Federal Constitutional Authority to Protect Intrastate Fish Species
p. 898 (5th edition): One week after it decided Gonzales v. Raich, the Supreme Court denied review in the GDF Realty case, which it had held pending its decision concerning federal authority to prohibit cultivation and use of medical marijuana. 125 S. Ct. 2898 (2005). When it rejected a challenge to the constitutionality of applying the ESA to a purely intrastate species of fish, the Eleventh Circuit relied on Gonzalez v. Raich. In Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007), the court stated: " We are not convinced that the principle that Congress may regulate some intrastate activity as an essential part of a larger permissible regulation is limited to the facts of Raich and Wickard. The principle has a much richer history. . . . The discussion in Raich of the effect of intrastate marijuana use on national drug prices was not intended to limit to the sale of fungible goods a doctrine that had already been applied to discriminatory accommodations, see Katzenbach v. McClung, 379 U.S. 294, 302 (1964), to fair labor standards, see Darby, 312 U.S. at 115, to extortionate credit transactions, see Perez, 402 U.S. at 154, and to mining safety standards, see Hodel, 452 U.S. at 329. Instead, the Court's discussion of commodity pricing in Raich was part of its explanation of the rational basis Congress had for thinking that regulating home-consumed marijuana was an essential part of its comprehensive regulatory scheme aimed at controlling access to illegal drugs. . . .This case, like Raich, also turns on whether Congress had a rational basis for believing that regulation of an intrastate activity was an essential part of a larger regulation of economic activity. Unlike the statute involved in Raich, Congress did not rely on commodity pricing in justifying the Endangered Species Act. Instead, it made a determination that the most effective way to safeguard the commercial benefits of biodiversity was to protect all endangered species, regardless of their geographic range. That rational decision was within Congress' authority to make." 477 F.3d at 1277. Listing of Endangered Species
p. 898 (5th edition): In March 2007 the Solicitor of the Department of the Interior issued a legal opinion concerning the meaning of the language in ESA §3(6) "in danger of extinction throughout all or a significant portion of its range." The Solicitor concluded that this phrase establishes a substantive standard that dictates listing a species whenever it is in danger of extinction within that defined area, that the term "range" refers to the species' existing range, and not its historical range, and that the Fish and Wildlife Service has broad discretion to determine what portion of a species' range is significant. Memorandum from Solicitor, DOI, to Director, FWS, on The Meaning of "In Danger of Extinction Throughout All or a Significant Portion of its Range" (March 16, 2007). In December 2008 the Inspector General of the Department of the Interior released a report concluding that Julie MacDonald, the agency's former Deputy Assistant Secretary for Fish, Wildlife and Parks, repeatedly had intervened in the scientific review process to prevent species from being listed and to reduce the size of designated critical habitat for listed species. Office of the Inspector General, Dept. of Interior, Investigative Report of the Endangered Species Act and the Conflict between Science and Policy (Dec. 10, 2008). While the report did not charge her with any violations of law, it concluded that her efforts to advance a political agenda "caused considerable harm to the integrity of the ESA program" and "cast doubt on nearly every ESA decision issued during her tenure." The report also noted that "lawsuits are driving nearly everything [the U.S. Fish and Wildlife Service] does in the ESA arena" and that there is "an enormous policy void" concerning how the ESA should be implemented. The report concluded that it could be worthwhile for the Fish and Wildlife Service to update its regulations implementing the ESA, which had not been revised since 1986. Some important issues remain unclear under the agency's current guidance on listings. One of these is the extent to which species entities that are smaller than species or subspecies -- distinct population segments (DPSs) and evolutionary significant units (ESUs) -- are determined to be endangered or threatened species. DPSs represent an increasingly large portion of all listings, but they are not mentioned in FWS's existing guidance. As of June 2009 , there were 1,891 listed species. Of these, 1,142 were animal species (936 of these were listed as endangered and 206 as threatened) and 749 were plants (601 of these were listed as endangered and 148 as threatened). A total of 1,318 listed species were found in the United States (including 572 animals and 746 plants). States with the most listed species included Hawaii (329), California (309), Alabama (117), and Florida (114). Timely Designation of Critical Habitat
