. Liparota v. United States, 471 U.S. 419, 423 n. 5, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (recognizing that “the mental element in criminal law encompasses more than the two possibilities of ‘specific’ and ‘general’ intent”); United States v. Hernandez-Hernandez, 519 F.3d 1236, 1239 (10th Cir.2008) (decrying “opaque common law labels [like ‘general’ and ‘specific’ intent] that sometimes blur the line between distinct mental elements”). This is doubly true where, as here, the criminal statute in question does not use either phrase.
Congress defined the crime at issue here, § 1001(a), to punish defendants who act “knowingly and willfully.” It is this mental state, not an amorphous “specific intent,” that the government was required to prove beyond a reasonable doubt. See Dixon, 548 U.S. at 7, 126 S.Ct. 2437 (observing that “‘[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute’ ” (quoting Liparota, 471 U.S. at 424, 105 S.Ct. 2084)); United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). While use of the phrase “specific intent” as a shorthand descriptor for the statute’s express “knowingly and willfully” requirement is not necessarily inappropriate, it tends to obscure the meaning of the statutory terms. Cf. Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1167 (11th Cir.2008) (“Categories and labels are helpful, but only to a point, and they too often tend to obfuscate instead of illuminate.”). “Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime.” Bailey, 444 U.S. at 403, 100 S.Ct. 624. We see little reason to needlessly complicate our interpretation of § 1001(a) by maintaining an insubstantial extra layer of terminology atop the explicit statutory language.
The question, then, is, What does “knowingly and willfully,” as used in § 1001(a), mean? The statute does not define either term but, of the two terms, “knowingly” is the less abstruse. In general, “knowingly” requires the government to prove that a criminal defendant had “knowledge of the facts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998); see United States v. Hayden, 64 F.3d 126, 130 (3d Cir.1995).
“Willfully,” on the other hand, is a “notoriously slippery term,” a “chameleon word” that “takes color from the text in which it appears.” United States v. Ladish Malting Co., 135 F.3d 484, 487-88 (7th Cir.1998); see Bryan, 524 U.S. at 191 & n. 12, 118 S.Ct. 1939; cf. Bryan A. Garner, A Dictionary of Modern Legal Usage 145 (2d ed. 1995) (‘“In any closely reasoned problem, whether legal or nonlegal, chameleon-hued words are a peril both to clear thought and to lucid expression/ ” (quoting Wesley N. Hohfeld, Fundamental Legal Conceptions 35 (1919) (reprint 1966))). The cases delineate at least three levels of interpretation of the term. See, e.g., Bryan, 524 U.S. at 191-95, 118 S.Ct. 1939; United States v. Kay, 513 F.3d 432, 447-48 (5th Cir.2007). In some contexts, “willfully” may denote “ ‘an act which is intentional, or knowing, or voluntary, as distinguished from accidental/ ” Bryan, 524 U.S. at 191 n. 12, 118 S.Ct. 1939 (quoting United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 78 L.Ed. 381 (1933)). But when “willfully” is used in a criminal statute, and particularly where the term is used in conjunction with “knowingly,” as it is in § 1001(a), it usually requires the government to prove that the defendant acted “not merely ‘voluntarily,’ but with a ‘bad purpose,’ ” that is, with knowledge that his conduct was, in some general sense, “unlawful.” Id. at 192-93 & n. 13, 118 S.Ct. 1939 (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) and Felton v. United States, 96 U.S. 699, 702, 24 L.Ed. 875 (1877)); see Kay, 513 F.3d at 447-48; Hayden, 64 F.3d at 130; see also Third Circuit Model Criminal Jury Instructions § 5.05 (providing that “willfully” requires the government to prove beyond a reasonable doubt that a defendant “knew that [his or her] conduct was unlawful and intended to do something that the law forbids”); cf. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 60, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (“[0]n the criminal side of the law, where the paired modifiers [‘knowingly’ and ‘willfully’] are often found, see, e.g., 18 U.S.C. § 1001 ..., ‘willfully’ typically narrows the otherwise sufficient intent, making the government prove something extra.”). And in some rare instances involving highly technical statutes that present the danger of ensnaring individuals engaged in apparently innocent conduct, such as the federal criminal tax and antistructuring provisions, “willfully” has been read to require proof that the defendant actually knew of the specific law prohibiting the conduct. See Bryan, 524 U.S. at 194-95, 118 S.Ct. 1939 (discussing, among other cases, Ratzlaf 510 U.S. at 138, 149, 114 S.Ct. 655 (antistructuring statutes) and Cheek v. United States, 498 U.S. 192, 199-201, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (criminal tax statutes)); Kay, 513 F.3d at 448, 450 (explaining that under the “strictest level of interpretation of criminal willfulness” — that reserved for “complex” statutes — -“a defendant must know the specific law he is violating in order to act willfully”).
Our decision in Curran, cited by the government, is instructive. Curran was convicted on charges of causing election campaign treasurers to submit false contribution reports to the Federal Election Commission. Because Curran’s conduct “did not fall directly within the scope of section 1001” — he did not make the false representations himself, but caused the campaign treasurers to do so — the government could not “proceed[ ] directly” under § 1001 and instead prosecuted Curran under that section “in tandem with” 18 U.S.C. § 2(b), which provides that a person who “willfully causes” another to commit a criminal act is liable as a principal. Curran, 20 F.3d at 567. Relying in part on the Supreme Court’s decision in Ratzlaf, we held that the strictest interpretation of criminal willfulness governed tandem violations of §§ 1001 and 2(b) in the “federal election law context.” Curran, 20 F.3d at 569.
Because the mens rea required for a tandem § 2(b) violation encompasses (and goes beyond) that required for a direct violation of the underlying criminal statute with which § 2(b) is used, in reaching our conclusion in Curran we necessarily touched on the meaning of § 1001’s “knowingly and willfully” requirement. Importantly for our current purposes, we explained,
“To establish knowing and willful conduct in the making of a false statement [under § 1001], the government must show that a defendant ‘acted deliberately and with knowledge that the representation was false.’ ... [T]he government must prove not only that the statement was false, but that the accused knew it to be false.”
