Department of Transportation v. Public Citizen

OPINION OF THE COURT DEPARTMENT OF TRANSPORTATION V. PUBLICCITIZEN 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-358 DEPARTMENT OF TRANSPORTATION, et al.,
PETITIONERS v. PUBLIC CITIZEN et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 7, 2004]

															   Justice Thomas delivered the
opinion of the Court.

															   In this case, we confront the
question whether the National Environmental Policy Act of 1969
(NEPA), 83 Stat. 852 (codified, as amended, at 42 U. S. C.
§§4321–4370f), and the Clean Air Act (CAA), 42 U. S. C.
§§7401–7671q, require the Federal Motor Carrier Safety
Administration (FMCSA) to evaluate the environmental effects of
cross-border operations of Mexican-domiciled motor carriers, where
FMCSA’s promulgation of certain regulations would allow such
cross-border operations to occur. Because FMCSA lacks discretion to
prevent these cross-border operations, we conclude that these
statutes impose no such requirement on FMCSA.

															I

															   Due to the complex statutory and
regulatory provisions implicated in this case, we begin with a
brief overview of the relevant statutes. We then turn to the
factual and procedural background.

															A

															1

															   Signed into law on January 1,
1970, NEPA establishes a “national policy [to] encourage productive
and enjoyable harmony between man and his environment,” and was
intended to reduce or eliminate environmental damage and to promote
“the understanding of the ecological systems and natural resources
important to” the United States. 42 U. S. C. §4321. “NEPA
itself does not mandate particular results” in order to accomplish
these ends. Robertson v. Methow Valley Citizens
Council, 490 U. S. 332 , 350
(1989). Rather, NEPA imposes only procedural requirements on
federal agencies with a particular focus on requiring agencies to
undertake analyses of the environmental impact of their proposals
and actions. See id ., at 349–350. At the heart of NEPA is
a requirement that federal agencies

															“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(2)(C).

															   This detailed statement is called
an Environmental Impact Statement (EIS). The Council of
Environmental Quality (CEQ), established by NEPA with authority to
issue regulations interpreting it, has promulgated regulations to
guide federal agencies in determining what actions are subject to
that statutory requirement. See 40 CFR §1500.3 (2003). The CEQ
regulations allow an agency to prepare a more limited document, an
Environmental Assessment (EA), if the agency’s proposed action
neither is categorically excluded from the requirement to produce
an EIS nor would clearly require the production of an EIS. See
§§1501.4(a)–(b). The EA is to be a “concise public document” that
“[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an [EIS].” §1508.9(a). If, pursuant
to the EA, an agency determines that an EIS is not required under
applicable CEQ regulations, it must issue a “finding of no
significant impact” (FONSI), which briefly presents the reasons why
the proposed agency action will not have a significant impact on
the human environment. See §§1501.4(e), 1508.13.

															2

															   What is known as the CAA became
law in 1963, 77 Stat. 393. In 1970, Congress substantially amended
the CAA into roughly its current form. 84 Stat. 1713. The 1970
amendments mandated national air quality standards and deadlines
for their attainment, while leaving to the States the development
of “implementation plan[s]” to comply with the federal standards. Ibid. In 1977, Congress again
amended the CAA, 91 Stat. 749, to prohibit the Federal Government
and its agencies from “engag[ing] in, support[ing] in any way or
provid[ing] financial assistance for, licens[ing] or permit[ting],
or approv[ing], any activity which does not conform to [a state]
implementation plan.” 42 U. S. C. §7506(c)(1). The definition
of “conformity” includes restrictions on, for instance,
“increas[ing] the frequency or severity of any existing violation
of any standard in any area,” or “delay[ing] timely attainment of
any standard … in any area.” §7506(c)(1)(B). These safeguards
prevent the Federal Government from interfering with the States’
abilities to comply with the CAA’s requirements. 3 FMCSA, an agency within the
Department of Transportation (DOT), is responsible for motor
carrier safety and registration. See 49 U. S. C. §113(f).
FMCSA has a variety of statutory mandates, including “ensur[ing]”
safety, §31136, establishing minimum levels of financial
responsibility for motor carriers, §31139, and prescribing federal
standards for safety inspections of commercial motor vehicles,
§31142. Importantly, FMCSA has only limited discretion regarding
motor vehicle carrier registration: It must grant registration to
all domestic or foreign motor carriers that are “willing and able
to comply with” the applicable safety, fitness, and
financial-responsibility requirements. §13902(a)(1). FMCSA has no
statutory authority to impose or enforce emissions controls or to
establish environmental requirements unrelated to motor carrier
safety. B We now turn to the factual
and procedural background of this case. Before 1982, motor carriers
domiciled in Canada and Mexico could obtain certification to
operate within the United States from the Interstate Commerce
Commission (ICC).[ Footnote 1 ]
In 1982, Congress, concerned about discriminatory treatment of
United States motor carriers in Mexico and Canada, enacted a 2-year
moratorium on new grants of operating authority. Congress
authorized the President to extend the moratorium beyond the 2-year
period if Canada or Mexico continued to interfere with United
States motor carriers, and also authorized the President to lift or
modify the moratorium if he determined that doing so was in the
national interest. 49 U. S. C. §10922(l) (1982 ed.).
Although the moratorium on Canadian motor carriers was quickly
lifted, the moratorium on Mexican motor carriers remained, and was
extended by the President.

															   In December 1992, the leaders of
Mexico, Canada, and the United States signed the North American
Free Trade Agreement (NAFTA), 32 I. L. M. 605 (1993). As
part of NAFTA, the United States agreed to phase out the moratorium
and permit Mexican motor carriers to obtain operating authority
within the United States’ interior by January 2000. On NAFTA’s
effective date (January 1, 1994), the President began to lift the
trade moratorium by allowing the licensing of Mexican carriers to
provide some bus services in the United States. The President,
however, did not continue to ease the moratorium on the timetable
specified by NAFTA, as concerns about the adequacy of Mexico’s
regulation of motor carrier safety remained.

															   The Government of Mexico challenged the United
States’ implementation of NAFTA’s motor carrier provisions under
NAFTA’s dispute-resolution process, and in February 2001, an
international arbitration panel determined that the United States’
“blanket refusal” of Mexican motor carrier applications breached
the United States’ obligations under NAFTA. App. 279, ¶ ;295.
Shortly thereafter, the President made clear his intention to lift
the moratorium on Mexican motor carrier certification following the
preparation of new regulations governing grants of operating
authority to Mexican motor carriers.

															   In May 2001, FMCSA published for comment
proposed rules concerning safety regulation of Mexican motor
carriers. One rule (the Application Rule) addressed the
establishment of a new application form for Mexican motor carriers
that seek authorization to operate within the United States.
Another rule (the Safety Monitoring Rule) addressed the
establishment of a safety-inspection regime for all Mexican motor
carriers that would receive operating authority under the
Application Rule.