p. 900 (5th edition): The court in Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007), stated that "it is clear that the [Fish and Wildlife] Service chronically fails to meet its statutory duty of designating critical habitat of endangered species within the time the Endangered Species Act requires. Noting the agency's funding limitations, the court observed that "the same legislature that has enacted standards for an executive agency's performance can through the appropriations process effectively prevent the agency from meeting those standards." But it rejected a business coalition's claim that the remedy for failure to make a timely designation of critical habitat should be delisting of the species. Such a remedy, concluded the court, would "make a bad situation worse, and defeat the Congressional intent behind the Endangered Species Act." 477 F.3d at 1269. Of Polar Bears and Pikas: Climate-Threatened Species and the ESA
p. 901 (5th edition): Several species, including the polar bear and pikas, are threatened by climate change as global warming profoundly affects arctic ecosystems. In response to a citizen petition, the U.S. Fish & Wildlife Service (FWS) in January 2007 proposed listing the polar bear as a threatened species. After reviewing new research findings concerning the population of the Southern Bering Sea polar bear, the FWS reopened and later extended the comment period on its proposal. Faced with a court-ordered deadline to make a final determination, FWS in May 2008 listed the polar bear as a threatened species. 73 Fed. Reg. 28212 (2008). While the polar bear is threatened in large part because of the effects of climate change, the Interior Department concluded that its listing would not provide a basis for using the ESA to regulate emissions of greenhouse gases (GHG). The FWS issued §4(d) rules for the polar bears that exempted from §9's prohibition on "takes" any activity already authorized under the Marine Mammal Protection Act and, for any activity outside of Alaska, all "takes" incidental to a lawful purpose. 73 Fed. Reg. 28306 (2008). The agency also issued a separate memorandum specifying that §7(a)(2) consultations on federal agency actions need not analyze the effects of the actions' incremental GHG emissions on any listed species or their habitats because existing science and modeling are incapable of determining local, species- or habitat-specific impacts from these incremental emissions. The decision by the Bush administration not to use the ESA to regulate emissions of GHG was controversial. However, it has been embraced by the incoming Obama administration, which does not believe the ESA is the proper vehicle for regulating GHG emissions. Andrew C. Revkin, U.S. Curbs Use of Species Act in Protecting Polar Bear, N.Y. Times, May 8, 2009. While some environmentalists believe that anything that forces action to control GHG emissions is desirable, others are concerned that an effort to use the ESA for such purposes could backfire. The already-overburdened agencies tasked with implementing the ESA easily could be overwhelmed if climate impacts had to be considered and Congress might respond by creating new exemptions to the ESA. Some have suggested that the ESA's jeopardy and adverse modification standards could be used to require federally funded or permitted programs to be net carbon neutral in order to comply with §7. Conservation Programs under ESA §7(a)(1)
p. 912 (5th edition): In Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008), the court held that a rating system developed by the Federal Emergency Management Agency (FEMA) for the National Flood Insurance Program was inconsistent with §7(a)(1). The court noted that agencies have considerable discretion in establishing conservation programs under §7(a)(1), but that they must actually be programs that will provide more than an insignificant conservation benefit. The program adopted by FEMA was voluntary and there was no evidence that it had produced any conservation benefits, according to the court. Conditioning Delegations of Permitting Authority on State Consultation: NAHB V. Defenders of Wildlife
p. 914 (5th edition): In American Forest and Paper Ass’n v. U.S. EPA, 137 F.3d 291 (5th Cir. 1998), the Fifth Circuit held that EPA could not require, as a condition for delegating operation of the Clean Water Act’s NPDES permitting program to Louisiana, that the state consult with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) before issuing permits. Although Louisiana had consented to the arrangement, which allowed EPA to exercise its authority to veto permits if the federal agencies found that they threatened endangered species, a trade association of forest and paper products firms sued EPA to challenge it. The Fifth Circuit held that the arrangement exceeded EPA’s authority because the Clean Water Act did not specifically enumerate protection of endangered species as a ground for denying delegation to a state. While acknowledging that ESA section 7(a)(2) requires EPA to consult with FWS or NMFS before undertaking action that may jeopardize species, the court held that the section confers no substantive powers on the agency to condition delegations of NPDES permitting authority. The case below was reviewed by the U.S. Supreme Court after the Ninth Circuit reached a decision contrary to the Fifth Circuit's decision in American Forest and Paper Ass'n. National Assn. of Homebuilders v. Defenders of Wildlife
