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Chapter 45 Environmental Law

Case 45.1

127 S.Ct. 1423 U.S.,2007. Supreme Court of the United States ENVIRONMENTAL DEFENSE et al., Petitioners, v. DUKE ENERGY CORPORATION, et al. No. 05-848. Argued Nov. 1, 2006. Decided April 2, 2007. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined, and in which THOMAS, J., joined as to all but Part III-A.THOMAS, J., filed an opinion concurring in part. Sean H. Donahue, Washington, D.C., for petitioners. Thomas G. Hungar, Washington, D.C., for respondent United States in support of petitioners. Carter G. Phillips, Washington, D.C., for the respondent Duke Energy Corporation. Roger R. Martella, Jr., Acting General Counsel, United States Environmental Protection Agency, Washington, D.C., Paul D. Clement, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for the United States as Respondent Supporting Petitioners. Jeffrey M. Gleason, J. Blanding Holman, IV, Caleb Jaffe, Southern Environmental Law Center, Chapel Hill, N.C., Vickie Patton, Environmental Defense, Boulder, Colorado SeanH. Donahue, Counsel of Record, Washington, D.C., David T. Goldberg, New York, N.Y., for Petitioners. Marc E. Manly, Group Executive and Chief Legal Officer, Catherine S. Stempien, Vice President and General Counsel Corporate Legal, Garry S. Rice, Associate General Counsel, Duke Energy Corporation, Legal Department, Charlotte, NC, Carter G. Phillips, Counsel of Record, Mark D. Hopson, Kathryn B. Thomson, Stephen M. Nickelsburg, Sidley Austin LLP, Washington, D.C., Henry V. Nickel, F. William Brownell, Makram Jaber, Hunton & Williams LLP, Washington, D.C., T. Thomas Cottingham III, Nash E. Long, III, Hunton & Williams LLP, Charlotte, NC, for Respondent Duke Energy Corporation. 237 238 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

Ann R. Klee, General Counsel, Chet M. Thompson, Deputy General Counsel, Granta Y. Nakayama, Assistant Administrator, Thomas W. Swegle, Carol S. Holmes, David W. Schnare, Alan Dion, Attorneys United States Environmental Protection Agency, Washington, D.C., Paul D. Clement, Solicitor General, Counsel of Record, Sue Ellen Wooldridge, Assistant Attorney General, Thomas G. Hungar, Deputy Solicitor General, James A. Feldman, Assistant to the Solicitor General, Katherine J. Barton, Jason A. Dunn, Department of Justice*1428 , Washington, D.C., for United States As Respondent Supporting Petitioners.For U.S. Supreme Court briefs, see:2006 WL 2066662 (Pet.Brief)2006 WL 2689784 (Resp.Brief)2006 WL 3014118 (Reply.Brief)2006 WL 3014121 (Reply.Brief)2006 WL 2066660 (Resp.Supp.Brief) Justice SOUTER delivered the opinion of the Court. In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term “modification,” 42 U.S.C. § 7411(a)(4), while the PSD provisions use that word “as defined in” NSPS, § 7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on “modification” to their NSPS counterparts, and that EPA's 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals's reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act's restrictions on judicial review of EPA regulations for validity. I The Clean Air Amendments of 1970, 84 Stat. 1676, broadened federal authority to combat air pollution, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845-846, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U.S.C. §§ 7409, 7410. The amendments dealing with NSPS authorized EPA to require operators of stationary sources of air pollutants to use the best technology for limiting pollution, Chevron, supra, at 846, 104 S.Ct. 2778; see also 1 F. Grad, Environmental Law § 2.03, p. 2-356 (2006), both in newly constructed sources and those undergoing “modification,” 42 U.S.C. § 7411(a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted,”42 U.S.C. § 7411(a) (4). EPA's 1975 regulations implementing NSPS provided generally that “any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of [S]ection 111.” 40 CFR § 60.14(a) (1976). Especially significant here is the identification of an NSPS “modification” as a change that “increase[s] ... the emission rate,” which “shall be expressed as kg/hr of any pollutant discharged into the atmosphere.”§ 60.14(b).FN1 FN1. EPA's 1975 NSPS regulations did not specify that the “rate” means the maximum rate possible for the technology, see 40 CFR §§ 60.14(a)-(b) (1977), but the parties all read the regulations this way. See Brief for Petitioners 2; Brief for United States 7; Brief for Respondent Duke 32. At another point in the NSPS regulations, a different definition of “modification” appeared: “ ‘Modification’ means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility,” § 60.2(h); see also New York v. EPA, 413 F.3d 3, 11-12 (C.A.D.C.2005)(per curiam) (“[N]either the 1975 regulation nor its preamble explained why EPA found it necessary to offer these two separate glosses on ‘modification’ ”). *1429 NSPS, however, did too little to “achiev[e] the ambitious goals of the 1970 Amendments,” R. Belden, Clean Air Act 7 (2001) (hereinafter Belden), and the Clean Air Act Amendments of 1977, 91 Stat. 685, included the PSD provisions, which aimed at giving added protection to air quality in certain parts of the country “notwithstanding attainment and maintenance of” the NAAQS. 42 U.S.C. § 7470(1).FN2 The 1977 amendments required a PSD permit before a “major emitting facility” could be “constructed” in an area covered by the scheme. § 7475(a). As originally enacted, PSD applied only to newly constructed sources, but soon a technical amendment added the following subparagraph: “The term ‘construction’ when used in connection with any source or facility, includes the modification (as defined in [S]ection 111(a)) of any source or facility.” § 14(a)(54), 91 Stat. 1402, 42 U.S.C. § 7479(2)(C); see also New York v. EPA, 413 F.3d 3, 13 (C.A.D.C.2005). In other words, the “construction” requiring a PSD permit under the statute was made to include (though it was not limited to) a “modification” as defined in the statutory NSPS provisions. FN2. Statutory PSD superseded a regulatory PSD scheme established by EPA in 1974. See 39 Fed.Reg. 42510. Under the regulations, the term “modification” was defined as “any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been CHAPTER 45: ENVIRONMENTAL LAW 239

promulgated.” Id., at 42514. In 1980, EPA issued PSD regulations,FN3 which “limited the application of [PSD] review” of modified sources to instances of “ ‘major’ modificatio[n],” Belden 46, defined as “any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” 40 CFR § 51.166(b)(2)(i) (1987). Further regulations in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of “[a]n increase in the hours of operation or in the production rate” would not generally constitute a “physical change or change in the method of operation.”§ 51.166(b)(2)(iii) (f). For purposes of a PSD permit, that is, such an operational change would not amount to a “modification” as the Act defines it. Second, the PSD regulations defined a “net emissions increase” as “[a]ny increase in actual emissions from a particular physical change or change in the method of operation,” net of other contemporaneous “increases and decreases in actual emissions at the source.”§ 51.166(b)(3). “Actual emissions” were defined to “equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation.”§ 51.166(b)(21)(ii). “[A]ctual emissions” were to be “calculated using the unit's actual operating hours [and] production rates.” Ibid. Third, the term “significant” was defined as “a rate of emissions that would equal or exceed” one or another enumerated threshold, each expressed in “tons per year.” § 51.166(b)(23)(i). FN3. Although EPA had promulgated an earlier set of PSD regulations in 1978, 43 Fed.Reg. 26380, none of the parties argues that they govern the conduct at issue in this case. *1430 It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this case: (a) The Act defines modification of a stationary source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. (b) EPA's NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pollutants measured in kilograms per hour. (c) EPA's 1980 PSD regulations require a permit for a modification (with the same statutory definition) only when it is a major one and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years. The Court of Appeals held that Congress's provision defining a PSD modification by reference to an NSPS modification caught not only the statutory NSPS definition, but also whatever regulatory gloss EPA puts on that definition at any given time (for the purposes of the best technology requirement). When, therefore, EPA's PSD regulations specify the “change” that amounts to a “major modification” requiring a PSD permit, they must measure an increase in “the amount of any air pollutant emitted,”42 U.S.C. § 7411(a)(4), in terms of the hourly rate of discharge, just the way NSPS regulations do. Petitioners and the United States say, on the contrary, that when EPA addresses the object of the PSD scheme it is free to put a different regulatory interpretation on the common statutory core of “modification,” by measuring increased emission not in terms of hourly rate but by the actual, annual discharge of a pollutant that will follow the modification, regardless of rate per hour. This disagreement is the nub of the case. II Respondent Duke Energy Corporation runs 30 coal-fired electric generating units at eight plants in North and South Carolina. United States v. Duke Energy Corp., 411 F.3d 539, 544 (C.A.4 2005). The units were placed in service between 1940 and 1975, and each includes a boiler containing thousands of steel tubes arranged in sets. Ibid. Between 1988 and 2000,FN4 Duke replaced or redesigned 29 tube assemblies in order to extend the life of the units and allow them to run longer each day. Ibid. FN4. The United States argues that some of Duke's projects were governed by EPA's PSD regulations promulgated in 1992 rather than the 1980 PSD regulations. Brief for United States 20, n. 4. Duke disputes this. Brief for Respondent Duke 14, n. 4. Because the United States acknowledges that the two sets of regulations “did not materially differ with respect to the legal question at issue here,” Brief for United States 20, n. 4, we will assume, as did the Court of Appeals and the District Court, that the 1980 PSD regulations control. 411 F.3d, at 543, n. 1; United States v. Duke Energy Corp ., 278 F.Supp.2d 619, 629 (M.D.N.C.2003). The United States filed this action in 2000, claiming, among other things, that Duke violated the PSD provisions by doing this work without permits. Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund intervened as plaintiffs and filed a complaint charging similar violations. Duke moved for summary judgment, one of its positions being that none of the projects was a “major modification” requiring*1431 a PSD permit because none increased hourly rates of emissions. The District Court agreed with Duke's reading of the 1980 PSD regulations. It reasoned that their express exclusion of “[a]n increase in the hours of operation” from the definition of a “physical change or change in the method of operation” implied that “post-project emissions levels must be calculated assuming” preproject hours of operation. 