Id. at 567 (citations omitted). But that showing, while a necessary one, may not always be sufficient to satisfy § 1001’s “knowingly and willfully” requirement; thus, we also stressed in Curran that “the government is required to show that the misrepresentation was not made innocently or inadvertently.” Id. This reading of the statutory text comports with the generally understood meaning of “knowingly” and with the intermediate level of interpretation of “willfully” articulated by the Supreme Court in Bryan — that is, knowledge of the general unlawfulness of the conduct at issue — which we believe adequately demarcates the boundary between innocent and unlawful conduct in this context. See Bryan, 524 U.S. at 195 & n. 23, 118 S.Ct. 1939 (explaining that “requiring only knowledge that the conduct is unlawful,” as opposed to specific “knowledge of the law,” is “fully consistent” with protecting “law-abiding citizens who might inadvertently violate the law” and “individuals engaged in apparently innocent activity”); Kay, 513 F.3d at 447-48; cf. United States v. Whab, 355 F.3d 155, 162 (2d Cir.2004) (holding that “it was not ‘plain error’ for the District Court to fail to instruct the jury that ‘willfully’ under § 1001 required something more than that the defendant have been aware of the generally unlawful nature of his conduct”). To the extent that George’s brief can be read to argue that the government was required to prove that he actually knew of § 1001(a), we reject that argument. '
The record in this case contains sufficient evidence to convince a rational juror beyond a reasonable doubt that George acted deliberately and with knowledge that the representations contained in the air-monitoring reports — that Starnes had analyzed air samples taken at the Donoe site on the relevant days — were false and that he was aware, at least in a general sense, that his conduct was unlawful. The noncompliance notice sent by VIHA to George on January 24, 2001- — the notice that precipitated the events culminating in the filing of the falsified reports — restated in unequivocal terms that a period of no longer than twenty-four hours was permitted between the “collection of air samples” from the site and the transmission of accurate results to VIHA. In addition, the government adduced evidence showing that George was an experienced contractor who had worked as a “General Manager” on several asbestos-abatement projects in the Virgin Islands prior to bidding on the subcontract for asbestos abatement on the Donoe project; that in securing that subcontract he had represented that he was “competent in all aspects of ... asbestos abatement” and “all the contents of the Code [of] Federal Regulations as they relate to ... [asbestos, and the removal procedure and practices for reducing the hazard thereof’; and that, over the years, he had completed a substantial number of comprehensive training courses for “asbestos workers” and “asbestos contraetors/supervisors” that covered air-monitoring requirements. And trial testimony indicated that George was responsible for collecting the filter cassettes from Sukhram during the period when Starnes was in the continental United States and for sending the cassettes to Starnes for analysis, but that George did not send any packages to Starnes after January 11, 2001.
This evidence, viewed in the light most favorable to the government and in the context of the totality of the evidence in the record, dispels any doubt that George was sufficiently informed of the intricacies of air-monitoring procedures to recognize that Starnes could not analyze any air samples from the Donoe site without physical access to the filter cassettes and that George knew that Starnes did not have such access during the relevant period of time, and thus would permit a rational juror to reasonably infer that the representations to the contrary contained in the air-monitoring reports were necessarily false. This evidence also supports a reasonable inference that George was aware that transmitting falsified air-monitoring reports to VIHA was unlawful. Accordingly, we reject George’s contention that the evidence was insufficient to satisfy § 1001(a)’s mens rea requirement. See Iglesias, 535 F.3d at 156 (“[T]he government may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence alone.”); cf. Ratzlaf, 510 U.S. at 149 n. 19, 114 S.Ct. 655 (“A jury may, of course, find the requisite knowledge on defendant’s part by drawing reasonable inferences from the evidence of defendant’s conduct.”); Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 94 L.Ed. 925 (1950) (“[Cjourts and juries every day pass upon knowledge, belief and intent — the state of men’s minds— having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.”); United States v. Bank of New Eng., N.A., 821 F.2d 844, 854 (1st Cir.1987) (“Willfulness can rarely be proven by direct evidence, since it is a state of mind; it is usually established by drawing reasonable inferences from the available facts.”).
B. Challenges to the Admission of David Dugan’s Testimony
George and Starnes next challenge the District Court’s decision to admit David Dugan’s testimony concerning the samples of ceiling materials that he collected in February 2002 from Donoe Building 31, which were subsequently revealed to contain unacceptably high levels of friable asbestos. We review a trial court’s decision to admit or exclude evidence for abuse of discretion. United States v. Kemp, 500 F.3d 257, 295 (3d Cir.2007); see Old Chief v. United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The “[a]dmission of evidence is an abuse of discretion if the district court’s action was arbitrary, fanciful or clearly unreasonable,” and “[w]e will not disturb a trial court’s exercise of discretion unless no reasonable person would adopt the district court’s view.” Ansell v. Green Acres Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003) (internal quotation marks omitted); see United States v. Frazier, 469 F.3d 85, 87-88 (3d Cir.2006); United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.2000) (en banc).
The District Court determined that Dugan’s testimony concerning the samples from Building 31 was relevant because it tended to prove that dangerous levels of friable asbestos likewise were present in the Donoe buildings worked on by VIARCO in January 2001. The defendants contend that this determination amounted to an abuse of discretion because Dugan collected the samples from a building in which they did not work and at a point in time too distant from the events at issue. We disagree.
Under the Federal Rules of Evidence, evidence is admissible only to the extent that it is relevant. Fed.R.Evid. 402. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401; see Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 232 (3d Cir.2004) (“[Evidence is irrelevant only when its has no tendency to prove a consequential fact.” (internal quotation marks omitted)). Rule 401 does not raise a high standard. Kemp, 500 F.3d at 295; Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 109-110 (3d Cir.1999).
The government supported the introduction of Dugan’s testimony by demonstrating that the ceilings in all of the Donoe buildings were made of the same materials and that no structural changes or significant renovations were made to them after the Induchem survey was conducted in 1996. Given this predicate showing, there is no question that the testimony could give rise to a reasonable inference that the buildings worked on by VIARCO contained dangerous levels of friable asbestos in January 2001. See Ansell, 347 F.3d at 525 (explaining that a trial court’s determination whether “evidence is too remote to be relevant ... must be based on the potential the evidence has for giving rise to reasonable inferences of fact which are ‘of consequence to the determination of the action’ ” (quoting Fed.R.Evid. 401)). This is so even if the materials used in those buildings did not perfectly correspond with the materials used in Building 31, because any dissimilarities would “affect the weight of the evidence ... not its admissibility.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir.2002); see Ansell, 347 F.3d at 525 (“The passage of time and purportedly changed circumstances were proper issues for counsel to argue to the jury, and for the jury to consider in weighing the evidence.”); cf. Arcade Co. v. Boxwell, 41 App. D.C. 213, 223-24 (D.C.Cir.1913) (concluding that testimony offered to prove “conditions of moisture, darkness, and excessive cold” in a cold storage room on June 1, 1911, although based on an inspection that occurred more than a year later, was admissible).
We also reject Starnes’s argument that the District Court should have excluded Dugan’s testimony under Federal Rule of Evidence 403 because the testimony “could not but have influenced the jury ... into declaring guilt” based on the “deplorable conditions” in Building 31. Rule 403 provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. Starnes ignores that relevant evidence is excludable under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, not just prejudice. Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 670 (3d Cir.2002) (“ ‘[T]he prejudice against which [Rule 403] guards is unfair prejudice — prejudice of the sort which clouds impartial scrutiny and reasoned evaluation of the facts, which inhibits neutral application of principles of law to the facts as found.’ ” (quoting Wagenmann v. Adams, 829 F.2d 196, 217 (1st Cir.1987))); see Old Chief, 519 U.S. at 180, 117 S.Ct. 644. And unfair prejudice “does not simply mean damage to the opponent’s cause. If it did, most relevant evidence would be deemed [unfairly] prejudicial.... [T]he fact that probative evidence helps one side prove its case obviously is not grounds for excluding it under Rule 403.” Goodman, 293 F.3d at 670 (internal quotation marks omitted). While Dugan’s testimony may have hurt Starnes’s case, Starnes has not demonstrated that it carried a risk of unfair prejudice, much less that the District Court abused its broad discretion in determining that any such risk did not substantially outweigh the testimony’s probative value.
