Supreme Court Limits the Endangered Species Act

Environment News Service 6/25/07

WASHINGTON, DC, June 25, 2007 (ENS) - In a 5-4 decision today, the U.S. Supreme Court today limited the obligation of federal agencies under the Endangered Species Act to ensure that their actions do not jeopardize federally listed threatened or endangered species.

In two combined cases - EPA v. Defenders of Wildlife and National Association of Home Builders v. Defenders of Wildlife - the court reversed an appeals court decision that required the U.S. EPA to consider the protection of listed species before handing Clean Water Act permitting authority over to the states.

The Clean Water Act requires that the EPA transfer permitting powers to the states if nine criteria are met.

The Endangered Species Act, ESA, requires that a federal agency must consult with other relevant agencies to ensure its actions do not jeopardize the continued existence of any endangered species or threatened species.

The question resolved by the court ruling is whether the ESA consultation requirement is effectively a tenth criterion on which the transfer of Clean Water Act permitting power must be based. The majority concluded that it is not.

Delivering the majority opinion, Justice Samuel Alito wrote, "The transfer of permitting authority to state authorities - who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes - was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit."

In his dissent, Justice John Stevens expressed the opinion that the Endangered Species Act works in harmony with other federal mandates and should not be trumped by other federal laws without the express direction of Congress.

Rodger Schlickeisen, president of Defenders of Wildlife said, "Today’s decision, while unfortunate, should apply only to a very narrow category of actions by federal agencies - actions compelled by the terms of another federal law - and should not be read as a broad abrogation of the authority of the Endangered Species Act."

Expressing the view that the majority opinion, "ignores the clear intention of Congress when they enacted the Endangered Species Act," Schlickeisen said, "We are concerned that the Court’s decision, combined with the Bush administration’s clear history of undermining the effectiveness of the Endangered Species Act, could lead to additional extinctions of American wildlife - extinctions which the Act is intended to prevent."

National Association of Home Builders President Brian Catalde was pleased with the ruling.

"This decision recognizes that we must always maintain a balance when we look at environmental regulations. We can't say that the Endangered Species Act is an 'uber-statute' that should slow down regulatory decisions under the Clean Water Act even as we recognize that both laws concern issues that are vital to preserving this earth for the next generation."

"This decision also tells us that the U.S. Supreme Court is helping to preserve housing affordability by striking down efforts at unnecessary, duplicative regulation," he said.

"Forcing the EPA to issue discharge permits in Arizona, which an unfavorable Supreme Court decision would have required," said Catalde, "would have cost builders more time and money, making homes less affordable in affected areas."

In the case of one protected species in Arizona, the U.S. Fish and Wildlife Service estimated that Endangered Species Act consultations delayed the typical development by five to 18 months and, when added to the cost of onsite mitigation and project modifications, cost between $1.7 million and $2.7 million, said Catalde.