278 F.Supp.2d 619, 640-641 (M.D.N.C.2003). Consequently, the District Court said, a PSD “major modification” can 240 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW occur “only if the project increases the hourly rate of emissions.” Id ., at 641. The District Court found further support for its construction of the 1980 PSD regulations in one letter and one memorandum written in 1981 by EPA's Director of the Division of Stationary Source Enforcement, Edward E. Reich. Id., at 641-642. The United States and intervenor-plaintiffs (collectively, plaintiffs) subsequently stipulated “that they do not contend that the projects at issue in this case caused an increase in the maximum hourly rate of emissions at any of Duke Energy's units.” App. 504. Rather, their claim “is based solely on their contention that the projects would have been projected to result in an increased utilization of the units at issue.” Ibid. Duke, for its part, stipulated to plaintiffs' right to appeal the District Court's determination that projects resulting in greater operating hours are not “major modifications” triggering the PSD permit requirement, absent an increase in the hourly rate of emissions. The District Court then entered summary judgment for Duke on all PSD claims. The Court of Appeals for the Fourth Circuit affirmed, “albeit for somewhat different reasons.” 411 F.3d, at 542. “[T]he language and various interpretations of the PSD regulations ... are largely irrelevant to the proper analysis of this case,” reasoned the Court of Appeals, “because Congress' decision to create identical statutory definitions of the term ‘modification’ ” in the NSPS and PSD provisions of the Clean Air Act “has affirmatively mandated that this term be interpreted identically” in the regulations promulgated under those provisions. Id., at 547, n. 3, 550. The Court of Appeals relied principally on the authority of Rowan Cos. v. United States, 452 U.S. 247, 250, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981), where we held against the Government's differing interpretations of the word “wages” in different tax provisions. 411 F.3d, at 550. As the Court of Appeals saw it, Rowan establishes an “effectively irrebuttable” presumption that PSD regulations must contain the same conditions for a “modification” as the NSPS regulations, including an increase in the hourly rate of emissions. FN5 411 F.3d, at 550. FN5. The Court of Appeals noted that EPA was free to abandon the requirement that a “modification” be accompanied by an increase in the hourly rate of emissions, provided it did so for both the NSPS and PSD programs. 411 F.3d, at 550- 551. In other words, the Court of Appeals raised no question about the reasonableness of the definition of “modification” in the 1980 PSD regulations, apart from its deviation from the definition contained in NSPS regulations. As the Court of Appeals said, Duke had not initially relied on Rowan, see 411 F.3d, at 547, n. 4, and when the Court sua sponte requested supplemental briefing on Rowan 's relevance, plaintiffs injected a new issue into the case. They argued that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the validity of the regulation that could not be raised in an enforcement proceeding. See 42 U.S.C. § 7607(b)(2). Under § 307(b) of the Act, they said, judicial review for validity can be obtained only by *1432 a petition to the Court of Appeals for the District of Columbia Circuit, generally within 60 days of EPA's rulemaking. 42 U.S.C. § 7607(b). The Court of Appeals rejected this argument. “Our choice of this interpretation of the PSD regulations ... is not an invalidation of those regulations,” it said, because “the PSD regulations can be interpreted” to require an increase in the hourly emissions rate as an element of a major “modification” triggering the permit requirement. 411 F.3d, at 549, n. 7. To show that the 1980 PSD regulations are open to this construction, the Court of Appeals cited the conclusions of the District Court and the Reich opinions. We granted the petition for certiorari brought by intervenor-plaintiffs, 547 U.S. ----, 126 S.Ct. 2019, 164 L.Ed.2d 778 (2006), and now vacate. III The Court of Appeals understood that it was simply construing EPA's 1980 PSD regulations in a permissible way that left them in harmony with their NSPS counterpart and, hence, the Act's single definition of “modification.” The plaintiffs say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text. It is true that no precise line runs between a purposeful but permissible reading of the regulation adopted to bring it into harmony with the Court of Appeals's view of the statute, and a determination that the regulation as written is invalid. But the latter occurred here, for the Court of Appeals's efforts to trim the PSD regulations to match their different NSPS counterparts can only be seen as an implicit declaration that the PSD regulations were invalid as written. A [1] [2] [3] In applying the 1980 PSD regulations to Duke's conduct, the Court of Appeals thought that, by defining the term “modification” identically in its NSPS and PSD provisions, the Act required EPA to conform its PSD interpretation of that definition to any such interpretation it reasonably adhered to under NSPS. But principles of statutory construction are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as “effectively irrebuttable.” 411 F.3d, at 550. We also understand that “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same section.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). Thus, the “natural presumption that identical words used in different parts of the same act are intended to have the same meaning ... is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the CHAPTER 45: ENVIRONMENTAL LAW 241 act with different intent.” Ibid. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies. The point is the same even when the terms share a common statutory definition, if it is general enough, as we recognized in Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). There the question was whether the term “employees” in § 704(a) of Title VII of the Civil Rights Act of 1964 covered former employees. Title VII expressly defined *1433 the term “employee,” 42 U.S.C. § 2000e(f), but the definition was “consistent with either current or past employment,”519 U.S., at 342, 117 S.Ct. 843, and we held that “each section” of Title VII “must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute,” id., at 343-344, 117 S.Ct. 843. If Robinson were inconsistent with Rowan (on which the Court of Appeals relied), it would be significant that Robinson is the later case, but we read the two as compatible. In Rowan, the question was whether the value of meals and lodging given to employees by an employer for its own convenience should be counted in computing “wages” under the Federal Insurance Contributions Act (FICA), 26 U.S.C. § 3101 et seq ., and the Federal Unemployment Tax Act (FUTA), 26 U.S.C. § 3301 et seq . Treasury Regulations made this value “includable in ‘wages' as defined in FICA and FUTA, even though excludable from ‘wages' under the substantially identical” statutory definition of “wages” for income-tax withholding purposes. 452 U.S., at 252, 101 S.Ct. 2288. Although we ultimately held that the income tax treatment was the proper one across the board, we did not see it this way simply because a “substantially identical” definition of “wages” appeared in each of the different statutory provisions. Instead, we relied on a manifest “congressional concern for the interest of simplicity and ease of administration.” Id., at 255, 101 S.Ct. 2288 (internal quotation marks omitted). The FICA and FUTA regulations fell for failing to “serve that interest,” id., at 257, 101 S.Ct. 2288, not for defying definitional identity. [4] In fact, in a setting much like Rowan, we recently declined to require uniformity when resolving ambiguities in identical statutory terms. In United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001), we rejected the notion that using the phrase “wages paid” in both “the discrete taxation and benefits eligibility contexts” can, standing alone, “compel symmetrical construction,” id., at 213, 121 S.Ct. 1433; we gave “substantial judicial deference” to the “longstanding,” “reasonable,” and differing interpretations adopted by the Internal Revenue Service in its regulations and Revenue Rulings. Id., at 218-220, 121 S.Ct. 1433. There is, then, no “effectively irrebuttable” presumption that the same defined term in different provisions of the same statute must “be interpreted identically.” 411 F.3d, at 550. Context counts. [5] It is true that the Clean Air Act did not merely repeat the term “modification” or the same definition of that word in its NSPS and PSD sections; the PSD language referred back to the section defining “modification” for NSPS purposes. 42 U.S.C. § 7479(2)(C). But that did not matter in Robinson, and we do not see the distinction as making any difference here. Nothing in the text or the legislative history of the technical amendments that added the cross-reference to NSPS suggests that Congress had details of regulatory implementation in mind when it imposed PSD requirements on modified sources; the cross-reference alone is certainly no unambiguous congressional code for eliminating the customary agency discretion to resolve questions about a statutory definition by looking to the surroundings of the defined term, where it occurs. See New York, 413 F.3d, at 19 (“So far as appears, ... [this] incorporatio[n] by reference [is] the equivalent of Congress's having simply repeated in the [PSD] context the definitional language used before in the NSPS context”); compare 91 Stat. 745 (expressly incorporating in an unrelated provision of the 1977 *1434 amendments “the interpretative regulation of the [EPA] Administrator ... published in 41 Federal Register 55524-30” with specified exceptions); New York, supra, at 19 (“Congress's failure to use such an express incorporation of prior regulations for ‘modification’ cuts against” any suggestion that “Congress intended to incorporate” into the Act the “preexisting regulatory definition” of “modification”). Absent any iron rule to ignore the reasons for regulating PSD and NSPS “modifications” differently, EPA's construction need do no more than fall within the limits of what is reasonable, as set by the Act's common FN6 definition. FN6. Duke argues that the 1977 amendments intended to incorporate EPA's definition of “modification” under the 1974 regulatory PSD program. Brief for Respondent Duke 44; see also n. 2, supra. We find no support for this argument in the statutory text, which refers to the statutory NSPS definition rather than the regulatory PSD definition. Although Duke correctly points out that “Congress instructed that the bulk of the pre-existing rules ‘shall remain in effect,’ ” Brief for Respondent Duke 44 (quoting 42 U.S.C. § 7478(a)), this instruction was a temporary measure “[u]ntil such time as an applicable implementation plan is in effect,”§ 7478(a). We therefore do not read this language as a restriction on EPA's authority to interpret the statutory PSD provisions reasonably in a manner that departs from the 1974 regulations. Duke also invokes Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), for the proposition that “use of the pre-existing term ‘modification’ ‘carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.’ ” Brief for Respondent Duke 44. But this reasoning is unavailing here, given the existence of at least three distinct regulatory definitions of “modification” at the time of the 1977 amendments. See supra, at ------2-3, and nn. 1, 2. 242 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