C. Challenges to the Defendants’ Sentences
George and Starnes also raise various challenges to the District Court’s determination of their respective sentences. We readily dispatch these challenges.
We review a district court’s sentencing decisions for reasonableness under “a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007); see United States v. Tomko, 562 F.3d 558, 564-68 (3d Cir.2009) (en banc). In this regard, “our role is two-fold.” United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008). “We must first ensure that the district court committed no significant procedural error in arriving at its decision” and, if it has not, “we then review the substantive reasonableness of the sentence.” Id. at 217-18 (citing Gall, 128 S.Ct. at 597); see Tomko, 562 F.3d at 567. A district court commits significant procedural error — and thus abuses its discretion — when, for example, it bases its calculation of the advisory Guidelines range on a clearly erroneous finding of fact or an erroneous legal conclusion. See Tomko, 562 F.3d at 567-68; Wise, 515 F.3d at 217-18. “A [factual] finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Wise, 515 F.3d at 218 (internal quotation marks omitted); see United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc). In addition, “[t]o be procedurally reasonable, a sentence must reflect a district court’s meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a).” United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). “At both [the procedural and substantive] stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness.” Tomko, 562 F.3d at 567 (citing United States v. Cooper, 437 F.3d 324, 332 (3d Cir.2006)); see United States v. Howe, 543 F.3d 128, 132 (3d Cir.2008).
1. Sentencing Enhancements
George and Starnes both argue that the District Court committed significant procedural error by including certain sentencing enhancements in its calculation of their respective advisory Guidelines ranges. In sentencing each defendant, the District Court imposed a six-level enhancement under U.S.S.G. § 2Q1.2(b)(l)(A) for an offense resulting “in an ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment,” a four-level enhancement under U.S.S.G. § 3Bl.l(a) for being “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive,” and a two-level enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust.
George cursorily asserts that “the District Court failed [to] make sufficient findings by a preponderance of the evidence to support the [three] sentencing enhancements made with respect to” him. But he declines to elaborate in any meaningful way on this assertion and does not point to any specific deficiencies in the District Court’s findings of fact or to any case law germane to the enhancements he disputes. We are skeptical that George’s skeletal argument suffices to raise an issue for our review. Cf. United States v. Hoffecker, 530 F.3d 137, 163 (3d Cir.2008) (“A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim. Especially not when the brief presents a passel of other arguments, as defendant’s did. Judges are not like pigs, hunting for truffles buried in briefs.” (internal quotation marks omitted) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991))).
In any event, insofar as George contends that the District Court altogether failed to make findings of fact with respect to the enhancements, he is simply incorrect. To the extent he means to argue that the District Court imposed the enhancements based on clearly erroneous factual findings, our review of the record in his case— including the jury’s verdict, the facts necessarily implied by that verdict, the undisputed facts set out in the PSR, and the statements made by the District Court at the sentencing hearing — does not leave us “with the definite and firm conviction that a mistake has been committed.” Wise, 515 F.3d at 218 (internal quotation marks omitted). Either way, even setting aside the inadequacy of George’s briefing in this regard, we conclude that he has not met his burden to demonstrate that the District Court committed significant procedural error when it included the three enhancements in its calculation of his advisory Guidelines range. See Tomko, 562 F.3d at 567.
Starnes’s arguments concerning the enhancements made by the District Court to his base offense level are marginally more specific; he likewise fails to meet his burden to show that the District Court committed significant procedural error by imposing the enhancements. Starnes initially contends that the District Court erred by enhancing his base offense level by four levels under U.S.S.G. § 3Bl.l(a) because the District Court’s predicate factual finding that he “involved” Carcamo in the criminal activity at Donoe was inadequate to justify treating Carcamo as a culpable “participant” within the meaning of that section. But a “participant” under § 3B1.1 “is a person who is criminally responsible for the commission of the offense, [who] need not have been convicted,” U.S.S.G. § 3B1.1 cmt. n. 1, and, while the District Court surely could have discussed this point more thoroughly, we are satisfied that its finding concerning Careamo’s involvement entails such criminal responsibility.
In addition, Starnes argues that the District Court’s factual finding that he was an “organizer” of the criminal activity at Donoe for purposes of § 3B1.1 was clearly erroneous because he was “not the general contractor” but only a “consultant” and “advisor” to George. This argument is misplaced. The District Court’s statements at the sentencing hearing, while succinct, indicate that it properly gave no weight to Starnes’s formal job title in assessing whether he should be characterized as an organizer, see U.S.S.G. § 3B1.1 cmt. n. 4, and also that it made this finding after evaluating the evidence in the record in light of the other pertinent considerations identified in § 3B1.1 and the Application Notes accompanying that section. See United States v. Helbling, 209 F.3d 226, 243 (3d Cir.2000). After reviewing the record, we see no clear error in this finding.
Starnes also contends that the District Court erred by enhancing his base offense level by two levels under U.S.S.G. § 3B1.3 because he did not hold a position of trust as contemplated by that section. In deciding whether a defendant holds a position of trust, a court must consider: “(1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests in [the] defendant vis-á-vis the object of the wrongful act; and (3) whether there has been reliance on the integrity of the person occupying the position.” United States v. Pardo, 25 F.3d 1187, 1192 (3d Cir.1994); see United States v. Dullum, 560 F.3d 133, 140 (3d Cir.2009); United States v. Lieberman, 971 F.2d 989, 993 (3d Cir.1992) (“[T]he primary trait that distinguishes a person in a position of trust from one who is not is the extent to which the position provides the freedom to commit a difficult-to-detect wrong.” (internal quotation marks omitted)). “These factors should be considered in light of the guiding rationale of the section — to punish ‘insiders’ who abuse their positions rather than those who take advantage of an available opportunity.” Pardo, 25 F.3d at 1192; accord Dullum, 560 F.3d at 140.
In this case, Starnes had significant authority over the manner in which work was performed at the Donoe site, including central responsibility for air monitoring. He was subject to very little, if any, supervision in exercising his authority and had substantial “managerial discretion,” see U.S.S.G. § 3B1.3 cmt. n. 1, which facilitated his crimes and made them difficult to detect. And there is no question that YIHA relied on him to accurately monitor and honestly report the levels of asbestos in the air at the Donoe site. Cf. United States v. Snook, 366 F.3d 439, 445-46 (7th Cir.2004); United States v. Turner, 102 F.3d 1350, 1360 (4th Cir.1996). On these facts, we conclude that the District Court correctly determined that Starnes was in a position of trust.