															   In December 2001, Congress enacted the
Department of Transportation and Related Agencies Appropriations
Act, 2002, 115 Stat. 833. Section 350 of this Act, id., at
864, provided that no funds appropriated under the Act could be
obligated or expended to review or to process any application by a
Mexican motor carrier for authority to operate in the interior of
the United States until FMCSA implemented specific application and
safety-monitoring requirements for Mexican carriers. Some of these
requirements went beyond those proposed by FMCSA in the Application
and Safety Monitoring Rules. Congress extended the §350 conditions
to appropriations for Fiscal Years 2003 and 2004.

															   In January 2002, acting pursuant to NEPA’s
mandates, FMCSA issued a programmatic EA for the proposed
Application and Safety Monitoring Rules. FMCSA’s EA evaluated the
environmental impact associated with three separate scenarios:
where the President did not lift the moratorium; where the
President did but where (contrary to what was legally possible)
FMCSA did not issue any new regulations; and the Proposed Action
Alternative, where the President would modify the moratorium and
where FMCSA would adopt the proposed regulations. The EA considered
the environmental impact in the categories of traffic and
congestion, public safety and health, air quality, noise,
socioeconomic factors, and environmental justice. Vital to the EA’s
analysis, however, was the assumption that there would be no change
in trade volume between the United States and Mexico due to the
issuance of the regulations. FMCSA did note that §350’s
restrictions made it impossible for Mexican motor carriers to
operate in the interior of the United States before FMCSA’s
issuance of the regulations. But, FMCSA determined that “this and
any other associated effects in trade characteristics would be the
result of the modification of the moratorium” by the President, not
a result of FMCSA’s implementation of the proposed safety
regulations. App. 60. Because FMCSA concluded that the entry of the
Mexican trucks was not an “effect” of its regulations, it did not
consider any environmental impact that might be caused by the
increased presence of Mexican trucks within the United States.

															   The particular environmental effects on which
the EA focused, then, were those likely to arise from the increase
in the number of roadside inspections of Mexican trucks and buses
due to the proposed regulations. The EA concluded that these
effects (such as a slight increase in emissions, noise from the
trucks, and possible danger to passing motorists) were minor and
could be addressed and avoided in the inspections process itself.
The EA also noted that the increase of inspection-related emissions
would be at least partially offset by the fact that the safety
requirements would reduce the number of Mexican trucks operating in
the United States. Due to these calculations, the EA concluded that
the issuance of the proposed regulations would have no significant
impact on the environment, and hence FMCSA, on the same day as it
released the EA, issued a FONSI.

															   On March 19, 2002, FMCSA issued the two
interim rules, delaying their effective date until May 3, 2002, to
allow public comment on provisions that FMCSA added to satisfy the
requirements of §350. In the regulatory preambles, FMCSA relied on
its EA and its FONSI to demonstrate compliance with NEPA. FMCSA
also addressed the CAA in the preambles, determining that it did
not need to perform a “conformity review” of the proposed
regulations under 42 U. S. C. §7506(c)(1) because the increase
in emissions from these regulations would fall below the
Environmental Protection Agency’s (EPA’s) threshold levels needed
to trigger such a review.

															   In November 2002, the President lifted the
moratorium on qualified Mexican motor carriers. Before this action,
however, respondents filed petitions for judicial review of the
Application and Safety Monitoring Rules, arguing that the rules
were promulgated in violation of NEPA and the CAA. The Court of
Appeals agreed with respondents, granted the petitions, and set
aside the rules. 316 F. 3d 1002 (CA9 2003).

															   The Court of Appeals concluded that the EA was
deficient because it failed to give adequate consideration to the
overall environmental impact of lifting the moratorium on the
cross-border operation of Mexican motor carriers. According to the
Court of Appeals, FMCSA was required to consider the environmental
effects of the entry of Mexican trucks because “the President’s
rescission of the moratorium was ‘reasonably foreseeable’ at the
time the EA was prepared and the decision not to prepare an EIS was
made.” Id., at 1022 (quoting 40 CFR §§1508.7, 1508.8(b)
(2003)). Due to this perceived deficiency, the Court of Appeals
remanded the case for preparation of a full EIS.

															   The Court of Appeals also directed FMCSA to
prepare a full CAA conformity determination for the challenged
regulations. It concluded that FMCSA’s determination that emissions
attributable to the challenged rules would be below the threshold
levels was not reliable because the agency’s CAA determination
reflected the “illusory distinction between the effects of the
regulations themselves and the effects of the presidential
rescission of the moratorium on Mexican truck entry.” 316
F. 3d, at 1030.

															   We granted certiorari, 540 U. S. __ (2003),
and now reverse.

															II

															   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.” 5 U. S. C. §706(2)(A). See also Marsh v. Oregon Natural Resources
Council, 490 U. S. 360 , 375–376
(1989); Kleppe v. Sierra Club , 427 U. S. 390 , 412
(1976). Here, FMCSA based its FONSI upon the analysis contained
within its EA; respondents argue that the issuance of the FONSI was
arbitrary and capricious because the EA’s analysis was flawed. In
particular, respondents criticize the EA’s failure to take into
account the various environmental effects caused by the increase in
cross-border operations of Mexican motor carriers.

															   Under NEPA, an agency is required
to provide an EIS only if it will be undertaking a “major Federal
actio[n],” which “significantly affect[s] the quality of the human
environment.” 42 U. S. C. §4332(2)(C). Under applicable CEQ
regulations, “[m]ajor Federal action” is defined to “includ[e]
actions with effects that may be major and which are potentially
subject to Federal control and responsibility.” 40 CFR §1508.18
(2003). “Effects” is defined to “include: (a) Direct effects, which
are caused by the action and occur at the same time and place,” and
“(b) Indirect effects, which are caused by the action and are later
in time or farther removed in distance, but are still reasonably
foreseeable.” §1508.8. Thus, the relevant question is whether the
increase in cross-border operations of Mexican motor carriers, with
the correlative release of emissions by Mexican trucks, is an
“effect” of FMCSA’s issuance of the Application and Safety
Monitoring Rules; if not, FMCSA’s failure to address these effects
in its EA did not violate NEPA, and so FMCSA’s issuance of a FONSI
cannot be arbitrary and capricious.

															A

															   To answer this question, we begin
by explaining what this case does not involve. What is not
properly before us, despite respondents’ argument to the contrary,
see Brief for Respondents 38–41, is any challenge to the EA due to
its failure properly to consider possible alternatives to the
proposed action ( i.e. , the issuance of the challenged
rules) that would mitigate the environmental impact of the
authorization of cross-border operations by Mexican motor carriers.
Persons challenging an agency’s compliance with NEPA must
“structure their participation so that it … alerts the agency to
the [parties’] position and contentions,” in order to allow the
agency to give the issue meaningful consideration. Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc., 435 U. S. 519 , 553
(1978). None of the respondents identified in their comments any
rulemaking alternatives beyond those evaluated in the EA, and none
urged FMCSA to consider alternatives. Because respondents did not
raise these particular objections to the EA, FMCSA was not given
the opportunity to examine any proposed alternatives to determine
if they were reasonably available. Respondents have therefore
forfeited any objection to the EA on the ground that it failed
adequately to discuss potential alternatives to the proposed
action.

