Endangered Species Act Law Alert
The supreme Court decides that the Endangered Species Act does
not trump the Clean Water Act
Stoel Rives LLP attorneys at law June 26, 2007
By Beth
S. Ginsberg,
Michael
P. O'Connell, and
Barbara
D. Craig1
On June 25, 2007, the U.S. Supreme Court issued a 5-4 split
decision in National Association of Home Builders v.
Defenders of Wildlife, 2007 WL 1801745, that is expected
to have far-reaching implications. The decision addressed the
intersection of two independent statutes--the Clean Water Act
(the "CWA") and the Endangered Species Act (the "ESA")--and
answered the twin questions of whether the ESA constitutes a
"super statute" that effectively overrides or repeals other
statutes, and whether the ESA consultation requirement can be
read to impose additional substantive obligations on an agency
to protect listed species when such obligations are otherwise
absent under the agency’s organic authority.
The case arose as a result of the Environmental Protection
Agency’s (the "EPA") decision to transfer the National
Pollutant Discharge Elimination System program under CWA
section 402(b) to the state of Arizona. That section of the
CWA provides "that the EPA ‘shall approve’ a transfer
application unless it determines that a state lacks adequate
authority to perform the nine functions specified in the
section." 33 U.S.C. § 1362(b).
The Supreme Court’s decision confirms that the list under
CWA section 402(b) is both exclusive and mandatory and is not
to be enlarged by the ESA. The Court emphasized that because
Arizona’s application satisfied all nine criteria, the EPA
lacked the discretion to make any decision other than to
approve the transfer to Arizona, and the consultation
requirement under ESA section 7(a)(2) was simply not triggered
in this case. As reasoned by the Court, any other
interpretation would have resulted in a partial repeal of the
CWA, with the ESA imposing a 10 criterion on the transfer of
permitting authority a result that the Court went to great
lengths to reject. According to the Court, "nothing in the
text of section 402(b) authorizes the EPA to consider the
protection of threatened or endangered species as an end in
itself when evaluating a transfer application."
The majority’s opinion has the effect of scaling back the
breadth with which the Ninth Circuit had previously inflated
the consultation provision. ESA section 7(a)(2) requires each
federal agency to ensure that any action authorized, funded or
carried out by such agency is not likely to jeopardize the
continued existence of any endangered or threatened species.
16 U.S.C. §1536 (a)(2). In reversing the Ninth Circuit’s
opinion in this case, the majority opinion deferred to the
ESA’s implementing regulations and held that the consultation
requirement does not override other statutory authorities and
is only triggered when a federal agency undertakes a
discretionary agency action, as stated in 50 C.F.R. §
402.03. Conversely, an agency is not obligated to engage in
the consultation process when it undertakes an action that is
mandated by statute. The Court explained that when an
agency is required to do something by statute, it
simply lacks the power to ensure that such action will not
jeopardize endangered species, and thus, in those situations,
is not obligated to conduct a consultation under ESA section
7(a)(2).
In overruling the Ninth Circuit, the majority further
admonished that the Ninth Circuit’s reading of ESA section
7(a)(2) would not only have abrogated CWA section 402(b)’s
statutory mandate, but would also result in the implicit
repeal of many other categorical statutory commands. By way of
example, the Court cited with approval the District of
Columbia Circuit’s decision in Platte River Whooping Crane
Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27
(D.C. Cir 1992) (holding that ESA section 7(a)(2) is not
triggered when the Federal Energy Regulatory Commission issues
an annual license under section 15 of the Federal Power Act).
The decision also whittled away at the Court’s seminal 1978
ESA opinion in Tennessee Valley Authority v. Hill 437
U.S. 153 (1978) ("TVA"). In that case, the Court concluded
that
the ordinary meaning of § 7 of the ESA contained no
exemptions and reflected a conscious decision by Congress to
give endangered species priority over the primary missions
of federal agencies
Home Builders, 2007 WL 1801745, at *15 (internal
quotation marks and citation omitted).
To bolster its holding in Home builders, that the ESA does
not have primacy over other statutory provisions, the Court
observed that TVA had no occasion to answer the specific
question presented here—whether the ESA in effect trumps other
statutes. The Court also distinguished its prior decision in
TVA on grounds that Congress did not require the Tennessee
Valley Authority to put the dam into operation, and thus there
was no basis for contending that applying the ESA’s
no-jeopardy requirement would implicitly repeal another
affirmative congressional directive.
This part of the Court’s decision may have future
implications for the Federal Columbia River Power System,
which is currently the subject of a court-supervised remand
under ESA section 7(a)(2) in the U.S. District Court for the
District of Oregon in National Wildlife Federation v. NMFS.
In that case, the U.S. Army Corps of Engineers argued that it
did not have an obligation to consult over the
nondiscretionary aspects of its action, including specifically
the impact that the existence of the federal dams has on
listed species, because Congress mandated the dams’
construction and the action agencies lack the ability to
decommission the dams. The Ninth Circuit rejected that
argument, relying heavily on its now overruled decision in the
Home builders case. The Ninth Circuit’s decision can be
argued to have blurred the legal distinction between
discretionary and nondiscretionary actions, holding that in
situations in which an agency has discretionary control over
only a portion of the action, it must still consult on the
entirety of the action. In light of the Supreme Court
decision, the Solicitor General’s Office will likely be
considering further appeal options in the ongoing Federal
Columbia River Power System appeals.
If you have any questions about this update or if you would
like our assistance in connection with this matter, please
contact your Stoel Rives lawyer or one of the following
attorneys:
Beth S. Ginsberg,
bsginsberg@stoel.com, (206) 386-7581
Michael P. O'Connell,
moconnell@stoel.com, (206) 386-7692
Barbara D. Craig,
bdcraig@stoel.com, (503) 294-9166
Cherise M. Oram,
cmoram@stoel.com, (206) 386-7622
Kevin J. Beaton,
kjbeaton@stoel.com, (208) 387-4214
_______________________________
1 Beth S. Ginsberg,
Barbara D. Craig and Michael P. O’Connell are principals at
Stoel Rives LLP, where they focus their practices on
environmental, natural resources, and wildlife law with an
emphasis on endangered species regulatory and litigation
matters and project permitting. Ms. Ginsberg and Ms. Craig are
currently representing the BPA Customer Group in the ongoing
litigation regarding the Federal Columbia River Power System
biological opinion. |