Beveridge & Diamond

Supreme Court Grants Certiorari in Cases Involving Interplay Between Endangered Species and Clean Water Acts

Beveridge & Diamond, P.C., January 8, 2007

The Supreme Court has granted certiorari in the related cases of National Ass'n of Home Builders v. Defenders of Wildlife and United States Environmental Protection Agency v. Defenders of Wildlife (collectively, “Defenders”).  In these cases, the Court of Appeals for the Ninth Circuit vacated EPA’s decision to transfer National Pollutant Discharge Elimination System (“NPDES”) permitting authority under Clean Water Act Section 402(b) to Arizona because the agency failed to consider the impacts of the transfer on threatened and endangered species and their critical habitat and thus did not comply with Section 7(a)(2) of the Endangered Species Act.  Although EPA’s decision 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 the EPA of its independent obligations under [ESA] section 7(a)(2).”  Defenders, 420 F.3d 946, 971 (9th Cir. 2005).

The questions presented are: (1) 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; (2) whether ESA Section 7(a)(2) 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; (3) 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; (4) whether ESA Section 7(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; and, in a question added by the Court, (5) whether the court of appeals correctly held that the EPA’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 ESA Section 7(a)(2); and, if so, whether the court of appeals should have remanded to EPA 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. Ass’n of Home Builders v. Defenders of Wildlife, et al. (06-340), and EPA v. Defenders of Wildlife, et al. (06-549).