WASHINGTON _ Home builders are praising and environmentalists criticizing the Supreme Court's decision allowing states to administer water pollution permitting programs without complying with a key provision in the federal Endangered Species Act.
Advocates and experts without a direct stake in the closely divided decision, however, are minimizing the likely impact across the nation or in California. "I view it as business as usual going forward," said F. William Brownell, a Washington, D.C., lawyer who handles environmental matters for power companies among other clients.
"I don't think it's a surprise given the prior case law and the longstanding regulation," said John Echeverria, a law professor and director of the Georgetown Environmental Law and Policy Institute in Washington. "It largely confirms the status quo."
The June 25 ruling in National Association of Home Builders v. Defenders of Wildlife settled a seeming conflict between two landmark environmental statutes: the Clean Water Act and the Endangered Species Act. The Clean Water Act specifies nine criteria for state governments to meet to administer the state's federally mandated water pollution control program (the National Pollutant Discharge Elimination System, or NPDES). The Endangered Species Act requires any federal agency, in order to ensure that it take no action likely to jeopardize the continued existence of an endangered or threatened species, to consult with one of two other agencies charged with enforcing the law.
By a 5-4 vote, the court held in a case from Arizona that the Clean Water Act's mandatory criteria for state transfer trump the consultation requirement in the Endangered Species Act. "A transfer of . . . permitting authority does not trigger [the] consultation and no-jeopardy requirements," Justice Samuel A. Alito Jr. wrote for the majority.
Alito reasoned that the Endangered Species Act, passed in 1973, did not amount to an implied repeal of the provisions of the Clean Water Act, passed the previous year. He also cited a regulation jointly adopted by the Fish and Wildlife Service and the National Marine Fisheries Service during the 1980s stating that the consultation requirement applies only to "discretionary" federal actions.
The court's other four conservatives joined Alito's opinion. The court's four liberals, led by Justice John Paul Stevens, dissented.
The case originated when Defenders of Wildlife sought to block the Environmental Protection Agency (EPA) from transferring authority for the pollution control program to Arizona. The National Association of Home Builders intervened in the case.
Two years ago, the Ninth U.S. Circuit Court of Appeals held that EPA could not transfer authority to the state without first consulting with the Fish and Wildlife Service about the potential impacts to protected species. The service's local office had objected to the transfer, but in Washington, EPA and the service agreed on allowing the state to take over the program.
The home builders group said the ruling would help "preserve housing affordability by striking down efforts at unnecessary, duplicative regulation."
"The Endangered Species Act does not trump all other important environmental considerations," said NAHB President Brian Catalde. "The Supreme Court has agreed, and we applaud their decision."
But John Kostyack, director of wildlife conservation programs for the National Wildlife Federation, said the ruling "cuts holes . . . in the safety net for wildlife on the brink of extinction." He said the ruling "encourages this administration to disregard the Endangered Species Act's most important protections whenever it can claim that its hands are tied by another statute's requirements."
The ruling clears the way for Arizona to take over pollution control permitting within the state, but Kostyack conceded that virtually all other states — including California — already have been given that responsibility. But he said the administration could use the ruling to counter efforts in pending cases to protect salmon from hydroelectric power projects on the Columbia River or to limit the issuance of federal flood insurance for development in critical habitat areas.
A number of California water agencies joined in a friend of the court brief in the case, voicing concern that a ruling for the wildlife group could jeopardize water contracts with the federal Bureau of Reclamation. "We were very happy with the outcome," said Roderick Walston with Best, Best & Krieger in Walnut Creek, who filed the brief. "The court held that the Endangered Species Act does not by itself override other federal statutes that impose specific obligations on other federal agencies."
Damien Schiff, a lawyer with the conservative public interest group Pacific Legal Foundation, voiced similar reaction. The decision "recognizes that the Endangered Species Act is not some super-statute — a statute of such significance that it would impliedly amend all other federal obligations to make endangered species protection take priority over all other statutes," Schiff said.
Walston specifically voiced hope that the ruling would safeguard the complex allocation of the waters of the Colorado River, which are divvied up among seven states, including California. But Echeverria speculated that many Bureau of Reclamation water projects would be deemed "discretionary" and remain subject to the Endangered Species Act's consultation requirement.
In the dissent, Justice Stevens argued that the Endangered Species Act "admits of no exception" to the consultation requirement. In any event, Stevens contended, the EPA actually has discretion in deciding whether to transfer permitting authority to Arizona. He said the ruling "places a great number of endangered species in jeopardy," including a pygmy owl and a pineapple cactus that the Fish and Wildlife Service had cited in its local biological opinion opposing the transfer, and the decision "turns its back" on the court's landmark endangered species ruling in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).
Kostyack said the ruling "doesn't provide a lot of guidance for what is discretion and what is not discretion in a lot of factual situations. It will lead to a lot of litigation."
Apart from the legal holding itself, Echeverria said environmentalists might be most troubled by what he called "the atmospherics" of the decision. Tennessee Valley, the court's decision defending the snail darter from a proposed dam, "was full of soaring rhetoric about the importance and priority that Congress placed on endangered species conservation," Echeverria said. "The atmospherics of Defenders are very different."
Kostyack agreed. "Some of the most powerful arguments made by the dissent, by conservationists, and by scientists were essentially blown off," he said. "There is a long history of harmonizing the Clean Water Act and the Endangered Species Act. There was no attempt by the administration to do that, and the majority simply made no effort to require them to."
National Association of Home Builders v. Defenders of Wildlife, No. 06-340, 07 C.D.O.S. 7275, 2007 DJDAR 9477, Decided June 25, 2007.
Download the opinion at http://www.supremecourtus.gov/opinions/06slipopinion.html
Kenneth Jost, former editor of the Los Angeles Daily Journal, is Supreme Court editor for Congressional Quarterly and CQ Press.
Josh Stephens on The Urban Mystique at SPUR: January 19
On Tuesday, January 19, please join CP&DR Contributing Editor Josh Stephens and our friends at SPUR for a conversation about his book The Urban Mystique and the ineffable complexities that make all cities wondrous, maddening, and fascinating.