															   Admittedly, the agency bears the
primary responsibility to ensure that it complies with NEPA, see ibid. , and an EA’s or an EIS’ flaws might be so obvious
that there is no need for a commentator to point them out
specifically in order to preserve its ability to challenge a
proposed action. But that situation is not before us. With respect
to FMCSA’s ability to mitigate, respondents can argue only that
FMCSA could regulate emissions from Mexican trucks indirectly,
through making the safety-registration process more onerous or by
removing older, more polluting trucks through more effective
enforcement of motor carrier safety standards. But respondents fail
to identify any evidence that shows that any effect from these
possible actions would be significant, or even noticeable, for
air-quality purposes. The connection between enforcement of motor
carrier safety and the environmental harms alleged in this case is
also tenuous at best. Nor is it clear that FMCSA could, consistent
with its limited statutory mandates, reasonably impose on Mexican
carriers standards beyond those already required in its proposed
regulations.

															B

															   With this point aside,
respondents have only one complaint with respect to the EA: It did
not take into account the environmental effects of increased
cross-border operations of Mexican motor carriers. Respondents’
argument that FMCSA was required to consider these effects is
simple. Under §350, FMCSA is barred from expending any funds to
process or review any applications by Mexican motor carriers until
FMCSA implemented a variety of specific application and
safety-monitoring requirements for Mexican carriers. This
expenditure bar makes it impossible for any Mexican motor carrier
to receive authorization to operate within the United States until
FMCSA issued the regulations challenged here. The promulgation of
the regulations, the argument goes, would “caus[e]” the entry of
Mexican trucks (and hence also cause any emissions such trucks
would produce), and the entry of the trucks is “reasonably
foreseeable.” 40 CFR §1508.8 (2003). Thus, the argument concludes,
under the relevant CEQ regulations, FMCSA must take these emissions
into account in its EA when evaluating whether to produce an
EIS.

															   Respondents’ argument, however,
overlooks a critical feature of this case: FMCSA has no ability to
countermand the President’s lifting of the moratorium or otherwise
categorically to exclude Mexican motor carriers from operating
within the United States. To be sure, §350 did restrict the ability
of FMCSA to authorize cross-border operations of Mexican motor
carriers, but Congress did not otherwise modify FMCSA’s statutory
mandates. In particular, FMCSA remains subject to the mandate of 49
U. S. C. §13902(a)(1), that FMCSA “ shall register a
person to provide transportation … as a motor carrier if [it] finds
that the person is willing and able to comply with” the safety and
financial responsibility requirements established by the Department
of Transportation. (Emphasis added.) Under FMCSA’s entirely
reasonable reading of this provision, it must certify any motor carrier that can show that it is willing and able to comply
with the various substantive requirements for safety and financial
responsibility contained in DOT regulations; only the moratorium
prevented it from doing so for Mexican motor carriers before 2001.
App. 51–55. Thus, upon the lifting of the moratorium, if FMCSA
refused to authorize a Mexican motor carrier for cross-border
services, where the Mexican motor carrier was willing and able to
comply with the various substantive safety and financial
responsibilities rules, it would violate §13902(a)(1).

															   If it were truly impossible for FMCSA to
comply with both §350 and §13902(a)(1), then we would be presented
with an irreconcilable conflict of laws. As the later enacted
provision, §350 would quite possibly win out. See Posadas v. National City Bank, 296 U. S. 497 , 503
(1936). But FMCSA can easily satisfy both mandates: It can issue
the application and safety inspection rules required by §350, and
start processing applications by Mexican motor carriers and
authorize those that satisfy §13902(a)(1)’s conditions. Without a
conflict, then, FMCSA must comply with all of its statutory
mandates.

															   Respondents must rest, then, on a particularly
unyielding variation of “but for” causation, where an agency’s
action is considered a cause of an environmental effect even when
the agency has no authority to prevent the effect. However, a “but
for” causal relationship is insufficient to make an agency
responsible for a particular effect under NEPA and the relevant
regulations. As this Court held in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766 , 774
(1983), NEPA requires “a reasonably close causal relationship”
between the environmental effect and the alleged cause. The Court
analogized this requirement to the “familiar doctrine of proximate
cause from tort law.” Ibid . In particular, “courts must
look to the underlying policies or legislative intent in order to
draw a manageable line between those causal changes that may make
an actor responsible for an effect and those that do not.” Id ., at 774, n. 7. See also W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts 264,
274–275 (5th ed. 1984) (proximate cause analysis turns on policy
considerations and considerations of the “legal responsibility” of
actors).

															   Also, inherent in NEPA and its implementing
regulations is a “rule of reason,” which ensures that agencies
determine whether and to what extent to prepare an EIS based on the
usefulness of any new potential information to the decisionmaking
process. See Marsh , 490 U. S., at 373–374. Where the
preparation of an EIS would serve “no purpose” in light of NEPA’s
regulatory scheme as a whole, no rule of reason worthy of that
title would require an agency to prepare an EIS. See Aberdeen
& Rockfish R. Co. v. Students Challenging Regulatory
Agency Procedures (SCRAP), 422 U. S. 289 , 325
(1975); see also 40 CFR §§1500.1(b)–(c) (2003).

															   In these circumstances, the underlying
policies behind NEPA and Congress’ intent, as informed by the “rule
of reason,” make clear that the causal connection between FMCSA’s
issuance of the proposed regulations and the entry of the Mexican
trucks is insufficient to make FMCSA responsible under NEPA to
consider the environmental effects of the entry. The NEPA EIS
requirement serves two purposes. First, “[i]t ensures that the
agency, in reaching its decision, will have available, and will
carefully consider, detailed information concerning significant
environmental impacts.” Robertson, 490 U. S., at 349.
Second, it “guarantees that the relevant information will be made
available to the larger audience that may also play a role in both
the decisionmaking process and the implementation of that
decision.” Ibid . Requiring FMCSA to consider the
environmental effects of the entry of Mexican trucks would fulfil
neither of these statutory purposes. Since FMCSA has no ability
categorically to prevent the cross-border operations of Mexican
motor carriers, the environmental impact of the cross-border
operations would have no effect on FMCSA’s decisionmaking—FMCSA
simply lacks the power to act on whatever information might be
contained in the EIS.