2. Meaningful Consideration of the 18 U.S.C. § 3553(a) Factors
Both defendants also argue, albeit somewhat perfunctorily, that the District Court committed significant procedural error by failing to give meaningful consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). We disagree.
While a sentencing court must consider all of the § 3553(a) factors, it does not have to discuss and make findings as to each factor so long as the record otherwise makes clear that it took the factors into account. See Tomko, 562 F.3d at 568; see also United States v. Lofink, 564 F.3d 232, 238 n. 13 (3d Cir.2009); Lessner, 498 F.3d at 203. “Nor must the [sentencing] court consider arguments that clearly lack merit.” Lessner, 498 F.3d at 203.
In each case now before us, the record demonstrates that the District Court listened to each argument concerning sentencing and then gave meaningful consideration to the § 3553(a) factors in imposing a within-Guidelines sentence. “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). In sentencing George, the District Court necessarily considered the “sentencing range established for ... the applicable category of offense committed by the applicable category of defendant,” 18 U.S.C. § 3553(a)(4), when it explicitly adopted the PSR prepared in his case, including the Probation Office’s calculation of his advisory Guidelines range. See Lessner, 498 F.3d at 203. The District Court also heard testimony from several members of George’s family and acknowledged the “good things” they said on his behalf, but discounted such mitigating considerations in light of the nature and circumstances of George’s offenses — which it emphasized could “result in serious injury and death” — and the need for his sentence to reflect the seriousness of those offenses and to afford adequate deterrence. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(B).
At Starnes’s sentencing hearing, the District Court likewise demonstrated its consideration of the applicable advisory Guidelines range when it rejected the Probation Office’s recommendation in the PSR to enhance Starnes’s base offense level by four levels under U.S.S.G. § 2Q1.2(b)(4)— leading it to calculate a lower advisory Guidelines range than that proposed by the Probation Office — but otherwise adopted the PSR. See 18 U.S.C. § 3553(a)(4). The District Court also touched on the nature and circumstances of Starnes’s offenses, noting the “danger ... [Starnes’s actions] pose[d] to the health of the community and the people of the Virgin Islands,” see id. § 3553(a)(1), and indicated its belief that the sentence it imposed on Starnes was necessary to reflect the seriousness of those offenses, id. § 3553(a)(2)(A), to promote respect for the law, id., and to deter others from committing similar crimes, id. § 3553(a)(2)(B). Given the “straightforward, conceptually simple arguments” both defendants made at sentencing, we believe that the District Court’s statement of reasons in each case, “though brief, was legally sufficient.” Rita, 551 U.S. at 356, 127 S.Ct. 2456; accord United States v. Stinson, 574 F.3d 244, 248 (3d Cir.2009); Tomko, 562 F.3d at 569.
III. Conclusion
For the foregoing reasons, we will affirm the judgments of conviction and sentence entered against George and Starnes.
. The Environmental Protection Agency (EPA) differentiates between asbestos-containing materials that are "friable”' — meaning materials that "conlain[ ] more than 1 percent asbestos ... that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure” — and materials that are "nonfriable” — those that "contain[] more than 1 percent asbestos ... that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.” 40 C.F.R. § 61.141. Friable asbestos-containing material and certain categories of nonfriable asbestos-containing material that has become friable or is likely to become friable are considered "[rjegulated asbestos-containing material.” Id.
. Each count of the indictment also charged both defendants with aiding and abetting in the commission of the underlying substantive offense. See 18 U.S.C. § 2.
. As we understand it, the pump pulls air through the filter cassette, collecting an air sample, and the cassette is then removed and sent to a lab for analysis within twenty-four hours of collection.
. George does not challenge the sufficiency of the evidence underpinning his conviction on the Clean Air Act counts.
. Because we conclude that there was sufficient evidence to sustain Starnes’s convictions on Counts One through Three as a principal, we need not address his contention that the evidence was insufficient to sustain his convictions on the same counts as an aider and abettor. See Griffin v. United States, 502 U.S. 46, 56-57, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); cf. United States v. Frorup, 963 F.2d 41, 44 (3d Cir.1992) ("Inasmuch as the evidence was sufficient for us to uphold the verdict based on the theory of aiding and abetting, we need not [evaluate the evidence under the alternate theory presented].”); cf. also United States v. Hodge, 211 F.3d 74, 77 (3d Cir.2000) (explaining that 18 U.S.C. § 2 ”take[s] the view that an aider and abettor should be treated like any other principal”). In any event, the record contains sufficient evidence to sustain Starnes’s convictions on these counts under an aider and abettor theory as well.
. 18 U.S.C. § 1001(a) provides, in pertinent part:
"Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or ... both.”
. As we have previously observed, the interpretive difficulties posed by the word “willfully” are well-illustrated by a notable exchange that took place between Judge Learned Hand and Herbert Wechsler, the Reporter for the Model Penal Code, during which Judge Hand made plain his feelings on the utility of the term: " '[Wilfully is] a very dreadful word.... It’s an awful word! It is one of the most troublesome words in a statute that I know. If I were to have the index purged, ‘wilful’ would lead all the rest in spite of its being at the end of the alphabet.' ” United States v. Hayden, 64 F.3d 126, 129 n. 5 (3d Cir.1995) (quoting ALI Proceedings 160 (1955), quoted in Model Penal Code and Commentaries § 2.02, at 249 n. 47 (Official Draft and Revised Comments 1985)); cf. Rex Wine Corp. v. Dunigan, 224 F.2d 93, 95 (2d Cir.1955) (Hand, J.) (noting of the word "willful” that "[i]t must be owned that about that adjective there always gathers an unhappy cloud of uncertainty”). We could not agree more.
. We note that this interpretation of § 1001(a)'s “knowingly and willfully’’ requirement is consistent with cases holding that the government need not prove that a defendant knew that the false statement or representation was within the jurisdiction of the federal government. See United States v. Yermian, 468 U.S. 63, 75, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984); United States v. Leo, 941 F.2d 181, 190 (3d Cir.1991); see also United States v. Curran, 20 F.3d 560, 567 (3d Cir. 1994) ("[A § 1001] defendant need not be aware of the jurisdictional fact that the false statement or concealment is within the statutory authority of a specific government agency.”); cf. United States v. Gumbs, 283 F.3d 128, 131 (3d Cir.2002) ("[TJhe Supreme Court has held that a defendant generally need not be aware of the existence of a jurisdictional element to be guilty of a federal offense.” (citing United States v. Feola, 420 U.S. 671, 672-73, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) and Yermian, 468 U.S. at 75, 104 S.Ct. 2936)).
