dissenting:
My colleagues invalidate the listing of the Del Amo site — the result of a 15-year investigation and proceeding — on the sole ground that there was no “written request” for such listing “from the Governor” as required by the relevant Appropriations Act. In truth the Deputy Director of the California Department of Toxic Substances Control wrote to EPA reporting that the DTSC “on behalf of the Wilson Administration concurs with ... [the] proposal to list” the site and later EPA reported in the Federal Register that it had received a letter from the State environmental agency “with prior verbal agreement from the Governor of California.” No one has disputed the accuracy of those statements.
Thus we are confronted with the issue of whether a letter from the relevant agency stating that it had obtained the concurrence of the Governor to a proposal for listing suffices to meet the statutory command that there be a “written request” “from the Governor.” Agreeing with my colleagues that agencies do not have discretion to ignore statutory commands, I would nonetheless find EPA to be in compliance here. The written request part is satisfied beyond doubt, and the request contains an undisputed statement that it is made with the concurrence of the Governor’s administration. (This is validated by the later explanation in the Federal Register that the Governor’s concurrence had been verbal.) Under such circumstances I would conclude that the request is “from the Governor.” The statute nowhere commands that the request be personally signed by him.
The purpose of this statutory requirement has surely been met. No one in the 15 years of this controversy has pointed to any harm to any party or the statutory goal that has ensued from this form of compliance.1 And the significant costs of going back to square *608one, while in no way would they excuse ignoring the requirement, at least suggest careful consideration as to whether it has been in fact violated.
Surely it would have been far preferable for EPA to have insisted on obtaining a direct communication written by the Governor as it did in the ease of the other states. But in these circumstances, we have the functional equivalent, and I think the statute can reasonably bear the meaning given it here.2
. Moreover, even assuming there were some technical error here, section 706 of the Administrative Procedure Act provides that a court in reviewing agency action must take "due account ... of the rule of prejudicial error.” Applied to this case, the rule of prejudicial error presumably means that petitioners must show that they were prejudiced by the EPA's failure to procure a letter written by the hand of the Governor of California. See, e.g., Doolin Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C.Cir.1998); All Indian Pueblo Council v. United States, 975 F.2d 1437, 1443 (10th Cir.1992) (agency’s failure to grant an administrative appeal not prejudicial when district court could resolve the same legal issues and remand to agency would be "an exercise in futility”). We have no reason to suspect, based on the letter from DTSC and the EPA’s representation in the Federal Register of the Governor's oral agreement, that the Governor would have acted in a contrary way if the demand for a signed letter had been pressed.
. "From” is "used as a function word to indicate the source or original moving force of something.” Webster's Third Int’l Dictionary 913 (1976). In every day parlance, when a person asks, "Who is this memo from?” and the memo was written and signed by a subordinate "on behalf of” the manager, the correct answer is not necessarily "it is from a subordinate,” but rather "it is from the manager.” In the majority's view, however, the correct answer could only be "the subordinate” unless the manager had personally dictated the memo. This does not comport with common understanding.