National Association of Home Builders et al. v. Defenders of Wildlife et al.
127 S. Ct. 2518 (2007)
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Rule of Law:
The Endangered Species Act's requirement for federal agencies to ensure their actions do not jeopardize endangered species, as outlined in Section 7(a)(2), applies only to discretionary agency actions. It does not apply to non-discretionary actions that an agency is statutorily mandated to perform upon the satisfaction of a specific and exclusive list of criteria.
Facts:
- The Clean Water Act (CWA) allows a state to apply to the Environmental Protection Agency (EPA) to administer its own National Pollution Discharge Elimination System (NPDES) permitting program.
- Under CWA Section 402(b), the EPA 'shall approve' a state's application if the state demonstrates it meets nine specified statutory criteria.
- The Endangered Species Act (ESA) Section 7(a)(2) requires every federal agency to consult with wildlife agencies to ensure any 'action authorized, funded, or carried out' by the agency is not likely to jeopardize an endangered or threatened species.
- In February 2002, Arizona officials applied to the EPA for authorization to administer the state's NPDES program.
- The U.S. Fish and Wildlife Service (FWS) expressed concern that transferring authority to Arizona would eliminate the federal ESA consultation requirement for individual state-issued permits, which could indirectly harm upland species like the cactus ferruginous pygmy-owl through increased development.
- The EPA determined that Arizona's program met all nine of the exclusive criteria listed in CWA Section 402(b).
- After consultation, the FWS issued a biological opinion concluding that the transfer of authority itself would not cause jeopardy to listed species, reasoning that the loss of federal oversight was a consequence of Congress's statutory design in the CWA.
- The EPA then approved the transfer of permitting authority to Arizona.
Procedural Posture:
- Defenders of Wildlife filed a petition in the U.S. Court of Appeals for the Ninth Circuit seeking direct review of the EPA's decision to transfer permitting authority to Arizona.
- The National Association of Home Builders was granted leave to intervene as a respondent in support of the EPA.
- A separate action by Defenders of Wildlife against the FWS was transferred from the District of Arizona and consolidated with the Ninth Circuit case.
- A divided panel of the Ninth Circuit granted the petition and vacated the EPA’s transfer decision, holding that the ESA imposes a substantive requirement on the EPA's transfer decision.
- The Ninth Circuit denied rehearing en banc, with six judges dissenting.
- The U.S. Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the issue.
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Issue:
Does Section 7(a)(2) of the Endangered Species Act, which requires federal agencies to ensure their actions do not jeopardize endangered species, apply to the Environmental Protection Agency's non-discretionary duty under Section 402(b) of the Clean Water Act to transfer pollution permitting authority to a state once that state meets nine specified statutory criteria?
Opinions:
Majority - Justice Alito
No. Section 7(a)(2) of the ESA does not apply to the EPA's non-discretionary duty to transfer permitting authority under the CWA because that duty is not a discretionary agency action. The Court holds that applying the ESA's no-jeopardy provision would effectively add a tenth criterion to the CWA's exclusive list of nine, which would constitute a disfavored 'repeal by implication' of the CWA's mandatory language. The Court defers under Chevron to a regulation (50 CFR § 402.03) promulgated by the FWS and NMFS, which limits the application of ESA Section 7 to 'actions in which there is discretionary Federal involvement or control.' Because the EPA's duty to approve a state's qualifying application is mandatory and non-discretionary, the ESA's consultation and no-jeopardy requirements are not triggered. The Court distinguished TVA v. Hill, noting that the agency action in that case was discretionary, not compelled by statute.
Dissenting - Justice Stevens
Yes. Section 7(a)(2) of the ESA applies to the EPA's transfer of permitting authority under the CWA. The majority misinterprets the regulation 50 CFR § 402.03, which confirms the ESA applies to discretionary actions but does not state it applies only to them. The Court's prior holding in TVA v. Hill established that the ESA has the 'highest of priorities' and 'admits of no exception' for federal agencies. The two statutes are not in irreconcilable conflict; the ESA's consultation process, including the development of 'reasonable and prudent alternatives,' provides a mechanism to harmonize both mandates. Furthermore, the EPA's transfer decision is discretionary because determining whether a state has met the nine CWA criteria requires the exercise of agency judgment, which should trigger ESA review.
Dissenting - Justice Breyer
Yes. Joining Justice Stevens' dissent, this opinion adds that the ESA fundamentally altered the entire regulatory landscape for all federal agencies. The ESA's command to preserve species became an implicit requirement embedded in every agency's mission, even if not explicitly listed in an agency's own governing statute. Therefore, the seemingly 'exclusive' list of criteria in the CWA must be read in light of the ESA's overriding mandate.
Analysis:
This decision significantly limits the reach of the Endangered Species Act by carving out an exception for non-discretionary federal agency actions. The ruling establishes that if a statute imposes a mandatory duty on an agency based on a specific, exclusive set of criteria, that agency action is shielded from the ESA's Section 7(a)(2) consultation requirements. This precedent impacts the interplay between the ESA and numerous other federal statutes that contain mandatory directives, potentially reducing environmental review for a range of federal programs. It prioritizes the specific, mandatory language of individual statutes over the broad, general command of the ESA, marking a departure from the absolutist interpretation of the ESA in TVA v. Hill.
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