B [6] The Court of Appeals's reasoning that the PSD regulations must conform to their NSPS counterparts led the court to read those PSD regulations in a way that seems to us too far a stretch for the language used. The 1980 PSD regulations on “modification” simply cannot be taken to track the agency's regulatory definition under the NSPS. True, the 1980 PSD regulations may be no seamless narrative, but they clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” On its face, the definition in the PSD regulations specifies no rate at all, hourly or annual, merely requiring a physical or operational change “that would result in a significant net emissions increase of any” regulated pollutant. 40 CFR § 51.166(b)(2)(i). But even when a rate is mentioned, as in the regulatory definitions of the two terms, “significant” and “net emissions increase,” the rate is annual, not hourly. Each of the thresholds that quantify “significant” is described in “tons per year,” § 51.166(b)(23)(i), and a “net emissions increase” is an “increase in actual emissions” measured against an “average” prior emissions rate of so many “tons per year.” §§ 51.166(b)(3) and (21)(ii). And what is further at odds with the idea that hourly rate is relevant is the mandate that “[a]ctual emissions shall be calculated using the unit's actual operating hours,”§ 51.166(b)(21)(ii), since “actual emissions” must be measured in a manner that looks to the number of hours the unit is or probably will be actually running. What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which “hourly rate of emissions,” 411 F.3d, at 550 (emphasis deleted), is dispositive. The reasons invoked by the Court of Appeals for its different view are no match for these textual differences. The appellate *1435 court cited two authorities ostensibly demonstrating that the 1980 PSD regulations “can be interpreted consistently” with the hourly emissions test, the first being the analysis of the District Court in this case. Id ., at 549, n. 7. The District Court thought that an increase in the hourly emissions rate was necessarily a prerequisite to a PSD “major modification” because a provision of the 1980 PSD regulations excluded an “ ‘increase in the hours of operation or in the production rate’ ” from the scope of “ ‘[a] physical change or change in the method of operation.’ ” 278 F.Supp.2d, at 640-641 (quoting 40 CFR §§ 51.166(b)(2)(iii)(f ) and (3)(i)(a ) (1987)). The District Court read this exclusion to require, in effect, that a source's hours of operation “be held constant” when preproject emissions are being compared with postproject emissions for the purpose of calculating the “net emissions increase.” 278 F.Supp.2d, at 640. We think this understanding of the 1980 PSD regulations makes the mistake of overlooking the difference between the two separate components of the regulatory definition of “major modification”: “[1] any physical change in or change in the method of operation of a major stationary source that [2] would result in a significant net emissions increase of any pollutant subject to regulation under the Act.”§ 51.166(b)(2)(i); cf. New York, 413 F.3d, at 11 (“[The statutory] definition requires both a change- whether physical or operational-and a resulting increase in emissions of a pollutant” (emphasis in original));Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901, 907 (C.A.7 1990) (same). The exclusion of “increase in ... hours ... or ... production rate,”§ 51.166(b)(2)(iii)(f ), speaks to the first of these components (“physical change ... or change in ... method,”§ 51.166(b)(2)(i)), but not to the second (“significant net emissions increase,” ibid .). As the preamble to the 1980 PSD regulations explains, forcing companies to obtain a PSD permit before they could simply adjust operating hours “would severely and unduly hamper the ability of any company to take advantage of favorable market conditions.” 45 Fed.Reg. 52704. In other words, a mere increase in the hours of operation, standing alone, is not a “physical change or change in the method of operation.” 40 CFR § 51.166(b)(2)(iii). But the District Court took this language a step further. It assumed that increases in operating hours (resulting in emissions increases at the old rate per hour) must be ignored even if caused or enabled by an independent “physical change ... or change in the method of operation.”§ 51.166(b)(2)(i). That reading, however, turns an exception to the first component of the definition into a mandate to ignore the very facts that would count under the second, which defines “net emissions increase” in terms of “actual emissions,” § 51.166(b)(3), during “the unit's actual operating hours,” § 51.166(b)(21)(ii); see also 57 Fed.Reg. 32328 (1992) (“[A]n increase in emissions attributable to an increase in hours of operation or production rate which is the result of a construction-related activity is not excluded from [PSD] review ...”).FN7 FN7. Two Courts of Appeals agree. See United States v. Cinergy Corp ., 458 F.3d 705, 708 (C.A.7 2006) (“[M]erely running the plant closer to its maximum capacity is not a major modification because it does not involve either a physical change or a change in the method of operation. If, however, a physical change enables the plant to increase its output, then, according to the EPA's interpretation, the exclusion for merely operating the plant for longer hours is inapplicable” (emphasis in original)); Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901, 916, n. 11 (C.A.7 1990) (the regulatory exclusion for increases in the hours of operation “was provided to allow facilities to take advantage of fluctuating market conditions, not construction or modification activity”); Puerto Rican Cement Co. v. EPA, 889 F.2d 292, 298 (C.A.1 1989) (“[T]here is no logical contradiction in rules that, on the one hand, permit firms using existing capacity simply to increase their output and, on the other, use the potential output of new capacity as a basis for calculating an increase in emissions levels” (emphasis in original)). CHAPTER 45: ENVIRONMENTAL LAW 243

*1436 The Court of Appeals invoked one other source of support, the suggestion in the Reich opinions that a physical or operational change increasing a source's hours of operation, without an increase in the hourly emissions rate, cannot be a PSD “major modification.” Duke continues to rely on those opinions here, asserting that “there are no contrary Agency pronouncements.” Brief for Respondent Duke 28. The Reich letters are not, however, heavy ammunition. Their persuasiveness is elusive, neither of them containing more than one brief and conclusory statement supporting Duke's position. Nor, it seems, are they unembarrassed by any “contrary Agency pronouncements.” See, e.g., App. 258 (Memorandum of Don R. Clay, Acting Assistant EPA Administrator for Air and Radiation) (Sept. 9, 1988) (when “plans to increase production rate or hours of operation are inextricably intertwined with the physical changes planned,” they are “precisely the type of change in hours or rate o[f] operation that would disturb a prior assessment of a source's environmental impact and should have to undergo PSD review scrutiny” (internal quotation marks and alterations omitted)); see also 57 Fed.Reg. 32328. In any event, it answers the citation of the Reich letters to realize that an isolated opinion of an agency official does not authorize a court to read a regulation inconsistently with its language.FN8 FN8. Duke now offers an alternative argument for applying the hourly emissions test for the PSD program: before a project can become a “major modification” under the PSD regulations, 40 CFR § 51.166(b)(2)(i) (1987), it must meet the definition of “modification” under the NSPS regulations, § 60.14(a). That sounds right, but the language of the regulations does not support it. For example, it would be superfluous for PSD regulations to require a “major modification” to be “a physical change in or change in the method of operation,”§ 51.166(b)(2)(i), if they presupposed that the NSPS definition of “modification,” which contains the same prerequisite, § 60.14(a), had already been satisfied. The NSPS and PSD regulations are complementary and not related as set to subset. In sum, the text of the 1980 PSD regulations on “modification” doomed the Court of Appeals's attempt to equate those regulations with their NSPS counterpart. As a consequence, we have to see the Court of Appeals's construction of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of § 307(b) of the Act, which limit challenges to the validity of a regulation during enforcement proceedings when such review “could have been obtained” in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking. See 42 U.S.C. § 7607(b); see also United States v. Cinergy Corp., 458 F.3d 705, 707-708 (C.A.7 2006); Wisconsin Electric Power Co., 893 F.2d, at 914, n. 6. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of § 307(b) ourselves. IV [7] Finally, Duke assumes for argument that the Act and the 1980 regulations may authorize EPA to construe a PSD “modification” as it has done, but it *1437 charges that the agency has taken inconsistent positions and is now “retroactively targeting twenty years of accepted practice.” Brief for Respondent Duke 37; see also Brief for State of Alabama et al. as Amici Curiae. This claim, too, has not been tackled by the District Court or the Court of Appeals; to the extent it is not procedurally foreclosed, Duke may press it on remand. * * * The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Case 45.2 126 S.Ct. 1843 Supreme Court of the United States S.D. WARREN CO., Petitioner, v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al. No. 04-1527. Argued Feb. 21, 2006. Decided May 15, 2006. , J., delivered the opinion of the Court, in which , C. J., and , , , , , and , JJ., joined, and in which , J., joined as to all but Part III-C. 244 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

