(concurring).
I concur. I am in total agreement that subsection (E) of 33 U.S.C. § 1369(b)(1) does not give this Court jurisdiction. Judge Dun-iway’s thoughtful analysis makes this result abundantly clear. In addition, I agree that the question of our jurisdiction under subsection (F) is controlled by Scott Paper. However, I believe that that case was wrongly decided, and I therefore urge the Court to take the present case en banc to consider overruling Scott Paper.
Section 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F), vests the courts of appeals with jurisdiction to review the action of the Administrator “in issuing or denying any [NPDES] permit”. In those states that do not administer their own NPDES permit system pursuant to 33 U.S.C. § 1342(b) this provision is easily applied. Since the Administrator is directly responsible for issuing or denying the requested permits, his action, whether affirmative or negative, is immediately subject to review by the courts of appeals. However, in states such as California and Washington that have received EPA approval to administer their own NPDES programs, application of subsection (F) is not as clear. In those states the Administrator does not issue or deny permits directly. Rather, he either “objects in writing to the issuance of such permit,” or, by his inaction for a period of 90 days, approves the state’s issuance. 33 U.S.C. § 1342(d)(2)(B).
The issue in Scott Paper, as in the case before us, was whether the EPA Administrator’s written objection to a state-issued permit constituted “action * * * denying any permit” under subsection (F). The Court in Scott Paper held that it did not. I do not believe this was the proper result.
One of Congress’s stated goals in enacting the Federal Water Pollution Control Act was to eliminate the discharge of pollutants into this country’s navigable waters by 1985. See 33 U.S.C. § 1251(a)(1). Recognizing that a two-tiered level of judicial review might threaten realization of this goal, Congress vested the courts of appeals with jurisdiction to review many of the actions of the Administrator directly. As the Court of Appeals for the Second Circuit has noted:
“The fact that judicial review of the actions covered by § 1369(b)(1) is in the Court of Appeals in the first instance evidences a purpose, inter alia, to save procedural steps and time. After the EPA has completed its administrative proceeding and either denied or issued a permit, to allow challenges to its jurisdiction then to be heard first in the district court would merely cause duplication and delay.” Central Hudson Gas, Etc. v. *906United States E. P. A., 587 F.2d 549, 557 (2 Cir. 1978) (footnote omitted).
See also duPont v. Train, 528 F.2d 1136, 1141-1142 (4 Cir. 1975), aff’d, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977).
Congress’s goal of ensuring prompt resolution of challenges to the Administrator’s actions can best be realized by interpreting “denying [a] permit” to include “objectfing] in writing.” This result would be consistent with Congressional goals. It would vest the courts of appeals with jurisdiction over the Administrator’s “vetoes” in states that administer their own NPDES permit programs as well as in states that do not. Moreover, it would recognize that the functional effect of an administrative veto is that the requested NPDES permit is denied. See 33 U.S.C. § 1342(d)(2)(B) (“No permit shall issue * * * if the Administrator * * * objects in writing * *.”) (emphasis added).
Of course, it would not be appropriate to vest jurisdiction in the courts of appeals if the administrative record resulting from the Administrator’s action were insufficient or inadequate for review. However, while the incompleteness of the record might be a reason for withholding jurisdiction from the courts of appeals over cases in which the Administrator approved a state-issued permit — a process that requires no more than silent acquiescence for the 90-day statutory period — it is not a reason for withholding jurisdiction over cases in which the Administrator filed a written objection to a state-issued permit. The administrative record is more complete, and therefore more susceptible to appellate review, in the latter group of cases.1
*907The two cases relied upon by this Court in Scott Paper support this position.2 In Save the Bay, Inc. v. Administrator of E.P.A., 556 F.2d 1282 (5 Cir.), rehearing denied, 560 F.2d 1023 (1977), the Fifth Circuit held that it had no jurisdiction under subsection (F) to review the Administrator’s failure to object to a state-issued permit. In reaching this conclusion, the Court was influenced by the inadequacy of the administrative record.
