Environmental Advisory Bulletin
Supreme Court Limits Reach of Endangered Species
Act
By Richard
M. Glick and Lindsay Eyler*
[June 2007]
In a 5-4 decision rendered June 25, 2007, the U.S.
Supreme Court held that the Endangered Species Act (ESA) does not
necessarily take precedence over other congressional mandates. In
National Assn. of Home Builders v. Defenders of Wildlife,1
the Court addressed a confrontation between two powerful federal
laws. The question before the Court was whether delegation of the
Clean Water Act (CWA) permit program to the State of Arizona, which
is mandatory under the CWA if nine statutory criteria are met, triggers
the equally mandatory provisions of the ESA that federal action
agencies “insure” the well being of listed species through
consultation with federal fish and wildlife agencies. The Court
refused to add ESA consultation as a “tenth criterion”
for delegation to states under the CWA. It found reasonable an agency
rule that exempts certain federal actions from the consultation
requirement. The case has important implications for the Northwest
in that it could directly impact ongoing litigation related to operations
of the Federal Columbia River Power System (FCRPS).
By way of background, ESA § 7(a)(2)2
requires federal action agencies to consult with either or both
of the National Marine Fisheries Service and U.S. Fish and Wildlife
Service (USFWS)3
in order 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.”
Previously, this has been broadly construed to extend consultation
requirements upon virtually any federal action that could affect
listed species, including EPA action under the CWA.
CWA § 402 established a National Pollution Discharge Elimination
System (NPDES) permit program initially administered by EPA. However,
in § 402(b)4
Congress provided a means by which the states may apply to EPA for
delegation of the NPDES program if nine criteria are met. The criteria
relate to the state having adopted the regulatory infrastructure
needed to implement the program. If the criteria are met, then §
402(b) provides that EPA “shall approve each submitted program”
for transfer to the state.
For previous delegations to states, EPA had consulted with the
fish and wildlife services under ESA § 7. Indeed, when Arizona
applied for delegation in the present case, EPA initiated consultation
with the USFWS. The USFWS saw no direct impact on listed species
from the delegation, but was concerned about indirect effects due
to increased issuance of discharge permits by the state, and urged
EPA to take that into account. EPA disagreed, partly on the basis
that CWA § 402(b) provided no authority to consider more than
the specified nine criteria. The matter was referred to the national
offices of the two agencies for resolution, and USFWS issued a biological
opinion that concluded no jeopardy would result to listed species.
In the ensuing litigation, EPA asserted it had no duty at all to
consult under ESA § 7.
The Supreme Court agreed with EPA that the nine criteria in CWA
§ 402(b) are mandatory and EPA lacked discretion to add what
Justice Samuel Alito, writing for the Court, deemed a “tenth
criterion.” That is, though ESA might require consultation
in most cases, in the matter of delegation of NPDES program authority,
ESA’s mandatory provisions run head on into those of the CWA.
Imposing ESA § 7 consultation on top of CWA § 402(b) criteria
would constitute a repeal or amendment of the CWA by implication,
which courts disfavor.
To solve this problem, the Court turned to a regulation adopted
by the USFWS that interprets ESA § 7(a)(2) to apply only to
agency actions “in which there is discretionary Federal involvement
and control.”5
The Court concluded, “This interpretation harmonizes the statutes
by giving effect to the ESA’s no-jeopardy mandate whenever
an agency has discretion to do so, but not when the agency is forbidden
from considering such extra statutory factors.” Slip Op. at
18. This interpretation is entitled to Chevron6
deference due to the “fundamental ambiguity”
caused by the competing mandates in the ESA and CWA that cannot
be resolved by the statute alone.
In reaching this conclusion, the Court distinguished its earlier
holding in TVA v. Hill, 437 U.S. 153 (1978). In that case,
the Court held that ESA § 7 allowed of no exemptions and reflected
congressional intent to give endangered species primacy over the
primary missions of other federal agencies. However, Justice Alito
noted that TVA was decided before the USFWS regulation
exempting non-discretionary acts was adopted, and that the facts
in TVA were that the federal agency had some discretion
to put the dam into operation.