															   Similarly, the informational purpose is not
served. The “informational role” of an EIS is to “giv[e] the public
the assurance that the agency ‘has indeed considered environmental
concerns in its decisionmaking process,’ Baltimore Gas &
Electric Co. [v. Natural Resources Defense Council,
Inc. , 462 U. S.
87 , 97 (1983)], and, perhaps more significantly, provid[e] a
springboard for public comment” in the agency decisionmaking
process itself, ibid . The purpose here is to ensure that
the “larger audience,” ibid. , can provide input as
necessary to the agency making the relevant decisions. See 40 CFR
§1500.1(c) (2003) (“NEPA’s purpose is not to generate
paperwork—even excellent paperwork—but to foster excellent action.
The NEPA process is intended to help public officials make
decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and enhance
the environment”); §1502.1 (“The primary purpose of an
environmental impact statement is to serve as an action-forcing
device to insure that the policies and goals defined in the Act are
infused into the ongoing programs and actions of the Federal
Government”). But here, the “larger audience” can have no impact on
FMCSA’s decisionmaking, since, as just noted, FMCSA simply could
not act on whatever input this “larger audience” could
provide.[ Footnote 2 ]

															   It would not, therefore, satisfy NEPA’s “rule
of reason” to require an agency to prepare a full EIS due to the
environmental impact of an action it could not refuse to perform.
Put another way, the legally relevant cause of the entry of the
Mexican trucks is not FMCSA’s action, but instead the
actions of the President in lifting the mora- torium and those of
Congress in granting the President this authority while
simultaneously limiting FMCSA’s discretion.

															   Consideration of the CEQ’s “cumulative impact”
regulation does not change this analysis. An agency is required to
evaluate the “[c]umulative impact” of its action, which 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.”
§1508.7. The “cumulative impact” regulation required FMCSA to
consider the “incremental impact” of the safety rules themselves,
in the context of the President’s lifting of the moratorium and
other relevant circumstances. But this is exactly what FMCSA did in
its EA. FMCSA appropriately and reasonably examined the incremental
impact of its safety rules assuming the President’s modification of
the moratorium (and, hence, assuming the increase in cross-border
operations of Mexican motor carriers). The “cumulative impact”
regulation does not require FMCSA to treat the lifting of the
moratorium itself, or consequences from the lifting of the
moratorium, as an effect of its promulgation of its Application and
Safety Monitoring Rules.[ Footnote
3 ]

															C

															   We hold that where an agency has
no ability to prevent a certain effect due to its limited statutory
authority over the relevant actions, the agency cannot be
considered a legally relevant “cause” of the effect. Hence, under
NEPA and the implementing CEQ regulations, the agency need not
consider these effects in its EA when determining whether its
action is a “major Federal action.” Because the President, not
FMCSA, could authorize (or not authorize) cross-border operations
from Mexican motor carriers, and because FMCSA has no discretion to
prevent the entry of Mexican trucks, its EA did not need to
consider the environmental effects arising from the entry.[ Footnote 4 ]

															III

															   Under the CAA, a federal
“department, agency, or instrumentality” may not, generally,
“engage in, support in any way or provide financial assistance for,
license or permit, or approve, any activity” that violates an
applicable State air-quality implementation plan. 42 U. S. C.
§7506(c)(1); 40 CFR §93.150 (2003). Federal agencies must, in many
circumstances, undertake a conformity determination with respect to
a proposed action, to ensure that the action is consistent with
§7606(c)(1). See 40 CFR §§93.150(b), 93.153(a)–(b). However, an
agency is exempt from the general conformity determination under
the CAA if its action would not cause new emissions to exceed
certain threshold emission rates set forth in §93.153(b). FMCSA
determined that its proposed regulations would not cause emissions
to exceed the relevant threshold amounts and therefore concluded
that the issuance of its regulations would comply with the CAA.
App. to Pet. for Cert. 65a–66a, 155a. Critical to its calculations
was its consideration of only those emissions that would occur from
the increased roadside inspections of Mexican trucks; like its NEPA
analysis, FMCSA’s CAA analysis did not consider any emissions
attributable to the increased presence of Mexican trucks within the
United States.

															   EPA’s rules provide that “a
conformity determination is required for each pollutant where the
total of direct and indirect emissions in a nonattainment or
maintenance area caused by a Federal action would equal or exceed”
the threshold levels established by the EPA. 40 CFR §93.153(b).
“Direct emissions” are defined as those covered emissions “that are
caused or initiated by the Federal action and occur at the same
time and place as the action.” §93.152. The term “indirect
emissions” means covered emissions that

															“(1) Are caused by the Federal action, but may
occur later in time and/or may be further removed in distance from
the action itself but are still reasonably foreseeable; and (2) The
Federal agency can practicably control and will maintain control
over due to a continuing program responsibility of the Federal
agency.” Ibid .

															   Unlike the regulations
implementing NEPA, the EPA’s CAA regulations have defined the term
“[c]aused by.” Ibid . In particular, emissions are
“[c]aused by” a Federal action if the “emissions … would not …
occur in the absence of the Federal action.” Ibid . Thus,
the EPA has made clear that for purposes of evaluating causation in
the conformity review process, some sort of “but for” causation is
sufficient.

															   Although arguably FMCSA’s proposed regulations
would be “but for” causes of the entry of Mexican trucks into the
United States, the emissions from these trucks are neither “direct”
nor “indirect” emissions. First, the emissions from the Mexican
trucks are not “direct” because they will not occur at the same
time or at the same place as the promulgation of the
regulations.

															   Second, FMCSA cannot practicably control, nor
will it maintain control, over these emissions. As discussed above,
FMCSA does not have the ability to countermand the President’s
decision to lift the moratorium, nor could it act categorically to
prevent Mexican carriers from being registered or Mexican trucks
from entering the United States. Once the regulations are
promulgated, FMCSA would have no ability to regulate any aspect of
vehicle exhaust from these Mexican trucks. FMCSA could not refuse
to register Mexican motor carriers simply on the ground that their
trucks would pollute excessively. FMCSA cannot determine whether
registered carriers actually will bring trucks into the United
States, cannot control the routes the carriers take, and cannot
determine what the trucks will emit. Any reduction in emissions
that would occur at the hands of FMCSA would be mere happenstance.
It cannot be said that FMCSA “practicably control[s]” or “will
maintain control” over the vehicle emissions from the Mexican
trucks, and it follows that the emissions from the Mexican trucks
are not “indirect emissions.” Ibid.; see also Determining
Conformity of General Federal Actions to State or Federal
Implementation Plans, 58 Fed. Reg. 63214, 63221 (1993) (“The EPA
does not believe that Congress intended to extend the prohibitions
and responsibilities to cases where, although licensing or
approving action is a required initial step for a subsequent
activity that causes emissions, the agency has no control over that
subsequent activity”).

															   The emissions from the Mexican trucks are
neither “direct” nor “indirect” emissions caused by the issuance of
FMCSA’s proposed regulations. Thus, FMCSA did not violate the CAA
or the applicable regulations by failing to consider them when it
evaluated whether it needed to perform a full “conformity
determination.”

