MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, PETITIONER V. DEFENDERS OF WILDLIFE, ET AL. No. 90-1424 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of the Secretary of the Interior, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit PARTIES TO THE PROCEEDING The petitioner is Manuel Lujan, Jr., in his official capacity as Secretary of the Interior. The respondents are Defenders of Wildlife, Friends of Animals and Their Environment, and the Humane Society of the United States. TABLE OF CONTENTS Questions Presented Parties To The Proceeding Opinions below Jurisdiction Statutory and regulatory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-20a) is reported at 911 F.2d 117. The opinion of the district court (App., infra, 21a-32a) is reported at 707 F. Supp. 1082. Prior opinions of the court of appeals (App., infra, 33a-54a) and the district court (App., infra, 55a-64a) are reported at 851 F.2d 1035 and 658 F. Supp. 43, respectively. JURISDICTION The judgment of the court of appeals was entered on August 10, 1990. A petition for rehearing was denied on December 10, 1990. App., infra, 65a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Relevant provisions of the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq., and 50 C.F.R. 402.01, are set forth at App., infra, 66a-80a. QUESTIONS PRESENTED 1. Whether respondents have standing to challenge a regulation jointly issued by the Secretary of the Interior and the Secretary of Commerce that merely interprets the statutory obligations of federal agencies under Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), where respondents have not challenged any specific action by an agency upon whom the statutory obligations actually fall. 2. Whether the Secretaries' construction of Section 7(a)(2) of the Endangered Species Act, which requires federal agencies, in consultation with the appropriate Secretary, to ensure that their actions are not likely to jeopardize any endangered or threatened species, as inapplicable to activities in foreign countries, is consistent with the Act. STATEMENT 1. a. This case involves a challenge by the three respondent organizations to an administrative interpretation of the geographic reach of Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. 1536(a)(2). Section 7(a)(2) requires "(e)ach Federal agency * * *, in consultation with and with the assistance of the Secretary (of the Interior or Commerce, as appropriate, to) insure that any action authorized, funded, or carried out by such agency * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." The Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce, have issued joint regulations interpreting Section 7 and announcing procedures through which they are available to consult with other agencies about actions covered by the ESA. 50 C.F.R. Pt. 402 (1989). As originally promulgated in 1978, the regulations interpreted Section 7(a)(2)'s requirement that federal agencies engage in such consultation to ensure that their actions do not jeopardize the continued existence of a listed species as applying to actions "in the United States, upon the high seas and in foreign countries." 43 Fed. Reg. 870, 874 (adding 50 C.F.R. 402.01). On the other hand, the Interior Department took the position as early as 1976, in an opinion by the Assistant Solicitor for Fish and Wildlife, that the Secretary's responsibility under Section 7(a)(2) to designate the "critical habitat" of listed species does not apply in foreign countries. The Assistant Solicitor found it significant that Section 7(a)(2) requires the Secretary to consult with affected States regarding critical-habitat designations but makes no mention of foreign governments; that by contrast, Sections 4 and 8 of the ESA, which authorize the listing of foreign species and furnishing of assistance to foreign governments to preserve their threatened and endangered species, expressly provide for consultation with foreign governments (16 U.S.C. 1533 (b) (1) (A) and (5) (B), 1537); and that designations by the United States Government of critical habitats in foreign countries would be an internationally sensitive issue and would present serious practical difficulties. Gov't C.A. App. 10-15. b. The initial position of FWS and NMFS that Section 7(a)(2)'s requirement that agencies ensure, after consultation, that their actions do not jeopardize the continued existence of a listed species does apply to activities in foreign countries aroused strong objections from the Departments of State and Defense, as well as other agencies that fund or carry out such activities. Those agencies expressed the view to FWS and NMFS that this interpretation was inconsistent with the presumption against extraterritorial application of an Act of Congress; that there was no basis in the text, legislative history or purposes of Section 7(a)(2) for concluding that Congress intended to treat actions that might jeopardize endangered or threatened species in foreign countries differently from actions that might affect the habitat of such species; and that the application of Section 7(a)(2) to activities abroad would be viewed by foreign governments as an unwarranted interference with matters within their jurisdictions. See Gov't C.A. App. 33-36, 43-52, 56-72. In August 1979, the Solicitor of Interior ordered a reexamination of this question, and in 1981, the Associate Solicitor for Conservation and Wildlife rendered an opinion concluding that the Interior Department's earlier interpretation had been wrong. Gov't C.A. App. 53, 73-79. He reasoned that the 1978 amendments to the ESA, which allow exemptions from the rigid no-jeopardy standard in Section 7(a)(2) following a procedure that involves the "affected States" but make no mention of foreign governments (see 16 U.S.C. 1536(e)-(l)), show that Congress did not intend to reach activities in foreign countries. Id. at 75-77. The Associate Solicitor also reasoned that application of Section 7(a)(2)'s no-jeopardy and consultation requirements to activities in foreign countries would implicate "foreign sovereignty considerations," "cause significant delays in administering assistance activities in foreign countries," and "severely hamper the flexibility and responsiveness of American diplomacy abroad." Id. at 78. FWS and NMFS published a proposed rule incorporating the reinterpretation n 1983, 48 Fed. Reg. 29,990, and a final rule in 1986, 51 Fed. Reg. 19,926. The new regulation states that the obligation under Section 7 (a)(2) to consult with FWS or NMFS applies only to activities in the United States or upon the high seas. 50 C.F.R. 402.01 (1989). The preamble to the amended regulation explains that the change was necessary "because of the apparent domestic orientation of the consultaiton and exemption processes resulting from the (1978) Amendments, and because of the potential for interference with the sovereignty of foreign nations." 51 Fed. Reg. at 19,929. The preamble also notes that FWS and NMFS perform only an "advisory function under Section 7" and that "the Federal agency makes the ultimate decision as to whether its proposed action will satisfy the requirements of section 7 (a)(2)." Id. at 19,928. 