On June 25, 2007, the United States Supreme Court announced a decision, National Association of Home Builders
v. Defenders of Wildlife, that clarified how the Endangered Species Act (ESA) applies to federal actions under other laws.
The Defenders of Wildlife case involved the actions of the Environmental Protection Agency (EPA) in approving Arizona’s application for primacy of the federal wastewater permitting program (NPDES permits). Opponents of Arizona primacy attempted to use the ESA to stop EPA’s approval of the Arizona program. Although the Ninth Circuit Court of Appeals sided with the challengers, the U.S. Supreme Court found that the Ninth Circuit misread the ESA and, consequently, reversed the appellate court.
The decision is a victory for Alaska, which had a significant stake in the case due to the fact that the state’s NPDES primacy application is currently pending with EPA.
For advocates of ESA reform, the Defenders of Wildlife decision is welcome relief. In a 1978 decision, TVA v. Hill, construction of the Tellico Dam was embroiled in litigation concerning the impact of the dam impoundment on the snail darter. By the time the TVA case reached the Supreme Court, the dam was nearly complete. The Court, in one of the strongest environmental opinions in its history, set the stage for future interpretations of the ESA by stating that the ESA “admits of no exceptions” and requires a court to enjoin actions that would jeopardize the continued existence of a species, regardless of economic consequences.
In Defenders of Wildlife, EPA initiated ESA consultation with the U.S. Fish & Wildlife Service (FWS) to determine whether the transfer of primacy to Arizona would result in any adverse impacts on ESA listed species. FWS expressed concerns over the potential direct and indirect impacts to certain upland species from future development in areas that would ultimately be served by Arizona-issued NPDES permits. EPA concluded that it did not have authority to disapprove a transfer based on any considerations other than the nine criteria listed in the Clean Water Act (CWA) governing EPA’s approval of primacy applications. EPA concluded that Arizona had met each of the nine CWA criteria, approved the transfer of the permitting program to the state, and concluded the ESA consultation.
The plaintiffs sought review in the Ninth Circuit, arguing that the ESA effectively imposed an additional criterion on the transfer of NPDES permitting program authority, and that the federal duty to avoid jeopardy through consultation must be satisfied before the transfer could be lawfully approved. The Ninth Circuit concluded that the obligation imposed on federal agencies under the ESA to avoid jeopardy and adverse modification of critical habitat “is an obligation in addition to those created by the agencies’ own governing statute.”
The U.S. Supreme Court was presented with two competing statutory mandates - the duty to avoid jeopardy to listed species and designated critical habitat under the ESA, and the duty of EPA to approve the transfer of the NPDES permitting program under the CWA to a state upon satisfaction of the nine specified criteria. In reconciling the two statutory schemes, the Court considered whether the ESA essentially acts as an independent source of authority irrespective of the non-discretionary mandate imposed on EPA under the CWA. In a 5-4 decision, the Court held that Section 7 of the ESA applies only to discretionary federal actions, and thus does not impose an additional statutory criterion on EPA when it is carrying out mandatory obligations.
As a result of the Court’s holding, it is now clear that Section 7 applies only to actions exhibiting the requisite discretionary federal involvement or control. Future litigation will focus on clarifying discretionary federal actions from those that are mandatory.
In terms of direct impacts from the decision, Alaska has already benefited insofar as the path to obtaining approval of NPDES permitting primacy has one less hurdle to cross. Moreover, federal agencies make decisions every day affecting resource development projects in Alaska. The Defenders of Wildlife decision should ultimately result in a narrower set of circumstances under which the ESA will impact federal actions.
Land access (e.g., rights provided by statute or easements), federal water rights, and other actions compelled by statute come to mind as situations where federal agencies may have nondiscretionary obligations that would not be impacted by the requirements of ESA consultation. On other fronts, the case will be cited for the proposition that the ESA does, in fact, have limits.
ESA critical habitat issues are looming for Alaska on a variety of fronts, and it remains to be seen whether the lower courts will find support in Defenders of Wildlife to narrow federal agencies’ obligations on critical habitat and other ESA fronts.