“The administrative record here is wholly inadequate to reveal what factors were considered by EPA in determining not to object ***.*** when Congress has vested this court with original review, it generally has done so in relation to an administrative process that more easily lends itself to production of a reviewable record.” 556 F.2d at 1292.
When the Administrator vetoes a state-issued permit, as in Scott Paper and the case before us, however, he creates an administrative record. Therefore, the reasoning behind the Fifth Circuit’s opinion is not applicable. It is perhaps in recognition of this distinction that the Court stated:
“We note that by our decision we suggest no answer to the question whether a veto by EPA would be reviewable directly in this court.” 556 F.2d at 1292 n.13.
The Court of Appeals for the Second Circuit employed a similar analysis in Mianus River Pres. Comm. v. Administrator, 541 F. 2d 899 (2 Cir. 1976). Like the Court of Appeals for the Fifth Circuit, it declined to assert subsection (F) jurisdiction over the Administrator’s failure to veto a state-issued permit. However, it made even more explicit the distinction between inaction and veto:
“Admittedly, had the Administrator exercised his right of review and rejected the Water Company’s permit application, that rejection would clearly be subject to review as ‘Administrator’s action.’ ” 541 F.2d at 909 (footnote omitted).
In addition to the cases cited in Scott Paper, I obtain support for my position in two cases arising in the Sixth Circuit, Republic Steel Corp. v. Costle, 581 F.2d 1228 (6 Cir. 1978), and Ford Motor Co. v. E. P. A., 567 F.2d 661 (6 Cir. 1977). Both of these cases specifically held that subsection (F) does vest the courts of appeals with jurisdiction to review the Administrator’s written objection to state-issued permits. In Ford Motor Co., the court indicated that one of its bases for decision was that “[t]he factual record in this case has been sufficiently developed that this Court can review adequately the action of EPA.” 567 F.2d at 668. Moreover, in Republic Steel the court not only rejected the analysis in Scott Paper, but also cited in support of its contrary result the Mianus River decision discussed above. 581 F.2d at 1230 n.1.
Somewhat ironically, the Scott Paper decision itself underscores the need for immediate appellate review of the Administrator’s vetoes of state-issued NPDES permits. In Scott Paper, after the panel concluded that it lacked subject matter jurisdiction under subsection (F) to review Scott Paper’s petition, 573 F.2d at 587, it made the remarkable statement:
“Although we hold that the district court has jurisdiction to entertain Scott’s challenge to the Administrator’s objection to the Anacortes permit, we need not, in light of the record before us, remand the case for additional proceedings. That course is made unnecessary by the presence of a dispositive legal issue which we resolve in the interests of judicial economy. Cf. Save the Bay, Inc. v. Administrator of E. P. A., supra, 556 F.2d at 1292.” Id. at 588.
*908Considerations of “judicial economy” notwithstanding, it has long been a fundamental principle of our federal system that a court has no power to entertain a case where subject matter jurisdiction is lacking. See, e. g., Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448, 450, 12 L.Ed. 1147 (1850); Turner v. President, Directors and Co. of the Bank of North America, 4 Dallas 8, 11 (1799). The willingness of the Court of Appeals to violate this principle in Scott Paper not only lends credence to my conclusion that appellate courts should dispose of petitions challenging the Administrator’s vetoes, but it also demonstrates' that the record before them is sufficiently developed that they can do so.
Finally, I note that Shell Oil Co. v. Train, 585 F.2d 408 (9 Cir. 1978), cited by Judge Duniway with a “But see ” signal, is in part contrary to the result reached by my colleagues. It therefore furnishes another ground for en banc review. The issue in Shell Oil was whether the Court of Appeals had jurisdiction under subsection (F) to review the state regional board’s denial of an NPDES permit. Shell had alleged that even though the denial was by a state agency, that agency had been “caused” to deny the permit by the EPA. However the Court of Appeals held that Scott Paper was not controlling because “Shell [had] not alleged an actual veto by the EPA of the regional board’s decision.” 585 F.2d at 413.
