author: Chief Justice Roberts Justice Ginsburg,

text:
    DAIMLERCHRYSLER CORP. et al. v. CUNO et al.
    No. 04-1704.
    Argued March 1, 2006
    Decided May 15, 2006

      Theodore B. Olson argued the cause for petitioners in No. 04-1704. With him on the briefs for petitioner Daimler-Chrysler Corporation were Theodore J. Boutrous, Jr., David Debold, Matthew D. McGill, Charles A. Rothfeld, Erika Z. Jones, and Miriam R. Nemetz. Douglas R. Cole, State Solicitor of Ohio, argued the cause for petitioners in No. 04-1724. With him on the briefs were Jim Petro, Attorney General, Stephen P. Carney, Senior Deputy Solicitor, Erik J. Clark, Deputy Solicitor, Sharon A. Jennings and Robert C. Maier, Assistant Attorneys General, Samuel J. Nugent, Adam W. Loukx, and Lisa E. Pizza.

      Peter D. Enrich argued the cause for respondents in both cases. With him on the brief were Alan Morrison and Terry J. Lodge.

      Together with No. 04-1724, Wilkins, Tax Commissioner for State of Ohio, et al. v. Cuno et al., also on certiorari to the same court.

      Briefs of amici curiae urging reversal in both eases were filed for Wayne County, Michigan, by Edward M. Thomas and Melvin Butch Hollowell; for Elyria, Ohio, et al. by Eric H. Zagrans; for AlphaGenics, Inc., et al. by Frederick A. Provorny; for the Ashbrook Center for Public Affairs by Douglas G. Smith; for the Chamber of Commerce of the United States of America et al. by Charles A. Trost, Michael G. Stewart, Robin S. Conrad, and Amar D. Sarwal; for the Council on State Taxation et al. by Douglas L. Lindholm, Stephen P. B. Kranz, William D. Peltz, Jan S. Amundson, and Quentin Riegel; for Ford Motor Co. et al. by Jerome B. Libin, Kent L. Jones, Kendall L. Houghton, Jeffrey A. Friedman, David G. Leitch, and Thomas A. Gottschalk; for Nissan North America, Inc., by H. Christopher Bartolomucci and Messrs. Trost and Stewart; and for the Washington Legal Foundation by Daniel J. Popeo and David Price.

      Briefs of amici curiae urging reversal in No. 04-1704 were filed for the City of New York by Michael A. Cardozo and Leonard J. Koerner; for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, et al. by Daniel W. Sherrick; for the Pacific Legal Foundation by Anthony T. Caso; for the Right Place, Inc., et al. by John J. Bursch; and for the Tax Executives Institute, Inc., by Eli J. Dicker and Gregory S. Matson.

      Briefs of amici curiae urging reversal in No. 04-1724 were filed for the State of Florida et al. by Charles J. Crist, Jr., Attorney General of Florida, Christopher M. Kise, Solicitor General, and Erik M. Figlio, Deputy Solicitor General, and by the Attorneys General for their respective jurisdietions as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, John Suthers of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Douglas B. Moylan of Guam, Mark J. Bennett of Hawaii, Lawrence Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Gregory D. Stumbo of Kentucky, Steve Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, George J. Chanos of Nevada, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Pamela Brown of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Tom Corbett of Pennsylvania, Roberto J. Sanchez-Ramos of Puerto Rico, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Paul Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Rob McKenna of Washington, and Peggy A Lautenschlager of Wisconsin; and for the National Governors Association et al. by Richard Ruda and James I. Crowley.

      Briefs of amici curiae urging affirmance in both cases were filed for the Fiscal Policy Institute et al. by Richard D. Pomp and Robert D. Plattner; and for Randy Albelda et al. by Scott L. Cummings.

        Henry M. Banta and Martin Lobel filed a brief for the Center on Budget and Policy Priorities as amicus curiae urging affirmance in No. 04-1704.

        Robert F. Orr and Jeanette Doran Brooks filed a brief for the North Carolina Institute for Constitutional Law as amicus curiae urging affirmance in No. 04-1724.
      Briefs of amici curiae were filed in both cases for DIRECTV, Inc., et al. by Betty Jo Christian, Mark F. Horning, and Lincoln L. Davies; and for the Tax Foundation by Kyle O. Sollie and Nory Miller.

        Frederick R. Damm filed a brief for the Michigan Manufacturers Association as amicus curiae in No. 04-1704.

   Chief Justice Roberts

delivered the opinion of the Court.

Jeeps were first mass-produced in 1941 for the U. S. Army by the Willys-Overland Motor Company in Toledo, Ohio. Nearly 60 years later, the city of Toledo and State of Ohio sought to encourage the current manufacturer of Jeeps— DaimlerChrysler — to expand its Jeep operation in Toledo, by offering local and state tax benefits for new investment. Taxpayers in Toledo sued, alleging that their local and state tax burdens were increased by the tax breaks for Daimler-Chrysler, tax breaks that they asserted violated the Commerce Clause. The Court of Appeals agreed that a state tax credit offered under Ohio law violated the Commerce Clause, and state and local officials and DaimlerChrysler sought review in this Court. We are obligated before reaching this Commerce Clause question to determine whether the taxpayers who objected to the credit have standing to press their complaint in federal court. We conclude that they do not, and we therefore can proceed no further.

I

Ohio levies a franchise tax “upon corporations for the privilege of doing business in the state, owning or using a part or all of its capital or property in [the] state, or holding a certificate of compliance authorising it to do business in [the] state.” Wesnovtek Corp. v. Wilkins, 105 Ohio St. 3d 312, 313, 2005-Ohio-1826, ¶ 2, 825 N. E. 2d 1099, 1100; see Ohio Rev. Code Ann. § 5733.01 (Lexis 2005). A taxpayer that purchases “new manufacturing machinery and equipment” and installs it at sites in the State receives a credit against the franchise tax. See § 5733.33(B)(1) (Lexis 1999). Municipalities in Ohio may also offer partial property tax waivers to businesses that agree to invest in qualifying areas. See § 5709.62(C)(1)(a) (Lexis 2005). With consent from local school districts, the partial property tax waiver can be increased to a complete exemption. See § 5709.62(D)(1).

In 1998, DaimlerChrysler entered into a contract with the city of Toledo. Under the contract, DaimlerChrysler agreed to expand its Jeep assembly plant at Stickney Avenue in Toledo. In exchange, the city agreed to waive the property tax for the plant, with the consent of the two school districts in which the plant is located. Because DaimlerChrysler undertook to purchase and install “new manufacturing machinery and equipment,” it was also entitled to a credit against thé state franchise tax. See § 5733.33(B)(1) (Lexis 1999).

Plaintiffs filed suit against various state and local officials and DaimlerChrysler in state court, alleging that these tax benefits violated the Commerce Clause. Most of the plaintiffs were residents of Toledo, who paid taxes to both the city of Toledo and State of Ohio. They claimed that they were injured because the tax breaks for DaimlerChrysler diminished the funds available to the city and State, imposing a “disproportionate burden” on plaintiffs. App. 18a, 23a, 28a.

Defendants removed the action to the United States District Court for the Northern District of Ohio. See 28 U. S. C. § 1441. Plaintiffs filed motions to remand the case to state court. See § 1447(c). One of the grounds on which they sought remand concerned their standing. They professed “substantial doubts about their ability to satisfy either the constitutional or the prudential limitations on standing in the federal court,” and urged the District Court to avoid the issue entirely by remanding. Plaintiffs’ Supplemental Motion for Remand to State Court in No. 3:00cv7247, p. 13, Record, Doc. 17 (footnote omitted).

The District Court declined to remand the case, concluding that, “[a]t the bare minimum, the Plaintiffs who are taxpayers have standing to object to the property tax exemption and franchise tax credit statutes under the ‘municipal taxpayer standing’ rule articulated in Massachusetts v. Mellon, 262 U. S. 447 (1923).” App. 78a (citations omitted). On the merits, the District Court found that neither tax benefit violated the Commerce Clause. See 154 F. Supp. 2d 1196 (2001). The Court of Appeals for the Sixth Circuit agreed with the District Court as to the municipal property tax exemption, but held that the state franchise tax credit violated the Commerce Clause. See 386 F. 3d 738 (2004). The Court of Appeals did not address the issue of standing.