2. In October 1986, the respondent organizations filed this action against the Secretary of the Interior (but not the Secretary of Commerce), seeking a declaratory judgment that the Secretary's revised interpretation is erroneous and an injunction requiring the Secretary to issue a new regulation stating that Section 7 (a)(2)'s consultation obligation applies to federal agency actions in foreign countries. On February 25, 1987, the district court granted the Secretary's motion to dismiss the complaint for lack of standing. App., infra, 55a-64a. The court first rejected respondents' effort to base their standing on their members' interest in the proper enforcement of the ESA as inconsistent with this Court's decisions holding that an asserted right to have the government act in accordance with the law is insufficient to satisfy Article III standing requirements. App., infra, 59a-60a (citing Allen v. Wright, 468 U.S. 737, 754 (1984), and Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 483-484 (1982)). Respondent Defenders of Wildlife (Defenders) did identify several U.S.-assisted projects in foreign countries that had been visited by several of its members and that had not been the subject of formal consultation with the Secretary of the Interior pursuant to Section 7 (a)(2) of the ESA. The court held, however, that those projects -- the Mahaweli Project in Sri Lanka (which involves construction of dams and irrigation works on the Mahaweli River and is assisted in part by the Agency for International Development (AID)) and the rehabilitation of the Aswan High Dam in Egypt (which is assisted by the Bureau of Reclamation) -- did not "provide a sufficient basis for showing an actual or threatened injury traceable to the Secretary's reinterpretation of Section 7." App., infra, 62a. /1/ The court pointed out that "the final decision of whether to proceed or continue with a project lies with the acting agency," yet respondents had "not sought to enjoin the agency action that they contend is allegedly causing them harm," but instead sought to "have the court construe the ESA in the abstract." Id. at 63a. If it determined that the Secretary's interpretation of Section 7 (a)(2) is erroneous -- and if the agencies concerned did not then voluntarily initiate consultation -- "(respondents) would have to bring a second lawsuit to enjoin the agency action as it relates to those particular projects." Id. at 63a-64a. Thus, the court concluded, Defenders "failed to request a remedy that will redress the injury (it) is relying on to show standing." Id. at 63a. 3. a. A divided panel of the court of appeals reversed and remanded. App., infra, 33a-54a. The court of appeals first concluded that respondents had pleaded sufficient injury-in-fact to establish Article III standing. App., infra, 40a-44a. It believed that Defenders had adequately alleged that the specific projects visited by its members were increasing the rate of extinction of endangered species. Id. at 41a-42a. In addition, the court held that respondents had pleaded a "procedural harm" based on an asserted violation of "procedural rights" under the ESA -- namely, respondents' asserted right, in light of their interest in the administration of the ESA, to have federal agencies consult with one another about possible injury to a listed species. Id. at 42a-44a. The court of appeals also held that respondents satisfied the further Article III requirements of showing that the injury they allege "'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision.'" Valley Forge, 454 U.S. at 472 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976)). See App., infra, 44a-50a. Although the Secretary pointed out that there was no indication that the projects Defenders identified would actually affect endangered or threatened species, the court held that Defenders' standing did not depend on proof of such harm. Instead, the court held that Defenders could rely on the proposition, which it found "implicit" in Defenders' allegation of "procedural injury," that an agency's failure to consult with the Secretary would create a "risk" that it might overlook harm to endangered species. Id. at 46a. Relying on United States v. SCRAP, 412 U.S. 669 (1973), the court rejected the Secretary's further contentions that causation and redressability are lacking here because (1) it is up to the agency concerned to decide whether to consult with the Secretary, and the interpretation of Section 7 (a)(2) in the Secretary's regulation (or any court-ordered revision thereof) would not require any action agency to consult or to make any decision about a particular project, and (2) the final design of a foreign project in any event depends on the independent actions of the foreign government. App., infra, 47a-50a. In the court's view, "Congress itself ha(d) legislated the requisite causation and redressability" by determining that "consultation between the Secretary and the action agency" is the "remedy" for the alleged "harm" to the "personal, professional, and aesthetic interests" of Defenders' members. Id. at 49a, 50a. The court likewise held that Defenders was not required to seek injunctive relief against action by federal agencies whose projects in foreign countries allegedly would harm protected species, rather than against the Secretaries' interpretative regulation. Without elaboration, the court stated it was "satisfied" that an injuction requiring the Secretary to revise the regulations "would result in consultation, which in turn would foreclose the possibility that harm to endangered species will be overlooked." Id. at 50a. b. Judge Bowman dissented from what he termed the majority's "slighty surrealistic" holding that respondents have standing. App., infra, 51a. He found the alleged causal link between the new interpretative regulation and any harm to endangered species in foreign countries "far too speculative, attenuated, and remote to support standing," since the ESA does not give the Secretary of the Interior either "the power to order an action agency to comply with his requests or to veto its decision," or "any power to direct the actions or decisions, of a foreign country." Ibid. For the same reason, Judge Bowman concluded that respondents did not satisfy the redressability requirement for standing, since even if the Secretary was required to revise the regulation, "the action agency and the host nation still would be legally entitled to exercise their independent judgment concerning proposed projects." Id. at 52a. 4. On remand, the Secretary moved for summary judgment on the question of standing, after taking the depositions of several members of the respondent organizations who had allegedly suffered injury. Respondents made no attempt to bolster the factual record on the standing issue; they simply moved for summary judgment on the merits. On February 15, 1989, the district court granted respondents' motion. App., infra, 21a-32a. Although the court acknowledged that respondents had to affirmatively prove their standing at the summary judgment stage, the court "fe(lt) that the Eighth Circuit ha(d) already determined the standing question in this case" when it reversed the district court's order granting the Secretary's motion to dismiss, and that "(t)he new 