. Insofar as George’s brief could be read as contending that the evidence of his conduct was insufficient to satisfy § 1001(a)’s actus reus element because "the air-monitoring results were delivered by Starnes,” we also reject that contention. The fax headers on the copies of the falsified reports seized by Agent Derx show that George faxed blank air-monitoring report forms to Starnes in Florida on January 25, 2001 — the day after VIHA sent the noncompliance notice to George’s attention — and that Starnes faxed the completed reports back to George approximately seventeen minutes later. Monique Farrell testified that the falsified air-monitoring reports were delivered to VIHA later that same day. A rational juror could infer from this evidence that George transmitted, or arranged for the transmission of, the falsified records to VIHA. And while Farrell also testified that she could not recall exactly who delivered the falsified reports to VIHA, that testimony does not, as George would have it, establish that he did not do so, and "[t]he evidence does not need to be inconsistent with every conclusion save that of guilt if it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt.” Gov’t of V.I. v. Williams, 739 F.2d 936, 940 (3d Cir.1984) (internal quotation marks omitted); see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954) (“Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.”); United States v. Glantzman, 447 F.2d 199, 201 n. 9 (3d Cir.1971) ("To warrant a conviction on circumstantial evidence the facts and circumstances established by such evidence must be of such a character as to produce a moral certainty beyond a reasonable doubt, but need not be absolutely incompatible with innocence.”).
Also, given our conclusion that the evidence was sufficient to sustain the defendants’ convictions on the false-statement counts as principals, we need not address their contentions that the evidence was insufficient to prove the government’s alternative theories of liability under 18 U.S.C. § 2. See Griffin, 502 U.S. at 56-57, 112 S.Ct. 466; Frorup, 963 F.2d at 44.
. To the extent that Starnes’s brief can be read to challenge the District Court's finding that he abused his position of trust, we conclude that the District Court did not clearly err in making that finding. Cf. United States v. Dullum, 560 F.3d 133, 140 (3d Cir.2009) (explaining that whether a defendant occupied a position of trust is a legal question that is reviewed de novo, but that whether a defendant abused a position of trust is a factual question that is reviewed for clear error (citing United States v. Hart, 273 F.3d 363, 376 (3d Cir.2001))).
. The factors set forth in 18 U.S.C. § 3553(a) are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission ..., subject to any amendments made to such guidelines by act of Congress ...; and
(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; ...
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission ..., subject to any amendments made to such policy statement by act of Congress ...; and
(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced[;]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
. Starnes also argues that the District Court committed significant procedural error by "failfing] to elicit fully articulated objections following imposition of sentence/' pointing to a supervisory rule announced by the Court of Appeals for the Eleventh Circuit in United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir. 1990). But we have never adopted such a supervisory rule and, in light of our precedents, we doubt the propriety of doing so. See, e.g., United States v. Sevilla, 541 F.3d 226, 231 (3d Cir.2008) (“ '[A]n objection to the reasonableness of the final sentence will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a).' " (quoting United States v. Grier, 475 F.3d 556, 571 & n. 11 (3d Cir.2007) (en banc))). In any event, we have no occasion here to evaluate the need for such a rule, because the record clearly indicates that the District Court afforded fair opportunity to Starnes's attorney to raise further objections at the conclusion of the sentencing hearing, but that he had none.
In addition, we note that neither George nor Starnes challenges the substantive reasonableness of his sentence, and we discern no substantive error related to either defendant's sentence.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.00847457627118644, Costs: 0.00847457627118644
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DUNIWAY, Circuit Judge:
These are petitions to set aside a report and order issued by the Interstate Commerce Commission in Ex Parte No. MC-37 (Sub-No. 26), Commercial Zones and Terminal Areas, 1976, 128 M.C.C. 422. In that proceeding the Commission adopted new rules for determining geographic boundaries of commercial zones and terminal areas. In No. 77-1070, the Short Haul Survival Committee, an ad hoc committee of the Local and Short Haul Carriers National Conference of the American Trucking Associations, Inc., petitioned for review of the Commission’s report and order in this court. In Nos. 77-1774 and 77-2038, petitions for review were filed in the Third Circuit and the District of Columbia Circuit, respectively, by A-C Berwick Transporters, Inc., et al., a group of short-haul carriers active in the greater New York metropolitan area, and by the American Trucking Associations, Inc. These petitions were transferred to this court pursuant to 28 U.S.C. § 2112(a). Numerous parties have intervened in the litigation, some supporting and others challenging the rules adopted by the Commission. We decline to set aside the Commission’s report and order, and we affirm it.
I.
THE COMMISSION PROCEEDING
In its December 17, 1976 decision in Ex Parte No. MC-37 (Sub-No. 26), Commercial Zones and Terminal Areas, supra, which we refer to as the Report, the Commission modified its rules defining the geographic boundaries of “commercial zones” and “terminal areas” as those terms are used in sections 203(b)(8) and 202(c) of the Interstate Commerce Act, 49 U.S.C. §§ 303(b)(8) and 302(c). The Commission first resorted to rule making to define the scope of commercial zones and terminal areas in the mid 1940’s, and its proceedings culminated in the adoption of a “population-mileage” formula for commercial zones in 1946, Ex Parte No. MC-37, Commercial Zones and Terminal Areas, 46 M.C.C. 665, and for carriers’ terminal areas in Commercial Zones and Terminal Areas, 1952, 54 M.C.C. 21 (Sixth Supplemental Report, Ex Parte No. MC-37). Since 1946, the Commission has decided 43 cases involving defining specifically the limits of particular zones.
By 1975, the Commission felt that circumstances throughout the nation had changed so much that a new rule making procedure was appropriate. The procedure was begun on August 12, 1975, by publication of a notice in the Federal Register suggesting a new formula and inviting the submission of written data, views and arguments. The response was widespread, and the Commission issued an Interim Report (Ex Parte No. MC-37 (Sub-No. 26), Commercial Zones and Terminal Areas, 124 M.C.C. 130) on December 18, 1975. The interim report of 55 pages plus appendices stated tentative conclusions and invited further filings. Again, the response was widespread. There were over 600 responses, and a massive record was compiled, consisting of 23 large volumes. The final Report, adopting a new population-mileage formula, issued on December 17, 1976. It covers 134 pages in the record, plus a lengthy appendix, and carefully analyzes the issues and the data and views submitted by the many parties who filed them.
The new rules took effect on April 8, 1977. They bring up to date the 1946 population-mileage formula to reflect the tremendous urban expansion which the nation has experienced during the last three decades. In addition to expanding substantially the commercial zones and terminal areas of cities with populations of 200,000 or more, the Commission’s order greatly simplifies the old rules by making the revised population-mileage formula applicable to 42 cities, the zones of which were previously individually described. The old and new population-mileage formulae are as follows:
1946 New
Municipal Pooulation Boundaries Boundaries
less than 2,500 2 3
2,500 to 24,999 3 4
25,000 to 99,999 4 6
100,000 to 199,999 5 8
200,000 to 499,999 5 10
500,000 to 999,999 5 15
1 million or more 5 20
ii.
