Cite as: 530 U. S. 604 (2000)
Stevens, J., dissenting
Whether the breach was sufficiently "substantial" or material to justify restitution depends on what impact, if any, the breach had at the time the breach occurred on the successful completion of the project. See E. Farnsworth, Contracts § 8.16 (3d ed. 1999) ("The time for determining materiality is the time of the breach and not the time that the contract was made. . . . Most significant is the extent to which the breach will deprive the injured party of the benefit that it justifiably expected"). In this action the answer must be close to none. Sixty days after the Government entered into breach—from September 19, 1990, to November 19, 1990—the State of North Carolina filed its formal objection to CZMA certification with the United States. App. 141-148. As the OCSLA makes clear, "The Secretary shall not grant any license or permit for any activity described in detail in an exploration plan and affecting any land use or water use in the coastal zone of a State with a coastal zone management program . . . unless the State concurs or is conclusively presumed to concur with the consistency certification accompanying such plan . . . , or the Secretary of Commerce makes the finding [overriding the State's objection]." 43 U. S. C. § 1340(c)(2) (emphasis added); see also § 1351(d). While this objection remained in effect, the project could not go forward unless the objection was set aside by the Secretary of Commerce. Thus, the Government's breach effectively delayed matters during the period between September 19, 1990, and November 19, 1990. Thereafter, implementation was contractually precluded by North Carolina.
This fact does not, of course, relieve the Government of liability for breach. It does, however, make it inappropriate to conclude that the Government's pre-November 19 actions in breach were sufficiently "material" to the successful completion of the parties' project to justify giving petitioners all of their money back. At the time of the Government's breach, petitioners had no reasonable expectation under the lease contract terms that the venture would come to fruition
635
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