EPA attempts to transfer water pollution permitting authority to a state without considering the impact to endangered species and their habitat
Status: Pending in U.S. Supreme Court; oral argument scheduled for April 17, 2007.
Discussion & Analysis: Arizona applied to EPA under the Clean Water Act (CWA) for authorization to administer the National Pollution Discharge Elimination System (NPDES) permitting program for Arizona waterways. EPA determined that the transfer could affect listed species and, under the Endangered Species Act (ESA), consulted with the Fish and Wildlife Service (FWS). Section 7 of the ESA provides that each federal agency “shall, in consultation with . . . [the FWS], insure that any action authorized, funded or carried out by such agency . . . is not likely to jeopardize” endangered or threatened species, or their critical habitat. In the past, EPA had exercised its own NPDES permitting authority in Arizona subject to this ESA requirement, leading to the use of mitigating measures to protect species’ critical habitat. FWS issued a “biological opinion” recommending approval of the transfer, opining that while the loss of mandatory Section 7 consultation would result in lost conservation benefits, EPA had no legal authority to withhold the transfer. EPA approved the transfer, and environmental groups sued, challenging EPA’s decision and FWS’s underlying biological opinion.
The Ninth Circuit struck down the transfer, holding that EPA had the authority—and the duty—to consider jeopardy to endangered species when delegating CWA authority. The court noted that the ESA, enacted after the CWA, establishes a clear, substantive legal requirement for federal agencies to follow, and rejected the argument that EPA may look no further than the nine discrete requirements for transfer set forth in the CWA. Moreover, the court explained, FWS and EPA had illogically determined that, on one hand, EPA was bound by ESA Section 7 to consult with respect to transfer decisions, but, on the other hand, EPA was powerless under the same section to do anything to prevent harm. The Supreme Court is now reviewing the case.
EPA’s attempt to escape its duty under the ESA has profound implications for the framework of environmental law, which often requires federal agencies to look beyond their governing statutes to advance environmental priorities. Although the legal dispute here turns on the interaction of two federal laws, some ESA opponents are likely to frame this as a “federalism” case concerning Arizona’s entitlement to assume NPDES permitting authority—in fact, two of the amicus briefs filed in support of EPA’s petition for Supreme Court review make essentially this argument. For example, the brief submitted jointly by Nebraska, Idaho, Missouri, Tennessee, Utah, and Wyoming claims that the Ninth Circuit decision “undermines principles of cooperative federalism.”
Key Opinions: Defenders of Wildlife v. Environmental Protection Agency, 420 F.3d 946 (9th Cir. 2005), reh’g & reh’g en banc denied, 450 F.3d 394 (2006), cert granted, 127 S.Ct. 853 ( U.S. Jan. 5, 2007) (No. 06-549).