National Association of Home Builders v. Defenders of Wildlife & Environmental Protection Agency v. Defenders of Wildlife (consolidated)
Defenders of Wildlife and others sued the Environmental Protection Agency (EPA), challenging its decision to transfer pollution permitting authority under the Clean Water Act to the State of Arizona. The National Association of Homebuilders intervened in support of the transfer decision. Under federal law, a state may take over the Clean Water Act pollution permitting program in its state from the EPA if it applies to do so and meets the applicable standards. When deciding whether to transfer permitting authority to Arizona, the Fish and Wildlife Service (FWS) issued, and the EPA relied on, a Biological Opinion premised on the proposition that the EPA lacked the authority to take into account the impact of that decision on endangered species and their habitat.
Defenders alleges that the EPA failed adequately to consider the transfer’s impact on endangered and threatened species and their habitat. Defenders also alleges that the FWS Biological Opinion did not meet the standards of the Endangered Species Act, and therefore EPA's reliance on it was arbitrary and capricious under the Administrative Procedure Act.
The Ninth Circuit Court of Appeals held that the EPA acted arbitrarily and capriciously because it conclusion that it had no authority to consider the impact of transfer on endangered and threatened species was based on inconsistent interpretations of section 7(a)(2) of the Endangered Species Act. The court held that EPA did have the authority to consider jeopardy to listed species in making the transfer decision, vacated the transfer order, and remanded the case to the EPA for further proceedings.
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?
4. 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).