Jeffrey P. Minear, for United States as amicus curiae, by special leave of the Court, supporting the respondent. , , , , Pierce Atwood LLP, Portland, Maine, for Petitioner S.D. Warren Company. , Verrill Dana, LLP, Portland, ME, Ronald A. Kreisman, Hallowell, ME, , Shems Dunkiel Kassel & Saunders PLLC, Burlington, VT, , Washington, D.C., , , *1846 , Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Respondents. , Attorney General, , Deputy Attorney General, , Assistant Attorney General, , Assistant Attorney General, Augusta, Maine, for Respondent Maine Board of Environmental Protection.For U.S. Supreme Court briefs, see:2005 WL 3197627 (Pet.Brief)2006 WL 77693 (Resp.Brief)2006 WL 53960 (Resp.Brief)2006 WL 338850 (Reply.Brief) Justice delivered the opinion of the Court. Justice SCALIA joins all but Part III-C of this opinion. The issue in this case is whether operating a dam to produce hydroelectricity “may result in any discharge into the navigable waters” of the United States. If so, a federal license under § 401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed. I The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S.D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river just below the impoundment. It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. , ; see also Public Utility Act of 1935, § 210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, , after a review that looks to environmental issues as well as the rising demand for power, § 797(e). Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a “discharge” into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State's own laws. See Water Quality Improvement Act of 1970, § 103, 84 Stat. 108. Today, this requirement can be found in § 401 of the Clean Water Act, 86 Stat. 877, codified at : “Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates ... .” . “ Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§ § 1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” . The statutes cross-referenced go to effluent limitations and other limitations, , , standards of performance, § 1316, and toxic effluent standards, § 1317. As we have explained before, “state water quality standards adopted pursuant to § 303 [of the Clean Water Act, ,] are among the ‘other limitations' with which a State may ensure compliance through the § 401 certification process.” . *1847 In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of § 401. The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of § 401 state certification. After appealing unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State's Cumberland County Superior Court. That court rejected Warren's argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. We granted certiorari, , and now affirm as well. II The dispute turns on the meaning of the word “discharge,” the key to the state certification requirement under § 401. The Act has no definition of the term, but provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” . It does define “discharge of a pollutant” and “discharge of pollutants,” as meaning “any addition of any pollutant to navigable waters from any point source.” . But “discharge” presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it “in accordance with its ordinary or natural meaning.” . No one disputes that the Presumpscot River is a navigable water of the United States. The term “pollutant” is defined in the Act to mean “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” . When it applies to water, “discharge” commonly means a “flowing or issuing out,” Webster's New International Dictionary 742 (2d ed.1949); see also ibid. (“[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay”), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e.g., (describing a dam's “ ‘multiport’ structure, which will permit discharge of water from any of five levels”); (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who “ ‘take ... water out of the stream which has been discharged from the reservoir’ ”); *1848 (“Parker Dam will intercept waters discharged at Boulder Dam”). In fact, this understanding of the word “discharge” was accepted by all Members of the Court sitting in our only other case focused on § 401 of the Clean Water Act, . At issue in was the State of Washington's authority to impose minimum stream flow rates on a hydroelectric dam, and CHAPTER 45: ENVIRONMENTAL LAW 245 in posing the question presented, the Court said this: “There is no dispute that petitioners were required to obtain a certification from the State pursuant to § 401. Petitioners concede that, at a minimum, the project will result in two possible discharges-the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity.” The petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State's § 401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the “discharge of water” from the dam was a discharge within the ambit of § 401. And although the Court's opinion made no mention of the dam as adding anything to the water, the majority's use of the phrase “discharge of water” drew no criticism from the dissent, which specifically noted that “[t]he term ‘discharge’ is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests ‘a flowing or issuing out,’ or ‘something that is emitted.’ ” (opinion of THOMAS, J.) (quoting Webster's Ninth New Collegiate Dictionary 360 (1991)). In resort to common usage under § 401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read “discharge” as having its plain meaning and thus covering releases from hydroelectric dams. See, e.g., EPA, Water Quality Standards Handbook § 7.6.3, p. 7-10 (2d ed. 1994) (“EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters [, including] licenses required for hydroelectric projects issued under the Federal Power Act”); , P. 61,505, (rejecting, in a recent adjudication, the argument that Congress “used the term ‘discharge’ as nothing more than a shorthand expression for ‘discharge of a pollutant or pollutants' ”). Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See (“Chevron deference *1849 ... is not accorded merely because the statute is ambiguous and an administrative official is involved”); . But even so, the administrative usage of “discharge” in this way confirms our understanding of the everyday sense of the term. Warren relies on a document from the EPA as a counterexample of the EPA's position in this regard. See Memorandum from Ann R. Klee, EPA General Counsel et al., to Regional Administrators, regarding “Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers” (Aug. 5, 2005), available at http:// www.epa.gov/ogc /documents/water_transfers.pdf (as visited Apr. 13, 2006, and available in Clerk of Court's case file). The memorandum does not help Warren, however; it interprets § 402 of the Clean Water Act, not § 401, and construes the statutory phrase “discharge of a pollutant,” which, as explained below, implies a meaning different under the statute from the word “discharge” used alone. The memorandum, in fact, declares that “[i]t does not address any ... terms under the statute other than ‘addition.’ ” Id., at 18. III Warren makes three principal arguments for reading the term “discharge” differently from the ordinary way. We find none availing. A The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that “a word is known by the company it keeps,” , and is invoked when a string of statutory terms raises the implication that the “words grouped in a list should be given related meaning,” (internal quotation marks omitted); see also (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well”). Warren claims that the canon applies to § 502(16) of the Clean Water Act, which provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” . Warren emphasizes that the “include[d]” terms, pollutant discharges, are themselves defined to require an “addition” of pollutants to water. . Since “discharge” pure and simple is keeping company with “discharge” defined as adding one or more pollutants, Warren says “discharge” standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river. We note that the Supreme Judicial Court of Maine accepted the assertion that “[a]n ‘addition’ is the fundamental characteristic of any discharge.” It then held that Warren's dams add to the Presumpscot River because the water “los[es its] status as waters of the United States” when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Cf. (“[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable”). Thus, though we affirm the Maine judgment, we do so on different reasoning. The problem with Warren's argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive*1850 rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H.R.Rep. No. 92-911, p. 125 (1972) (“[I]t is extremely important to an understanding of [§ 402] to know the definition of the various terms used and a careful reading of the definitions ... is recommended. Of particular significance [are] the words ‘discharge of pollutants' ”). B Regardless, Warren says the statute should, and even must, be read its way, on the authority of . But that case is not on point. addressed § 402 of the Clean Water Act, not § 401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to “continu[e] the authority of the State ... to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.” . Its terms have a broad reach, requiring state approval any time a federally licensed activity “may” result in a discharge (“discharge” of course being without any qualifiers here), , and its 246 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW object comprehends maintaining state water quality standards, see n. 1, supra. Section 402 has a historical parallel with § 401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H.R.Rep. No. 92-911, at 124-125. But it contrasts with § 401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the “discharge of any pollutant” into the navigable waters of the United States, . The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. . The question in was whether a pump between a canal and an impoundment produced a “discharge of a pollutant” within the meaning of § 402, see and the Court accepted the shared view of the parties that if two identified volumes of water are “simply two parts of the same water body, pumping water from one into the other cannot constitute an ‘addition’ of pollutants,” . was thus concerned only with whether an “addition” had been made (phosphorous being the substance in issue) as required by the definition of the phrase “discharge of a pollutant”; it did not matter under § 402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate § 402 does not explain what suffices for a discharge under § 401. The fact that the parties in conceded that the water being pumped was polluted does not transform the Court's analysis from one centered on the word “addition” to one centered on the word “discharge.” Before one could have argued that transferring polluted water from a canal to a connected impoundment constituted an “addition.” is at odds with that construction of the statute, but it says nothing about whether the transfer of polluted water from the canal to the impoundment constitutes a “discharge.” Likewise, we are not persuaded by Warren's claim that the word “into” somehow changes the meaning of the word “discharge” so as to require an addition. See Reply Brief for Petitioner 1-2 (“However one might read the lone word ‘discharge’ by itself, the complete statutory phrase ‘discharge into the navigable waters' entails the introduction of something into the waters”). The force of this argument escapes us, since one can easily refer to water being poured or discharged out of one place into another without implying that an addition of some hitherto unencountered mixture or quality of water is made. Indeed, the preposition “into” was used without connoting an addition in the analogy cited by Warren. See (“[I]f one takes a ladle of soup from a pot ... and pours it back into the pot, one has not ‘added’ soup or anything else to the pot” (internal quotation marks and brackets omitted)). *1851 C Warren's third argument for avoiding the common meaning of “discharge” relies on the Act's legislative history, but we think that if the history means anything it actually goes against Warren's position. Warren suggests that the word “includes” in the definition of “discharge” should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with “thermal discharges.” As Warren describes it, several Members of Congress recognized that “heat is not as harmful as what most of us view as ‘pollutants,’ because it dissipates quickly in most bodies of receiving waters,” 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 273 (1973) (remarks of Cong. