National Association of Home Builders v. Defenders of Wildlife
551 U.S. 664, 127 S.Ct. 2518 (2007)
Under the Clean Water Act (CWA), EPA administers pollution permitting in a State unless that
State proposes to administer the program themselves. Arizona applied to
take over their pollution permitting program.
EPA looked at the nine
criteria that a State must meet in order to take over their program
according to the CWA, and found
that Arizona met all nine criteria.
However, EPA realized that
giving the program to Arizona might violate Endangered Species Act
§7(a)(2) prohibits Federal agencies from taking
actions that might jeopardize endangered species.
Since §7(a)(2) doesn't apply to decisions made by State
agencies, the transfer could lead to a loss of consideration for
endangered species in permitting decisions.
Although §9 still applies.
EPA consulted with the Fish
and Wildlife Service (FWS), who determined that the ESA was inapplicable because EPA had no authority
to consider any additional factors beyond the nine CWA criteria.
EPA approved the transfer.
Defenders of Wildlife sued to block the transfer.
The Defenders argued that ESA imposed an authoritative, independent
requirement on the EPA's decision to approve the transfer.
EPA argued that ESA was not an independent source of authority,
but that ESA only imposes
requirements on discretionary decisions.
Since the decision was
non-discretionary under the CWA,
the ESA should not apply.
The environmental groups
brought this suit because they figured that Arizona with its rapid
development and inherent water use issues would be less sympathetic to
endangered species issues than the Federal government would be.
The Appellate Court found for
the Defenders and blocked the transfer. EPA appealed.
The Appellate Court found
that EPA's decision was inconsistent with previous transfers of
The US Supreme Court reversed
and permitted the transfer.
The US Supreme Court found
that ESA §7(a)(2) only applies to
That is similar reasoning
to how the courts interpreted National Environmental Policy Act (NEPA) to not apply to mandatory actions.
The Court found that §7(a)(2)'s provisions for protecting endangered
species do not establish a "tenth criterion" for the EPA to
consider before transferring permitting authority.
The courts have traditional
said that Statutes should not be interpreted to repeal earlier Statutes
unless there is explicit language to that effect (aka repeal by
The Court noted that under
the decision in Chevron U.S.A. Inc. v. Natural Resources Defense
Council (467 U.S. 837 (1984)), the
courts are to give a wide latitude to Administrative Agencies in how they
In a dissent it was argued
that ESA's requirements properly
applied to all agency decisions both discretionary and non-discretionary.
There is nothing in the Statute that says it should only be applied to discretionary
Even if it did, EPA's
interpretation was not entitled to deference because "the
Departments of the Interior and Commerce, not EPA, are charged with
administering the ESA."
Basically, since EPA wasn't
responsible for interpreting ESA,
their interpretation shouldn't hold much weight.
The dissent also argued that
you could comply with both Statutes, and you could delegate authority
with a memorandum of understanding that Arizona must comply with the ESA. You don't need to weaken the ESA.
They'd already done that
with other States (like Maine).