'proof' and arguments offered by the Secretary do not vary the situation enough to merit an analysis differing from that given by the Eighth Circuit." Id. at 24a-25a. On the merits, the district court disagreed with the interpretation in the joint regulations and held that the consultation requirement in Section 7 (a)(2) applies to activities in foreign countries. Id. at 25a-30a. The court therefore ordered the Secretary to publish regulations "clearly recognizing the full mandate" of Section 7 as requiring each federal agency to consult with the Secretary on projects that may affect endangered or threatened species, wherever found. Id. at 31a. 5. The court of appeals affirmed. App., infra, 1a-20a. In holding that Defenders has standing, the court cited affidavits of two of Defenders' members that, in its view, showed that they "had visited, and planned to visit again, the endangered species or their habitat in the areas that may be affected by" the Mahaweli Project in Sri Lanka and the Aswan High Dam in Egypt. Id. at 7a. The court further held that even if none of its members had a "georgraphical nexus to foreign projects that might harm endangered or threatened species, Defenders had satisfied Article III standing requirements by demonstrating a "procedural injury" based on "the Secretary's failure to follow the required consultation procedure." Id. at 9a-10a. The court believed that the "ambitious purpose" of the ESA and the existence of its citizen-suit provision (16 U.S.C. 1540(g)) indicated that Congress "intended to bestow procedural rights upon environmental organizations such as Defenders." Id. at 10a-11a. On the merits, the court of appeals agreed with the district court that Section 7 (a)(2) should be construed to apply to activities in foreign countries. App., infra, 11a-20a. The court acknowledged that statutes are presumed to have domestic scope only and that this presumption may be overcome only by a "clear expression of congressional intent." Id. at 13a, 19a. And the court further recognized that in light of this presumption, the general phrasing of Section 7 (a)(2), which requires each federal agency to ensure (after consultaton) that "any" action it funds or carries out is not likely to jeopardize the existence of "any" species, is insufficient to render that requirement applicable to projects in foreign countries. Id. at 12a-13a. But despite this acknowledged inconclusiveness of the text of the relevant statutory section, the court of appeals ruled that it owed "no deference" to the Secretary's construction of that section under Chevron U.S.A. Inc. v NRDC, Inc., 467 U.S. 837, 842-843 (1984). App., infra, 15a. The court instead believed that a congressional intent to apply Section 7 (a)(2) to activities in foreign countries could be "gleaned" from other sections of the ESA (App., infra, 15a): the prefatory declaration that the United States had pledged itself in the international community to conserve various species and had entered into international agreements to that end (16 U.S.C. 1531 (a)(4) and (5)); the provision for the Secretary to list species in a foreign country, taking into account the views and conservation efforts of its government (16 U.S.C. 1533 (b)(1)(A), (1)(B) and (5)(B)); and Section 8 of the Act, entitled "International Cooperation," which authorizes assistance to foreign nations in conserving endangered and threatened species (16 U.S.C. 1537). Id. at 13a-15a. The court rejected the Secretary's contention that it is through Section 8 (as well as Section 9, 16 U.S.C. 1538, which prohibits importation of listed species), not extraterritorial application of the nojeopardy standard and the ancillary consultation requirement in Section 7 (a)(2), that Congress addressed the conservation of endangered or threatened species in foreign countries. The court also believed that when Congress amended the ESA in 1978, it gave "tacit approval" to the initial administrative interpretation that Section 7 (a)(2) applies overseas. Id. at 17a. In so ruling, the court did not dispute the Secretary's representation that such an interpretation of Section 7 (a)(2) would have adverse consequences for the Nation's foreign relations, since it would be regarded "as to strike their own balance between development of natural resources and protection of endangered species." App., infra, 20a. But the court concluded that although "Congress may decide that its concern for foreign wildlife," the court would not make such a decision on Congress's behalf. Ibid. /2/ REASONS FOR GRANTING THE PETITION The decision of the court of appeals is extraordinary in several respects. It interprets the scope of Section 7 (a)(2) of the Endangered Species Act in the context of an abstract dispute over advisory regulations promulgated by the Secretary of the Interior and Secretary of Commerce to assist other agencies, not in the context of an actual controversy over a specific agency action to which the obligations of Section 7 (a)(2) assertedly attach. And it requires the Secretary to promulgate new regulations incorporating the court's expansive view of the law, even though respondents were unable to show that the existing regulations had actually affected any particular agency action or foreign project -- and even though the court was powerless in any event to prevent whatever harm to endangered species might result from a project in a foreign country. The interpretation of Section 7 (a)(2) by the courts below in this abstract setting is a classic example of an advisory opinion, which it is beyond the jurisdiction of an Article III court to render. Muskrat v. United States, 219 U.S. 346, 354, 361-362 (1911); Correspondence of the Justices, reprinted in 3 The Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed. 1891). The court of appeals' holding that respondents nevertheless have standing to challenge the interpretative regulations conflicts with repeated rulings by this Court that Article III requires a litigant to prove that he has suffered injury-in-fact that was caused by the challenged conduct of the defendant and that is likely to be redressed by the relief sought. In addition, the court of appeals' notion that respondents suffer a judicially cognizable "procedural injury" if an agency fails to consult with the Secretary about a particular foreign project, even if their members have no concrete geographical nexus to the project site, finds no support in Section 7 (a)(2), squarely conflicts with decisions of other courts of appeals, and invites wholesale circumvention of this Court's standing precedents by litigants having nothing more than a generalized interest in the conduct of the government. The court of appeals' ruling on the merits -- that the substantive no-jeopardy standard and the ancillary consultation requirement in Section 7 (a)(2) apply to activities in foreign countries -- is at odds with the text and legistlative history of the Act, which show that Congress was concerned with domestic conditions in Section 7 (a)(2) and separately addressed conservation of species in foreign countries through international cooperation and with appellate decisions holding that other environmental statutes do not apply in foreign countries. The decision