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under § 402, but they also wanted to ensure that thermal discharges remained within the scope of § 401 and so sought to include them expressly in the general provision covering “discharge.” See id., at 1069-1070, 1071. The proposed definition read, “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge.” Id., at 1071. Of course, Congress omitted the reference to “thermal discharge,” and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, § 502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words “thermal discharge” from and carelessly left in the word “includes.” Thus, Warren argues, there is no reason to assume that describing “discharge” as including certain acts was meant to extend the reach of § 401 beyond acts of the kind specifically mentioned; the terminology of § 401 simply reflects a failed effort to narrow the scope of § 402. Warren is hesitant to follow its own logic to completion by simply claiming that § 401 covers nothing but what § 502(16) mentions, the discharge of a pollutant or pollutants. This is what might be called a lawyer's argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under § 402. It is simply speculation, though, to say that the word “includes” was left in the description of a “discharge” by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left “thermal discharge” as an included subclass of a “discharge” under § 502(16), Warren would have a stronger noscitur a sociis argument.*1852 For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition. Warren's theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms “discharge” and “discharge of pollutants” deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of “discharge” because it wanted to subject thermal discharges to the requirements of § 401, but not § 402. But this assumption about Congress's motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See (if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted)). IV CHAPTER 45: ENVIRONMENTAL LAW 247

Warren's arguments against reading the word “discharge” in its common sense fail on their own terms. They also miss the forest for the trees. Warren briefly makes another argument for disregarding the plain meaning of the word “discharge,” relying on § 511(c)(2) of the Clean Water Act, . This section addresses the intersection of the Act with another statute, the National Environmental Policy Act of 1969 (NEPA), et seq. NEPA “imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” . Section 511(c)(2) makes the point that nothing in NEPA authorizes any federal agency “authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant” to review “any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under [§ 401] of this title.” . Warren argues that reading § 401 to cover discharges generally would preclude duplicative NEPA review of certifications involving pollutant discharges, but allow such review of those involving nonpollutant discharges. But Warren overlooks the fact that “discharge of a pollutant” is used in § 511(c)(2) in the course of identifying the agency, not the activity to be certified. Whether a § 401 certification involves an activity that discharges pollutants or one that simply discharges, FERC (as an agency that may be described, always, as one with “author[ity] to license or permit the conduct of any activity which may result in the discharge of a pollutant,” ibid.) may not review it. Thus, nothing in § 511(c)(2) is disturbed by our holding that hydroelectric dams require § 401 state certifications. It is still the case that, when a State has issued a certification covering a discharge that adds no pollutant, no federal agency will be deemed to have authority under NEPA to “review” any limitations or the adequacy of the § 401 certification. Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” ; see also the “national goal” being to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” . To do this, the Act does not stop at controlling*1853 the “addition of pollutants,” but deals with “pollution” generally, see , which Congress defined to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” . The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams “can cause changes in the movement, flow, and circulation of a river ... caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish.” Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with “immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe.” Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e.g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal: “The record in this case demonstrates that Warren's dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea- run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river.” In re S.D. Warren Co., Maine Board of Environmental Protection (2003), in App. to Pet. for Cert. A-49. Changes in the river like these fall within a State's legitimate legislative business, and the Clean Water Act provides for a system that respects the States' concerns. See (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution”); § 1256(a) (federal funds for state efforts to prevent pollution); see also § 1370 (States may impose standards on the discharge of pollutants that are stricter than federal ones). State certifications under § 401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now § 401 was first proposed: “No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.” 116 Cong. Rec. 8984 (1970). These are the very reasons that Congress provided the States with power to enforce “any other appropriate requirement of State law,” , by imposing conditions on federal licenses for activities that may result in a discharge, ibid. Reading § 401 to give “discharge” its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed. It is so ordered. Case 45.3

125 S.Ct. 1788, 73 USLW 4311, 60 ERC 1129, 35 Envtl. L. Rep. 20,087, 05 Cal. Daily Op. Serv. 3521, 2005 Daily Journal D.A.R. 4805, 18 Fla. L. Weekly Fed. S 255 248 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

Supreme Court of the United States Dennis BATES, et al., Petitioners, v. DOW AGROSCIENCES LLC. No. 03-388. Argued Jan. 10, 2005. Decided April 27, 2005. Justice STEVENS delivered the opinion of the Court. Petitioners are 29 Texas peanut farmers who allege that in the 2000 growing season their crops were severely damaged by the application of respondent's newly marketed pesticide named "Strongarm." The question presented is whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. (2000 ed. and Supp. II), pre-empts their state-law claims for damages. I Pursuant to its authority under FIFRA, the Environmental Protection Agency (EPA) conditionally registered Strongarm on March 8, 2000, thereby granting respondent (Dow) permission to sell this pesticide--a weed killer [FN1]--in the United States. Dow obtained this registration in time to market Strongarm to Texas farmers, who normally plant their peanut crops around May 1. According to petitioners--whose version of the facts we assume to be true at this stage-- Dow knew, or should have known, that Strongarm would stunt the growth of peanuts in soils with pH levels of 7.0 or greater. [FN2] Nevertheless, Strongarm's label stated, "Use of Strongarm is recommended in all areas where peanuts are grown," App. 108, and Dow's agents made equivalent representations in their sales pitches to petitioners. When petitioners applied Strongarm on their farms--whose soils have pH levels of 7.2 or higher, as is typical in western Texas--the pesticide severely damaged their peanut crops while failing to control the growth of weeds. The farmers reported these problems to Dow, which sent its experts to inspect the crops. FN1. Strongarm would more commonly be called a herbicide, but it is classified as a pesticide for purposes of FIFRA. See 7 U.S.C. § § 136(t), (u). FN2. The term "pH," which stands for pondus hydrogenii, or "potential hydrogen," refers to the acidity of the soil. Meanwhile, Dow reregistered its Strongarm label with EPA prior to the 2001 growing season. EPA approved a "supplemental" label that was for "[d]istribution and [u]se [o]nly in the states of New Mexico, Oklahoma and Texas," id., at 179, the three States in which peanut farmers experienced crop damage. This new label contained the following warning: "Do not apply Strongarm to soils with a pH of 7.2 or greater." Id., at 181. After unsuccessful negotiations with Dow, petitioners gave Dow notice of their intent to bring suit as required by the Texas Deceptive Trade Practices-Consumer Protection Act [FN3] (hereinafter Texas DTPA). In response, Dow filed a declaratory judgment action in Federal District Court, asserting that petitioners' claims were expressly or impliedly pre-empted by FIFRA. Petitioners, in turn, brought counterclaims, including tort claims sounding in strict liability and negligence. They also alleged fraud, breach of warranty, and violation of the Texas DTPA. The District Court granted Dow's motion for summary judgment, rejecting one claim on state-law grounds and dismissing the remainder as expressly pre-empted by 7 U.S.C. § 136v(b), which provides that States "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." FN3. Tex. Bus. & Com.Code Ann. § 17.01 et seq. (West 2002). The Court of Appeals affirmed. It read § 136v(b) to pre-empt any state-law claim in which "a judgment against Dow would induce it to alter its product label." 332 F.3d 323, 331 (C.A.5 2003). The court held that because petitioners' fraud, warranty, and deceptive trade practices claims focused on oral statements by Dow's agents that did not differ from statements made on the product's label, success on those claims would give Dow a "strong incentive" to change its label. Those claims were thus pre-empted. Id., at 331-332. The court also found that petitioners' strict liability claim alleging defective design was essentially a "disguised" failure-to-warn claim and therefore pre-empted. Id., at 332. It reasoned: "One cannot escape the heart of the farmers' grievance: Strongarm is dangerous to peanut crops in soil with a pH level over 7.0, and that was not disclosed to them .... It is inescapable that success on this claim would again necessarily induce Dow to alter the Strongarm label." Id., at 332-333. The court employed similar reasoning to find the negligent testing and negligent manufacture claims pre-empted as well. Id., at 333. This decision was consistent with those of a majority of the Courts of Appeals, [FN4] as well of several state high courts, [FN5] but conflicted with the decisions of other courts [FN6] and with the views of the EPA set forth in an amicus curiae brief filed with the California Supreme Court in 2000. [FN7] We granted certiorari to resolve this conflict. 