Supreme Court to Consider Reach of the Endangered Species Act

January 16, 2007
Client Alert Newsletter Forecast 2007

On January 5, the U.S. Supreme Court granted certiorari in a pair of consolidated cases questioning whether the Endangered Species Act ("ESA") applies to the U.S. Environmental Protection Agency's ("EPA's") delegation of permitting authority for the discharge of pollutants under the Clean Water Act ("CWA") to the state of Arizona. In Defenders of Wildlife v. EPA, a split Ninth Circuit panel vacated EPA's delegation because EPA failed to consider impacts that state stormwater permits might have on endangered species. The cases turn on the interaction between two statutory obligations. The CWA requires EPA to hand over permitting authority if a state satisfies nine criteria, endangered species impacts not among them. Conversely, the ESA provides that a federal agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize federally listed species. According to the court below, this latter obligation "exists alongside [CWA] provisions as the agency's first priority." Thus, even though EPA may have complied with the CWA, the court concluded that EPA erred in failing to evaluate the loss of ESA consultation resulting once the permitting program was transferred to the state. Because ESA consultation applies to every federal agency, the Court’s ruling will be far-reaching. Oral argument is expected in April.