Defendants sought certiorari to review the Sixth Circuit’s invalidation of the franchise tax credit and plaintiffs sought certiorari to review the upholding of the property tax exemption. We granted certiorari to consider whether the franchise tax credit violates the Commerce Clause, 545 U. S. 1165 (2005); the Michigan Supreme Court had decided a similar question contrary to the Sixth Circuit’s analysis here. See Caterpillar, Inc. v. Department of Treasury, 440 Mich. 400, 488 N. W. 2d 182 (1992). We also asked the parties to address whether plaintiffs have standing to challenge the franchise tax credit in this litigation.

II

We have “an obligation to assure ourselves” of litigants’ standing under Article III. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180 (2000). We therefore begin by addressing plaintiffs’ claims that they have standing as taxpayers to challenge the franchise tax credit.

A

Chief Justice Marshall, in Marbury v. Madison, 1 Cranch 137 (1803), grounded the Federal Judiciary’s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of carrying out the judicial function of deciding cases. As Marshall explained, “[tjhose who apply the rule to particular cases, must of necessity expound and interpret that rule.” Id., at 177. Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects “ ‘the proper — and properly limited — role of the courts in a democratic society,’ ” Allen v. Wright, 468 U. S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U. S. 490, 498 (1975)). If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.

This Court has recognized that the case-or-controversy limitation is crucial in maintaining the “‘tripartite allocation of power’ ” set forth in the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474 (1982) (quoting Flast v. Cohen, 392 U. S. 83, 95 (1968)). Marshall again made the point early on, this time in a speech in the House of Representatives. “A case in law or equity,” Marshall remarked,

“was a term ... of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984).

As this Court has explained, “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of govern-, ment than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’” Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)).

The case-or-controversy requirement thus plays a critical role, and “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11 (2004). The “core component” of the requirement that a litigant have standing to invoke the authority of a federal court “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). The requisite elements of this “core component derived directly from the Constitution” are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, supra, at 751. We have been asked to decide an important question of constitutional law concerning the Commerce Clause. But before we do so, we must find that the question is presented in a “case” or “controversy” that is, in James Madison’s words, “of a Judiciary Nature.” 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966). That requires plaintiffs, as the parties now asserting federal jurisdiction, to carry the burden of establishing their standing under Article III.

B

Plaintiffs principally claim standing by virtue of their status as Ohio taxpayers, alleging that the franchise tax credit “depletes the funds of the State of Ohio to which the Plaintiffs contribute through their tax payments” and thus “diminish[es] the total funds available for lawful uses and impos[es] disproportionate burdens on” them. App. 28a; see also Brief for Respondents 24. On several occasions, this Court has denied federal taxpayers standing under Article III to object to a particular expenditure of federal funds simply because they are taxpayers. Thus the alleged “deprivation of the fair and constitutional use of [a federal taxpayer’s] tax dollar” cannot support a challenge to the conveyance of Government land to a private religious college, Valley Forge, supra, at 476, 482 (internal quotation marks and some brackets omitted), and “the interest of a taxpayer in the moneys of the federal treasury furnishes no basis” to argue that a federal agency’s loan practices are unconstitutional, Alabama Power Co. v. Ickes, 302 U. S. 464, 478 (1938); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974).

The animating principle behind these cases was announced in their progenitor, Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447 (1923). In rejecting a claim that improper federal appropriations would “increase the burden of future taxation and thereby take [the plaintiff’s] property without due process of law,” the Court observed that a federal taxpayer’s

“interest in the moneys of the Treasury ... is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Id., at 486, 487.

This logic is equally applicable to taxpayer challenges to expenditures that deplete the treasury, and to taxpayer challenges to so-called “tax expenditures,” which reduce amounts available to the treasury by granting tax credits or exemptions. In either case, the alleged injury is based on the asserted effect of the allegedly illegal activity on public revenues, to which the taxpayer contributes.

Standing has been rejected in such cases because the alleged injury is not “concrete and particularized,” Defenders of Wildlife, supra, at 560, but instead a grievance the taxpayer “suffers in some indefinite way in common with people generally,” Frothingham, supra, at 488. In addition, the injury is not “actual or imminent,” but instead “conjectural or hypothetical.” Defenders of Wildlife, supra, at 560 (internal quotation marks omitted). As an initial matter, it is unclear that tax breaks of the sort at issue here do in fact deplete the treasury: The very point of the tax benefits is to spur economic activity, which in turn increases government revenues. In this very action, the Michigan plaintiffs claimed that they were injured because they lost out on the added revenues that would have accompanied Daimler-Chrysler’s decision to expand facilities in Michigan. See n. 2, supra.

Plaintiffs’ alleged injury is also “conjectural or hypothetical” in that it depends on how legislators respond to a reduction in revenue, if that is the consequence of the credit. Establishing injury requires speculating that elected officials will increase a taxpayer-plaintiff’s tax bill to make up a deficit; establishing redressability requires speculating that abolishing the challenged credit will redound to the benefit of the taxpayer because legislators will pass along the supposed increased revenue in the form of tax reductions. Neither sort of speculation suffices to support standing. See ASARCO Inc. v. Kadish, 490 U. S. 605, 614 (1989) (opinion of Kennedy, J.) (“[I]t is pure speculation whether the lawsuit would result in any actual tax relief for respondents”); Warth, 422 U. S., at 509 (criticizing a taxpayer standing claim for the “conjectural nature of the asserted injury”).

A taxpayer plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstéring programs that benefit him. To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment committed to the “broad and legitimate discretion” of lawmakers, which “the courts cannot presume either to control or to predict.” ASARCO, supra, at 615 (opinion of Kennedy, J.). Under such circumstances, we have no assurance that the asserted injury is “imminent”— that it is “certainly impending.” Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted); see Defenders of Wildlife, 504 U. S., at 564-565, n. 2.

The foregoing rationale for rejecting federal taxpayer standing applies with undiminished force to state taxpayers. We indicated as much in Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952). In that case, we noted our earlier holdings that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect” to support standing to challenge “their manner of expenditure.” Id., at 433. We then “reiterate^]” what we had said in rejecting a federal taxpayer challenge to a federal statute “as equally true when a state Act is assailed: ‘The [taxpayer] must be able to show ... that he has sustained . . . some direct injury . . . and not merely that he suffers in some indefinite way in common with people generally.’ ” Id., at 433-434 (quoting Frothingham, supra, at 488); see ASARCO, supra, at 613-614 (opinion of Kennedy, J.) (“[W]e have likened state taxpayers to federal taxpayers” for purposes of taxpayer standing (citing Doremus, supra, at 434)).

The allegations of injury that plaintiffs make in their complaint furnish no better basis for finding standing than those made in the cases where federal taxpayer standing was denied. Plaintiffs claim that DaimlerChrysler’s tax credit depletes the Ohio fisc and “impos[es] disproportionate burdens on [them].” App. 28a. This is no different from similar claims by federal taxpayers we have already rejected under Article III as insufficient to establish standing. See, e. g., Frothingham, 262 U. S., at 486 (allegation of injury that the effect of government spending “will be to increase the burden of future taxation and thereby take [plaintiff’s] property without due process of law”).

State policymakers, no less than their federal counterparts, retain broad discretion to make “policy decisions” concerning state spending “in different ways . . . depending on their perceptions of wise state fiscal policy and myriad other circumstances.” ASARCO, supra, at 615 (opinion of Kennedy, J.). Federal courts may not assume a particular exercise of this state fiscal discretion in establishing standing; a party seeking federal jurisdiction cannot rely on such “[speculative inferences ... to connect [his] injury to the challenged actions of [the defendant],” Simon, 426 U. S., at 45; see also Allen, 468 U. S., at 759. Indeed, because state budgets frequently contain an array of tax and spending provisions, any number of which may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ Virtually continuing monitors of the wisdom and soundness’” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts. See id., at 760-761 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)).

