The Limits of Section 7 of the ESA
In Nat’l Assoc. of Home Builders v. Defenders of Wildlife, the Court resolved conflicting mandatory language in Section 7 of the Endangered Species Act (ESA) and Section 402(b) of the Clean Water Act (CWA). Section 402(b) of the CWA allows the Environmental Protection Agency (EPA) to transfer water pollutant discharge permit regulating authority as established in the National Pollution Discharge Elimination System (NPDES) to states. The provision requires that the EPA “shall” allow the transfer provided that nine listed criteria are met. However, the ESA also requires that a federal agency “shall” consult with the agencies designated by the Secretary [in this case, the Fish and Wildlife Service (FWS)] to insure that the any action taken will not be likely to jeopardize the continued existence of a threatened or endangered species.1
At issue in the dispute was the EPA’s transfer of permitting authority to the state of Arizona. While the EPA claimed that it lacked discretion to comply with Section 7 of the ESA due to the mandatory language of the CWA, Defenders of Wildlife argued that Section 7 required:
- it to consider threats to endangered species; and
- that state authority would result in more permits being issued and thus potentially impact the endangered Pima pineapple cactus and the cactus ferruginous pygmy-owl.
The Ninth Circuit held that the conflict could be harmonized by simply adding the requirements of Section 7 to Section 402(b) as a tenth criterion. The petitioners appealed.
Justice Alito wrote for a 5-4 majority, concluding that the requirements of Section 7 of the ESA only apply to discretionary agency action. The majority relied on a regulation issued jointly by the Department of the Interior (DOI) and the National Oceanic and Atmospheric Administration (NOAA), 50 CFR § 402.03, which states that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” Because the demands of the CWA are nondiscretionary, the Court ruled that Section 7 did not apply and the transfer was valid. Justice Stevens used the same language in dissent, arguing that 50 CFR § 402.03 does not state “only apply,” and therefore was not intended to be exclusive.
The majority also analyzed the implications of applying Section 7 to Section 402(b). The Court:
- found that the application would repeal the CWA in part by adding a tenth criterion to the transfer process, and cited Watt v. Alaska for the general rule that repeals by implication are not favored and will not be presumed absent clear legislative intent.2
- expressed concern that the application of Section 7 to all federal agency actions, discretionary or otherwise, would partially override every federal statute mandating agency action.3
While the dissent cited the seminal case Tennessee Valley Authority v. Hill to argue that the ESA has “first priority” over all other agency action and calls for exactly that result, the majority dismissed this argument on the grounds that TVA v. Hill preceded the CWA and applied to a discretionary agency action. The Court’s decision confirmed that the scope of Section 7 is limited to discretionary action.4
1 Nat’l Assoc. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 644-645 (2007).
2 Id. at 662.
3 Id. (citing Watt v. Alaska, 451 U.S. 259 (1981)).
4 Id. at 676 (citing Tennessee Valley Authority v. Hill, 437 U.S. 153, 185 (1978)).