THE STATUTORY FRAMEWORK
Section 203(b)(8) of the Interstate Commerce Act, 49 U.S.C. § 303(b)(8), establishes a contingent exemption from federal regulation of interstate motor transportation. In pertinent part the statute provides:
nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the national transportation policy declared in this Act, shall the provisions of this chapter . . . apply to:
(8) The transportation of ... property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone . . . . [emphasis supplied]
Three types of local movements in interstate or foreign commerce are thus exempted from federal regulation. The geographic meaning of the first two types of local movements — those carried out “wholly within a municipality” or “between contiguous municipalities” — derives from political boundaries and is thus readily ascertainable. It requires no further definition by the Commission. However, the scope of the third type of exempt movement — that carried out “within a zone adjacent to and commercially a part of” the base municipality — does pose definitional problems and is the subject of the rule making proceeding with which we are here concerned.
The section 203(b)(8) exemption applies only to local carriage in and around those cities situated near state lines because similar traffic elsewhere is already exempt from federal regulation because of its intrastate character. However, the geographic limits of commercial zones are of broader significance because the Commission employs them in administering other sections of the Act. Most importantly, commercial zone boundaries are used to construe certificates of operating authority so that, for example, a carrier authorized to operate between San Francisco and Seattle may carry goods between those two cities’ commercial zones.
Section 202(c) of the Act, 49 U.S.C. § 302(c), complements the commercial zone exemption by excluding from Commission regulation transfer, collection and delivery services performed within the “terminal areas” of line-haul carriers in connection with line-haul operations. The 202(c) exemption allows local cartage operators to contract with or act as agents for regulated line-haul carriers when performing such services within the carriers’ terminal areas. The Commission has long defined commercial zones and terminal areas coextensively. This simplifies administration of the two exemptions and makes good sense because “if commercial zone limits mark the limits of an industrial, business, or residential community, then they also mark the limits of the areas which can be served in bona fide collection and delivery service and beyond which any service takes on the character of a line-haul. . . Commercial Zones and Terminal Areas, supra, 54 M.C.C. 21, 63.
III.
THE PROPRIETY OF RULE MAKING RATHER THAN ADJUDICATION
This is an obvious case for the exercise of rule making rather than adjudicatory proceedings. As the Commission recognized in the 1946 decision (46 M.C.C. at 677), there is a potential commercial zone around every one of the thousands of municipalities in the United States. To define, in a separate proceeding, each of those zones, would be at worst impossible, and at best an enormous waste of time, energy and talent that could be better spent in other activities, or even in doing nothing at all. This kind of problem can only be handled by rule making — a legislative type of activity.
It follows that there is no merit in the argument of intervening petitioners Auto Fast Freight, et ah, a group of short-haul motor carriers, that in expanding the scope of commercial zones the Commission was required to hold the oral hearings mandated by section 212(a) of the Act, 49 U.S.C. § 312(a). Characterizing the Commission’s action as “individual in impact and condemnatory in purpose,” they maintain that the Commission has revoked their certificates and was obliged to conduct adjudications with all of the procedural formalities mandated by 5 U.S.C. § 554.
American Airlines, Inc. v. CAB, 1966, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 1966, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75, involved a similar challenge to agency rule making. The court squarely rejected the challenge, characterizing rule making as “a vital part of the administrative process” which ought “not to be shackled, in the absence of clear and specific Congressional requirement, by importation of formalities developed for the adjudicatory process and basically unsuited for policy rule making.” 359 F.2d at 629. It noted that
[w]e are not here concerned with a proceeding that in form is couched as rule making, general in scope and prospective in operation, but in substance and effect is individual in impact and condemnatory in purpose. The proceeding before us is rule making both in form and effect. There is no individual action here masquerading as a general rule. 359 F.2d at 631.
Here, as in American Airlines, we deal with a good-faith exercise of administrative rule making authority. The Commission was not obliged to proceed by adjudication merely because its action affected carriers individually and in some cases adversely.
Section 212(a) of the Interstate Commerce Act, 49 U.S.C. § 312(a), which authorizes the Commission to amend carrier certificates only after “notice and hearing,” does not require a different result. That section must be read with section 208(a) of the Act, 49 U.S.C. § 308(a), which expressly authorizes the Commission to impose general conditions on the exercise of privileges granted by certificates of operating authority. See, Thompson Van Lines, Inc. v. United States, D.D.C., 1975, 399 F.Supp. 1131, 1136, aff’d, 1976, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630.
IV.
THE SCOPE OF REVIEW
The scope of review is highly circumscribed because petitioners are challenging the product of a rule making proceeding. Our inquiry is limited to determining whether the Commission’s order is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “highly deferential” standard of review which “presumes agency action to be valid,” Ethyl Corp. v. Environmental Protection Agency, 1976, 176 U.S.App.D.C. 373, 406, 541 F.2d 1, 34, cert. denied, 1976, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 and which imposes upon petitioners the “heavy burden” of showing that the Commission acted unreasonably in updating the old population-mileage formula. American Public Power Association v. F.P.C., 1975, 173 U.S. App.D.C. 36, 522 F.2d 142, 146. In reviewing the challenged order we may not substitute our judgment for that of the Commission, Citizens to Preserve Overton Park v. Volpe, 1971, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 and we must affirm if a rational basis for the agency’s action is demonstrated. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 1974, 419 U.S. 281, 290, 95 S.Ct. 438, 42 L.Ed.2d 447. As the Supreme Court stated recently in reviewing another product of Commission rule making,
[w]e do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. United States v. Allegheny-Lublum Steel Corp., 1972, 406 U.S. 742, 749, 92 S.Ct. 1941, 1946, 32 L.Ed.2d 453.
Petitioner Short Haul Survival Committee exhorts us to apply the “substantial evidence” test of 5 U.S.C. § 706(2)(E) in reviewing the Commission’s action. The Commission says that the substantial evidence standard of review is “simply not applicable here.” We agree that 5 U.S.C. § 706(2)(E) is, by its terms, inapplicable. However, we also tend to agree with the Second Circuit’s characterization of a similar controversy over the appropriate scope of judicial review as “semantic in some degree” and largely lacking in “dispositional importance.” Associated Industries of New York State, Inc. v. United States Department of Labor, 2 Cir., 1973, 487 F.2d 342, 349. As Judge Friendly noted in that case, “it is difficult to imagine a decision having no substantial evidence to support it which is not.‘arbitrary’ or a decision struck down as arbitrary which is in fact supported by ‘substantial evidence’ . . . .” 487 F.2d at 349.
V.
RATIONALITY OF THE COMMISSION’S ACTION
The best proof of the rationality of the Commission’s action is to be found in the Report and the Interim Report that preceded it. It is unfair to the Commission to assert, as some of the petitioners and intervenors do, that the Commission became, bemused by demographic data which, like Gilbert’s “flowers that bloom in the spring” have “nothing to do with the case.” The two reports demonstrate that the Commission relied heavily upon economic data, and concluded, quite rationally in the light of the record, that those data, like the more complete and detailed demographic data, support the conclusions at which the Commission arrived. It would be quite impossible for us to say that the Commission’s conclusions are not rationally supported. Indeed, we might well conclude that a contrary result would not be rationally supported.
Petitioner Short Haul Survival Committee objects to the “blanket effect” of the rules promulgated by the Commission, arguing that the revised population-mileage formula “becomes purely arbitrary” when “applied indiscriminately” to all municipalities. Petitioner A-C Berwick, et al., and various intervening petitioners also challenge the broad coverage of the new formula, characterizing its application to the particular zones in which they operate as irrational.