For the foregoing reasons, we hold that state taxpayers have no standing under Article III to challenge state tax or spending decisions simply by virtue of their status as taxpayers.

c

Plaintiffs argue that an exception to the general prohibition on taxpayer standing should exist for Commerce Clause challenges to state tax or spending decisions, analogizing their Commerce Clause claim to the Establishment Clause challenge we permitted in Flast v. Cohen, 392 U. S. 83. Flast held that because “the Establishment Clause .. . specifically limit[s] the taxing and spending power conferred by Art. I, §8,” “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of” the Establishment Clause. Id., at 105-106. Flast held out the possibility that “other specific [constitutional] limitations” on Article I, § 8, might surmount the “barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers.” 392 U. S., at 105, 85. But as plaintiffs candidly concede, “only the Establishment Clause” has supported federal taxpayer suits since Flast. Brief for Respondents 12; see Bowen v. Kendrick, 487 U. S. 589, 618 (1988) (“Although we have considered the problem of standing and Article III limitations on federal jurisdiction many times since [Flast], we have consistently adhered to Flast and the narrow exception it created to the general rule against taxpayer standing”).

Quite apart from whether the franchise tax credit is analogous to an exercise of congressional power under Article I, § 8, plaintiffs’ reliance on Flast is misguided: Whatever rights plaintiffs have under the Commerce Clause, they are fundamentally unlike the right not to “ ‘contribute three pence ... for the support of any one [religious] establishment.’ ” 392 U. S., at 103 (quoting 2 Writings of James Madison 186 (G. Hunt ed. 1901)). Indeed, plaintiffs compare the Establishment Clause to the Commerce Clause at such a high level of generality that almost any constitutional constraint on government power would “specifically limit” a State’s taxing and spending power for Flast purposes. 392 U. S., at 105; see Brief for Respondents 14 (“In each case, the harm to be avoided by [the two Clauses] is the loss of governmental neutrality”). And even if the two Clauses are similar in that they often implicate governments’ fiscal decisions, see id., at 13-14, a finding that the Commerce Clause satisfies the Flast test would leave no principled way of distinguishing those other constitutional provisions that we have recognized constrain governments’ taxing and spending decisions, see, e. g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987) (invalidating state sales tax under the Free Press Clause). Yet such a broad application of Flast’s exception to the general prohibition on taxpayer standing would be quite at odds with its narrow application in our precedent and Flast’s own promise that it would not transform federal courts into forums for taxpayers’ “generalized grievances.” 392 U. S., at 106.

Flast is consistent with the principle, underlying the Article III prohibition on taxpayer suits, that a litigant may not assume a particular disposition of government funds in establishing standing. The Flast Court discerned in the history of the Establishment Clause “the specific evils feared by [its drafters] that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Id., at 103. The Court therefore understood the “injury” alleged in Establishment Clause challenges to federal spending to be the very “extraction] and spen[ding]” of “tax money” in aid of religion alleged by a plaintiff. Id., at 106. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally. See Valley Forge, 454 U. S., at 514 (Stevens, J., dissenting) (“[T]he plaintiffs’ invocation of the Establishment Clause was of decisive importance in resolving the standing issue in [Flast]”).

Plaintiffs thus do not have state taxpayer standing on the ground that their Commerce Clause challenge is just like the Establishment Clause challenge in Flast.

Ill

Plaintiffs also claim that their status as municipal taxpayers gives them standing to challenge the state franchise tax credit at issue here. The Frothingham Court noted with approval the standing of municipal residents to enjoin the “illegal use of the moneys of a municipal corporation,” relying on “the peculiar relation of the corporate taxpayer to the corporation” to distinguish such a case from the general bar on taxpayer suits. 262 U. S., at 486, 487; see ASARCO, 490 U. S., at 613-614 (opinion of Kennedy, J.) (reiterating distinction). Plaintiffs here challenged the municipal property tax exemption as municipal taxpayers. That challenge was rejected by the Court of Appeals on the merits, and no issue regarding plaintiffs’ standing to bring it has been raised. In plaintiffs’ challenge to the state franchise tax credit, however, they identify no municipal action contributing to any claimed injury. Instead, they try to leverage the notion of municipal taxpayer standing beyond challenges to municipal action, in two ways.

A

First, plaintiffs claim that because state law requires revenues from the franchise tax to be distributed to local governments, Ohio Rev. Code Ann. §5733.12 (Lexis 2005), the award of a credit to DaimlerChrysler reduced such distributions and thus depleted the funds of “local governments to which Respondents pay taxes.” Brief for Respondents 16. But plaintiffs’ challenge is still to the state law and state decision, not those of their municipality. We have already explained why a state taxpayer lacks standing to challenge a state fiscal decision on the grounds that it might affect his tax liability. All plaintiffs have done in recasting their claims as ones brought by municipal taxpayers whose municipalities receive funding from the State — the level of which might be affected by the same state fiscal decision — is introduce yet another level of conjecture to their already hypothetical claim of injury.

And in fact events have highlighted the peril of assuming that any revenue increase resulting from a taxpayer suit will be put to a particular use. Ohio’s General Assembly suspended the statutory budget mechanism that distributes franchise tax revenues to local governments in 2001 and again in its subsequent biennial budgets. See Amended Substitute H. B. 94, 124th General Assembly §140 (2001), available at http://www.legislature.state.oh.us/BillTextl24/ 124_HB_94_ENR.pdf (all Internet materials as visited May 12, 2006, and available in Clerk of Court’s case file); Amended Substitute H. B. 95, 125th General Assembly § 139 (2003), available at http://www.legislature.state.oh.us/ BillTextl25/125_HB_95_EN2_N.pdf; Amended Substitute H. B. 66, 126th General Assembly §557.12 (2005), available at http://www.legislature.state.oh.us/BillTextl26/126_HB_ 66_EN2d.pdf. Any effect that enjoining DaimlerChrysler’s credit will have on municipal funds, therefore, will not result from automatic operation of a statutory formula, but from a hypothesis that the state government will choose to direct the supposed revenue from the restored franchise tax to municipalities. This is precisely the sort of conjecture we may not entertain in assessing standing. See ASARCO, supra, at 614 (opinion of Kennedy, J.).

B

The second way plaintiffs seek to leverage their standing to challenge the municipal property tax exemption into a challenge to the franchise tax credit is by relying on Mine Workers v. Gibbs, 383 U. S. 715 (1966). According to plaintiffs, the “supplemental jurisdiction” recognized in that case supports jurisdiction over all their claims, once the District Court determined they had standing to challenge the property tax exemption. Brief for Respondents 17-18.

Gibbs held that federal-question jurisdiction over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be viewed as part of the same case because they “derive from a common nucleus of operative fact” as the federal claim. 383 U. S., at 725. Plaintiffs assume that Gibbs stands for the proposition that federal jurisdiction extends to all claims sufficiently related to a claim within Article III to be part of the same case, regardless of the nature of the deficiency that would keep the former claims out of federal court if presented on their own.

Our general approach to the application of Gibbs, however, has been markedly more cautious. For example, as a matter of statutory construction of the pertinent jurisdictional provisions, we refused to extend Gibbs to allow claims to be asserted against nondiverse parties when jurisdiction was based on diversity, see Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978), and we refused to extend Gibbs to authorize supplemental jurisdiction over claims that do not satisfy statutory amount-in-controversy requirements, see Finley v. United States, 490 U. S. 545 (1989). As the Court explained just last Term, “[w]e have not. . . applied Gibbs’ expansive interpretive approach to other aspects of the jurisdictional statutes.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 553 (2005) (applying 28 U. S. C. § 1367, enacted in 1990, to allow a federal court in a diversity action to exercise supplemental jurisdiction over additional diverse plaintiffs whose claims failed to meet the amount-in-controversy threshold).