															IV

															   FMCSA did not violate NEPA or the
relevant CEQ regulations when it did not consider the environmental
effect of the increase in cross-border operations of Mexican motor
carriers in its EA. Nor did FMCSA act improperly by not performing,
pursuant to the CAA and relevant regulations, a full conformity
review analysis for its proposed regulations. We therefore reject
respondents’ challenge to the procedures used in promulgating these
regulations. Accordingly, the judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.

															It is so ordered. Footnote 1 In 1995, Congress abolished the ICC and
transferred most of its responsibilities to the Secretary of
Transportation. See ICC Termination Act of 1995, §101, 109 Stat.
803. In 1999, Congress transferred responsibility for motor carrier
safety within DOT to the newly created FMCSA. See Motor Carrier
Safety Improvement Act of 1999, 113 Stat. 1748. Footnote 2 Respondents are left with arguing that an EIS
would be useful for informational purposes entirely outside FMCSA’s
decisionmaking process. See Brief for Respondents 42. But such an
argument overlooks NEPA’s core focus on improving agency
decisionmaking. See 40 CFR §§1500.1, 1500.2, 1502.1 (2003). Footnote 3 The Court of Appeals and respondents contend
that the EA contained numerous other errors, but their contentions
are premised on the conclusion that FMCSA was required to take into
account the increased cross-border operations of Mexican motor
carriers. Footnote 4 Respondents argue that Congress ratified the
Court of Appeals’ decision when it, after the lower court’s
opinion, reenacted §350 in two appropriations bills. The doctrine
of ratification states that “Congress is presumed to be aware of
[a] … judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U. S. 575 , 580
(1978). But this case involves the interpretation of NEPA and the
CAA, not §350. Indeed, the precise requirements of §350 were not
below, and are not here, in dispute. Hence, congressional
reenactment of §350 tells us nothing about Congress’ view as to the
requirements of NEPA and the CAA, and so, on the legal issues
involved in this case, Congress has been entirely silent.

Summary: The Supreme Court ruled that the Federal Motor Carrier Safety Administration (FMCSA) is not required to evaluate the environmental impact of cross-border operations of Mexican-domiciled motor carriers. NEPA and the CAA only impose procedural requirements on federal agencies, and FMCSA lacks discretion to prevent cross-border operations, so these statutes do not apply.


South Florida Water Management Dist. v. Miccosukee Tribe

OPINION OF THE COURT SOUTH FLA. WATER MANAGEMENT DIST. V.MICCOSUKEE TRIBE 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-626 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, PETITIONER v. MICCOSUKEE TRIBE OF INDIANS et al.

															on writ of certiorari to the united states court of
appeals for the eleventh circuit

															[March 23, 2004]

															   Justice O’Connor delivered the
opinion of the Court.

															   Petitioner South Florida Water
Management District operates a pumping facility that transfers
water from a canal into a reservoir a short distance away.
Respondents Miccosukee Tribe of Indians and the Friends of the
Everglades brought a citizen suit under the Clean Water Act
contending that the pumping facility is required to obtain a
discharge permit under the National Pollutant Discharge Elimination
System. The District Court agreed and granted summary judgment to
respondents. A panel of the United States Court of Appeals for the
Eleventh Circuit affirmed. Both the District Court and the Eleventh
Circuit rested their holdings on the predicate determination that
the canal and reservoir are two distinct water bodies. For the
reasons explained below, we vacate and remand for further
development of the factual record as to the accuracy of that
determination.

															I

															A

															   The Central and South Florida
Flood Control Project (Project) consists of a vast array of levees,
canals, pumps, and water impoundment areas in the land between
south Florida’s coastal hills and the Everglades. Historically,
that land was itself part of the Everglades, and its surface and
groundwater flowed south in a uniform and unchanneled sheet.
Starting in the early 1900’s, however, the State began to build
canals to drain the wetlands and make them suitable for
cultivation. These canals proved to be a source of trouble; they
lowered the water table, allowing salt water to intrude upon
coastal wells, and they proved incapable of controlling flooding.
Congress established the Project in 1948 to address these problems.
It gave the United States Army Corps of Engineers the task of
constructing a comprehensive network of levees, water storage
areas, pumps, and canal improvements that would serve several
simultaneous purposes, including flood protection, water
conservation, and drainage. These improvements fundamentally
altered the hydrology of the Everglades, changing the natural sheet
flow of ground and surface water. The local sponsor and day-to-day
operator of the Project is the South Florida Water Management
District (District).

															    Five discrete elements of the
Project are at issue in this case. One is a canal called “C–11.”
C–11 collects groundwater and rainwater from a 104 square–mile area
in south central Broward County. App. 110. The area drained by C–11
includes urban, agricultural, and residential development, and is
home to 136,000 people. At the western terminus of C–11 is the
second Project element at issue here: a large pump station known as
“S–9.” When the water level in C–11 rises above a set level, S–9
begins operating and pumps water out of the canal. The water does
not travel far. Sixty feet away, the pump station empties the water
into a large undeveloped wetland area called “WCA–3,” the third
element of the Project we consider here. WCA–3 is the largest of
several “water conservation areas” that are remnants of the
original South Florida Everglades. The District impounds water in
these areas to conserve fresh water that might otherwise flow
directly to the ocean, and to preserve wetlands habitat. Id., at 112.

															   Using pump stations like S–9, the District
maintains the water table in WCA–3 at a level significantly higher
than that in the developed lands drained by the C–11 canal to the
east. Absent human intervention, that water would simply flow back
east, where it would rejoin the waters of the canal and flood the
populated areas of the C–11 basin. That return flow is prevented,
or, more accurately, slowed, by levees that hold back the surface
waters of WCA–3. Two of those levees, L–33 and L–37, are the final
two elements of the Project at issue here. The combined effect of
L–33 and L–37, C–11, and S–9 is artificially to separate the C–11
basin from WCA–3; left to nature, the two areas would be a single
wetland covered in an undifferentiated body of surface and ground
water flowing slowly southward.

															B

															   As the above description
illustrates, the Project has wrought large-scale hydrologic and
environmental change in South Florida, some deliberate and some
accidental. Its most obvious environmental impact has been the
conversion of what were once wetlands into areas suitable for human
use. But the Project also has affected those areas that remain
wetland ecosystems.

															   Rain on the western side of the
L–33 and L–37 levees falls into the wetland ecosystem of WCA–3.
Rain on the eastern side of the levees, on the other hand, falls on
agricultural, urban, and residential land. Before it enters the
C–11 canal, whether directly as surface runoff or indirectly as
groundwater, that rainwater absorbs contaminants produced by human
activities. The water in C–11 therefore differs chemically from
that in WCA–3. Of particular interest here, C–11 water contains
elevated levels of phosphorous, which is found in fertilizers used
by farmers in the C–11 basin. When water from C–11 is pumped across
the levees, the phosphorous it contains alters the balance of
WCA–3’s ecosystem (which is naturally low in phosphorous) and
stimulates the growth of algae and plants foreign to the Everglades
ecosystem.