below also cannot be reconciled with the presumption that obligations imposed by Acts of Congress do not apply to activities in a foreign country, especially those undertaken by or with the approval of the foreign government concerned. Finally, the court of appeals plainly erred in giving no deference to what is, at the very least, a reasonable interpretation of Section 7 (a)(2) by the Secretaries of Interior and Commerce and by the Executive Departments responsible for the conduct of the Nation's defense and foreign affairs. Although rendered in a factual vacuum, the court of appeals' decision has significant consequences. It requires the Secretary of the Interior to issue new regulations announcing as his own an interpretation of the ESA with which he strongly disagrees. And it places all federal agencies in the unseemly position of either disregarding that formal, judicially ordered interpretation, or risking serious injury to the Nation's foreign relations and foreign-aid programs by attempting to impose the rigid no-jeopardy standard in Section 7 (a)(2) on foreign governments and following consultation procedures that are not tailored to this special setting. Review by this Court therefore is warranted. A. Article III of the Constitution "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded," as well as "the proper -- and properly limited -- role of the courts in a democratic society." Allen v. Wright, 468 U.S. 737, 750 (1984). The limitations imposed by Article III's requirement of a "Case()" or "Controvers(y)" are distilled in the core doctrine of standing. Under that doctrine, a plaintiff first must establish a personal injury-in-fact. The injury cannot be "abstract," "hypothetical," or "conjectural," O'Shea v. Littleton, 414 U.S. 488, 494 (1974); City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983); it must be "distinct and palpable." Whitmore v. ARkansas, 110 S. Ct. 1717, 1723 (1990). Only a plaintiff who identifies a concrete injury-in-fact has "'such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499 (1975). In addition, "the litigant must satisfy the 'causation' and 'redressability' prongs of the Art. III minima by showing that the injury 'fairly can be traced to the challenged action,' and 'is likely to be redressed by a favorable decision.'" Whitmore v. Arkansas, 110 S. Ct. at 1723 (quoting Eastern Kentucky Welfare Rights, 426 U.S. at 38, 41); see also Allen v. Wright, 468 U.S. at 751, 757-759. Respondents satisfy none of these requirements: they have failed to prove any concrete injury, much less one that was caused by the Secretaries' interpretation of Section 7 (a)(2) in their 1986 regulation or that would be redressed by a court-ordered revision of that interpretation. The court of appeals attempted to paper over this basic defect by focusing on two projects that it concluded "had not been subjected to the consultation requirement and would not be in the future if the new regulation remained in effect." App., infra, 7a. But this speculation about how projects not challenged in this litigation might be affected by the Secretaries' interpretation cannot suffice to establish respondents' standing to bring the suit they did. 1. As an initial matter, even if those two projects were at issue in this case, Defenders would not have standing to challenge them. Joyce Kelly, a member of Defenders who visited Egypt in 1986, simply stated in her affidavit that she observed the habitat of the endangered Nile crocodile (although she did not claim actually to have seen any crocodiles), and that she intended to do so again (although she did not say when). Resp. C.A. App. 114. The court of appeals relied on Kelly's vague assertion (ibid.) that she would "suffer harm" as a result of the Aswan High Dam project. App., infra, 8a. But Defenders offered no proof that rehabilitating the Dam and repairing its generating works (see Resp. C.A. App. 82) would in fact be likely to jeopardize the continued existence of the Nile crocodile. A fortiori, Defenders did not prove that its members suffered harm that could fairly be traced to assistance rendered by the Bureau of Reclamation or to its failure to engage in formal consultation pursuant to Section 7 (a)(2), and that any such harm would be remedied by consultation or the withdrawal of Bureau assistance. Amy Skilbred, another member of Defenders, stated in her affidavit and deposition that she had traveled to Sri Lanka in 1981-1982 and visited, inter alia, the general area of the Mahaweli River project, although she did not see any evidence of the Project or know of its existence at the time and apparently did not observe any endangered or threatened species. Skilbred did state that she intended to go back to the Mahaweli Valley and hoped to see an endangered elephant and leopard (although she could not say when, especially in light of the civil war in Sri Lanka). Resp. C.A. Br. 169-171, 262-266, 269-270, 274. Moreover, although Skilbred asserted that the Mahaweli Project would seriously reduce the habitat of "endangered, threatened, and endemic species," she neither identified specific evidence that the Project would actually jeopardize the existence of any particular species nor tied her generalized assertions to discrete locations that she had visited or that are the sites of those portions of the Mahaweli Project receiving AID funds. Resp. C.A. App. 170-171, 265-266, 274. Nor did Skilbred or Defenders prove that any harm to endangered or threatened species that might result from the Project is fairly traceable to AID assistance (which amounted to only $170 million of an overall cost of $2.3 billion (Gov't C.A. App. 101)) or a failure by AID to engage in formal consultation with FWS under Section 7 (a)(2), and that any such harm would be remedied by consultation or the termination of AID assistance. In fact, the record shows that even without the application of Section 7 (a)(2), AID conducted an environmental assessment and actively assisted the Government of Sri Lanka in preventing harm to protected species in the Mahaweli Project area and conferred extensively (albeit informally) with FWS in doing so. App., infra, 47a; Gov't C.A. App. 28-32, 101. In sum, Defenders did not show that past failures by action agencies to engage in formal consultation with FWS under Section 7(a)(2) had contributed to specific harm to its members' ability to view wildlife at the Aswan and Mahaweli Projects; and as to future harm, Defenders' two members simply expressed a general desire to return to those areas and a vague fear that an absence of consultation between the agencies concerned and FWS would cause harm. This showing would be wholly insufficient even if respondents had sought injunctive relief against the Bureau of Reclamation and AID requiring them to consult with FWS (or to withhold financial assistance from the Projects), since standing depends on injury that is "actual or imminent, not 'conjectural' or 'hypothetical.'" Whitmore v. Arkansas, 110 S. Ct. at 1723. /3/ 2. Defenders did not, however, even seek relief against the two projects on which it relied in an effort to establish injury to its members. It instead sought to require the Secretary to rescind a non-binding regulation interpreting Section 7(a)(2) and to issue new regulations giving that Section a broader interpretation. This feature of the case further attenuates the elements of causation and redressability. As the regulations make clear (see page 4, supra), action agencies are ultimately responsible for making their own determinations about what is required of them under Section 7(a)(2), see also National Wildlife Fed'n v. Coleman, 529 F.2d 359, 371 (5th Cir.), cert. denied, 429 U.S. 979 (1976); Sierra Club v. Froehlke, 534 F.2d 1289, 1303 (8th Cir. 1976); cf. TVA v. Hill, 437 U.S. 153, 186 n.31 (1978), and those agencies would remain free as a legal matter to decide whether they will follow Section 7 (a)(2)'s standards and procedures in connection with projects in foreign countries even if the regulation were changed, just as they were before. Thus, in Administrative Procedure Act terminology, respondents are not "adversely affected" by the particular "agency action" (the interpretative regulation) they challenge. 