In the Assigned Car Cases, 1927, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 1204, the Court rejected a similar challenge to a general rule adopted by the Commission to govern the distribution of railroad cars among coal producers in times of shortage. In language which was quoted with approval in the recent case of United States v. Allegheny-Ludlum Steel Corp., supra, 406 U.S. at 749, 92 S.Ct. 1941, the Court responded:
[I]n establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection the Commission, like other legislators, may reason from the particular to the general.
274 U.S. at 583, 47 S.Ct. at 734.
The natural circumstance that the new population-mileage formula will, inevitably, require some fine tuning, does not vitiate its essential rationality. Here, as in the Assigned Car Cases, the Commission was privileged to “reason from the particular to the general” and was not required to assess the varying impact of its proposed rules on a myriad of individual zones.
In its report the Commission did, however, analyze in detail the impact of the new formula on major cities which were individually described under the old rules. Report, pp. 98-109. It also established special rules for determining the zones of twin cities, cities with consolidated governments, and cities the zones of which would otherwise be reduced under the new formula. Report, pp. 110-114, 118-119.
In adopting the new population-mileage formula the Commission expressly stated that it was “cognizant of the fact that this general rule will not describe all commercial zones with precision.” Report, p. 84. However, because the stated purpose of the rule making proceeding was limited to determining on a “broad basis” whether commercial zones should be expanded, it concluded that claims that the new formula operated inequitably when applied to particular municipalities would be better considered in subsequent petitions seeking individual determinations. The Commission announced its willingness to entertain such petitions and guaranteed consideration “on an expedited basis.” Report, p. 85. Those parties who challenge the application of the new rules to particular municipalities should accept the Commission’s explicit invitation and file petitions for special consideration. Attacking the general formula here is not their proper recourse.
VI.
CONGRESSIONAL INTENT
Petitioner Short Haul Survival Committee characterizes the Commission’s action as contrary to the legislative intent underlying section 203(b)(8). The Committee acknowledges that the legislative history of the commercial zone exemption is “scant” but nonetheless makes much of certain introductory remarks to the Motor Carrier Act of 1935 made by Senator Wheeler, then Chairman of the Committee on Interstate Commerce. In his remarks the Senator characterized the commercial zone exemption as applicable to “intramunicipal or occasional operations.”
The argument that only “intramunicipal” carriage falls within the commercial zone exemption is contrary to the plain language of the statute. In section 203(b)(8) Congress did exempt transportation carried out “wholly within a municipality” from federal regulation. It did not rest there, however, but went on to exclude from the Act’s coverage transportation carried out “within a zone adjacent to and commercially a part of” a base municipality. If these words mean no more than intramunicipal transportation they would be mere surplusage, a result which we do not think that Congress intended.
The Commission’s expansion of commercial zones accords fully with the legislative purpose behind the commercial zone exemption of section 203(b)(8). That exemption reflects a policy judgment by Congress that federal intrusion into local transportation is undesirable. Because tremendous urban expansion occurred after 1946 without a corresponding increase in zone limits, the Commission has, in recent years, found itself engaged in the very sort of regulation of local transportation which Congress rejected in the Act. To correct that situation and carry out its legislative mandate to “frame a workable delimitation by examining the words of the statute in light of contemporary economic reality and modern transportation needs,” Report, p. 56, the Commission adopted the challenged rules.
VII.
THE ADJACENCY REQUIREMENT
Section 203(b)(8) specifies that an area must be “adjacent to” as well as “commercially a part of” a base municipality if it is to fall within that municipality’s commercial zone. Arguing that the newly enlarged zones include areas which are not adjacent to one another, petitioner Short Haul Survival Committee says that the Commission has violated the express criteria of the statute. Numerous intervenors mount a similar attack on the geographic scope of the expanded commercial zones, selecting the most distant points in the zones of the nation’s largest cities and arguing that these points are too remote to satisfy section 203(b)(8)’s adjacency requirement.
The argument ignores the meaning of “adjacent”: “lying near, close, or contiguous” (Webster II). Indeed, the inner circumference of every zone is not only adjacent to the exterior boundary of the base city, it is contiguous to it — it “adjoins” it. This is more than “adjacent” requires. However, it is still arguable that a portion of the zone, near its exterior circumference, may not be adjacent to the base city.
The key relationship under the statute is the economic nexus between outlying points and the base municipality. Two communities which are neither geographically contiguous nor economically interdependent may nonetheless qualify for inclusion in a single commercial zone if both are “adjacent to” the same city. Conversely, the adjacency requirement precludes inclusion of points remote from a municipality in its commercial zone, notwithstanding the existence of intense economic interaction between them. For example, this effectively rules out a single “Northeast corridor” commercial zone extending from Washington, D. C., to Boston, Massachusetts.
As the Commission concluded in its Report, technological advances in transportation necessarily “engender an element of elasticity with respect to the meaning of ‘adjacent.’ ” Report, p. 61.
Transportation movements of even 15 or 20 miles beyond city limits do not contradict modern notions of “local movements” in large metropolitan areas. Metropolitan transportation networks of beltways and expressways often span such an area, and these distances can be covered in a matter of minutes.
Report, p. 84.
The Commission properly interpreted section 203(b)(8) as a legislative mandate to reevaluate periodically the scope of the commercial zone exemption in light of changing economic circumstances and technological advances. The newly adopted rules cannot be said to contravene the statutory requirement simply because the expanded zones include communities which are not geographically contiguous to one another.
VIII.
THE NATIONAL TRANSPORTATION POLICY
Section 203(b)(8) of the Act provides that commercial zone exemption from federal regulation shall apply “unless and to the extent that the Commission shall from time to time find” that regulation “is necessary to carry out the national transportation policy.” The National Transportation Policy is set forth in the preamble to the Act, 49 U.S.C. preceding §§ 1, 301, 901 and 1001. It declares, inter alia, that the Act shall be administered “to promote safe, adequate, economical, and efficient service”; “to foster sound economic conditions in transportation and among the several carriers”; “to encourage the establishment and maintenance of reasonable charges” without “unfair or destructive competitive practices”; and “to encourage fair wages and equitable working conditions.”
Petitioners Short Haul Survival Committee, A-C Berwick, et al., American Trucking Associations, Inc., and numerous intervening petitioners assert that the Commission abused its discretion in concluding that the expansion of commercial zones would promote, rather than frustrate, the goals set forth in the National Transportation Policy. They claim that zone enlargement will drive large numbers of short-haul carriers out of business; that shippers will experience a loss of inexpensive, dependable service as a result; that unregulated carriers operating within the newly expanded zones will pose a safety hazard to the public; and that the new rules will result in lower wages and poorer working conditions for employees of trucking concerns.