In the part of the opinion that supports the position I take here, however, the Court focused on a second action brought by Shell to challenge the regional board’s denial of its requested permit. In addition to the federal suit then before the Court, Shell had sought review of the regional board’s action by petitioning the California State Water Resources Control Board. While the federal action was pending in district court, the state board reversed the regional board and granted Shell a variance on its Class E permit. The proposed variance was then transmitted to the EPA Administrator pursuant to 33 U.S.C. § 1342(d), and he vetoed it by filing a written objection. “That decision,” wrote the majority of the panel, “is reviewable in this court under 33 U.S.C. § 1369(b)(1).” 585 F.2d at 412. The only subsection of § 1369(b)(1) the Court could have been referring to was subsection (F). Thus, the dicta in Shell Oil directly contradicts Scott Paper and supports the position I have taken.
In conclusion, I urge the Court to reconsider Scott Paper by taking the present case en banc. Because of the congressional desire for speedy resolution of disputes under the Act, the need for a consistent system of judicial review, the functional effect of the Administrator’s written objections, and the sufficiency of the administrative record, I would find that the courts of appeals, rather than the district courts, have initial jurisdiction to review the Administrator’s vetoes of state-issued NPDES permits.
. Once the Administrator files his written objection, the administrative record is certainly sufficient for the courts of appeals to review. At a minimum, it contains a copy of the proposed permit, a
“statement of the reasons for the objection (including the section of the Act or regulations that support the objection), and
“[A statement of the] actions that must be taken by the Director in order to eliminate the objection (including the effluent limitations and conditions which the permit would include if it were issued by the Regional Administrator).” 40 C.F.R. §§ 124.47(a), 124.-48(a)(2).
Also, unless the Regional Administrator of the EPA expressly waives his right to receive the following information pursuant to 40 C.F.R. § 124.47(e), the administrative record will contain
“all terms, conditions, requirements or documents that are a part of any proposed permit or that affect the authorization by the proposed permit of the discharge of pollutants [as well as] a copy of any significant comments presented in writing pursuant to the public notice and a summary of any significant comments presented at any hearing, for any NPDES application if:
“(1) The Regional Administrator requests this information; or
“(2) The proposed permit contains requirements different from or less stringent than those contained in the tentative determination and draft permit; or
“(3) Significant comments adverse to the tentative determination and draft permit have been presented at the hearing or in writing pursuant to the public notice.” 40 C.F.R. § 124.47(b), (c).
Moreover,
“[f]or every discharge which has a total volume of more than 500,000 gallons on any day of the year, [the administrative record will contain a fact sheet]. The contents of such fact sheets shall include at least the following information * * *:
“(1) A sketch or detailed description of the location of the discharge described in the NPDES application;
“(2) A quantitative description of the discharge described in the NPDES application which includes at least the following:
“(i) The rate or frequency of the proposed discharge; if the discharge is continuous, the average daily flow in gallons per day or million gallons per day;
“(ii) For thermal discharges subject to limitation under the Act, the average summer and winter temperatures in degrees Fahrenheit; and
“(iii) The average daily discharge in pounds per day of any pollutants which are present in significant quantities or which are subject to limitations or prohibition under sections 301, 302, 306, or 307 of the Act and regulations published thereunder;
“(3) The tentative determinations required under § 124.31;
“(4) A brief citation, including a brief identification of the uses for which the receiving waters have been classified, of the water quality standards and effluent standards and limitations applied to the proposed discharge; and
“(5) A fuller description of the procedures for the formulation of final determinations than that given in the public notic,e including:
“(i) The 30-day comment period required by § 124.32(b);
*907“(ii) Procedures for requesting a public hearing and the nature thereof; and
“(iii) Any other procedures by which the public may participate in the formulation of the final determinations.” 40 C.F.R. § 124.-33; see 40 C.F.R. § 124.48(c)(1).
Finally, if the Regional Administrator had been unable to decide whether to object because the information before him was inadequate, he could have supplemented the administrative record with “the complete record of the permit proceedings before the State.” 40 C.F.R. § 124.48(c)(2).
. See State of Washington v. United States Environmental Protection Agency, 573 F.2d 583, 587 (9 Cir. 1978) (Scott Paper).