Big Environmental Grant:

Yesterday the Supreme Court granted cert in another significant environmental law case — actually two combined cases, National Association of Home Builders v. Defenders of Wildlife and EPA v. Defenders of Wildlife — concerning the extent to which the Endangered Species Act (ESA) requires federal agencies to avoid actions that could harm endangered species when such a requirement could conflict with an agency's other statutory obligations. As Lyle Denniston notes on SCOTUSBlog:

The endangered species case grows out of a move by the state of Arizona to take over from EPA the program of regulating permits for discharge of pollutants under the Clean Water Act. The Court granted both cases, and added to the review the question of whether the EPA decision to transfer this permitting authority was wrongly based upon inconsistent views of the Endangered Species Act and, if so, whether the case should have been sent back to EPA for further review.

Here is the petition, opp, and reply brief.

MORE: The divided opinion of the U.S. Court of Appeals for the Ninth Circuit is here. The dissenting opinions from the denial of en banc review by Judges Kozinski and Kleinfeld, along with Judge Berzon's concurrence, are available here. The Environmental Law Institute's "Endangered Environmental Laws" program profiles the case here.

[NOTE: Links should be fixed now.]

UPDATE: Holly Doremus explains why this case "is potentially the most important ESA case the Court has heard since TVA v. Hill."

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I can't get the dissent from rehearing en banc opinion. It just takes me to the panel opinion. Am I missing something?
1.6.2007 5:01pm
jb (mail):
I don't know anything about these legal issues, but the case of National Association of Home Builders v. Defenders of Wildlife has the feel of an old time morality play, with the added attraction that half of the crowd will think that one side is the bad guys, and the other half will believe the reverse.
1.6.2007 5:47pm
blackdoggerel (mail):
I just read through the opinions. This one has the makings of at least a 7-2 reversal, if not 9-0. The Ninth Circuit's opinion has staggering implications far removed from environmental law -- it basically is saying that the Endangered Species Act overrides even *nondiscretionary* agency action, that is, action the agency is *required* to take under federal statute. If the decision stands, that means the Act is implicated in almost every agency decision there is. No wonder the Supremes took the case. Or am I missing something obvious here?

No doubt this will be trumped up as a "major environmental case" ("Supreme Court to decide scope of Endangered Species Act"), but I don't even see how this is an environmental case per se. It's really an administrative law case, because the Ninth Circuit's decision would have major ramifications for all agencies. And that's why it's probably going to go down hard.
1.6.2007 7:13pm
doggerel: Well, doesn't the Tellico Dam case, Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978), basically stand for that proposition? As Chief Justice Burger noted, Congress's intent in passing the '73 ESA was clearly to protect endangered species, even when doing so leads to seemingly "absurd" results.

1.7.2007 12:53am
Jeremy T:
I agree with blackdoggerel. This one is a no-brainer reversal.
1.7.2007 12:05pm
Dave Hardy (mail) (www):
Not knowing anything about the EPA end of it, but having done ESA work for nearly a decade (and in fact having filed an amicus in one case the 9th cites), I'd tend to agree that reversal is likely (quite apart from the fact that this is the 9th Circuit, not exactly the favored child of the Supreme Court).

The understanding has always been that ESA kicks in when an agency has discretion to act. It does not override statutes that force action, in perfectly specific terms, leaving no discretion to refuse, to qualify, or to grant permission in part. (One problem with the caselaw is that many agencies would claim lack of discretion, when in fact they had quite a bit. A statute that says X permit can be issued if Y is shown does not *require* issuance of X permit upon proof of Y -- it merely allows it. But many agencies would take the fact that they have some mandate to consider certain factors as an indication that nothing else could be considered. That position lost every time. So did the position of agencies that were mandated to do something, but left with discretion as to just how much or on what conditions -- again, agency discretion remained, subject to ยง7(a).).
1.7.2007 9:10pm
Dave Hardy (mail) (www):
PS--the reference to TVA v. Hill is inapposite, since TVA had no statutory *requirement* that it build a dam if certain requirements were met.

It was also an amusing case in historical aspect, since:

1. We later figured out that the snail darter, the endangered species at issue, was all over the place. There had been an inadequate search for it in other bodies of water in the region.

2. When (before this was known) TVA made its appeal to the "God Committee" (which could grant an exemption from ESA), it encountered the problem that a requirement for this appeal was to prove that the project had economic benefit. It didn't. The Tellico Dam was a boondoggle, pure and simple. Arguments for its economic benefit amounted to (a) we can condemn land around the future lake, take it from private owners at wilderness prices, and then resell it as lakefront property or (b) we can get boaters and fishermen on the lake ... uh... by attracting them from other TVA-created lakes, where we have used the same rationale to justify the project. In terms of creating electrical power, there was already as much as the grid could handle.
1.7.2007 9:46pm
Dave: Thanks for the clarification. I had understood TVA and the Army Corp of Engineers to be under a similar statutory mandate to the one EPA faces under CWA. With that in mind I'm more persuaded by the argument for reversal, and much more swayed by Judge Kozinski's dissent here.

That aside, is there any Sup. Ct. precedent that directly holds that Section 7 is only applicable when the agency is acting within its discretion? I know a few other circuits have reached that conclusion. I think you could argue based on statutory construction and legislative history that Section 7 was designed to protect endangered species from government action generally, not just discretionary agency action.

1.7.2007 10:35pm
Dave Hardy (mail) (www):
That aside, is there any Sup. Ct. precedent that directly holds that Section 7 is only applicable when the agency is acting within its discretion?

It's been many years since I did the work, but as I recall the rationale was one along the lines of an implicit repeal of a statute requires very clear manifestations of legislative intent, so that a statute that says if X is true then an agency must do Y was not overidden by the ESA's command that an agency avoid creating jepoardy of extinction... the two commands were consistent if one read the latter as only applying to the extent the agency had discretion as to the former.

The problems arose (in my day) when agencies tried to stretch that to cover situations where their action was not in fact forced by their organic statutes, or at least forced in every detail. It's pretty rare that legislation commanded an agency to do exactly X every time situation Y came along. Usually it empowered them to do something, or left them with a lot of discretion as to just how they would allow the action.
1.7.2007 11:23pm