542 U.S. ----, 124 S.Ct. 2903, 159 L.Ed.2d 810 (2004). FN4. See, e.g., Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559 (C.A.1 1996) ; Kuiper v. American Cyanamid Co., 131 F.3d 656 (C.A.7 1997); Netland v. Hess & Clark, Inc., 284 F.3d 895 (C.A.8 2002) . FN5. See, e.g., Etcheverry v. Tri-Ag Service, Inc., 22 Cal.4th 316, 93 Cal.Rptr.2d 36, 993 P.2d 366 (2000) . FN6. See, e.g., Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (C.A.D.C.1984) ; American Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex.2002). FN7. See Brief Amicus Curiae for United States in Etcheverry v. Tri-Ag Serv., Inc., No. S072524 (Cal.Sup.Ct.) (hereinafter Brief Amicus Curiae for United States in Etcheverry ). The Solicitor General has since adopted a contrary position. See Brief for United States as Amicus Curiae 20. II Prior to 1910 the States provided the primary and possibly the exclusive source of regulatory control over the distribution of poisonous substances. Both the Federal Government's first effort at regulation in this area, the Insecticide Act of 1910, 36 Stat. 331, and FIFRA as originally enacted in 1947, ch. 125, 61 Stat. 163, primarily dealt with licensing and labeling. Under the original version of FIFRA, all pesticides sold in interstate commerce had to be registered with the Secretary of Agriculture. The Secretary would register a pesticide if it complied with CHAPTER 45: ENVIRONMENTAL LAW 249 the statute's labeling standards and was determined to be efficacious and safe. [FN8] In 1970, EPA assumed responsibility for this registration process. FN8. If the Secretary declined registration, and the manufacturer refused to make changes, the Secretary was required to register the pesticide "under protest." In 1964, however, Congress eliminated this procedure, and required disappointed manufacturers to challenge a denial of registration through administrative review. 78 Stat. 190. In 1972, spurred by growing environmental and safety concerns, Congress adopted the extensive amendments [FN9] that "transformed FIFRA from a labeling law into a comprehensive regulatory statute." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). "As amended, FIFRA regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; provided for review, cancellation, and suspension of registration; and gave EPA greater enforcement authority." Id., at 991-992, 104 S.Ct. 2862. The 1972 amendments also imposed a new criterion for registration--environmental safety. Id., at 992, 104 S.Ct. 2862. See generally 4 F. Grad, Treatise on Environmental Law § § 8.02-8.03 (2004) (tracing FIFRA's statutory evolution). FN9. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973. Under FIFRA as it currently stands, a manufacturer seeking to register a pesticide must submit a proposed label to EPA as well as certain supporting data. 7 U.S.C. § § 136a(c)(1)(C), (F). The agency will register the pesticide if it determines that the pesticide is efficacious (with the caveat discussed below), § 136a(c)(5)(A); that it will not cause unreasonable adverse effects on humans and the environment, § § 136a(c) (5)(C), (D); § 136(bb); and that its label complies with the statute's prohibition on misbranding, § 136a(c)(5)(B); 40 CFR § 152.112(f) (2004). A pesticide is "misbranded" if its label contains a statement that is "false or misleading in any particular," including a false or misleading statement concerning the efficacy of the pesticide. § 136(q)(1)(A); 40 CFR § 156.10(a)(5)(ii). A pesticide is also misbranded if its label does not contain adequate instructions for use, or if its label omits necessary warnings or cautionary statements. § § 136(q)(1)(F), (G). [FN10] FN10. A pesticide label must also conspicuously display any statement or information specifically required by the statute or its implementing regulations. § 136(q)(1)(E). To mention only a few examples, the label must contain the name and address of the producer, the product registration number, and an ingredient statement. 40 CFR § § 156.10(a)(1)(ii), (iv), (vi) (2004). Because it is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation to adhere to FIFRA's labeling requirements. § 136j(a)(1)(E); see also § 136a(f)(2) (registration is prima facie evidence that the pesticide and its labeling comply with the statute's requirements, but registration does not provide a defense to the violation of the statute); § 136a(f)(1) (a manufacturer may seek approval to amend its label). Additionally, manufacturers have a duty to report incidents involving a pesticide's toxic effects that may not be adequately reflected in its label's warnings, 40 CFR § § 159.184(a), (b) (2004), and EPA may institute cancellation proceedings, 7 U.S.C. § 136d(b), and take other enforcement action if it determines that a registered pesticide is misbranded. [FN11] FN11. EPA may issue "stop sale, use, or removal" orders and may seize offending products. § § 136k(a), (b). Further, manufacturers may be subjected to civil and criminal penalties for violating FIFRA's requirements. § 136l. Section 136v, which was added in the 1972 amendments, addresses the States' continuing role in pesticide regulation. As currently codified, § 136v provides: "(a) In general "A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter. "(b) Uniformity "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. "(c) Additional uses "(1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State ...." In 1978, Congress once again amended FIFRA, 92 Stat. 819, this time in response to EPA's concern that its evaluation of pesticide efficacy during the registration process diverted too many resources from its task of assessing the environmental and health dangers posed by pesticides. Congress addressed this problem by authorizing EPA to waive data requirements pertaining to efficacy, thus permitting the agency to register a pesticide without confirming the efficacy claims made on its label. § 136a(c)(5). In 1979, EPA invoked this grant of permission and issued a general waiver of efficacy review, with only limited qualifications not applicable here. See 44 Fed.Reg. 27932 (1979); 40 CFR § 158.640(b) (2004). In a notice published years later in 1996, EPA confirmed that it had "stopped evaluating pesticide efficacy for routine label approvals almost two decades ago," Pesticide Registration Notice 96-4, p. 3 (June 3, 1996), available at www.epa.gov/opppmsd1/PR_Notices/pr96-4.html, App. 232, and clarified that "EPA's approval of a pesticide label does not reflect any determination on the part of EPA that the pesticide will be efficacious or will not damage crops or cause other property damage." Id., at 5, App. 235. The notice also referred to an earlier statement in which EPA observed that " 'pesticide producers are aware that they are potentially subject to damage suits by the user community if their products prove ineffective in actual use.' " Id., at 5, App. 230 (quoting 47 Fed.Reg. 40661 (col.2) (1982)). This general waiver was in place at the time of Strongarm's registration; thus, the EPA never passed on the accuracy of the statement in Strongarm's original label recommending the product's use "in all areas where peanuts are grown." Although the modern version of FIFRA was enacted over three decades ago, this Court has never addressed whether that statute pre-empts tort 250 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW and other common-law claims arising under state law. Courts entertained tort litigation against pesticide manufacturers since well before the passage of FIFRA in 1947, [FN12] and such litigation was a common feature of the legal landscape at the time of the 1972 amendments. [FN13] Indeed, for at least a decade after those amendments, arguments that such tort suits were pre-empted by § 136v(b) either were not advanced or were unsuccessful. See, e.g., Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (C.A.D.C.1984) . It was only after 1992 when we held in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407, that the term "requirement or prohibition" in the Public Health Cigarette Smoking Act of 1969 included common-law duties, and therefore pre-empted certain tort claims against cigarette companies, that a groundswell of federal and state decisions emerged holding that § 136v(b) pre-empted claims like those advanced in this litigation. FN12. See, e.g., Mossrud v. Lee, 163 Wis. 229, 157 N.W. 758 (1916) ; West Disinfecting Co. v. Plummer, 44 App. D.C. 345 (1916) ; McCrossin v. Noyes Bros. & Cutler, Inc., 143 Minn. 181, 173 N.W. 566 (1919) ; White v. National Bank of Commerce, 99 Cal.App. 519, 278 P. 915 (1929). FN13. See Hursh, Annotation, Liability of Manufacturer or Seller for Injury Caused by Animal Feed or Medicines, Crop Sprays, Fertilizers, Insecticides, Rodenticides, and Similar Products, 81 A.L.R.2d 138, 144, 1961 WL 13191 (1962) ("A duty of due, reasonable care binds manufacturers and sellers of products of this kind. This duty of care includes a duty to warn of product- connected dangers, a duty on the part of the manufacturer to subject the product to reasonable tests, and a duty on the part of the seller to subject the product to reasonable inspection" (footnotes omitted)) (collecting cases). This Court has addressed FIFRA pre-emption in a different context. In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), we considered a claim that § 136v(b) pre-empted a small town's ordinance requiring a special permit for the aerial application of pesticides. Although the ordinance imposed restrictions not required by FIFRA or any EPA regulation, we unanimously rejected the pre-emption claim. In our opinion we noted that FIFRA was not "a sufficiently comprehensive statute to justify an inference that Congress had occupied the field to the exclusion of the States." Id., at 607, 111 S.Ct. 2476. "To the contrary, the statute leaves ample room for States and localities to supplement federal efforts even absent the express regulatory authorization of § 136v(a)." Id., at 613, 111 S.Ct. 2476. As a part of their supplementary role, States have ample authority to review pesticide labels to ensure that they comply with both federal and state labeling requirements. [FN14] Nothing in the text of FIFRA would prevent a State from making the violation of a federal labeling or packaging requirement a state offense, thereby imposing its own sanctions on pesticide manufacturers who violate federal law. The imposition of state sanctions for violating state rules that merely duplicate federal requirements is equally consistent with the text of § 136v. FN14. As the EPA's Website explains, "Federal law requires that before selling or distributing a pesticide in the United States, a person or company must obtain registration, or license, from EPA .... Most states conduct a review of the pesticide label to ensure that it complies with federal labeling requirements and any additional state restrictions of use." EPA, Pesticides: Regulating Pesticides, Evaluating Potential New Pesticides and Uses, http://www.epa.gov/pesticides/regulating/index.htm (all Internet materials as visited Apr. 6, 2005, and available in the Clerk of Court's case file). See also F. Grad, Treatise on Environmental Law § 8.05, p. 8-140 (2004) ("All the state[s] have some labeling requirements for pesticides, and these generally parallel [FIFRA] of 1947"); id., at 8-143 to 8-218 (reviewing the pesticide statutes of the 50 States). III Against this background, we consider whether petitioners' claims [FN15] are pre-empted by § 136v(b), which, again, reads as follows: "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." FN15. The briefing and the record leave some confusion as to what precise claims are at issue. In light of the posture of this case, we find it appropriate to address the following claims: breach of express warranty, fraud, violation of the Texas DTPA, strict liability (including defective design and defective manufacture), and negligent testing. We