Another Supreme Court Foray into the ESA

Timothy Sullivan of the ABA SEER Endangered Species Act committee reported on the grant of cert regarding the 9th Circuit ESA case:

On Friday, January 5, 2007, the United States Supreme Court granted petitions for certiorari by the National Association of Home Builders (NAHB) and the United States Environmental Protection Agency in the consolidated cases of National Ass'n of Home Builders v. Defenders of Wildlife and United States Environmental Protection Agency v. Defenders of Wildlife (collectively, "Defenders"), 420 F.3d 946 (9th Cir. 2005).

In Defenders, the Ninth Circuit vacated EPA's decision to approve the transfer of permitting authority under Clean Water Act section 402(b), 33 U.S.C. 1342(b), to the State of Arizona.  Defenders, 420 F.3d at 979.  Although EPA's approval may have complied with the agency's obligations under the Clean Water Act, according to the Ninth Circuit, "compliance with a 'complementary' statute cannot relieve relieve the EPA of its independent obligations under [ESA] section 7(a)(2)." Id. at 971.  The Ninth Circuit thus held that ESA section 7 requires EPA to consider the impact on endangered and threatened species and their habitat when the agency decides to transfer this authority to a state.  Id. at 949.  Because EPA did not consider these impacts when it approved EPA's transfer of Clean Water Act permitting authority to Arizona, the Ninth Circuit held that EPA's approval was erroneous and remanded the matter to EPA.  Id. at 979.

In September 2006, NAHB filed a petition for certiorari in the United States Supreme Court in which it asked the Court to determine

 

Whether a court can append additional criteria to   Section 402(b) of the Clean Water Act that require state NPDES programs to   include protections for endangered species;

Whether Section 7(a)(2) of   the Endangered Species Act constitutes an independent source of authority,   requiring federal agencies to take affirmative action to benefit endangered   species even when an agency's enabling statutes preclude such action; and  

Whether the Ninth Circuit incorrectly applied the holding of Dep't   of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that   EPA's approval of Arizona's NPDES permitting program was the legally relevant   cause of impacts to endangered species resulting from private land use   activities.

In October 2006, EPA filed a petition that asked the Court to determine

 

Whether Section 7(a)(2) of the Endangered Species Act   of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure   that its actions do not jeopardize the continued existence of a listed   species or modify its critical habitat, overrides statutory mandates   or constraints placed on an agency's discretion by other Acts of   Congress.

The Supreme Court accepted all of these questions and stated that it will consider the following additional question:

 

Whether the court of appeals correctly held that the   Environmental Protection Agency's decision to transfer pollution permitting   authority to Arizona under the Clean Water Act, see 33 U.S.C. §1342(b), was   arbitrary and capricious because it was based on inconsistent   interpretations of Section 7(a)(2) of the Endangered Species Act of 1973, 16   U.S.C. §1536(a)(2); and, if so, whether the court of appeals should have   remanded to the Environmental Protection Agency for further proceedings   without ruling on the interpretation of Section 7(a)(2).

The Court has not yet set a date for oral argument, but it is expected that oral argument will take place in April 2007. 

The cases are Nat. Assn. of Home Builders v. Defenders of Wildlife, et al. (06-340), and EPA v. Defenders of Wildlife, et al. (06-549).