Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 33 (2000)

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636 MOBIL OIL EXPLORATION & PRODUCING

SOUTHEAST, INC. v. UNITED STATES Stevens, J., dissenting

in the near future. Petitioners had known since 1988 that the State of North Carolina had substantial concerns about petitioners' proposed exploration; North Carolina had already officially objected to petitioners' NPDES submission— a required step itself dependent on the State's CZMA approval. App. 106-111. At the same time, the Federal Government's own substantial investments of time and resources, as well as its extensive good-faith efforts both before and after the OBPA was passed to preserve the arrangement, gave petitioners the reasonable expectation that the Government would continue trying to make the contract work. And indeed, both parties continued to behave consistently with that expectation.

While apparently recognizing that the substantiality of the Government's breach is a relevant question, see ante, at 608, the Court spends almost no time at all concluding that the breach was substantial enough to award petitioners a $156 million refund, ante, at 620-621. In a single brief paragraph of explanation, the Court first posits that the Government "did not announce an . . . approval delay of a few days or weeks, but of 13 months minimum and likely much longer." Ante, at 621. The Court here is presumably referring to the Ake letter to Mobil written a few days after the expiration of the 30-day deadline. But the Government's "statement" to this effect could matter only in the context of evaluating an intended repudiation; because, as I have explained, that "announcement" cannot be seen as a repudiation of the contract, I do not see how the statement itself exacerbates the effect of the Government's breach. What matters in evaluating a breach, of course, is not what the Government said, but what the Government did. And what the Government did was, as I have explained, continue to perform in every other way possible—evaluating the August 20 POE; suspending the leases, including suspensions in response to petitioners' express requests (suspensions that continue in effect

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