Term: 2006
Docket: 06-340
National Association Of Home Builders, Et Al. v. Defenders Of Wildlife Et Al.
- Pro
06-340 NATIONAL ASSN. OF HOME BUILDERS V. DEFENDERS OF WILDLIFE DECISION BELOW:420 F3d 946 CERT. GRANTED 1/5/2007 QUESTIONS PRESENTED: On December 5, 2002, the U.S. Environmental Protection Agency (“EPA”) approved the State of Arizona’s application to administer the National Pollutant Discharge Elimination System (“NPDES”) program under Section 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b). Section 402(b) states that EPA “shall approve each submitted program” unless EPA “determines that adequate authority does not exist” for the state to administer the program in compliance with nine specified criteria. There was no dispute that Arizona’s program satisfied those criteria. Instead, environmental groups contended that EPA violated Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), because EPA did not sufficiently analyze the effects of the loss of, nor require a sufficient substitute for, consultation with the U.S. Fish and Wildlife Service. A majority of the Ninth Circuit panel agreed and vacated EPA’s approval of Arizona’s program. The questions presented for review are: 1. Can a court append additional criteria to Section 402(b) of the Clean Water Act that require state NPDES programs to include protections for endangered species? 2. Does Section 7(a)(2) of the Endangered Species Act constitute 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. Did the Ninth Circuit incorrectly apply the holding of Department 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 future private land use activities? LOWER COURT CASE NUMBER: 03-71439, 03-72894 THE CASES ARE CONSOLIDATED AND A TOTAL OF ONE HOUR IS ALLOTTED FOR ORAL ARGUMENT. IN ADDITION TO THE QUESTIONS PRESENTED BY THE PETITIONS, THE PARTIES ARE REQUESTED TO BRIEF AND ARGUE THE FOLLOWING 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 U.S. Supreme Court case National Association of Home Builders, et al. v. Defenders of Wildlife et al., 2006 revolved around the interpretation and application of Section 7(a)(2) of the Endangered Species Act (ESA). The dispute arose when Arizona sought approval from the Environmental Protection Agency (EPA) to transfer certain permitting authority under the Clean Water Act to state control. Defenders of Wildlife argued that before granting such permission, EPA must consult with wildlife agencies to ensure no endangered species would be jeopardized - a requirement under ESA's section 7(a)(2). However, EPA contended this provision did not apply as its discretion was limited by specific statutory directives in Clean Water Act regarding permit transfers. In a 5-4 decision, the Supreme Court sided with EPA and held that Section 7(a)(2)'s consultation requirement applies only where discretionary federal involvement or control over an action exists; it does not apply in situations like this where agency’s role is nondiscretionary due to clear statutory commands elsewhere.
In the dissenting opinion for the National Association of Home Builders v. Defenders of Wildlife case, Justice Stevens argued that the majority misinterpreted Section 7(a)(2) of the Endangered Species Act (ESA). He contended that this section applies to all agencies and their actions, including those involving state-submitted pollution discharge elimination system programs under Clean Water Act (CWA). According to him, there was no conflict between ESA and CWA as both could be complied with simultaneously. He also criticized EPA's decision not to consult with Fish and Wildlife Service or National Marine Fisheries Service before approving Arizona's application for program delegation. Furthermore, he disagreed with majority’s view on Chevron deference given to EPA’s interpretation stating it wasn’t warranted in this case due its inconsistency over time. Lastly, he expressed concern about potential negative consequences on endangered species protection resulting from court's ruling.