															   The phosphorous-related impacts of the Project
are well known and have received a great deal of attention from
state and federal authorities for more than 20 years. A number of
initiatives are currently under way to reduce these impacts and
thereby restore the ecological integrity of the Everglades.
Respondents Miccosukee Tribe of Indians and the Friends of the
Everglades (hereinafter simply Tribe), impatient with the pace of
this progress, brought this Clean Water Act suit in the United
States District Court for the Southern District of Florida. They
sought, among other things, to enjoin the operation of S–9 and, in
turn, the conveyance of water from C–11 into WCA–3.

															C

															   Congress enacted the Clean Water
Act (Act) in 1972. Its stated objective was “to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters.” 86 Stat. 816, 33 U. S. C. §1251. To serve
those ends, the Act prohibits “the discharge of any pollutant by
any person” unless done in compliance with some provision of the
Act. §1311(a). The provision relevant to this case, §1342,
establishes the National Pollutant Discharge Elimination System, or
“NPDES.” Generally speaking, the NPDES requires dischargers to
obtain permits that place limits on the type and quantity of
pollutants that can be released into the Nation’s waters. The Act
defines the phrase “ ‘discharge of a pollutant’ ” to mean
“any addition of any pollutant to navigable waters from any point
source.” §1362(12). A “ ‘point source,’ ” in turn, is
defined as “any discernible, confined and discrete conveyance,”
such as a pipe, ditch, channel, or tunnel, “from which pollutants
are or may be discharged.” §1362(14).

															   According to the Tribe, the
District cannot operate S–9 without an NPDES permit because the
pump station moves phosphorous-laden water from C–11 into WCA–3.
The District does not dispute that phosphorous is a pollutant, or
that C–11 and WCA–3 are “navigable waters” within the meaning of
the Act. The question, it contends, is whether the operation of the
S–9 pump constitutes the “discharge of [a] pollutant” within the
meaning of the Act.

															   The parties filed cross-motions for summary
judgment on the issue of whether S–9 requires an NPDES permit. The
District Court granted the Tribe’s motion, reasoning as
follows:

															“In this case an addition of pollutants exists
because undisputedly water containing pollutants is being
discharged through S–9 from C–11 waters into the Everglades, both
of which are separate bodies of United States water with . . .
different quality levels. They are two separate bodies of water
because the transfer of water or its contents from C–11 into the
Everglades would not occur naturally.” App. to Pet. for Cert.
28a–29a.

															   The Court of Appeals affirmed. It
reasoned first that “in determining whether pollutants are added to
navigable waters for purposes of the [Act], the receiving body of
water is the relevant body of navigable water.” 280 F. 3d
1364, 1368 (CA11 2002). After concluding that pollutants were
indeed being added to WCA–3, the court then asked whether that
addition of pollutants was from a “point source,” so as to trigger
the NPDES permitting requirement. To answer that question, it
explained:

															“[F]or an addition of pollutants to be from a point
source, the relevant inquiry is whether—but for the point
source—the pollutants would have been added to the receiving body
of water. We, therefore, conclude that an addition from a point
source occurs if a point source is the cause in fact of the release
of pollutants into navigable waters.

															   “When a point source changes the natural flow
of a body of water which contains pollutants and causes that water
to flow into another distinct body of navigable water into which it
would not have otherwise flowed, that point source is the
cause-in-fact of the discharge of pollutants.” Ibid. (footnote omitted).

															Because it believed that the water in the C–11
canal would not flow into WCA–3 without the operation of the S–9
pump station, the Court of Appeals concluded that S–9 was the
cause-in-fact of the addition of pollutants to WCA–3. It
accordingly affirmed the District Court’s grant of summary
judgment, and held that the S–9 pump station requires an NPDES
permit. We granted certiorari. 539 U. S. 957 (2003).

															II

															   The District and the Federal
Government, as amicus , advance three separate arguments,
any of which would, if accepted, lead to the conclusion that the
S–9 pump station does not require a point source discharge permit
under the NPDES program. Two of these arguments involve the
application of disputed contentions of law to agreed-upon facts,
while the third involves the application of agreed-upon law to
disputed facts. For reasons explained below, we decline at this
time to resolve all of the parties’ legal disagreements, and
instead remand for further proceedings regarding their factual
dispute.

															A

															   In its opening brief on the
merits, the District argued that the NPDES program applies to a
point source “only when a pollutant originates from the point
source,” and not when pollutants originating elsewhere merely pass
through the point source. Brief for Petitioner 20. This argument
mirrors the question presented in the District’s petition for
certiorari: “Whether the pumping of water by a state water
management agency that adds nothing to the water being pumped
constitutes an ‘addition’ of a pollutant ‘from’ a point source
triggering the need for a National Pollutant Discharge Elimination
System permit under the Clean Water Act.” Pet. for Cert. i.
Although the Government rejects the District’s legal position,
Brief for United States as Amicus Curiae 21, it and the
Tribe agree with the factual proposition that S–9 does not itself
add any pollutants to the water it conveys into WCA–3.

															   This initial argument is
untenable, and even the District appears to have abandoned it in
its reply brief. Reply Brief for Petitioner 2. A point source is,
by definition, a “discernible, confined, and discrete conveyance .” §1362(14) (emphasis added). That definition
makes plain that a point source need not be the original source of
the pollutant; it need only convey the pollutant to “navigable
waters,” which are, in turn, defined as “the waters of the United
States.” §1362(7). Tellingly, the examples of “point sources”
listed by the Act include pipes, ditches, tunnels, and conduits,
objects that do not themselves generate pollutants but merely
transport them. §1362(14). In addition, one of the Act’s primary
goals was to impose NPDES permitting requirements on municipal
wastewater treatment plants. See, e.g ., §1311(b)(1)(B)
(establishing a compliance schedule for publicly owned treatment
works). But under the District’s interpretation of the Act, the
NPDES program would not cover such plants, because they treat and
discharge pollutants added to water by others. We therefore reject
the District’s proposed reading of the definition of
“ ‘discharge of a pollutant’ ” contained in §1362(12).
That definition includes within its reach point sources that do not
themselves generate pollutants.