What we have never done is apply the rationale of Gibbs to permit a federal court to exercise supplemental jurisdiction over a claim that does not itself satisfy those elements of the Article III inquiry, such as constitutional standing, that “serv[e] to identify those disputes which are appropriately resolved through the judicial process.” Whitmore, 495 U. S., at 155. We see no reason to read the language of Gibbs so broadly, particularly since our standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press. See Allen, 468 U. S., at 752 (“[T]he standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted” (emphasis added)). We have insisted, for instance, that “a plaintiff must demonstrate standing separately for each form of relief sought.” Laidlaw, 528 U. S., at 185; see Los Angeles v. Lyons, 461 U. S. 95, 109 (1983). But if standing were commutative, as plaintiffs claim, this insistence would make little sense when all claims for relief derive from a “common nucleus of operative fact,” as they certainly appear to have in both Laidlaw, supra, at 175-179, and Lyons, supra, at 97-98.

Plaintiffs’ reading of Gibbs to allow standing as to one claim to suffice for all claims arising from the same “nucleus of operative fact” would have remarkable implications. The doctrines of mootness, ripeness, and political question all originate in Article Ill’s “case” or “controversy” language, no less than standing does. See, e. g., National Park Hospitality Assn. v. Department of Interior, 538 U. S. 803, 808 (2003) (ripeness); Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997) (mootness); Reservists Comm. to Stop the War, 418 U. S., at 215 (political question). Yet if Gibbs’ “common nucleus” formulation announced a new definition of “case” or “controversy” for all Article III purposes, a federal court would be free to entertain moot or unripe claims, or claims presenting a political question, if they “derived from” the same “operative fact[s]” as another federal claim suffering from none of these defects. Plaintiffs’ reading of Gibbs, therefore, would amount to a significant revision of our precedent interpreting Article III. With federal courts thus deciding issues they would not otherwise be authorized to decide, the “ ‘tripartite allocation of power’ ” that Article III is designed to maintain, Valley Forge, 454 U. S., at 474, would quickly erode; our emphasis on the standing requirement’s role in maintaining this separation would be rendered hollow rhetoric. As we have explained, “[t]he actual-injury requirement would hardly serve the purpose ... of preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.” Lewis v. Casey, 518 U. S. 343, 357 (1996).

Lewis emphasized that “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Ibid. Plaintiffs’ theory of ancillary standing would contravene this principle. Plaintiffs failed to establish Article III injury with respect to their state taxes, and even if they did do so with respect to their municipal taxes, that injury does not entitle them to seek a remedy as to the state taxes. As the Court summed up the point in Lewis, “standing is not dispensed in gross.” Id., at 358, n. 6.

* * *

All the theories plaintiffs have offered to support their standing to challenge the franchise tax credit are unavailing. Because plaintiffs have no standing to challenge that credit, the lower courts erred by considering their claims against it on the merits. The judgment of the Sixth Circuit is therefore vacated in part, and the cases are remanded for dismissal of plaintiffs’ challenge to the franchise tax credit.

It is so ordered.

Justice Ginsburg,

concurring in part and concurring in the judgment.

Today’s decision, the Court rightly points out, is solidly grounded in longstanding precedent, Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447 (1923), and Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952), decisions that antedate current jurisprudence on standing to sue. See ante, at 343, 345. Frothingham held nonjusticiable a federal taxpayer’s suit challenging a federal-spending program. See 262 U. S., at 487 (describing taxpayer’s interest as “minute and indeterminable”). Doremus applied Frothingham’s reasoning to a state taxpayer’s suit. 342 U. S., at 434. These decisions exclude from federal-court cognizance claims, not delineated by Congress, presenting generalized grievances. An exception to Frothingham’s rule, recognized post-Doremus in Flast v. Cohen, 392 U. S. 83 (1968), covers certain alleged violations of the Establishment Clause. The Flast exception has not been extended to other areas. See Bowen v. Kendrick, 487 U. S. 589, 618 (1988); cf. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 Harv. L. Rev. 377, 417-418 (1996).

One can accept, as I do, the nonjusticiability of Frothingham-type federal and state taxpayer suits in federal court without endorsing as well the limitations on standing later declared in Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 (1976) (EKWRO); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982); Allen v. Wright, 468 U. S. 737 (1984); and Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). See EKWRO, 426 U. S., at 54-66 (Brennan, J., concurring in judgment); Valley Forge, 454 U. S., at 513-515 (Stevens, J., dissenting); Allen, 468 U. S., at 783-795 (same), and the overturned Court of Appeals opinion, Wright v. Regan, 656 F. 2d 820, 828-832 (CADC 1981) (Ginsburg, J.); Defenders of Wildlife, 504 U. S., at 582-585 (Stevens, J., concurring in judgment); Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 203-205, 228-229 (1992) (contrasting Lujan, Allen, and EKWRO with Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978)); Fletcher, The Structure of Standing, 98 Yale L. J. 221, 267-270 (1988) (commenting on Flast and Valley Forge). Noting this large reservation, I concur in the judgment, and in the balance of the Court’s opinion.

      Ohio has begun phasing out the franchise tax and has discontinued offering new credits against the tax like the one DaimlerChrysler received. See §§ 5733.01(G), 5733.33(B)(1) (Lexis 2005). Where relevant, therefore, the citations in this opinion are to the statutes in effect at the time DaimlerChrysler made its investment.

       Other plaintiffs were residents of Toledo who claimed they were injured because they were displaced by the DaimlerChrysler expansion and Michigan residents who claimed injury because DaimlerChrysler would have expanded its operations in Michigan but for the Ohio investment tax credit. Plaintiffs neither identified these allegations as a basis for standing in their merits brief before this Court nor referred to them at oral argument. Any argument based on these allegations is therefore abandoned. See, e. g., United States v. International Business Machines Corp., 517 U. S. 843, 855, and n. 3 (1996).

       Because defendants removed the case from state court to District Court, plaintiffs were not initially the parties that invoked federal jurisdiction. Indeed, plaintiffs initially expressed doubts as to their standing. Nonetheless, because “[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record,” Renne v. Geary, 501 U. S. 312, 316 (1991) (internal quotation marks omitted), the party asserting federal jurisdiction when it is challenged has the burden of establishing it. Whatever the parties’ previous positions on the propriety of a federal forum, plaintiffs, as the parties seeking to establish federal jurisdiction, must make the showings required for standing.

       The majority of the Courts of Appeals to have considered the issue have reached a similar conclusion. See, e. g., Booth v. Hvass, 302 F. 3d 849 (CA8 2002); Board of Ed. of Mt. Sinai Union Free School Dist. v. New York State Teachers Retirement System, 60 F. 3d 106 (CA2 1995); Colorado Taxpayers Union, Inc. v. Romer, 963 F. 2d 1394 (CA10 1992); Taub v. Kentucky, 842 F. 2d 912 (CA6 1988); Korioth v. Briscoe, 523 F. 2d 1271 (CA5 1975); but cf. Arakaki v. Lingle, 423 F. 3d 954, 967-969 (CA9 2005) (finding state taxpayer standing in light of Hoohuli v. Ariyoshi, 741 F. 2d 1169 (CA9 1984), but noting that Justice Kennedy’s opinion in ASARCO Inc. v. Kadish, 490 U. S. 605 (1989), would “carry persuasive value” absent Hoohuli).

       In defending the contrary position, plaintiffs rely on three cases from the Courts of Appeals. But two of those cases hold only that, once a litigant has standing to request invalidation of a particular agency action, it may do so by identifying all grounds on which the agency may have “ ‘failed to comply with its statutory mandate.’ ” Sierra Club v. Adams, 578 F. 2d 389, 392 (CADC 1978) (quoting Sierra Club v. Morton, 405 U. S. 727, 737 (1972)); see also Iowa Independent Bankers v. Board of Governors of Fed. Reserve, 511 F. 2d 1288, 1293-1294 (CADC 1975). They do not establish that the litigant can, by virtue of his standing to challenge one government action, challenge other governmental actions that did not injure him. In the third case, the Court of Appeals relied substantially on the fact that “all courts possess an inherent power to prevent unprofessional conduct by those attorneys who are practicing before them” in allowing the Government to contest the division of a damages award it was ordered to pay between a plaintiff and his attorney. Jackson v. United States, 881 F. 2d 707, 710, 711 (CA9 1989). That situation is rather far afield from the question before us.


source: Caselaw Access Project

author: Chief Justice Roberts

license: Public Domain

text:
    SEREBOFF et ux. v. MID ATLANTIC MEDICAL SERVICES, INC.
    No. 05-260.
    Argued March 28, 2006
    Decided May 15, 2006

      Peter K. Stris argued the cause for petitioners. With him on the briefs were Radha A. Pathak, John C. Stein, Shaun P. Martin, William Delgado, and Jason H. Wilson.