5 U.S.C. 702; Lujan v. National Wildlife Fed'n, 110 S. Ct. at 3185-3186. To the extent respondents ever could show injury in APA and Article III terms, it would result only when a federal agency actually took action. As this Court emphasized in Lujan v. National Wildlife Fed'n, "(u)nder the terms of the APA, respondent must direct its attack against some particular 'agency action' that causes it harm." 110 S. Ct. at 3190. /4/ Furthermore, the critical decisions regarding projects such as those cited by th court of appeals are not made by the action agencies of the United States Government; they are made by the respective foreign governments. The Mahaweli Project, for instance, involves twelve donors besides AID, which is furnishing less than 10% of the expected cost. Gov't C.A. App. 101. There could be no assurance that the Government of Sri Lanka would redesign or stop the Project even if AID threatened to terminate funding due to endangered species concerns raised during consultations with FWS. In such situations, host countries may simply turn to other donors that do not place restrictions on their funds. Thus, the causal connection between the challenged interpretative regulation and the asserted injury to Defenders' members is "highly indirect," hinging as it does on the independent actions of two sets of third parties not before the court; and the prospect of redress is correspondingly speculative. Whitmore v. Arkansas, 110 S. Ct. at 1725; Allen v. Wright, 468 U.S. at 757; Eastern Kentucky Welfare Rights, 426 U.S. at 42; Lujan v. National Wildlife Fed'n, 110 S. Ct. at 3190 & n.3. /5/ 3. The court of appeals tried to sidestep the lack of concrete injury by proclaiming that standing could rest on a "procedural injury" that allegedly arises from the failure by action agencies to engage in Section 7 consultation about overseas projects. App., infra, 10a-11a, 42a-44a. But there is no indication that the consultation provisions of Section 7 were intended to confer procedural rights on private groups such as respondents. Consultation takes place entirely between the relevant agencies, without any statutory provision for public input. See 16 U.S.C. 1536(b) and (c); 51 Fed. Reg. at 19,928. Section 7 therefore is unlike the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., in which some courts have found a public information purpose. See, e.g., Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir. 1986). Moreover, even under a statute like NEPA, some concrete interest, distinct from a "procedural" claim, is essential for Article III standing, because procedural protections exist only to secure substantive interests and therefore may be invoked only by persons having such interests. Accordingly, the three circuits that have recognized "procedural injury" as a basis for standing in suits raising NEPA claims have limited that theory to a litigant "having a sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences that the project may have." City of Los Angeles v. NHTSA, 912 F.2d 478, 492-493 (D.C. Cir. 1990) (quoting City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975)); see also Friends of the Earth v. U.S. Navy, 841 F.2d 927, 931-932 (9th Cir. 1988); City of Evanston v. Regional Transp. Auth., 825 F.2d 1121, 1126 (7th Cir. 1987), cert. denied, 484 U.S. 1005 (1988); South East Lake View v. HUD, 685 F.2d 1027, 1039 (7th Cir. 1982). The Eighth Circuit's rejection of the "geographical nexus" test (see App., infra, 10a-11a) squarely conflicts with these decisions. Similarly, the court of appeals excused respondents' failure to show the causation and redressability required for standing by adopting respondents' view that Congress could simply "legislate() the requisite causation and redressability" and had done so here by "determin(ing) that the remedy for the harm to the() members' personal, professional, and aesthetic interest in endangered species is consultation between the Secretary and the action agency." App., infra, 49a-50a. There is no basis in the ESA for respondents' self-centered vision of Section 7 (a)(2): that provision was designed to prevent harm to certain species of plants and animals, not to "remedy" injuries to the "interests" of human beings. In any event, the requirements of causation and redressability stem directly from Article III, Whitmore v. Arkansas, 110 S. Ct. at 1722-1723 & n.1; Valley Forge, 454 U.S. at 472, and hence cannot be waived by Congress. Warth v. Seldin, 422 U.S. at 501. The ESA citizen-suit provision, 16 U.S.C. 1540(g), upon which the court of appeals relied (App., infra, 10a), likewise cannot overcome standing deficiencies under Article III. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 16 (1981) ("citizen suit provisions apply only to persons who can claim some sort of injury"). /6/ 4. The court of appeals' ruling is, at bottom, a holding that the Secretary's alleged misinterpretation of the ESA itself provides standing to challenge that interpretation by an organization having an historic interest in endangered species and the enforcement of the ESA. See App., infra, 10a, 43a. This result contravenes two bedrock Article III principles: "an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court," Allen v. Wright, 468 U.S. at 754, and an organization's longstanding interest in an environmental problem is not enough to confer standing, Sierra Club v. Morton, 405 U.S. 727 (1972). And as this case vividly illustrates, the court of appeals' novel standing theories open the way for broad suits by organizations that have no concrete stake in the conduct of governmental programs, contrary to Lujan v. National Wildlife Fed'n. For these reasons, and in light of the conflict with decisions of other courts of appeals on the "procedural injury" point, the Court should grant review on the standing question. B. 1. The abstract nature of respondents' challenge may have led the court below to overlook the far-reaching consequences of its interpretation of Section 7 (a)(2). The duty to consult under that Section, on which the court of appeals focused, is only an adjunct of an agency's substantive duty to ensure that its actions are not likely to jeopardize the existence of endangered or threatened species. If the duty to consult applies to activities in foreign countries, then so does the duty to avoid jeopardy. The latter is one of the strictest environmental standards imposed on federal agencies. See TVA v. Hill, 437 U.S. 153, 172-174 (1978). Even the consultation obligation can impose substantial burdens that would be inconsistent with the need for speed, flexibility and comity in the conduct of the Nation's activities abroad. The action agency must first obtain from the FWS or NMFS information about listed species that may be present and then prepare, within 180 days, a "biological assessment" if the project is a"major construction activity." 