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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.
Copyright © 2007, Davis Wright
Tremaine LLP.
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