Justice John Stevens, joined by Justice David Souter, Justice Ruth
Bader Ginsburg, and Justice Stephen Breyer, dissented in the opinion
and argued for a remand to the EPA. Justice Stevens acknowledged
the competing statutory mandates contained in the ESA and CWA. Citing
previous opinions of the Court (TVA and Babbit v. Sweet
Home Chapter, Communities for Great Ore., 515 U.S. 687 (1995))
and congressional discussion of the proposed ESA, his dissent also
noted that Congress intended the ESA to apply as a first priority
and without exception, and purposefully omitted all phrases that
would have qualified § 7’s force. The majority’s
decision, Justice Stevens contends, fails in its duty to give full
effect to both the ESA and the CWA, where possible, by observing
in the ESA an exemption for mandatory agency action that Congress
neither included nor contemplated. The dissent challenged the majority’s
acquiescence in the EPA’s opinion that § 7 of the ESA
does not apply to non-discretionary agency actions on the grounds
that the EPA is not charged with administering the ESA and is therefore
not owed such deference.
Further, Justice Stevens explored alternative possibilities for
harmonizing the requirements of the two acts, suggesting that the
EPA has more discretion in carrying out the requirements of the
CWA than the majority admitted. First, the § 7 mandate that
the EPA consult with agencies designated by the Departments of the
Interior and Commerce to determine the proposed action’s potential
harms to endangered species could steer the EPA through the process
of transferring oversight of the NPDES to states by looking for
“reasonable and prudent alternatives” to any aspects
of the state’s system that might jeopardize endangered species
while still implementing the transfer. Second, even once administrative
authority over the NPDES has been transferred to the state, the
EPA retains oversight over the state’s system. The EPA requires
each state to enter into a Memorandum of Agreement (MOA) before
the transfer of authority takes place that could include requirements
that the state abide by the ESA or sufficiently protect endangered
species in order to maintain its authority to administer the NPDES.
This case has important implications for the Pacific Northwest.
Just this past April the Ninth Circuit Court of Appeals affirmed
Judge James Redden’s striking down of the 2004 Biological
Opinion for operating the FCRPS.7
The central argument advanced by NMFS was that since the Lower Snake
River dams were authorized and funded by Congress, it lacked discretion
to consider their presence as an element of the Biological Opinion.
In other words, the dams were deemed part of the environmental baseline,
and NMFS could lawfully consider only the incremental operational
changes in its Biological Opinion. The Ninth Circuit rejected this
argument in its entirety. While the massive FCRPS presents more
complexity than issues surrounding transference of NPDES authority
to Arizona, NMFS’ argument in the FCRPS case has certainly
been given new life by the Court’s decision in National
Home Builders v. Defenders of Wildlife.
NMFS may be expected to argue that National Home Builders
requires re-examination of its argument that it lacked discretion
to consider the existence of the federal dams in its biological
opinion. Opponents may seize upon the distinction drawn by Justice
Alito between the situation in TVA and in National
Home Builders. That is, Congressional authorization of the
Lower Snake dams may not be so specific as to constitute a mandate
in conflict with ESA. Opponents may also seize upon Justice Stevens’
effort to find a middle ground if the FCRPS legislation is not as
specific as CWA § 402(b). We will continue to monitor the case
and report on developments.
Footnotes
1
551 U. S. _____ (2007), Slip Opinion.
2
16 U. S. C. § 1536(a)(2).
3
NMFS is a unit within the Department of Commerce with ESA authority
over anadromous fish and marine wildlife. USFWS is an agency within
the Department of the Interior with responsibility for resident
fish and terrestrial and avian wildlife.
4
33 U.S.C. § 1342(b).
5
50 CFR § 402.03.
6
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
7
National Wildlife Federation v. NMFS, 481 F.3d 1224 (9th
Cir. 2007).
* Lindsay Eyler is a student at Yale Law School
and a Summer Associate at Davis Wright Tremaine
For more information, please contact:
This advisory is a publication of the Environmental Department of
Davis Wright Tremaine LLP. Our purpose in publishing this advisory
is to inform our clients and friends of recent legal developments.
It is not intended, nor should it be used, as a substitute for specific
legal advice as legal counsel may only be given in response to inquiries
regarding particular situations. Attorney Advertising. Prior results
do not guarantee a similar outcome. Thank you.
Copyright © 2007, Davis Wright Tremaine
LLP.
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