16 U.S.C. 1536(c); 50 C.F.R. 402.12(b)(1). If the activity may affect listed species, formal consultation, resulting in the issuance of a "biological opinion" by the FWS or NMFS, then occurs over a subsequent 90-day period. 16 U.S.C. 1536(b); 50 C.F.R. 402.14. The agency must refrain during consultation from making an irreversible commitment of resources that would foreclose reasonable alternatives. 16 U.S.C. 1536 (d). /7/ An Act of Congress should not lightly be construed to extend such rigid standards and formal procedures to activities abroad. Cf. United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 1065-1066 (1990). For reasons such as these, Congress is assumed to be "primarily concerned with domestic conditions," and an Act of Congress therefore will be read not to apply to activities abroad unless a contrary intent appears. See, e.g., Foley Bros. v. Filardo, 336 U.S. 281, 285-286 (1949); Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 440-441 (1989). Other courts of appeals, in contrast to the decision below, have relied on that presumption in ruling against extraterritorial application of this Nation's environmental statutes. See NRDC, Inc. v. NRC, 647 F.2d 1345 (D.C. Cir. 1981) (holding NEPA inapplicable to export of nuclear reactor to Philippines); United States v. Mitchell, 553 F.2d 996, 1003-1004 (5th Cir. 1977) (holding Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq., inapplicable within territorial waters of Bahamas); see also Greenpeace USA v. Stone, 748 F. Supp. 749, 758-759 (D. Haw. 1990) (rejecting NEPA challenge to Secretary of Defense's implementation of agreement with Federal Republic of Germany to remove obsolete chemical weapons from Germany), appeal dismissed as moot, No. 90-16260 (9th Cir. Feb. 5, 1991). The court of appeals discounted that presumption here because the ESA "is directed at the actions of federal agencies, and not at the actions of sovereign nations." App., infra, 20a. But as this Court recently held, the mere fact that United States law imposes limitations on conduct by the Government does not mean that the law follows the Government abroad. Verdugo-Urquidez, supra. Moreover, as other courts of appeals have pointed out, conditioning assistance to a foreign nation on the basis of our own environmental standards "directs that nation's choices just about as effectively as a law whose explicit purpose is to compel foreign behavior," and will likely be seen by that nation as a "disguised way of substituting United States regulatory standards for the (foreign nation's) own." NRDC, Inc. v. NRC, 647 F.2d at 1356-1357 (opinion of Wilkey, J.); accord United States v. Mitchell 553 F.2d at 1002 (differnt countries strike different balances between development and preservation, and the "traditional method of resolving such differences * * * is through negotiation and agreement rather than through the imposition of one particular choice by a state imposing its law extraterritorially"). Indeed, Congress is also presumed not to legislate in a way that would risk interference with the Executive Branch's conduct of foreign affairs. Weinberger v. Rossi, 456 U.S. 25, 31-32 (1982); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 19 (1963); Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957); cf. Zemel v. Rusk, 381 U.S. 1, 17 (1965); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-322 (1936). 2. There is no indication in the text or legislative history of the ESA that Congress intended to extend the duties imposed by Section 7 (a)(2) to activities in foreign countries, much less the sort of clear expression of intent that would be needed to overcome these important considerations weighing against extraterritorial application here. /8/ a. As the text of Section 7 (a)(2) makes clear, the purpose of consultation is to assist agencies in ensuring that their actions are not likely to "jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." The court of appeals recognized (App., infra, 12a-13a) that the use of such general phrases as "any action" and "any endangered species" in Section 7 (a)(2) is insufficient in itself to extend its coverage to foreign countries, in light of the considerations weighing against extraterritorial application here. See Foley Bros., 336 U.S. at 285 (statute requiring 8-hour day provision in "(e)very contract made to which the United States is a party" inapplicable to contracts for work performed in foreign country). Significantly, moreover, the only geographical reference in Section 7 (a)(2) is the directive to the Secretary to consult with "affected States" before designating critical habitat. The lack of any requirement to consult with affected foreign nations is a strong indication that Congress was addressing domestic conditions. The court of appeals' response -- that Congress intended extraterritorial application of Section 7 (a)(2)'s protection for species but not its intimately related protection for their habitat (App., infra, 18a) -- defies common sense. The conclusion that Section 7 does not apply in foreign countries is confirmed by the exemption provisions in subsections (e)-(p), 16 U.S.C. 1536 (e)-(p), added in 1978. Exemptions may be granted by an Endangered Species Committee consisting of the heads of six federal agencies and "one individual from each affected State." 16 U.S.C. 1536 (e)(3). Similarly, the entities that may apply for an exemption are limited to the action agency, a permit or license applicant, and "the Governor of the State in which an agency action will occur, if any." 16 U.S.C. 1536(g)(1). /9/ If Congress had contemplated that Section 7 would affect projects in foreign countries, it surely would have specified some role for a representative of the affected government, or at least the Secretary of State, in the process of granting exemptions from its rigid requirements. Moreover, to grant an exemption, the Committee must find that "the action is of regional or national significance," there are no "reasonable and prudent alternatives" to the action, the benefits of the action "clearly outweigh the benefits of alternative courses of action," and the action "is in the public interest." 