      Gregory S. Coleman argued the cause for respondent. With him on the brief were Thomas F. Fitzgerald and William F. Hanrahan.

      James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Deputy Solicitor General Kneedler, Howard M. Radzely, Nathaniel I. Spiller, and Edward D. Sieger.

         Jeffrey Robert White and Kenneth M. Suggs filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for America’s Health Insurance Plans, Inc., et al. by Waldemar J. Pflepsen, Jr., Stephanie W. Kanwit, Stephen H. Goldberg, Jan S. Amundson, and Quentin Riegel; for the Blue Cross Blue Shield Association by Anthony F. Shelley, Alan I. Horowitz, and Laura G. Ferguson; for the Central States, Southeast and Southwest Areas Health and Welfare Fund by William J. Nellis, Thomas C. Nyhan, and James P. Condon; for the National Association of Subrogation Professionals by John D. Kolb, Damn P. Kiefer, and Thomas H. Lawrence III; for the National Coordinating Committee for Multiemployer Plans by Donald J. Capuano and R. Richard Hopp; for the Southwest Carpenters Health & Welfare Trust by Desmond C. Lee; for the Self-Insurance Institute of America, Inc., by John E. Barry, Thomas W. Brunner, Lawrence H. Mirel, Bryan B. Davenport, and George J. Pantos; and for the Society for Human Resource Management et al. by Térese M. Connerton, Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant.

   Chief Justice Roberts

delivered the opinion of the Court.

In this case we consider again the circumstances in which a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) may sue a beneficiary for reimbursement of medical expenses paid by the ERISA plan, when the beneficiary has recovered for its injuries from a third party.

I

Marlene Sereboff’s employer sponsors a health insurance plan administered by respondent Mid Atlantic Medical Services, Inc., and covered by ERISA, 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (2000 ed. and Supp. III). Marlene Sereboff and her husband Joel are beneficiaries under the plan. The plan provides for payment of certain covered medical expenses and contains an “Acts of Third Parties” provision. This provision “applies when [a beneficiary is] sick or injured as a result of the act or omission of another person or party,” and requires a beneficiary who “receives benefits” under the plan for such injuries to “reimburse [Mid Atlantic]” for those benefits from “[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise).” App. to Pet. for Cert. 38a. The provision states that “[Mid Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees in writing to a reduction.” Ibid.

The Sereboffs were involved in an automobile accident in California and suffered injuries. Pursuant to the plan’s coverage provisions, the plan paid the couple’s medical expenses. The Sereboffs filed a tort action in state court against several third parties, seeking compensatory damages for injuries suffered as a result of the accident. Soon after the suit was commenced, Mid Atlantic sent the Sereboffs’ attorney a letter asserting a lien on the anticipated proceeds from the suit, for the medical expenses Mid Atlantic paid on the Sereboffs’ behalf. App. 87-90. On several occasions over the next two years, Mid Atlantic sent similar correspondence to the attorney and to the Sereboffs, repeating its claim to a lien on a portion of the Sereboffs’ recovery, and detailing the medical expenses as they accrued and were paid by the plan.

The Sereboffs’ tort suit eventually settled for $750,000. Neither the Sereboffs nor their attorney sent any money to Mid Atlantic in satisfaction of its claimed lien which, after Mid Atlantic completed its payments on the Sereboffs’ behalf, totaled $74,869.37.

Mid Atlantic filed suit in District Court under § 502(a)(3) of ERISA, 29 U. S. C. § 1132(a)(3), seeking to collect from the Sereboffs the medical expenses it had paid on their behalf. Since the Sereboffs’ attorney had already distributed the settlement proceeds to them, Mid Atlantic sought a temporary restraining order and preliminary injunction requiring the couple to retain and set aside at least $74,869.37 from the proceeds. The District Court approved a stipulation by the parties, under which the Sereboffs agreed to “preserve $74,869.37 of the settlement funds” in an investment account, “until the [District] Court rules on the merits of this case and all appeals, if any, are exhausted.” App. 69.

On the merits, the District Court found in Mid Atlantic’s favor and ordered the Sereboffs to pay Mid Atlantic the $74,869.37, plus interest, with a deduction for Mid Atlantic’s share of the attorney’s fees and court costs the Sereboffs had incurred in state court. See 303 F. Supp. 2d 691, 316 F. Supp. 2d 265 (Md. 2004). The Sereboffs appealed and the Fourth Circuit affirmed in relevant part. 407 F. 3d 212 (2005). The Fourth Circuit observed that the Courts of Appeals are divided on the question whether § 502(a)(3) authorizes recovery in these circumstances. See id., at 219-220, n. 7. We granted certiorari to resolve the disagreement. 546 U. S. 1030 (2005).

II

A

A fiduciary may bring a civil action under § 502(a)(3) of ERISA “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U. S. C. § 1132(a)(3). There is no dispute that Mid Atlantic is a fiduciary under ERISA and that its suit in District Court was to “enforce . . . the terms of” the “Acts of Third Parties” provision in the Sereboffs’ plan. The only question is whether the relief Mid Atlantic requested from the District Court was “equitable” under § 502(a)(3)(B).

This is not the first time we have had occasion to clarify the scope of the remedial power conferred on district courts by § 502(a)(3)(B). In Mertens v. Hewitt Associates, 508 U. S. 248 (1993), we construed the provision to authorize only “those categories of relief that were typically available in equity,” and thus rejected a claim that we found sought “nothing other than compensatory damages.” Id., at 256, 255. We elaborated on this construction of § 502(a)(3)(B) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), which involved facts similar to those in this case. Much like the “Acts of Third Parties” provision in the Sereboffs’ plan, the plan in Knudson reserved “ ‘a first lien upon any recovery, whether by settlement, judgment or otherwise,’ that the beneficiary receives from [a] third party.” Id., at 207. After Knudson was involved in a car accident, Great-West paid medical bills on her behalf and, when she recovered in tort from a third party for her injuries, Great-West sought to collect from her for the medical bills it had paid. Id., at 207-209.

In response to the argument that Great-West’s claim in Knudson was for “restitution” and thus equitable under § 502(a)(3)(B) and Mertens, we noted that “not all relief falling under the rubric of restitution [was] available in equity.” 534 U. S., at 212. To decide whether the restitutionary relief sought by Great-West was equitable or legal, we examined cases and secondary legal materials to determine if the relief would have been equitable “[i]n the days of the divided bench.” Ibid. We explained that one feature of equitable restitution was that it sought to impose a constructive trust or equitable lien on “particular funds or property in the defendant’s possession.” Id., at 213. That requirement was not met in Knudson, because “the funds to which petitioners claim[ed] an entitlement” were not in Knudson’s possession, but had instead been placed in a “Special Needs Trust” under California law. Id., at 214, 207. The kind of relief Great-West sought, therefore, was “not equitable — the imposition of a constructive trust or equitable lien on particular property — but legal — the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson].” Id., at 214. We accordingly determined that the suit could not proceed under § 502(a)(3). Ibid.

That impediment to characterizing the relief in Knudson as equitable is not present here. As the Fourth Circuit explained below, in this case Mid Atlantic sought “specifically identifiable” funds that were “within the possession and control of the Sereboffs” — that portion of the tort settlement due Mid Atlantic under the terms of the ERISA plan, set aside and “preserved [in the Sereboffs’] investment accounts.” 407 F. 3d, at 218. Unlike Great-West, Mid Atlantic did not simply seek “to impose personal liability ... for a contractual obligation to pay money.” Knudson, 534 U. S., at 210. It alleged breach of contract and sought money, to be sure, but it sought its recovery through a constructive trust or equitable lien on a specifically identified fund, not from the Sereboffs’ assets generally, as would be the case with a contract action at law. ERISA provides for equitable remedies to enforce plan terms, so the fact that the action involves a breach of contract can hardly be enough to prove relief is not equitable; that would make § 502(a)(3)(B)(ii) an empty promise. This Court in Knudson did not reject Great-West’s suit out of hand because it alleged a breach of contract and sought money, but because Great-West did not seek to recover a particular fund from the defendant. Mid Atlantic does.