551 U.S. 644 (2007) Justice ALITO delivered the opinion of the Court. These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species.” The question presented is whether § 7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. . . . I A The Endangered Species Act of 1973 (ESA) is intended to protect and conserve endangered and threatened species and their habitats. Section 4 of the ESA directs the Secretaries of Commerce and the Interior to list threatened and endangered species and to designate their critical habitats. § 1533. The Fish and Wildlife Service (FWS) administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior, while the National Marine Fisheries Service (NMFS) administers the ESA with respect to species under the jurisdiction of the Secretary of Commerce. Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). Once the consultation process contemplated by § 7(a)(2) has been completed, the Secretary is required to give the agency a written biological opinion “setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” § 1536(b)(3)(A). If the Secretary concludes that the agency action would place the listed species in jeopardy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [§ 7(a)(2) ] and can be taken by the Federal agency ... in implementing the agency action.” 16 U.S.C. § 1536(b)(3)(A). Regulations promulgated jointly by the Secretaries of Commerce and the Interior provide that, in order to qualify as a “reasonable and prudent alternative,” an alternative course of action must be able to be implemented in a way “consistent with the scope of the Federal agency's legal authority and jurisdiction.” § 402.02. Following the issuance of a “jeopardy” opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e). The regulations also provide that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” 50 CFR § 402.03. B In February 2002, Arizona officials applied for EPA authorization to administer that State's NPDES program. The EPA initiated consultation with the FWS to determine whether the transfer of permitting authority would adversely affect any listed species. The FWS regional office concluded that the transfer of authority would not cause any direct impact on water quality that would adversely affect listed species. However, the FWS office was concerned that the transfer could result in the issuance of more discharge permits, which would lead to more development, which in turn could have an indirect adverse effect on the habitat of certain upland species, such as the cactus ferruginous pygmy-owl and the Pima pineapple cactus. Specifically, the FWS feared that, because § 7(a)(2)'s consultation requirement does not apply to permitting decisions by state authorities, the transfer of authority would empower Arizona officials to issue individual permits without considering and mitigating their indirect impact on these upland species. The FWS regional office therefore urged that, in considering the proposed transfer of permitting authority, those involved in the consultation process should take these potential indirect impacts into account. The EPA disagreed, maintaining that “its approval action, which is an administrative transfer of authority, [would not be] the cause of future non-discharge-related impacts on endangered species from projects requiring State NPDES permits.” As a factual matter, the EPA believed that the link between the transfer of permitting authority and the potential harm that could result from increased development was too attenuated. And as a legal matter, the EPA concluded that the mandatory nature of CWA § 402(b) -- which directs that the EPA “shall approve” a transfer request if that section's nine statutory criteria are met -- stripped it of authority to disapprove a transfer based on any other considerations. . . .The EPA concluded that Arizona had met each of the nine statutory criteria listed in § 402(b) and approved the transfer of permitting authority. In the notice announcing the approval of the transfer, the EPA noted that the issuance of the FWS's biological opinion had “conclude[d] the consultation process required by ESA section 7(a)(2) and reflects the [FWS'] agreement with EPA that the approval of the State program meets the substantive requirements of the ESA.” [EPA's transfer of permitting authority was then challenged in the U.S. Court of Appeals