															B

															   Having answered the precise
question on which we granted certiorari, we turn to a second
argument, advanced primarily by the Government as amicus
curiae in merits briefing and at oral argument. For purposes
of determining whether there has been “any addition of any
pollutant to navigable waters from any point source,” ibid., the Government contends that all the water bodies
that fall within the Act’s definition of “ ‘navigable
waters’ ” (that is, all “the waters of the United States,
including the territorial seas,” §1362(7)) should be viewed
unitarily for purposes of NPDES permitting requirements. Because
the Act requires NPDES permits only when there is an addition of a
pollutant “to navigable waters,” the Government’s approach would
lead to the conclusion that such permits are not required
when water from one navigable water body is discharged, unaltered,
into another navigable water body. That would be true even if one
water body were polluted and the other pristine, and the two would
not otherwise mix. See Catskill Mountains Chapter of Trout
Unlimited, Inc. v. New York , 273 F.3d 481, 492 (CA2
2001); Dubois v. United States Dept. of
Agriculture , 102 F. 3d 1273 (CA1 1996). Under this
“unitary waters” approach, the S–9 pump station would not need an
NPDES permit.

															1

															   The “unitary waters” argument
focuses on the Act’s definition of a pollutant discharge as “any
addition of any pollutant to navigable waters from any point
source.” §1362(12). The Government contends that the absence of the
word “any” prior to the phrase “navigable waters” in §1362(12)
signals Congress’ understanding that NPDES permits would not be
required for pollution caused by the engineered transfer of one
“navigable water” into another. It argues that Congress intended
that such pollution instead would be addressed through local
nonpoint source pollution programs. Section 1314(f)(2(F), which
concerns nonpoint sources, directs the Environmental Protection
Agency (EPA) to give States information on the evaluation and
control of “pollution resulting from . . . changes in the movement,
flow, or circulation of any navigable waters or ground waters,
including changes caused by the construction of dams, levees,
channels, causeways, or flow diversion facilities.”

															   We note, however, that §1314(f)(2)(F) does not
explicitly exempt nonpoint pollution sources from the NPDES program
if they also fall within the “point source” definition.
And several NPDES provisions might be read to suggest a view
contrary to the unitary waters approach. For example, under the
Act, a State may set individualized ambient water quality standards
by taking into consideration “the designated uses of the navigable
waters involved.” 33 U. S. C. §1313(c)(2)(A). Those water
quality standards, in turn, directly affect local NPDES permits; if
standard permit conditions fail to achieve the water quality goals
for a given water body, the State must determine the total
pollutant load that the water body can sustain and then allocate
that load among the permit-holders who discharge to the water body.
§1313(d). This approach suggests that the Act protects individual
water bodies as well as the “waters of the United States” as a
whole.

															   The Government also suggests that we adopt the
“unitary waters” approach out of deference to a longstanding EPA
view that the process of “transporting, impounding, and releasing
navigable waters” cannot constitute an “ ‘addition’ ” of
pollutants to “ ‘the waters of the United States.’ ”
Brief for United States as Amicus Curiae 16. But the
Government does not identify any administrative documents in which
EPA has espoused that position. Indeed, an amicus brief
filed by several former EPA officials argues that the agency once
reached the opposite conclusion. See Brief for Former Administrator
Carol M. Browner et al. as Amici Curiae 17 (citing In re Riverside Irrigation Dist. , 1975 WL 23864 (Off.
Gen. Couns., June 27, 1975) (irrigation ditches that discharge to
navigable waters require NPDES permits even if they themselves
qualify as navigable waters)). The “unitary waters” approach could
also conflict with current NPDES regulations. For example, 40 CFR
§122.45(g)(4) (2003) allows an industrial water user to obtain
“intake credit” for pollutants present in water that it withdraws
from navigable waters. When the permit holder discharges the water
after use, it does not have to remove pollutants that were in the
water before it was withdrawn. There is a caveat, however: EPA
extends such credit “only if the discharger demonstrates that the
intake water is drawn from the same body of water into which the
discharge is made.” The NPDES program thus appears to address the
movement of pollutants among water bodies, at least at times.

															   Finally, the Government and numerous amici warn that affirming the Court of Appeals in this
case would have significant practical consequences. If we read the
Clean Water Act to require an NPDES permit for every engineered
diversion of one navigable water into another, thousands of new
permits might have to be issued, particularly by western States,
whose water supply networks often rely on engineered transfers
among various natural water bodies. See Brief for Colorado
et al. as Amici Curiae 2–4. Many of those diversions
might also require expensive treatment to meet water quality
criteria. It may be that construing the NPDES program to cover such
transfers would therefore raise the costs of water distribution
prohibitively, and violate Congress’ specific instruction that “the
authority of each State to allocate quantities of water within its
jurisdiction shall not be superseded, abrogated or otherwise
impaired” by the Act. §1251(g). On the other hand, it may be that
such permitting authority is necessary to protect water quality,
and that the States or EPA could control regulatory costs by
issuing general permits to point sources associated with water
distribution programs. See 40 CFR §§122.28, 123.25 (2003).* Indeed,
that is the position of the one State that has interpreted
the Act to cover interbasin water transfers. See Brief for
Pennsylvania Department of Environmental Protection as Amicus
Curiae 11–18.

															2

															   Because WCA–3 and C–11 are both
“navigable wa- ters,” adopting the “unitary waters” approach would
lead to the conclusion that the District may operate S–9 without an
NPDES permit. But despite its relevance here, neither the District
nor the Government raised the unitary waters approach before the
Court of Appeals or in their briefs respecting the petition for
certiorari. (The District adopted the position as its own in its
reply brief on the merits.) Indeed, we are not aware of any
reported case that examines the unitary waters argument in
precisely the form that the Government now presents it. As a
result, we decline to resolve it here. Because we find it necessary
to vacate the judgment of the Court of Appeals with respect to a
third argument presented by the District, the unitary waters
argument will be open to the parties on remand.

															C

															   In the courts below, as here, the
District contended that the C–11 canal and WCA–3 impoundment area
are not distinct water bodies at all, but instead are two
hydrologically indistinguishable parts of a single water body. The
Government agrees with the District on this point, claiming that
because the C–11 canal and WCA–3 “share a unique, intimately
related, hydrological association,” they “can appropriately be
viewed, for purposes of Section 402 of the Clean Water Act, as
parts of a single body of water.” Brief for United States in
Opposition 13. The Tribe does not dispute that if C–11 and WCA–3
are simply two parts of the same water body, pumping water from one
into the other cannot constitute an “addition” of pollutants. As
the Second Circuit put it in Trout Unlimited , “[i]f one
takes a ladle of soup from a pot, lifts it above the pot, and pours
it back into the pot, one has not ‘added’ soup or anything else to
the pot.” 273 F. 3d, at 492. What the Tribe disputes is the
accuracy of the District’s factual premise; according to the Tribe,
C–11 and WCA–3 are two pots of soup, not one.

															   The record does contain
information supporting the District’s view of the facts. Although
C–11 and WCA–3 are divided from one another by the L–33 and L–37
levees, that line appears to be an uncertain one. Because
Everglades soil is extremely porous, water flows easily between
ground and surface waters, so much so that “[g]round and surface
waters are essentially the same thing.” App. 111, 117. C–11 and
WCA–3, of course, share a common underlying aquifer. Tr. of Oral
Arg. 42. Moreover, the L–33 and L–37 levees continually leak,
allowing water to escape from WCA–3. This means not only that any
boundary between C–11 and WCA–3 is indistinct, but also that there
is some significant mingling of the two waters; the record reveals
that even without use of the S–9 pump station, water travels as
both seepage and groundwater flow between the water conservation
area and the C–11 basin. App. 172, see also id., at 37
(describing flow between C–11 and WCA–3 as “cyclical”).