16 U.S.C. 1536(h)(1)(A). Congress had domestic projects in mind when it devised these tests; indeed, it would be a significant intrusion upon the sovereignty of foreign nations to have the United States Government unilaterally pass judgment on whether their projects are in the public interest and are preferable to alternatives. /10/ b. The court of appeals ultimately relied on other sections of the ESA in holding that Section 7 (a)(2) applies to activities in foreign countries. App., infra, 13a-15a. But those provisions in fact confirm that Congress distinguished between the endangered species situation in the United States and that in foreign countries, and dealt with the latter by the accepted means of encouraging cooperative efforts between nations, rather than imposing this Nation's environmental standards abroad. The congressional findings in paragraphs (1)-(3) of ESA Section 2(a) focus on species of fish, wildlife and plants "in the United States" that have been rendered extinct or depleted "as a consequence of economic growth and development untempered by adequate concern and conservation." 16 U.S.C. 1531(a) (1)-(3). There is no similar finding with regard to the effect of development in foreign nations, presumably because other nations may have different views about the proper balance between economic growth and environmental protection. Paragraph (4) of Section 2(a) notes that the United States "has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction," pursuant to treaties and international agreements. 16 U.S.C. 1531(a)(4). Thus, in the international sphere, Congress contemplated that measures would be taken cooperatively among "sovereign state(s)," each having jurisdiction within its own territory, and that, because of the different values and interests among nations, conservation would be accomplished only "to the extent practicable." 16 U.S.C. 1531 (a)(4). Section 7 (a)(2) is not tempered by such considerations of practicability and respect for national sovereignty. Reflecting the approach envisaged by Section 2 of the ESA, Section 8, entitled "International cooperation," addresses conservation of species abroad by authorizing the President "to provide to any foreign country (with its consent) assistance in the development and management of programs * * * useful for the conservation of any endangered species or threatened species listed by the Secretary." 16 U.S.C. 1537 (a). Section 8 further provides that the Secretary of the Interior, "through the Secretary of State," shall "encourage" foreign countries to conserve fish and wildlife and to enter into bilateral or multilateral agreements. 16 U.S.C. 1537 (b). Congress also dealt with the protection of foreign species in Section 9 of the ESA, which makes it unlawful, inter alia, to "deliver, receive, carry, transport, or ship in interstate or foreign commerce" any endangered species. 16 U.S.C. 1538 (a)(1)(E) and (a)(2)(C). But this substantive prohibition is carefully tailored to apply only to persons "subject to the jurisdiction of the United States," 16 U.S.C. 1538 (a)(1) and (2), and the related prohibition on "takings" of endangered fish or wildlife is comparably limited to the United States, its territorial sea and the high seas. 16 U.S.C. 1538 (a)(1)(B) & (C). Because the ESA thus has both domestic and international components, it was necessary to provide for the listing of both domestic and foreign species. But in doing so, Section 4, like Sections 8 and 9, is carefully tailored to accommodate the divergent interests and sensitivities of foreign nations by requiring the Secretary to take account of their efforts to protect species, 16 U.S.C. 1533 (b)(1)(A), and to afford notice and an opportunity to comment to the foreign nation affected, 16 U.S.C. 1533 (b)(5)(B). Section 7, by contrast, does not mention foreign nations and contains no provisions to consider and accommodate their interests and views. This reinforces the conclusion, already evident from references in Section 7 (a)(2) itself to "affected States," that Congress did not intend that Section of the Act to have an extraterritorial reach. c. The legislative history of Section 7 confirms its domestic orientation. References to Section 7 in the legislative history of the 1973 Act mention only domestic agency actions as being affected. See, e.g., H.R. Rep. No. 412, 93d Cong., 1st Sess. 14 (1973) (Park Service actions in Yellowstone Park); 119 Cong. Rec. 42,913 (1973) (Air Force practice bombing in Texas); 119 Cong. Rec. 25,691-25,692 (1973) (Corps of Engineers road-building in Kentucky). By contrast, the goal of conserving foreign wildlife was discussed in terms of international cooperation, treaties, and restrictions on international trade in wildlife. /11/ The legislative history of the 1978 amendments is to the same effect. The Senate Report, for example, explained that the exemption procedure added by those amendments was "intended to provide a mechanism for the resolution of conflicts which might arise between the Endangered Species Act's mandate to protect and manage endangered and threatened species and other legitimate national goals and priorities such as providing energy, economic development and other benefits to the American people." S. Rep. No. 874, 95th Cong., 2d Sess. 2 (1978) (emphasis added). The floor debates on the exemption procedure likewise discuss the effect of Section 7 only in connection with projects in the United States. /12/ Nothing in the legislative history remotely suggests an intent to extend Section 7 to activities overseas. /13/ d. Finally, the court of appeals plainly erred under Chevron by giving "no deference" to what, is, at the very least, a reasonable administrative interpretation of Section 7 (a)(2). App., infra, 15a; see 467 U.S. at 842-843. Even where, as here, an agency has changed its mind, "substantial deference is nonetheless appropriate if there appears to have been good reason for the change." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355-356 (1989). Here, as in Robertson, the revision of the regulation came about "only after the prior regulation had been subjected to considerable criticism." Id. at 356. For one thing, the initial interpretation conflicted with the consistent administrative interpretation that the closely related critical-habitat provisions in the same sentence of Section 7 (a)(2) do not apply in foreign countries. Moreover, as the Interior Department explained, the 1978 amendments to the ESA highlighted the "domestic orientation of the consultation and exemption processes," while the comments of other Departments made manifest "the potential for interference with the sovereignty of foreign nations" that would result from extraterritorial application. See pages 3-4, supra. There was, in short, "good reason for the change." Robertson, 490 U.S. at 356. Furthermore, the interpretation now embodied in the regulations of the Secretary of the Interior and the Secretary of Commerce has been consistently and firmly adhered to throughout by the Executive Departments that are responsible for conducting the activities of the United States Government abroad, and it now represents the uniform view of the two Secretaries and those Departments. The court of appeals has cast that considered view and broad consensus aside. And in this most awkward of lawsuits, in which no Executive official except the Secretary of the Interior is before the court and no project affected by the interpretation of Section 7 (a)(2) is even at issue, the court of appeals has sought to force every Department of the Executive Branch to acquiesce in the court's far different view of Section 7 (a)(2)'s geographic reach. In