for the Ninth Circuit, which held that it had been arbitrary and capricious. After six judges dissented from denial of rehearing en banc, the Supreme Court granted review. The Court first found that EPA had not acted arbitrarily and capriciously because any alleged inconsistencies in the agency's position were simply a result of EPA changing its mind before deciding that the ESA's §7 consultation process is not triggered by a transfer application under §402 of the CWA]. III A We turn now to the substantive statutory question raised by the petitions, a question that requires us to mediate a clash of seemingly categorical-and, at first glance, irreconcilable-legislative commands. Section 402(b) of the CWA provides, without qualification, that the EPA “shall approve” a transfer application unless it determines that the State lacks adequate authority to perform the nine functions specified in the section. 33 U.S.C. § 1342(b). By its terms, the statutory language is mandatory and the list exclusive; if the nine specified criteria are satisfied, the EPA does not have the discretion to deny a transfer application. Neither respondents nor the Ninth Circuit has ever disputed that Arizona satisfied each of these nine criteria. The language of § 7(a)(2) of the ESA is similarly imperative: it provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize” endangered or threatened species or their habitats. 16 U.S.C. § 1536(a)(2). This mandate is to be carried out through consultation and may require the agency to adopt an alternative course of action. As the author of the panel opinion below recognized, applying this language literally would “ ad[d] one [additional] requirement to the list of considerations under the Clean Water Act permitting transfer provision.” 450 F.3d, at 404, n. 2 (Berzon, J., concurring in denial of rehearing en banc) (emphasis in original). That is, it would effectively repeal the mandatory and exclusive list of criteria set forth in § 402(b), and replace it with a new, expanded list that includes § 7(a)(2)'s no-jeopardy requirement. B . . .Here, reading § 7(a)(2) as the Court of Appeals did would effectively repeal § 402(b)'s statutory mandate by engrafting a tenth criterion onto the CWA.FN7 Section 402(b) of the CWA commands that the EPA “shall” issue a permit whenever all nine exclusive statutory prerequisites are met. Thus, § 402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer “shall” be approved if the specified criteria are met. The provision operates as a ceiling as well as a floor. By adding an additional criterion, the Ninth Circuit's construction of § 7(a)(2) raises that floor and alters § 402(b)'s statutory command. The Ninth Circuit's reading of § 7(a)(2) would not only abrogate § 402(b)'s statutory mandate, but also result in the implicit repeal of many additional otherwise categorical statutory commands. Section 7(a)(2) by its terms applies to “any action authorized, funded, or carried out by” a federal agency-covering, in effect, almost anything that an agency might do. Reading the provision broadly would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species. While the language of § 7(a)(2) does not explicitly repeal any provision of the CWA (or any other statute), reading it for all that it might be worth runs foursquare into our presumption against implied repeals. C The agencies charged with implementing the ESA have attempted to resolve this tension through regulations implementing § 7(a)(2). The NMFS and FWS, acting jointly on behalf of the Secretaries of Commerce and the Interior and following notice-and-comment rulemaking procedures, have promulgated a regulation stating that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” 50 CFR § 402.03 (emphasis added). Pursuant to this regulation, § 7(a)(2) would not be read as impliedly repealing nondiscretionary statutory mandates, even when they might result in some agency action. Rather, the ESA's requirements would come into play only when an action results from the exercise of agency discretion. This interpretation harmonizes the statutes by giving effect to the ESA's no-jeopardy mandate whenever an agency has discretion to do so, but not when the agency is forbidden from considering such extrastatutory factors. . . .We must therefore read § 7(a)(2) of the ESA against the statutory backdrop of the many mandatory agency directives whose operation it would implicitly abrogate or repeal if it were construed as broadly as the Ninth Circuit did below. When § 7(a)(2) is read this way, we are left with a fundamental ambiguity that is not resolved by the statutory text. An agency cannot simultaneously obey the differing mandates set forth in § 7(a)(2) of the ESA and § 402(b) of the CWA, and consequently the statutory language-read in light of the canon against implied repeals-does not itself provide clear guidance as to which command must give way. In this situation, it is appropriate to look to the implementing agency's expert interpretation, which cabins § 7(a)(2)'s application to “actions in which there is discretionary Federal involvement or control.” 