Supreme Court Holds That EPA Need Not Conduct Consultation Under the Endangered Species Act Prior to Transferring Clean Water Act NPDES Permitting Authority to States
September 6, 2007
Steven Richard Kelton - Washington
Lawrence R. "Larry" Liebesman- Washington
On June 25, 2007, the Supreme Court in a 5-4 decision reversed the 9th U.S. Circuit Court of Appeals , holding that the U.S. Environmental Protection Agency (EPA) properly transferred the National Pollution Discharge Elimination System (NPDES) permit program to the state of Arizona and did not have to also conduct Section 7 consultation under the Endangered Species Act (ESA) prior to the transfer. In so ruling, the Court held that the mandatory duties of the Clean Water Act (CWA) trumped the discretionary duty to consult under the ESA. See National Association of Home Builders v. Defenders of Wildlife, No. 06–340 (June 25, 2007).
The primary issue in this case was a statutory conflict – “a problem of conflicting ‘shalls’” – between the CWA and the ESA. The CWA mandates that the EPA transfer responsibility for the NPDES permitting program to states if the nine criteria listed in CWA § 402(b) are satisfied. To date, EPA has transferred the program to 45 states including Arizona. The 9th Circuit had set aside the transfer, holding that the language of ESA § 7(a)(2) requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) to “insure” that a proposed agency action is unlikely to jeopardize an endangered or threatened species. The lower court held that ESA considerations were paramount in light of the Court’s 1978 decision of TVA v. Hill, holding that TVA was required to consult with FWS to protect the endangered snail darter that would be harmed by the construction of the Tellico Dam.
Justice Alito, writing for the majority, used statutory construction and agency deference in determining that the NPDES transfer was valid. He wrote that the “shall approve” language of the CWA, by its terms, “is mandatory and the list exclusive; if the nine specified criteria are satisfied, EPA does not have the discretion to deny a transfer application.” To allow the ESA to override the CWA would run counter to the Court’s presumption against implied repeals. This tension between the statutes had already been addressed in the implementing regulations, so the Court found it “appropriate” to defe r to the implementing agency’s expert interpretation. In fact, the agencies in charge of the ESA had already promulgated a rule that applied Section 7 of the ESA to “discretionary Federal involvement or control.” Transferring NPDES authority, the Court found, was not discretionary.
While the dissent argued that the watershed TVA v. Hill “admits of no exception” and affords endangered species “the highest of priorities,” the majority disagreed as applied to the transfer criteria under the CWA. Justice Alito noted that the ESA was able to stop the Tellico Dam because the dam’s construction was also a discretionary action; “there was therefore no basis for contending that applying the ESA’s no-jeopardy requirement would implicitly repeal another affirmative Congressional directive.” In so holding, Justice Alito deferred to the interpretation of EPA and FWS on the relationship between the two statues under the Chevron doctrine.
The ramifications of this decision regarding the interface between the ESA and federal agency responsibilities are important and far-reaching. While the Court stressed Congress’s strong intent that agencies protect endangered species in their actions, it held that that responsibility is not unlimited. Where Congress has strictly defined the limits of an agency’s discretion, as it did here under the CWA, there is no flexibility to add ESA considerations.
For more information, email Lawrence R. Liebesman or Steven Kelton at lawrence.liebesman@hklaw.com or steven.kelton@hklaw.com, respectively, or call toll free, 1-888-688-8500.