															   The parties also disagree about how the
relationship between S–9 and WCA–3 should be assessed. At oral
argument, counsel for the Tribe focused on the differing
“biological or ecosystem characteristics” of the respective waters,
Tr. of Oral Arg. 43; see also Brief for Respondent Miccosukee Tribe
of Indians of Florida 6–7; Brief for Respondent Friends of the
Everglades 18–22, while counsel for the District emphasizes the
close hydrological connections between the two. See, e.g. ,
Brief for Petitioner 47. Despite these disputes, the District Court
granted summary judgment to the Tribe. It applied a test that
neither party defends; it determined that C–11 and WCA–3 are
distinct “because the transfer of water or its contents from C–11
into the Everglades would not occur naturally.” App. to Pet. for
Cert. 28a. The Court of Appeals for the Eleventh Circuit endorsed
this test. 280 F. 3d, at 1368.

															   We do not decide here whether the District
Court’s test is adequate for determining whether C–11 and WCA–3 are
distinct. Instead, we hold only that the District Court applied its
test prematurely. Summary judgment is appropriate only where there
is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U. S. 317 (1986).
The record before us leads us to believe that some factual issues
remain unresolved. The District Court certainly was correct to
characterize the flow through the S–9 pump station as a non-natural
one, propelled as it is by diesel-fired motors against the pull of
gravity. And it also appears true that if S–9 were shut down, the
water in the C–11 canal might for a brief time flow east ,
rather than west, as it now does. But the effects of shutting down
the pump might extend beyond that. The limited record before us
suggests that if S–9 were shut down, the area drained by C–11 would
flood quite quickly. See 280 F. 3d, at 1366 (“Without the
operation of the S–9 pump station, the populated western portion of
Broward County would flood within days”). That flooding might mean
that C–11 would no longer be a “distinct body of navigable water,” id., at 1368, but part of a larger water body extending
over WCA–3 and the C–11 basin. It also might call into question the
Eleventh Circuit’s conclusion that S–9 is the cause in fact of
phosphorous addition to WCA–3. Nothing in the record suggests that
the District Court considered these issues when it granted summary
judgment. Indeed, in ordering later emergency relief from its own
injunction against the operation of the S–9 pump station, the court
admitted that it had not previously understood that shutting down
S–9 would “literally ope[n] the flood gates.” Id., at
1371.

															   We find that further development of the record
is necessary to resolve the dispute over the validity of the
distinction between C–11 and WCA–3. After reviewing the full
record, it is possible that the District Court will conclude that
C–11 and WCA–3 are not meaningfully distinct water bodies. If it
does so, then the S–9 pump station will not need an NPDES permit.
In addition, the Government’s broader “unitary waters” argument is
open to the District on remand. Accordingly, the judgment of the
United States Court of Appeals for the Eleventh Circuit is vacated,
and the case is remanded for further proceedings consistent with
this opinion.

															   It is so ordered.

															*An applicant for an individual NPDES permit must
provide informa- tion about, among other things, the point source
itself, the nature of the pollutants to be discharged, and any
water treatment system that will be used. General permits greatly
reduce that administrative burden by authorizing discharges from a
category of point sources within a specified geographic area. Once
EPA or a state agency issues such a permit, covered entities, in
some cases, need take no further action to achieve compliance with
the NPDES besides adhering to the permit conditions. See 40 CFR
§122.28(b)(2)(v) (2003). 541 U. S. ____ (2004) SOUTH FLA. WATER MANAGEMENT DIST. V.MICCOSUKEE TRIBE 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-626 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, PETITIONER v. MICCOSUKEE TRIBE OF INDIANS et al.

															on writ of certiorari to the united states court of
appeals for the eleventh circuit

															[March 23, 2004]

															   Justice Scalia, concurring in
part and dissenting in part.

															   I join Parts I and II–A of the
Court’s opinion, which hold that a point source is not exempt from
the NPDES permit requirement merely because it does not itself add
pollutants to the water it pumps. I dissent, however, from its
decision to vacate the judgment below on another ground, Part II–C, ante , and to invite consideration of yet another legal
theory, Part II–B, ante . Neither of those actions is taken
in response to the question presented. I would affirm the Court of
Appeals’ disposition of the question presented without reaching
other issues.

															   Parts II–B and II–C are problematic for other
reasons as well. In Part II–B, the Court declines to resolve the
Government’s unitary-waters argument on the ground that it was not
raised or decided below. See ante , at 11. In my judgment,
a fair reading of the opinion and briefs does not support that
contention. See, e.g. , 280 F. 3d 1364, 1368,
n. 5 (CA11 2002) (“We reject the Water District’s argument
that no addition of pollutants can occur unless pollutants are
added from the outside world insofar as the Water District
contends the outside world cannot include another body of navigable
waters ” (emphasis added)); Brief for Appellant in No.
00–15703–CC (CA11), p. 10 (“The S–9 pump station merely moves
navigable waters from one side of the Levee to another”). That the
argument was not phrased in the same terms or argued with the same
clarity does not mean it was not made. I see no point in directing
the Court of Appeals to consider an argument it has already
rejected.

															   I also question the Court’s holding in Part
II–C that summary judgment was precluded by the possibility that,
if the pumping station were shut down, flooding in the C– 11 basin
might ultimately cause pollutants to flow from C–11 to WCA–3. Ante , at 13–14. To my knowledge, that argument has not
previously been made. Petitioner argued that WCA–3 and C–11 were
historically part of the same ecosystem and that they remain
hydrologically related, see Brief for Petitioner 46–49, but that is
quite different from arguing that, absent S–9, pollutants would
flow from C–11 to WCA–3 (a journey that, at the moment, is uphill ). Nothing in Celotex Corp. v. Catrett, 477 U. S. 317 (1986),
requires a district court to speculate sU. S.onte about
possibilities even the parties have not contemplated. Cf. Fed. Rule
Civ. Proc. 56(e) (opponent of summary judgment must “set forth
specific facts showing that there is a genuine issue for
trial”).

															   I would affirm the judgment below as to the
question presented, leaving the Government’s unitary-waters theory
to be considered in another case.

Summary: The South Florida Water Management District operates a pumping facility that transfers water from a canal to a reservoir. The Miccosukee Tribe of Indians and the Friends of the Everglades sued, arguing that the facility needs a discharge permit under the Clean Water Act. The Supreme Court sent the case back to lower courts to determine if the canal and reservoir are distinct water bodies and if the pumping station might cause flooding and pollution transfer.