B

While Mid Atlantic’s case for characterizing its relief as equitable thus does not falter because of the nature of the recovery it seeks, Mid Atlantic must still establish that the basis for its claim is equitable. See id., at 213 (whether remedy “is legal or equitable depends on ‘the basis for [the plaintiff’s] claim’ and the nature of the underlying remedies sought”). Our ease law from the days of the divided bench confirms that Mid Atlantic’s claim is equitable. In Barnes v. Alexander, 232 U. S. 117 (1914), for instance, attorneys Street and Alexander performed work for Barnes, another attorney, who promised them “one-third of the contingent fee” he expected in the case. Id., at 119. In upholding their equitable claim to this portion of the fee, Justice Holmes recited “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id., at 121. On the basis of this rule, he concluded that Barnes’ undertaking “create[d] a lien” upon the portion of the monetary recovery due Barnes from the client, ibid., which Street and Alexander could “follow . . . into the hands of . . . Barnes,” “as soon as [the fund] was identified,” id., at 123.

Much like Barnes’ promise to Street and Alexander,, the “Acts of Third Parties” provision in the Sereboffs’ plan specifically identified a particular fund, distinct from the Sereboffs’ general assets — “[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise)” — and a particular share of that fund to which Mid Atlantic was entitled — “that portion of the total recovery which is due [Mid Atlantic] for benefits paid.” App. to Pet. for Cert. 38a. Like Street and Alexander in Barnes, therefore, Mid Atlantic could rely on a “familiar rul[e] of equity” to collect for the medical bills it had paid on the Sereboffs’ behalf. Barnes, supra, at 121. This rule allowed them to “follow” a portion of the recovery “into the [Sereboffs’] hands” “as soon as [the settlement fund] was identified,” and impose on that portion a constructive trust or equitable lien. 232 U. S., at 123.

The Sereboffs object that Mid Atlantic’s suit would not have satisfied the conditions for “equitable restitution” at common law, particularly the “strict tracing rules” that allegedly accompanied this form of relief. Reply Brief for Petitioners 8. When an equitable lien was imposed as restitutionary relief, it was often the case that an asset belonging to the plaintiff had been improperly acquired by the defendant and exchanged by him for other property. A central requirement of equitable relief in these circumstances, the Sereboffs argue, was the plaintiff’s ability to “‘trac[e]’ the asset into its products or substitutes,” or “trace his money or property to some particular funds or assets.” 1D. Dobbs, Law of Remedies §4.3(2), pp. 591, n. 10, 592 (2d ed. 1993).

But as the Sereboffs themselves recognize, an equitable lien sought as a matter of restitution, and an equitable lien “by agreement,” of the sort at issue in Barnes, were different species of relief. See Brief for Petitioners 24-25; Reply Brief for Petitioners 11; see also 1 Dobbs, supra, §4.3(3), at 601; 1 G. Palmer, Law of Restitution § 1.5, p. 20 (1978). Barnes confirms that no tracing requirement of the sort asserted by the Sereboffs applies to equitable liens by agreement or assignment: The plaintiffs in Barnes could not identify an asset they originally possessed, which was improperly acquired and converted into property the defendant held, yet that did not preclude them from securing an equitable lien. To the extent Mid Atlantic’s action is proper under Barnes, therefore, its asserted inability to satisfy the. “strict tracing rules” for “equitable restitution” is of no consequence. Reply Brief for Petitioners 8.

The Sereboffs concede as much, stating that they “do not contend — and have never suggested — that any tracing was historically required when an equitable lien was imposed by agreement” Id., at 11. Their argument is that such tracing was required when an equitable lien was “predicated on a theory of equitable restitution.” Ibid. The Sereboffs appear to assume that Knudson endorsed application of all the restitutionary conditions — including restitutionary tracing rules — to every action for an equitable lien under § 502(a)(3). This assumption is inaccurate. Knudson simply described in general terms the conditions under which a fiduciary might recover when it was seeking equitable restitution under a provision like that at issue in this case. There was no need in Knudson to catalog all the circumstances in which equitable liens were available in equity; Great-West claimed a right to recover in restitution, and the Court concluded only that equitable restitution was unavailable because the funds sought were not in Knudson’s possession. 534 U. S., at 214.

The Sereboffs argue that, even under Barnes, equitable relief would not have been available to fiduciaries relying on plan provisions like the one at issue here, because when the beneficiary agrees to such a provision “no third-party recovery” exists which the beneficiary can “place . . . beyond his control and grant [the fiduciary] a complete and present right therein.” Brief for Petitioners 26, 25 (internal quotation marks omitted). It may be true that, in contract cases, equity originally required identification at the time the contract was made of the fund to which a lien specified in the contract attached. See, e. g., Trist v. Child, 21 Wall. 441, 447 (1875) (“[A] mere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an appropriation of the fund pro tanto”). But Barnes explicitly disapproved of this rule, observing that Trist addressed the issue only in dicta (since the contract containing the lien provision in Trist was illegal), and treating the “question as at large,” even in light of earlier opinions that had dealt with it head on. Barnes, supra, at 120 (citing Trist, supra; Christmas v. Russell, 14 Wall. 69 (1872); Wright v. Ellison, 1 Wall. 16 (1864)).

Apart from those cases, which Barnes discredited, the Sereboffs offer little to undermine the plain indication in Barnes that the fund over which a lien is asserted need not be in existence when the contract containing the lien provision is executed. See 4 S. Symons, Pomeroy’s Equity Jurisprudence § 1236, pp. 699-700 (5th ed. 1941) (“[A]n agreement to charge, or to assign . . . property not yet in existence,” although “creat[ing] no legal estate or interest in the things when they afterwards come into existence . . . does constitute an equitable lien upon the property” just as would “a lien upon specific things existing and owned by the contracting party at the date of the contract”); Peugh v. Porter, 112 U. S. 737, 742 (1885) (“[I]n contemplation of equity, [it] is not material” that the “very fund now in dispute” was “not... in existence” when an equitable lien over that fund was created). Indeed, the most they can muster in this regard are several state cases predating Barnes and a single decision that rests, contrary to the Sereboffs’ characterization, on the simple conclusion that a contractual provision purporting to secure an equitable lien did not properly do so. See Brief for Petitioners 26; Reply Brief for Petitioners 12; Taylor v. Wharton, 43 App. D. C. 104 (1915).

The Sereboffs finally fall back on the argument that Barnes announced a special rule for attorneys claiming an equitable lien over funds promised under a contingency fee arrangement. Outside of this context, they say, the “typical rules regarding equitable liens by assignment” persisted and would have prevented recovery here. Reply Brief for Petitioners 13.

But Barnes did not attach any particular significance to the identity of the parties seeking recovery. See 232 U. S., at 119. And as Barnes itself makes clear, other cases of this Court — not involving attorney’s contingency fees — apply the same “familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id., at 121. In Walker v. Brown, 165 U. S. 654 (1897), for instance, the Court approved an equitable lien over municipal bonds transferred to a company to facilitate its business. When a supplier of the company suspended shipments because of delinquent debts, the individual who had transferred the bonds assured the supplier that “ ‘any indebtedness that they may be owing you at any time, shall be paid before the return to me of these bonds ... and that these bonds ... are at the risk of the business of [the company], so far as any claim you may have against [it].’” Id., at 663. The Court found that this undertaking created an equitable lien on the bonds, which the supplier could enforce against the individual after the bonds had been returned to him when the company became insolvent. Id., at 666. As in Barnes, the Court resolved the case by applying general equitable principles, stating that “[t]o dedicate property to a particular purpose, to provide that a specified creditor and that creditor alone shall be authorized to seek payment of his debt from the property or its value, is unmistakably to create an equitable lien.” 165 U. S., at 666.