50 CFR § 402.03. This reading harmonizes the statutes by applying § 7(a)(2) to guide agencies' existing discretionary authority, but not reading it to override express statutory mandates. We conclude that this interpretation is reasonable in light of the statute's text and the overall statutory scheme, and that it is therefore entitled to deference under Chevron. Section 7(a)(2) requires that an agency “insure” that the actions it authorizes, funds, or carries out are not likely to jeopardize listed species or their habitats. To “insure” something-as the court below recognized-means “ ‘[t]o make certain, to secure, to guarantee (some thing, event, etc.).’ ” 420 F.3d, at 963 (quoting 7 Oxford English Dictionary 1059 (2d ed.1989)). The regulation's focus on “discretionary” actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to “insure” that such action will not jeopardize endangered species. This reasoning is supported by our decision in Department of Transportation v. Public Citizen, 541 U.S. 752 (2004). . . . We do not suggest that Public Citizen controls the outcome here; § 7(a)(2), unlike NEPA, imposes a substantive (and not just a procedural) statutory requirement, and these cases involve agency action more directly related to environmental concerns than the FMCSA's truck safety regulations. But the basic principle announced in Public Citizen -- that an agency cannot be considered the legal “cause” of an action that it has no statutory discretion not to take -- supports the reasonableness of the FWS's interpretation of § 7(a)(2) as reaching only discretionary agency actions. . . . In short, we read § 402.03 to mean what it says: that § 7(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA's provision, but also comports with the canon against implied repeals because it stays § 7(a)(2)'s mandate where it would effectively override otherwise mandatory statutory duties. D . . . TVA v. Hill . . . had no occasion to answer the question presented in these cases. That case was decided almost a decade before the adoption in 1986 of the regulations contained in 50 CFR § 402.03. And in any event, the construction project at issue in TVA v. Hill, while expensive, was also discretionary. . . . Central to the Court's decision was the conclusion that Congress did not mandate that the TVA put the dam into operation; there was no statutory command to that effect; and there was therefore no basis for contending that applying the ESA's no-jeopardy requirement would implicitly repeal another affirmative congressional directive. * * * Applying Chevron, we defer to the agency's reasonable interpretation of ESA § 7(a)(2) as applying only to “actions in which there is discretionary Federal involvement or control.” 50 CFR § 402.03. Since the transfer of NPDES permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in § 402(b) of the CWA, it follows that a transfer of NPDES permitting authority does not trigger § 7(a)(2)'s consultation and no-jeopardy requirements. Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, dissenting. These cases present a problem of conflicting “shalls.” On the one hand, § 402(b) of the Clean Water Act (CWA) provides that the Environmental Protection Agency (EPA) “shall” approve a State's application to administer a National Pollution Discharge Elimination System (NPDES) permitting program unless it determines that nine criteria are not satisfied. 33 U.S.C. § 1342(b). On the other hand, shortly after the passage of the CWA, Congress enacted § 7(a)(2) of the Endangered Species Act of 1973 (ESA), which commands that federal agencies “shall” insure that their actions do not jeopardize endangered species. 16 U.S.C. § 1536(a)(2). When faced with competing statutory mandates, it is our duty to give full effect to both if at all possible. The Court fails at this task. Its opinion unsuccessfully tries to reconcile the CWA and ESA by relying on a federal regulation, 50 CFR § 402.03 (2006), which it reads as limiting the reach of § 7(a)(2) to only discretionary federal actions. Not only is this reading inconsistent with the text and history of § 402.03, but it is fundamentally inconsistent with the ESA itself. In the celebrated “snail darter” case, TVA v. Hill, 437 U.S. 153 (1978), we held that the ESA “reveals a conscious decision by Congress to give endangered species priority over the ‘primary missions' of federal agencies,” id., at 185. Consistent with that intent, Chief Justice Burger's exceptionally thorough and admirable opinion explained that § 7 “admits of no exception.” Creating precisely such an exception by exempting nondiscretionary federal actions from the ESA's coverage, the Court whittles away at Congress' comprehensive effort to protect endangered species from the risk of extinction and fails to give the Act its intended effect. . . .