Throughout the lengthy proceeding which culminated in the Report, shipper support for larger commercial zones was virtually unanimous. The reasons for this overwhelmingly positive response are not far to seek. Augmented zones and enlarged terminal areas will enable suburban shippers to contract with exempt local carriers, thereby placing them on an equal footing with shippers located within the old zones. The new rules will also enable long-haul carriers to serve suburban shippers directly without the need for costly, time-consuming “interlining.” The Commission rationally concluded on the basis of the evidence submitted that zone expansion will result in lower rates, shorter transit times and reduced cargo damage for suburban shippers, thereby fostering the National Transportation Policy’s stated goal of “economical and efficient service.”
The Commission also concluded that its proposed rules were likely to benefit unregulated local carriers, long-haul carriers and freight forwarders as well. In its Report it noted that the expansion of commercial zones will enable local carriers who were previously confined to the central cities to recapture a share of the business generated by the many shippers who have relocated to the suburbs during the last three decades. The Commission also concluded that the new rules will improve the lot of long-haul carriers by enabling them to perform more single-line service, and benefit freight forwarders by enlarging the areas within which local cartage operators can act as agents for them in performing collection and delivery services. The Commission did not act irrationally or abuse its discretion in determining that zone expansion would have these salutary effects, thereby fostering “sound economic conditions in transportation and among the several carriers.” Substantial record evidence supports the Commission’s conclusions.
Petitioners assert that the Commission ignored evidence that the new rules “will have the effect of irreparably injuring short-haul carriers.” They predict that “cut-throat competition” in the newly enlarged zones will sharply curtail their revenues and drive many short-haul concerns out of business. The Commission did not ignore the likely impact of the contemplated rule changes on short-haul carriers but rather analyzed the matter carefully in its Report and concluded that as a result of commercial zone expansion,
[s]hort-haul carriers will experience three types of adverse effects. First, some truck load traffic will be diverted by the ability of long-haul carriers to provide more single-line service. Secondly, they will lose protection from competition on those portions of their service routes encompassed by the expanded zones. Thirdly, in many cases the pecuniary value attached to their operating certificates will be substantially diminished.
Report, p. 128.
While it recognized that increased competition in the expended zones might result in decreased profits for short-haul carriers, the Commission concluded that “the over all benefits to the public of more single-line service and greater flexibility of local operations within urban areas amply justifies our actions in this proceeding.” Report, p. 128. We cannot say that the Commission acted irrationally in striking the balance among competing interests in this fashion. As the Supreme Court noted when faced with a similar challenge,
[t]he Commission’s conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed “the public convenience and necessity.” United States v. Pierce Auto Lines, 327 U.S. 515, 535-536, 66 S.Ct. 687, 697-98, 90 L.Ed. 821 (1946). If the Commission has “drawn out and crystallized these competing interests [and] attempted to judge them with as much delicacy as the prospective nature of the inquiry permits,” ICC v. J-T Transport Co., 368 U.S. 81, 89, 82 S.Ct. 204, 209, 7 L.Ed.2d 147 (1961), we can require no more.
Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 1974, 419 U.S. 281, 293-94, 95 S.Ct. 438, 446, 42 L.Ed.2d 447.
Petitioners assert that commercial zone expansion is likely to result in a marked decline in highway safety, predicting that “extensive deregulation in and around many of our major cities will induce entry by the inadequately financed who will be forced to cut corners at the expense of safety.”
Responsibility for establishing and enforcing highway traffic safety regulations was shifted from the Commission to the Department of Transportation’s Federal Highway Administration in 1967. See, 49 U.S.C. § 1655(e). Safety rules promulgated by the Federal Highway Administration extend to regulated and unregulated carriers alike and will thus apply in full force to carriers operating within the newly expanded commercial zones. The Highway Administration announced in a notice published in the Federal Register on February 25, 1976, that the Commission’s action would not affect coverage of its safety regulations. 41 Fed.Reg. 8175.
The Teamsters Union, an intervening petitioner, claims that zone expansion will lead to lower wages and inequitable working conditions for employees of trucking concerns but marshalls little concrete support for its position. Its arguments must be evaluated in light of the fact that local exempt carriers, whose scope of operation will be substantially increased as a result of the Commission’s action, are often small, family-run enterprises which do not employ union drivers. The Teamsters argue, in effect, that the very existence of these concerns runs counter to the goals expressed in the National Transportation Policy. However, that Policy, which directs the Commission to administer the Act in a manner calculated to promote the public interest generally, rather than the Teamsters’ interests specifically, does not prohibit carriers from employing non-union personnel.
IX.
THE NATIONAL ENVIRONMENTAL POLICY ACT
Petitioners Short Haul Survival Committee and A-C Berwick, et al., challenge the adequacy of the environmental impact statement (EIS) prepared by the Commission pursuant to section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C). In its EIS the Commission concluded that (1) zone expansion will increase the efficiency of long-haul carriers by enabling them to serve the suburbs directly, thereby reducing fuel consumption, air pollution and traffic congestion; (2) heightened competition in the expanded zones will, for a time, cause inefficiencies such as more empty mileage and smaller load factors but these effects will be short-lived because ultimately “only the more efficient operators should survive” in the expanded zones; and (3) zone enlargement will not cause significant numbers of shippers to relocate to the suburbs.
NEPA is “essentially a procedural statute” designed to insure that “agencies will be fully aware of the impact of their decisions when they make them.” Lathan v. Brinegar, 9 Cir., 1974, 506 F.2d 677, 693. While a reviewing court must ascertain that an agency has taken a “hard look” at the environmental consequences of its action, Kleppe v. Sierra Club, 1976, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576, it may not “substitute its judgment for that of the agency as to the necessity or desirability” of taking the contemplated action. Daly v. Volpe, 9 Cir., 1975, 514 F.2d 1106, 1108.
In this case we are satisfied that the Commission took a “hard look” at the environmental impact of zone expansion before it acted, and that its EIS was “sufficiently detailed to aid in the substantive decision whether to proceed.” Trout Unlimited v. Morton, 9 Cir., 1974, 509 F.2d 1276,1283. It must be remembered that the enlargement of zones is not a physical undertaking akin to the construction of a pipeline, a dam, or roadway. The environmental consequences of the Commission’s action cannot be readily determined on the basis of empirical data, as is sometimes the case with more concrete projects. Viewed in the light of this inherent limitation, the Commission’s EIS is more than adequate to satisfy NEPA’s mandate.
The City of Portland, Oregon, intervening on behalf of petitioners, argues that commercial zone expansion will interfere with effective land use planning, exacerbating the problem of urban sprawl and undermining certain environmental programs which it has undertaken. While we strongly sympathize with Portland’s efforts to contain urban sprawl, the record does not show that the City’s goals will be thwarted by the Commission’s action. It is possible that commercial zone expansion will encourage shippers to relocate from the central city to outlying areas. Nonetheless, Portland remains free to regulate urban growth by adopting any land use ordinances that it thinks necessary or desirable, and it is free to enlist the assistance of a not unsympathetic state of Oregon, if necessary.
The Report and Order of the Commission are affirmed.
Miles measured from municipal limits.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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