C

Shifting gears, the Sereboffs contend that the lower courts erred in allowing enforcement of the “Acts of Third Parties” provision, without imposing various limitations that they say would apply to “truly equitable relief grounded in principles of subrogation.” Reply Brief for Petitioners 5. According to the Sereboffs, they would in an equitable subrogation action be able to assert certain equitable defenses, such as the defense that subrogation may be pursued only after a victim had been made whole for his injuries. Id., at 5-6. Such defenses should be available against Mid Atlantic’s action, the Sereboffs claim, despite the plan provision that “[Mid Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees , in writing to a reduction.” App. to Pet. for Cert. 38a.

But Mid Atlantic’s claim is not considered equitable because it is a subrogation claim. As explained, Mid Atlantic’s action to enforce the “Acts of Third Parties” provision qualifies as an equitable remedy because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by our decision in Barnes. See 4 Palmer, Law of Restitution §23.18(72), at 470 (A subrogation lien “is not an express lien based on agreement, but instead is an equitable lien impressed on moneys on the ground that they ought to go to the insurer”). Mid Atlantic need not characterize its claim as a freestanding action for equitable subrogation. Accordingly, the parcel of equitable defenses the Sereboffs claim accompany any such action are beside the point.

* * *

Under the teaching of Barnes and similar cases, Mid Atlantic’s action in the District Court properly- sought “equitable relief” under § 502(a)(3); the judgment of the Fourth Circuit is affirmed in relevant part.

It is so ordered.

       Compare Administrative Comm. of Wal-Mart Assoc. Health & Welfare Plan v. Willard, 393 F. 3d 1119 (CA10 2004), Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F. 3d 348 (CA5 2003), and Administrative Comm. of Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Varco, 338 F. 3d 680 (CA7 2003), with Qualchoice, Inc. v. Rowland, 367 F. 3d 638 (CA6 2004), and Westaff (USA) Inc. v. Arce, 298 F. 3d 1164 (CA9 2002).

       The Sereboffs argue that, even if the relief Mid Atlantic sought was “equitable” under § 502(a)(3), it was not “appropriate” under that provision in that it contravened principles like the make-whole doctrine. Neither the District Court nor the Court of Appeals considered the argument that Mid Atlantic’s claim was not “appropriate” apart from the contention that it was not “equitable,” and from our examination of the record it does not appear that the Sereboffs raised this distinct assertion below. We decline to consider it for the first time here. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).


author: Justice Souter

text:
    S. D. WARREN CO. v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al.
    No. 04-1527.
    Argued February 21, 2006
    Decided May 15, 2006

      William J. Kayatta, Jr., argued the cause for petitioner. With him on the briefs was Matthew D. Manaban.

      G. Steven Rowe, Attorney General of Maine, argued the cause for respondents. With him on the brief for Maine Board of Environmental Protection were Paul Stern, Deputy Attorney General, and Carol A. Blasi and Gerald D. Reid, Assistant Attorneys General. Richard J. Lazarus, Daniel

      H. Squire, Ethan G. Shenkman, Sean Mahoney, and Ronald A. Shems filed a brief for American Rivers et al. as respondents under this Court’s Rule 12.6.

      Jeffrey R Minear argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Assistant Attorney General Wooldridge, Deputy Solicitor General Hungar, Greer S. Goldman, Ellen J. Durkee, John L. Smeltzer, and Ann R. Klee.

      Briefs of amici curiae urging reversal were filed for Augusta, Georgia, by George A. Somerville; for the Edison Electric Institute et al. by Jeffrey L. Fisher, Daniel M. Adamson, Edward H. Comer, Kristy A. N. Bulleit, James H. Hancock, Jr., and Richard S. Wasserstrom; for the National Association of Home Builders et al. by Virginia S. Albrecht, Karma B. Brown, Kathy Robb, Duane J. Desiderio, and Thomas Jon Ward; for the New England Legal Foundation by Martin J. Newhouse, Andrew R. Grainger, and Michael E. Malamut; and for the Salt River Project Agricultural Improvement and Power District by John B. Weldon, Jr., and Lisa M. McKnight.

      Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Robert H. Easton, Deputy Solicitor General, Peter H. Lehner, Gregory Silbert, Assistant Solicitor General, and James M. Tierney, Assistant Attorney General, by Rob McKenna, Attorney General of Washington, and Brian Fatter and Ron Lavigne, Assistant Attorneys General, by Roberto J. Sanchez Ramos, Secretary of Justice of Puerto Rico, by Susan Shinkman, and by the Attorneys General for their respective States as follows: David W. Marquez of Alaska, Terry Goddard of Arizona, Bill Lockyer of California, Richard Blumenthal of Connecticut, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, George J. Chanos of Nevada, Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Peggy S. Lautenschlager of Wisconsin; for Friends of the Everglades by John E. Childe; for Former Assistant Administrators of the United States Environmental Protection Agency by Robert G. Dreher, Jennifer Chavez, and Howard I. Fox; for the Hoopa Valley Tribe et al. by Thomas P. Schlosser, Carl Ullman, and Daniel A. Raas; for the Miccosukee Tribe of Indians of Florida by Dexter W. Lehtinen, Claudio Riedi, Sonia Escobio O’Donnell, and Enrique D. Arana; the National Wildlife Federation et al. by David K. Mears; for Trout Unlimited et al. by James B. Dougherty; for Water Quality and Riverine Scientists by Richard Roos-Collins and Steven P. Malloch; and for Senator James M. Jeffords by Mr. Jeffords, pro se.

        Benjamin S. Sharp, Guy R. Martin, and Karen M. McGaffey filed a brief for the Western Urban Water Coalition as amicus curiae.

   Justice Souter

delivered the opinion of the Court.

The issue in this case is whether operating a dam to produce hydroelectricity “may result in any discharge into the navigable waters” of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.

I

The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydro-power dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river just below the impoundment.

It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. § 799, after a review that looks to environmental issues as well as the rising demand for power, § 797(e).

Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a “discharge” into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State’s own laws. See Water Quality Improvement Act of 1970, § 103, 84 Stat. 108. Today, this requirement can be found in § 401 of the Clean Water Act, 86 Stat. 877, 33 U. S. C. § 1341: “Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates .. . .” § 1341(a)(1).

“Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§ 1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” § 1341(d).

In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401.

The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification. After appealing unsuccessfully to Maine’s administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State’s Cumberland County Superior Court. That court rejected Warren’s argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. 2005 ME 27, 868 A. 2d 210. We granted certiorari, 546 U. S. 933 (2005), and now affirm as well.

II

The dispute turns on the meaning of the word “discharge,” the key to the state certification requirement under §401. 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.” 33 U. S. C. § 1362(16). It does define “discharge of a pollutant” and “discharge of pollutants” as meaning “any addition of any pollutant to navigable waters from any point source.” § 1362(12). But “discharge” presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994).

When it applies to water, “discharge” commonly means a “flowing or issuing out,” Webster’s New International Dictionary 742 (2d ed. 1954); see also ibid. (“[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay”), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e. g., Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 364 (1989) (describing a dam’s “'multiport’ structure, which will permit discharge of water from any of five levels”); Arizona v. California, 373 U. S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who “ 'take . .. water out of the stream which has been discharged from the reservoir’ ”); United States v. Arizona, 295 U. S. 174, 181 (1935) (“Parker Dam will intercept waters discharged at Boulder Dam”).

In fact, this understanding of the word “discharge” was accepted by all Members of the Court sitting in our only other case focused on §401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994). At issue in PUD No. 1 was the State of Washington’s authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this:

“There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges — the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity.” Id., at 711.