light of the serious dilemma the decision below presents for the Departments concerned, and the serious consequences that may ensue in the conduct of the Nation's foreign affairs, review by this Court is warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General ROBERT L. KLARQUIST DAVID C. SHILTON Attorneys THOMAS L. SANSONETTI Solicitor MICHAEL YOUNG Attorney-Advisor Department of the Interior MARCH 1991 /1/ The court of appeals rejected Defenders' reliance on the Picchis-Palcazu Project in Peru, which was once assisted by AID, because a member of Defenders "came only within several hundred miles" of the project. App., infra, 9a n.2. /2/ The Secretary's petition for rehearing, with suggestion of rehearing en banc, was denied on December 10, 1990, with two judges voting for rehearing en banc. App., infra, 65a. On January 7, 1991, the court of appeals stayed its mandate pending the filing and disposition of this certiorari petition. /3/ If such a claim of "injury" were sufficient, the plaintiffs in Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177 (1990), could have acquired standing simply by stating that their members intended, someday in the future, to visit all the land at issue in that case. /4/ The Court also reaffirmed in Lujan v. National Wildlife Fed'n that where, as here, there is no special statute authorizing immediate judicial review of regulations, a challenge to a regulation ordinarily is not ripe "until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him." 110 S. Ct. at 3190. Here, respondents have not identified any concrete application of the interpretation reflected in the regulation that harms or threatens to harm them. /5/ Article III standing requirements must be enforced with particular scrupulosity in the present setting because of the potential for interference with the responsibilities of the political Branches for national defense and foreign relations. Respondents seek to affect the course of projects that are undertaken or approved by foreign sovereigns and that must be assumed by U.S. courts to be entirely proper under those sovereigns' own laws and international commitments. Moreover, respondents' claim of "injury" rests on alleged harm to wildlife that is wholly within the territorial and governmental jurisdiction of foreign sovereigns. In light of the intervening authority of the foreign sovereigns, it is especially clear that an asserted "injury" arising in such a wholly foreign context should not be a basis for invoking the jurisdiction of a U.S. court under U.S. law. /6/ In any event, the citizen-suit provision cannot be stretched to cover respondents' challenge in this case. That provision authorizes suits against any person "who is alleged to be in violation" of the ESA. 16 U.S.C. 1540(g)(1)(A). Section 7(a)(2) imposes the duties to consult and refrain from jeopardizing endangered or threatened species directly on the action agency. If the action agency fails to consult, it is that agency, not the Secretary, that has "violated" the ESA. Nor is the Secretary "in violation" of the ESA because he allegedly has given an incorrect interpretation to one of its provisions, especially since the ESA did not require the Secretary to interpret the geographic scope of Section 7(a)(2) in the first place. This suit instead is one challenging "agency action" (the regulation) under the APA. /7/ If FWS or NMFS makes a finding of jeopardy, the action agency must decide "whether and in what manner to proceed with the action in light of its Section 7 obligations and the Service's biological opinion." 50 C.F.R. 402.15(a). The agency may disagree with the biological opinion, implement an alternative recommended by FWS or NMFS to avoid jeopardy, or seek an exemption, which can itself be a time-consuming process. 16 U.S.C. 1536(g). /8/ Because application of Section 7 (a)(2) would interfere with the activities of (and diplomatic dealings between) the United States Government and foreign governments -- and because Congress separately addressed the conservation of species in foreign countries through other provisions of the ESA (see pages 25-27, infra) -- this case is significantly different from EEOC v. Arabian American Oil Co., No. 89-1838 (argued Jan. 16, 1991). There, we take the position that Title VII or the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., applies to discrimination by a U.S. employer against a U.S. national in a foreign country. /9/ Contrary to the court of appeals' speculation (App., infra, 19a), the phrase "if any" does not suggest that activities in foreign countries are covered. That phrase may simply assume coverage of activities on the high seas, in light of the responsibilities of the Secretary of Commerce for marine species. 16 U.S.C. 1532(15), 1536 (e)(3)(F); 124 Cong. Rec. 21,563-21,564 (1978). Coverage of activities on the high seas does not present the same degree of foreign relations sensitivities that would arise from coverage of activities within the territories of foreign sovereigns. /10/ Section 7(j) provides that the Committee "shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security." 16 U.S.C. 1536(j). To be meaningful in the foreign affairs are, a national security exemption would have to be invocable by the Secretary of State as well as by the Secretary of Defense. Furthermore, Section 7(j) apparently can only be invoked after the time-consuming consultation procedure has been completed and the Committee convened, 16 U.S.C. 1536(g), and no irreversible commitment of resources may be made during that time. 16 U.S.C. 1536(d). If Congress had intended Section 7 to apply in foreign countries, it pesumably would have prescribed an exemption process tailored to the speed, felxibility, confidentiality, and comity that are necessary in the conduct of this Nation's foreign affairs. /11/ See S. Rep. No. 307, 93d Cong. 1st Sess. 5-6 (1973); H.R. Rep. No. 412, 93d Cong., 1st Sess. 6 (1973); 119 Cong. Rec. 25,670 (1973) (Sen. Tunney); id. at 25,693 (Sen. Domenici); id. at 25,676 (Sen. Williams); id. at 30,166 (Rep. Leggett); id. at 30,163 (Rep. Dingell). /12/ See, e.g., 124 Cong. Rec. 21,132 (1978) (Senator Culver); id. at 38,124 (Rep. Bowen); id. at 38,128 (Rep. Bevill); id. at 38,665 (Rep. Murphy). /13/ The court of appeals relied (App., infra, 16a-17a) on a statement in the Conference Report that the Senate version of the amendments, "by retaining existing law, was preferable (to the House version) since regulations governing section 7 are now familiar to most Federal agencies and have received substantial judicial interpretation." H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 18 (1978). From this, the court inferred a "tacit approval" by Congress of the provision in the 1978 regulations that interpreted Section 7 as applying to projects in foreign countries. See page 2, supra. However, here, as in Demarest v. Manspeaker, 111 S. Ct. 599, 603 (1991), "(t)here is no indication that Congress was aware of the administrative construction * * * at the time it revised the statute." See also United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979); TVA v. Hill, 437 U.S. at 192. The Conference Committee was focusing on an issue of procedure, not substance. APPENDIX