III There are at least two ways in which the CWA and the ESA can be given full effect without privileging one statute over the other. A The text of § 7(a)(2) itself provides the first possible way of reconciling that provision with § 402(b) of the CWA. The subsection reads: “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section.” 16 U.S.C. § 1536(a)(2) (emphasis added). The Court is certainly correct that the use of the word “shall” in § 7(a)(2) imposes a mandatory requirement on the federal agencies. It is also correct that the ESA's “mandate is to be carried out through consultation and may require the agency to adopt an alternative course of action.” The Court is too quick to conclude, however, that this consultation requirement creates an irreconcilable conflict between this provision and § 402(b) of the CWA. It rushes to this flawed judgment because of a basic conceptual error -- an error that is revealed as early as the first paragraph of its opinion. Rather than attempting to find a way to give effect to § 7(a)(2)'s consultation requirement, the Court frames the question presented as “whether § 7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned.” . . . But while the ESA does mandate that the relevant agencies “consul [t]” with the Interior Department, that consultation process also provides a way for the agencies to give effect to both statutes. The first step in the statutory consultation process is to identify whether any endangered species will be affected by an agency action. An agency proposing a particular action, such as an NPDES transfer, will typically ask the Secretary of the Interior whether any listed species may be present in the area of the proposed action and whether that action will “affect” those species. It is entirely possible that no listed species will be affected, and any anticipated conflict between the ESA and another statute will have been avoided at this threshold stage. If, however, the Secretary determines that a proposed action may affect an endangered species or its critical habitat, the agency must formally consult with the Secretary. This consultation culminates in the issuance of a “biological opinion,” which “detail[s] how the agency action affects the species or its critical habitat.” § 1536(b)(3)(A). Even at this stage, it is still possible that formal consultation will reveal that the agency action will not jeopardize any species. If the biological opinion concludes that the agency action would put a listed species in jeopardy, however, the ESA contains a process for resolving the competing demands of agency action and species protection. The ESA provides that “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the agency action.” 16 U.S.C. § 1536(b)(3)(A). . . . Thus, in the face of any conflict between the ESA and another federal statute, the ESA and its implementing regulations encourage federal agencies to work out a reasonable alternative that would let the proposed action move forward “consistent with [its] intended purpose” and the agency's “legal authority,” while also avoiding any violation of § 7(a)(2).
When applied to the NPDES transfer program, the “reasonable and prudent alternatives” process would enable EPA and the Department of the Interior to develop a substitute that would allow a transfer of permitting authority and would not jeopardize endangered species. Stated differently, the consultation process would generate an alternative course of action whereby the transfer could still take place -- as required by § 402(b) of the CWA -- but in such a way that would honor the mandatory requirements of § 7(a)(2) of the ESA. This should come as no surprise to EPA, as it has engaged in pre-transfer consultations at least six times in the past and has stated that it is not barred from doing so by the CWA. . . . B EPA's regulations offer a second way to harmonize the CWA with the ESA. After EPA has transferred NPDES permitting authority to a State, the agency continues to oversee the State's permitting program. If a state permit is “outside the guidelines and the requirements” of the CWA, EPA may object to it and block its issuance. See 33 U.S.C. § 1342(d)(2); 66 Fed.Reg. 11206 (2001). Given these ongoing responsibilities, EPA has enacted a regulation that requires a State to enter into a Memorandum of Agreement (MOA) that sets forth the particulars of the agency's oversight duties. See 40 CFR § 123.24(a) (2006). . . . Like the § 7(a)(2) consultation process described above, MOAs provide a potential mechanism for giving effect to § 7 of the ESA while also allowing the transfer of permitting authority to a State. It is important to remember that EPA must approve an MOA prior to the transfer of NPDES authority. As such, EPA can use -- and in fact has used-- the MOA process to structure its later oversight in a way that will allow it to protect endangered species in accordance with § 7(a)(2) of the ESA. EPA might negotiate a provision in the MOA that would require a State to abide by the ESA requirements