The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State’s §401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the “discharge of water” from the dam was a discharge within the ambit of §401. Ibid. And although the Court’s opinion made no mention of the dam as adding anything to the water, the majority’s use of the phrase “discharge of water” drew no criticism from the dissent, which specifically noted that “[t]he term ‘discharge’ is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests ‘a flowing or issuing out,’ or ‘something that is emitted.’ ” Id., at 725 (opinion of Thomas, J.) (quoting Webster’s Ninth New Collegiate Dictionary 360 (1991)).

In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read “discharge” as having its plain meaning and thus covering releases from hydroelectric dams. See, e. g., EPA, Water Quality Standards Handbook § 7.6.3, p. 7-10 (2d ed. 1994) (“EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act”); FPL Energy Maine Hydro LLC, 111 FERC ¶ 61,104, p. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress “used the term ‘discharge’ as nothing more than a shorthand expression for ‘discharge of a pollutant or pollutants’ ”). Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U. S. 243, 258 (2006) (“Chevron deference ... is not accorded merely because the statute is ambiguous and an administrative official is involved”); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). But even so, the administrative usage of “discharge” in this way confirms our understanding of the everyday sense of the term.

m

Warren makes three principal arguments for reading the term “discharge” differently from the ordinary way. We find none availing.

A

The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the “words grouped in a list should be given related meaning,” Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U. S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well”).

Warren claims that the canon applies to §502(16) of the Clean Water Act, which provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” 33 U. S. C. § 1362(16). Warren emphasizes that the “include[d]” terms, pollutant discharges, are themselves defined to require an “addition” of pollutants to water. § 1362(12). Since “discharge” pure and simple is keeping company with “discharge” defined as adding one or more pollutants, Warren says “discharge” standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.

The problem with Warren’s argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92-911, p. 125 (1972) (“[I]t is extremely important to an understanding of [§402] to know the definition of the various terms used and a careful reading of the definitions ... is recommended. Of particular significance [are] the words ‘discharge of pollutants’ ”).

B

Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95 (2004). But that case is not on point. Miccosukee addressed §402 of the Clean Water Act, not § 401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to “continu[e] the authority of the State ... to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.” S. Rep. No. 92-414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity “may” result in a discharge (“discharge” of course being without any qualifiers here), 33 U. S. C. § 1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra.

Section 402 has a historical parallel with §401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92-911, at 124-125. But it contrasts with §401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the “discharge of any pollutant” into the navigable waters of the United States, 33 U. S. C. § 1342(a). The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. § 1362(12).

The question in Miccosukee was whether a pump between a canal and an impoundment produced a “discharge of a pollutant” within the meaning of §402, see 541 U. S., at 102-103, and the Court accepted the shared view of the parties that if two identified volumes of water are “simply two parts of the same water body, pumping water from one into the other cannot constitute an 'addition’ of pollutants,” id., at 109. Miccosukee was thus concerned only with whether an “addition” had been made (phosphorous being the substance in issue) as required by the definition of the phrase “discharge of a pollutant”; it did not matter under § 402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.

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 ‘pollut-. ants,’ 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 Rep. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under § 402, but they also wanted to ensure that thermal discharges remained within the scope of § 401 and so sought to include them expressly in the general provision covering “discharge.” See id., at 1069-1070, 1071. The proposed definition read, “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge.” Id., at 1071.

Of course, Congress omitted the reference to “thermal discharge,” and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, § 502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words “thermal discharge” from 33 U. S. C. § 1362(16) and carelessly left in the word “includes.” Thus, Warren argues, there is no reason to assume that describing “discharge” as including certain acts was meant to extend the reach of § 401 beyond acts of the kind specifically mentioned; the terminology of § 401 simply reflects a failed effort to narrow the scope of § 402.

This is what might be called a lawyer’s argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under § 402. It is simply speculation, though, to say that the word “includes” was left in the description of a “discharge” by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left “thermal discharge” as an included subclass of a “discharge” under §502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition.

Warren’s theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms “discharge” and “discharge of pollutants” deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of “discharge” because it wanted to subject thermal discharges to the requirements of §401, but not §402. But this assumption about Congress’s motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U. S. 23, 29-30 (1997) (if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted)).

IV

Warren’s arguments against reading the word “discharge” in its common sense fail on their own terms. They also miss the forest for the trees.

Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. § 1251(a); see also PUD No. 1, 511 U. S., at 714, the “national goal” being to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water,” 33 U. S. C. § 1251(a)(2). To do this, the Act does not stop at controlling the “addition of pollutants,” but deals with “pollution” generally, see § 1251(b), which Congress defined to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” § 1362(19).

The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams “can cause changes in the movement, flow, and circulation of a river ... causing] 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., L-19713-33-E-N etc. (2003), in App. to Pet. for Cert. A-49.

Changes in the river like these fall within a State’s legitimate legislative business, and the Clean Water Act provides for a system that respects the States’ concerns. See 33 U. S. C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution”); § 1256(a) (federal funds for state efforts to prevent pollution); see also §1370 (States may impose standards on the discharge of pollutants that are stricter than federal ones).

State certifications under § 401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now § 401 was first proposed:

“No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.” 116 Cong. Rec. 8984 (1970).

These are the very reasons that Congress provided the States with power to enforce “any other appropriate requirement of State law,” 33 U. S. C. § 1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid.

Reading § 401 to give “discharge” its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed.

It is so ordered.

      Justice Scalia joins all but Part III-C of this opinion.

       The statutes cross-referenced go to effluent limitations and other limitations, 33 U. S. C. §§ 1311, 1312, standards of performance, § 1316, and toxic effluent standards, §1317. As we have explained before, “state water quality standards adopted pursuant to §303 [of the Clean Water Act, 33 U. S. C. § 1313,] are among the ‘other limitations’ with which a State may ensure compliance through the §401 certification process.” PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 713 (1994).

       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.” 33 U. S. C. § 1362(6).

       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/oge/ doeuments/water_transfers.pdf (as visited Apr. 13, 2006, and available in Clerk of Court’s ease 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.

       We note that the Supreme Judicial Court of Maine accepted the assertion that “[a]n ‘addition’ is the fundamental characteristic of any discharge.” 2005 ME 27, ¶ 11, 868 A. 2d 210, 215. It then held that Warren’s dams add to the Presumpseot River because the water “losfes its] status as waters of the United States” when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. 868 A. 2d, at 216 (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Cf. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 69 (1913) (“[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable”). Thus, though we affirm the Maine judgment, we do so on different reasoning.

       The fact that the parties in Miccosukee conceded that the water being pumped was polluted does not transform the Court’s analysis from one centered on the word “addition” to one centered on the word “discharge.” Before Miccosukee, one could have argued that transferring polluted water from a canal to a connected impoundment constituted an “addition.” Miccosukee is at odds with that construction of the statute, but it says nothing about whether the transfer of polluted water from the canal to the impoundment constitutes a “discharge.”
      Likewise, we are not persuaded by Warren’s claim that the word “into” somehow changes the meaning of the word “discharge” so as to require an addition. See Reply Brief for Petitioner 1-2 (“However one might read the lone word ‘discharge’ by itself, the complete statutory phrase ‘discharge into the navigable waters’ entails the introduction of something into the waters”). The force of this argument escapes us, since one can easily refer to water being poured or discharged out of one place into another without implying that an addition of some hitherto unencountered mixture or quality of water is made. Indeed, the preposition “into” was used without connoting an addition in the Miccosukee analogy cited by Warren. See 541 U. S., at 110 (“[I]f one takes a ladle of soup from a pot... and pours it back into the pot, one has not ‘added’ soup or anything else to the pot” (internal quotation marks and brackets omitted)).

       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.

       Warren briefly makes another argument for disregarding the plain meaning of the word “discharge,” relying on § 511(c)(2) of the Clean Water Act, 33 U. S. C. § 1371(c)(2). This section addresses the intersection of the Act with another statute, the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. §4321 et seq. NEPA “imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Department of Transportation v. Public Citizen, 541 U. S. 752, 756-757 (2004). Section 511(c)(2) makes the point that nothing in NEPA authorizes any federal agency “authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant” to review “any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under [§ 401].” 33 U. S. C. § 1371(c)(2)(A). 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 “authority] 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 ease 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.