will also address negligent failure to warn, since the Court of Appeals read petitioners' allegations to support such a claim. But because petitioners do not press such a claim here, we leave it to the court below to determine whether they may proceed on such a claim on remand. Of course, we express no view as to whether any of these claims are viable as a matter of Texas law. Nor do we, given the early stage of this litigation, opine on whether petitioners can adduce sufficient evidence in support of their claims to survive summary judgment. The introductory words of § 136v(b)--"Such State"--appear to limit the coverage of that subsection to the States that are described in the preceding subsection (a). Texas is such a State because it regulates the sale and use of federally registered pesticides and does not permit any sales or uses prohibited by FIFRA. It is therefore beyond dispute that subsection (b) is applicable to this case. [1][2] The prohibitions in § 136v(b) apply only to "requirements." An occurrence that merely motivates an optional decision does not qualify as a requirement. The Court of Appeals was therefore quite wrong when it assumed that any event, such as a jury verdict, that might "induce" a pesticide manufacturer to change its label should be viewed as a requirement. The Court of Appeals did, however, correctly hold that the term "requirements" in § 136v(b) reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties. Our decision in Cipollone supports this conclusion. See 505 U.S., at 521, 112 S.Ct. 2608 (plurality opinion) ("The phrase '[n]o requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules"); see also id., at 548-549, 112 S.Ct. 2608 (SCALIA, J., concurring in judgment in part and dissenting in part). While the use of "requirements" in a pre-emption clause may not invariably carry this meaning, we think this is the best reading of § 136v(b). [3][4][5] That § 136v(b) may pre-empt judge-made rules, as well as statutes and regulations, says nothing about the scope of that pre-emption. For a particular state rule to be pre-empted, it must satisfy two conditions. First, it must be a requirement " for labeling or packaging"; rules governing the design of a product, for example, are not pre-empted. Second, it must impose a labeling or packaging requirement that is " in CHAPTER 45: ENVIRONMENTAL LAW 251 addition to or different from those required under this subchapter." A state regulation requiring the word "poison" to appear in red letters, for instance, would not be pre-empted if an EPA regulation imposed the same requirement. [6] It is perfectly clear that many of the common-law rules upon which petitioners rely do not satisfy the first condition. Rules that require manufacturers to design reasonably safe products, to use due care in conducting appropriate testing of their products, to market products free of manufacturing defects, and to honor their express warranties or other contractual commitments plainly do not qualify as requirements for "labeling or packaging." None of these common-law rules requires that manufacturers label or package their products in any particular way. Thus, petitioners' claims for defective design, defective manufacture, negligent testing, and breach of express warranty are not pre-empted. [7][8] To be sure, Dow's express warranty was located on Strongarm's label. [FN16] But a cause of action on an express warranty asks only that a manufacturer make good on the contractual commitment that it voluntarily undertook by placing that warranty on its product. [FN17] Because this common-law rule does not require the manufacturer to make an express warranty, or in the event that the manufacturer elects to do so, to say anything in particular in that warranty, the rule does not impose a requirement "for labeling or packaging." See id., at 525-526, 112 S.Ct. 2608 (plurality opinion). [FN18] FN16. The label stated: "Dow AgroSciences warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes stated on the label when used in strict accordance with the directions, subject to the inherent risks set forth below." App. 111. FN17. To the extent that petitioners' warranty and fraud claims are based on oral representations made by Dow's agents, they fall outside the text of § 136v(b) for an independent reason. Because FIFRA defines labeling as "all labels and all other written, printed, or graphic matter" that accompany a pesticide, § 136(p)(2), any requirement that applied to a sales agent's oral representations would not be a requirement for "labeling or packaging." FN18. The Court of Appeals held that petitioners' claim under the Texas DTPA was pre-empted insofar as the Act provides a remedy for the breach of an express warranty. 332 F.3d 323, 332 (C.A.5 2003) (citing Texas law). Because petitioners' warranty claim is not pre-empted, their claim under the Act is not pre-empted to that extent. In arriving at a different conclusion, the court below reasoned that a finding of liability on these claims would "induce Dow to alter [its] label." 332 F.3d, at 332. [FN19] This effects-based test finds no support in the text of § 136v(b), which speaks only of "requirements." A requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement. The proper inquiry calls for an examination of the elements of the common-law duty at issue, see Cipollone, 505 U.S., at 524, 112 S.Ct. 2608; it does not call for speculation as to whether a jury verdict will prompt the manufacturer to take any particular action (a question, in any event, that will depend on a variety of cost/benefit calculations best left to the manufacturer's accountants). FN19. Other Courts of Appeal have taken a similar approach. See, e.g., Netland, 284 F.3d, at 900 ("Thus, our task is to determine whether Netland's claims are essentially a challenge to Bovinol's label or the overall design of the pesticide. To guide our analysis, we must ask whether in seeking to avoid liability for any error, would the manufacturer choose to alter the label or the product"). The inducement test is unquestionably overbroad because it would impeach many "genuine" design defect claims that Dow concedes are not pre-empted. A design defect claim, if successful, would surely induce a manufacturer to alter its label to reflect a change in the list of ingredients or a change in the instructions for use necessitated by the improvement in the product's design. Moreover, the inducement test is not entirely consistent with § 136v(a), which confirms the State's broad authority to regulate the sale and use of pesticides. [FN20] Under § 136v(a), a state agency may ban the sale of a pesticide if it finds, for instance, that one of the pesticide's label-approved uses is unsafe. This ban might well induce the manufacturer to change its label to warn against this questioned use. Under the inducement test, however, such a restriction would anomalously qualify as a "labeling" requirement. It is highly unlikely that Congress endeavored to draw a line between the type of indirect pressure caused by a State's power to impose sales and use restrictions and the even more attenuated pressure exerted by common-law suits. The inducement test is not supported by either the text or the structure of the statute. FN20. In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) , we noted that § 136v(a) is merely declaratory of the authority that the States retained after FIFRA; that provision did not "serve to hand back to the States powers that the statute had impliedly usurped." Id., at 614, 111 S.Ct. 2476. Unlike their other claims, petitioners' fraud and negligent-failure-to-warn claims are premised on common-law rules that qualify as "requirements for labeling or packaging." These rules set a standard for a product's labeling that the Strongarm label is alleged to have violated by containing false statements and inadequate warnings. While the courts of appeal have rightly found guidance in Cipollone's interpretation of "requirements," some of those courts too quickly concluded that failure-to-warn claims were pre-empted under FIFRA, as they were in Cipollone, without paying attention to the rather obvious textual differences between the two pre-emption clauses. [FN21] FN21. See, e.g., Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 559 (C.A.9 1995) ("There is no notable difference between the language in the 1969 Cigarette Act and the language in FIFRA"); Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 (C.A.7 1993) ("Not even the most dedicated hair-splitter could distinguish these statements"). [9][10] Unlike the pre-emption clause at issue in Cipollone, [FN22] § 136v(b) prohibits only state-law labeling and packaging requirements that are "in addition to or different from" the labeling and packaging requirements under FIFRA. Thus, a state-law labeling requirement is not pre-empted by § 136v(b) if it is equivalent to, and fully consistent with, FIFRA's misbranding provisions. Petitioners argue that their claims based on fraud and failure-to-warn are not pre-empted because these common-law duties are equivalent to FIFRA's requirements that a pesticide label not contain "false or misleading" statements, § 136(q)(1)(A), or inadequate instructions or warnings. § § 136(q)(1)(F), (G). We agree with petitioners insofar as we hold that state law need not explicitly incorporate FIFRA's standards as an element of a cause of action in order to survive pre-emption. As we will discuss below, however, we leave it to the Court of Appeals to decide in the first instance whether these 252 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW particular common-law duties are equivalent to FIFRA's misbranding standards. FN22. "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this [Act]." 