when issuing pollution permits. See Brief for American Fisheries Society et al. as Amici Curiae 28. (“In the Maine MOA, for example, EPA and the state agreed that state permits would protect ESA-listed species by ensuring compliance with state water quality standards”). Alternatively, “EPA could require the state to provide copies of draft permits for discharges in particularly sensitive habitats such as those of ESA-listed species or for discharges that contain a pollutant that threatens ESA-listed wildlife.” Or the MOA might be drafted in a way that would allow the agency to object to state permits that would jeopardize any and all endangered species. These are just three of many possibilities. I need not identify other ways EPA could use the MOA process to comply with the ESA; it is enough to observe that MOAs provide a straightforward way to give the ESA its full effect without restricting § 7(a)(2) in the way the Court does. IV As discussed above, I believe that the Court incorrectly restricts the reach of § 7(a)(2) to discretionary federal actions. Even if such a limitation were permissible, however, it is clear that EPA's authority to transfer permitting authority under § 402(b) is discretionary. . . . Our decision in Public Citizen turned on what we called “a critical feature of the case”: that the Federal Motor Carrier Safety Administration (FMCSA) had “no ability to countermand” the President's lifting a moratorium that prohibited certain motor carriers from obtaining authority to operate within the United States. Once the President decided to lift that moratorium, and once the relevant vehicles had entered the United States, FMCSA was required by statute to register the vehicles if certain conditions were met. Therefore, any potential NEPA concerns were generated by another decisionmaker, the President, and not the FMCSA. Here, by contrast, EPA is not required to act ministerially once another person or agency has made a decision. Instead, EPA must exercise its own judgment when considering the transfer of NPDES authority to a State; it also has its own authority to deny such a transfer. Any effect on endangered species will be caused, even if indirectly, by the agency's own decision to transfer NPDES authority. . . . Again, because EPA's approval of a State application to administer an NPDES program entails significant-indeed, abounding-discretion, I would find that § 7(a)(2) of the ESA applies even under the Court's own flawed theory of these cases. NOTES AND QUESTIONS1. If this decision only affected EPA delegations of permitting authority to states under the Clean Water Act, it is unlikely to have significant future consequences because EPA already has delegated such authority to 46 states and several territories. However, the decision's true impact likely will turn on how broad is the class of other agency actions that courts will deem to be nondiscretionary. Is the Court's decision inconsistent with TVA v. Hill as Justice Stevens' suggests in his dissent? If the decision to continue with construction of the Tellico Dam was discretionary, as Justice Alito suggests, does that indicate that the class of agency actions that will be deemed nondiscretionary may not be very large? 2. In a portion of his dissent not reproduced above, Justice Stevens also cites the "God Squad" procedure established by §7(e) of the ESA as embodying "the primacy of the ESA's mandate" and "the final mechanism for harmonizing that Act with other federal statutes." In Stevens' view the "God Squad" process "reflects Congress' view that the ESA should not yield to another federal action except as a final resort and except when authorized by high level officials after serious consideration." 3. Justice Breyer filed a separate dissent where he indicated that he was reserving judgment concerning whether §7(a)(2) "really covers every possible agency action even of totally unrelated agencies -- such as, say, a discretionary determination by the Internal Revenue Service whether to prosecute or settle a particular tax liability." But he argued that "the majority cannot possibly be correct in concluding that the structure of § 402(b) precludes application of § 7(a)(2) to the EPA's discretionary action." He emphasized that statutes granting "discretionary authority always come with some implicit limits attached," but there "are likely numerous instances in which, prior to, but not after, the enactment of § 7(a)(2), the statute might have implicitly placed 'species preservation' outside those limits, citing TVA v. Hill. He concluded that "the only meaningful difference" between § 402(b) of the Clean Water Act, and such other statutes is that "the very purpose of the former is to preserve the state of our natural environment -- a purpose that the Endangered Species Act shares," which " shows that § 7(a)(2) must apply to the Clean Water Act a fortiori." Clarifying the §7 Consultation Process: Defining Adverse Modification and Dealing with Species Threatened by Climate Change p. 915 (5th edition): While §7(a)(2) is the "principal action-forcing mechanism in the ESA," Donald C. Baur, Michael J. Bean & William Robert Irvin, A Recovery Plan for the Endangered Species Act, 39 ELR 10006 (2009), the it remains unclear precisely what actions it prohibits. The statutory language prohibits actions that are "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical." For years the agencies implementing the ESA defined both "jeopardy" and "adverse modification of critical habitat" to mean the same thing -- impacts that "appreciably diminish" prospects for "both the survival and recovery of a listed species." However both the Fifth Circuit and the Ninth Circuit have invalidated this definition, Sierra Club v. Fish & Wildlife Service, 245 F.3d 434 (5th Cir. 2001); Gifford Pinchot Task Force v. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), reasoning that "adverse modification" must mean more than "mere survival." The agencies have yet to respond to these decisions by redefining the meaning of "adverse modification" and how it relates to "jeopardy". The listing of the polar bear as a threatened species also raises significant questions concerning how the ESA will be used to protect species threatened by climate change. If an action being analyzed under §7(a)(2) involves GHG emissions, does it have to consider impacts on climate-threatened species? If so, how should such analysis be conducted and what regulatory consequences, if any, will it have? In August 2008 the Bush administration proposed comprehensive changes in the §7(a)(2) consultation process that were intended to remove most sources of GHG emissions from the process. As adopted on December 16, 2008, the Bush rules changed the definition of indirect effects of agency actions to include only effects that are an "essential cause" of the action and not just a "but for" cause, "reasonably certain to occur," and based on "clear and substantial information." They also specified that the §7(a)(2) process would not apply to actions where no "take" is anticipated from the action and the effects of the action "are manifested through global processes" and "cannot be reliably predicted or measured at the scale of a listed species' current range" or "would result at most in extremely small, insignificant impact on a listed species or critical habitat" or "are such that the potential risk of harm to a listed species or critical habitat is remote," or the effects "are not capable of being measured or detected in a manner that permits meaningful evaluation." However, as noted in Chapter 2's discussion of "midnight regulations" on p. 164, these regulations were rescinded by the Obama administration on April 28, 2009, pursuant to a specific appropriations rider authorizing this action. Thus, the Obama administration will have to adopt its own approach for how the ESA will deal with climate-threatened species, though it has accepted for now the Bush administration's approach to the polar bear listing. The “Take” Prohibition and Climate Change
p. 917 (5th edition): While §9's prohibition of "takes" applies only to endangered species, §4(d) authorizes the issuance of regulations applying the same "take" prohibition to threatened species. When Interior Secretary Kempthorne listed the polar bear as a threatened species in May 2008, he issued §4(d) rules that expressly exempted from §9's prohibition on "takes" any activity already authorized under the Marine Mammal Protection Act and, for any activity outside of Alaska, all "takes" of polar bears incidental to a lawful purpose. 73 Fed. Reg. 28306 (2008). Suppose that the polar bear instead was listed as an endangered species. Would a utility operating a large coal-fired powerplant that emits significant GHG emissions potentially be liable under §9 for contributing to climate change that is taking polar bears? Improving Implementation of the ESA
p. 934 (5th edition): A working group convened by the Keystone Center in 2005 to consider how to improve the ESA's habitat protection provisions was unable to reach consensus on recommendation for amending the Act. In April 2006 the Center released a useful report based on this process that focuses on how to make better use of incentives under the Act. Keystone Center, The Keystone Working Group on Endangered Species Act Habitat Issues (2006). A valuable article recommending how the Obama administration can improve implementation of the ESA without having to amend the statute is Donald C. Baur, Michael J. Bean & William Robert Irvin, A Recovery Plan for the Endangered Species Act, 39 ELR 10006 (2009). The article makes five sets of recommendations: (1) "Establish and Follow Science-Backed Priorities in the Listing Program," (2) "Reduce Regulatory Impediments to Clearly Beneficial Actions," (3) "Make Greater Use of Incentives to Encourage Nonfederal Landowners to Promote Species Conservation," (4) Clarify the ESA §7(a)(2) Prohibitions and Procedures," and (5) Improve Funding. |
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