15 U.S.C. § 1334(b); Cipollone, 505 U.S., at 515, 112 S.Ct. 2608 . [11] The "parallel requirements" reading of § 136v(b) that we adopt today finds strong support in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). In addressing a similarly worded pre-emption provision in a statute regulating medical devices, we found that "[n]othing in [21 U.S.C.] § 360k denies Florida the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements." Id., at 495, 116 S.Ct. 2240. [FN23] As Justice O'CONNOR explained in her separate opinion, a state cause of action that seeks to enforce a federal requirement "does not impose a requirement that is 'different from, or in addition to,' requirements under federal law. To be sure, the threat of a damages remedy will give manufacturers an additional cause to comply, but the requirements imposed on them under state and federal law do not differ. Section 360k does not preclude States from imposing different or additional remedies, but only different or additional requirements." Id., at 513, 116 S.Ct. 2240 (opinion concurring in part and dissenting in part). Accordingly, although FIFRA does not provide a federal remedy to farmers and others who are injured as a result of a manufacturer's violation of FIFRA's labeling requirements, nothing in § 136v(b) precludes States from providing such a remedy. FN23. We added: "Even if it may be necessary as a matter of Florida law to prove that those violations were the result of negligent conduct, or that they created an unreasonable hazard for users of the product, such additional elements of the state-law cause of action would make the state requirements narrower, not broader, than the federal requirement. While such a narrower requirement might be 'different from' the federal rules in a literal sense, such a difference would surely provide a strange reason for finding pre-emption of a state rule insofar as it duplicates the federal rule." 518 U.S., at 495, 116 S.Ct. 2240. Dow, joined by the United States as amicus curiae, argues that the "parallel requirements" reading of § 136v(b) would "give juries in 50 States the authority to give content to FIFRA's misbranding prohibition, establishing a crazy-quilt of anti-misbranding requirements different from the one defined by FIFRA itself and intended by Congress to be interpreted authoritatively by EPA." Brief for Respondent 16; see also Brief for United States as Amicus Curiae 25-27. In our view, however, the clear text of § 136v(b) and the authority of Medtronic cannot be so easily avoided. Conspicuously absent from the submissions by Dow and the United States is any plausible alternative interpretation of "in addition to or different from" that would give that phrase meaning. Instead, they appear to favor reading those words out of the statute, which would leave the following: "Such State shall not impose or continue in effect any requirements for labeling or packaging." This amputated version of § 136v(b) would no doubt have clearly and succinctly commanded the pre-emption of all state requirements concerning labeling. That Congress added the remainder of the provision is evidence of its intent to draw a distinction between state labeling requirements that are pre-empted and those that are not. [12] Even if Dow had offered us a plausible alternative reading of § 136v(b)--indeed, even if its alternative were just as plausible as our reading of that text--we would nevertheless have a duty to accept the reading that disfavors pre-emption. "[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action." Medtronic, 518 U.S., at 485, 116 S.Ct. 2240. In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention " 'clear and manifest.' " New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)); see also Medtronic, 518 U.S., at 485, 116 S.Ct. 2240. Our reading is at once the only one that makes sense of each phrase in § 136v(b) and the one favored by our canons of interpretation. The notion that FIFRA contains a nonambiguous command to pre-empt the types of tort claims that parallel FIFRA's misbranding requirements is particularly dubious given that just five years ago the United States advocated the interpretation that we adopt today. [FN24] FN24. Brief Amicus Curiae for United States in Etcheverry 33-35. See also Brief for United States as Amicus Curiae 20 (explaining its subsequent change in view). The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) . [FN25] Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items. See Mortier, 501 U.S., at 613, 111 S.Ct. 2476 (stating that the 1972 amendments' goal was to "strengthen existing labeling requirements and ensure that these requirements were followed in practice"). Particularly given that Congress amended FIFRA to allow EPA to waive efficacy review of newly registered pesticides (and in the course of those amendments made technical changes to § 136v(b)), it seems unlikely that Congress considered a relatively obscure provision like § 136v(b) to give pesticide manufacturers virtual immunity from certain forms of tort liability. Overenforcement of FIFRA's misbranding prohibition creates a risk of imposing unnecessary financial burdens on manufacturers; under-enforcement creates not only financial risks for consumers, but risks that affect their safety and the environment as well. FN25. It is no answer that, even if all label-related claims are pre-empted under Dow's reading, other non-label-related tort claims would remain intact. Given the inherently dangerous nature of pesticides, most safety gains are achieved not through modifying a pesticide's design, but by improving the warnings and instructions contained on its label. See Brief for American Chemistry Council as Amicus Curiae 3. Finally, we find the policy objections raised against our reading of § 136v(b) to be unpersuasive. Dow and the United States greatly overstate the degree of uniformity and centralization that characterizes FIFRA. In fact, the statute authorizes a relatively decentralized scheme that preserves a broad role for state regulation. See id., at 613, 111 S.Ct. 2476. 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, § CHAPTER 45: ENVIRONMENTAL LAW 253

136v(c). See also § 136w-1 (authorizing EPA to grant States primary enforcement responsibility for use violations). A literal reading of § 136v(b) is fully consistent with the concurrent authority of the Federal and State Governments in this sphere. Private remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the functioning of FIFRA. Unlike the cigarette labeling law at issue in Cipollone, which prescribed certain immutable warning statements, FIFRA contemplates that pesticide labels will evolve over time, as manufacturers gain more information about their products' performance in diverse settings. As one court explained, tort suits can serve as a catalyst in this process: "By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides such as [the pesticide there at issue], a state tort action of the kind under review may aid in the exposure of new dangers associated with pesticides. Successful actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products; alternatively, EPA itself may decide that revised labels are required in light of the new information that has been brought to its attention through common law suits. In addition, the specter of damage actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from use of their product so as to forestall such actions through product improvement." Ferebee, 736 F.2d, at 1541-1542 . Dow and the United States exaggerate the disruptive effects of using common-law suits to enforce the prohibition on misbranding. FIFRA has prohibited inaccurate representations and inadequate warnings since its enactment in 1947, while tort suits alleging failure-to-warn claims were common well before that date and continued beyond the 1972 amendments. We have been pointed to no evidence that such tort suits led to a "crazy-quilt" of FIFRA standards or otherwise created any real hardship for manufacturers or for EPA. Indeed, for much of this period EPA appears to have welcomed these tort suits. While it is true that properly instructed juries might on occasion reach contrary conclusions on a similar issue of misbranding, there is no reason to think such occurrences would be frequent or that they would result in difficulties beyond those regularly experienced by manufacturers of other products that everyday bear the risk of conflicting jury verdicts. Moreover, it bears noting that lay juries are in no sense anathema to FIFRA's scheme: In criminal prosecutions for violation of FIFRA's provisions, see § 136l (b), juries necessarily pass on allegations of misbranding. [13] In sum, under our interpretation, § 136v(b) retains a narrow, but still important, role. In the main, it pre-empts competing state labeling standards--imagine 50 different labeling regimes prescribing the color, font size, and wording of warnings--that would create significant inefficiencies for manufacturers. [FN26] The provision also pre-empts any statutory or common-law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations. It does not, however, pre-empt any state rules that are fully consistent with federal requirements. FN26. The legislative history of the 1972 amendments suggests that Congress had conflicting state labeling regulations in mind when crafting § 136v(b). As one industry representative testified: "Some States might want the word 'flammable,' some 'inflammable.' ... Some States might want red lettering; others orange, another yellow, and so forth. We ask this committee, therefore, to recognize, as the Congress has in a number of similar regulatory statutes, the industry's need for uniformity by providing for this in the act." Hearings on Federal Pesticide Control Act of 1971 before the House Committee on Agriculture, 92d Cong., 1st Sess., 281-283 (1971) (statement of Robert L. Ackerly). By contrast, the lengthy legislative history is barren of any indication that Congress meant to abrogate most of the common-law duties long owed by pesticide manufacturers. [14] Having settled on our interpretation of § 136v(b), it still remains to be decided whether that provision pre-empts petitioners' fraud and failure-to-warn claims. Because we have not received sufficient briefing on this issue, [FN27] which involves questions of Texas law, we remand it to the Court of Appeals. We emphasize that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre-emption. For example, were the Court of Appeals to determine that the element of falsity in Texas' common-law definition of fraud imposed a broader obligation than FIFRA's requirement that labels not contain "false or misleading statements," that state- law cause of action would be pre-empted by § 136v(b) to the extent of that difference. State-law requirements must also be measured against any relevant EPA regulations that give content to FIFRA's misbranding standards. For example, a failure-to-warn claim alleging that a given pesticide's label should have stated "DANGER" instead of the more subdued "CAUTION" would be pre-empted because it is inconsistent with 40 CFR § 156.64 (2004), which specifically assigns these warnings to particular classes of pesticides based on their toxicity. [FN28] FN27. Dow does not seem to argue that, by their terms, Texas's fraud and failure-to-warn causes of action are not equivalent to FIFRA's misbranding standards. Nor has Dow identified any EPA regulations that further refine those general standards in any way that is relevant to petitioners' allegations. Rather, Dow has chosen to mount a broader attack on the "parallel requirements" interpretation, thus seeming to argue for the pre-emption of even a state-law cause of action that expressly incorporates FIFRA's misbranding provisions. See Brief for Respondent 38, n. 25. Since Dow did not have the benefit of our construction of § 136v(b), Dow should be allowed to address these matters on remand. FN28. 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). [15] In undertaking a pre-emption analysis at the pleadings stage of a case, a court should bear in mind the concept of equivalence. To survive pre-emption, the state-law requirement need not be phrased in the identical language as its corresponding FIFRA requirement; indeed, it would be surprising if a common-law requirement used the same phraseology as FIFRA. If a case proceeds to trial, the court's jury instructions must ensure that nominally equivalent labeling requirements are genuinely equivalent. If a defendant so requests, a court should instruct the jury on the relevant FIFRA misbranding standards, as well as any regulations that add content to those standards. For a manufacturer should not be held liable under a state labeling requirement subject to § 136v(b) unless the manufacturer is also liable for misbranding as defined by FIFRA. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 254 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

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