Environmental law appears to be a hot commodity in the Roberts Court. While the justices continue to deliberate about global warming, they agreed (PDF) on Friday to add another hot-button environmental issue to their agenda: the Endangered Species Act.

Setting the Stage

The case, Defenders of Wildlife v. EPA, also implicates the Clean Water Act (CWA). Under the CWA, a would-be polluter needs to get a permit before it discharges into our nation’s waters. The CWA requires that the federal government delegate permitting authority to the states, if they meet a number of requirements.

Today, almost every state issues its own permits. (EPA provides this map [PDF] illustrating which states have permitting authority.)

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In 2002, Arizona wanted to join the club, asking the federal government to let it issue permits. EPA, which reviews such applications, initiated consultation under Section 7 of the ESA with the U.S. Fish & Wildlife Service to determine if delegating responsibility to Arizona would have a negative impact on endangered species.

FWS suggested that delegation could harm endangered species because the state, unlike EPA, would not have to consult about possible endangered species impacts before issuing permits.

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Enter politics.

After a bunch of wrangling, FWS reframed its objection. It noted that it was concerned about the health of listed species if Arizona received permitting authority. However, it attributed this danger to Congress’s decision to authorize states to issue permits if they met specific criteria, rather than the specific delegation decision of EPA.

Defenders of Wildlife was none too happy and filed suit in the Ninth Circuit.

The Ninth Circuit Enters the Fray

The Ninth Circuit (PDF) looked over the various documents coming out of EPA and the Fish & Wildlife Service and scratched its collective head. Or at least that was the response of two of the three judges hearing the case.

First, the court found that EPA’s decision was arbitrary and capricious because the agency relied on conflicting legal theories. “The EPA decided that it had to consult but had no authority to do anything concerning the matter about which it had to consult. One would not expect that Congress would set up such a nonsensical regime.”

The court could have simply required EPA to get its story straight in a new rulemaking process. But it didn’t. Instead, the Ninth Circuit went on to find that the ESA provided an overlay to the CWA, requiring compliance even if a state meets all of the requirements for running its own permitting program.

Questions Presented to the Supreme Court

The federal government asked the Supreme Court to review the case. The court granted certiorari on two questions. Interestingly, the court added the second question to the case on its own.

  • Does the ESA apply to EPA’s decision to delegate permitting authority where the CWA explicitly lists the criteria the agency is to consider?
  • Did EPA rely on inconsistent legal theories in rendering its decision and, if so, should the Ninth Circuit have remanded the case to the agency on this ground?


I must admit that the Supreme Court’s date with the ESA causes me some anxiety. This will be the first time that Chief Justice Roberts, as a member of the Supreme Court, deals with this law.

But remember our friend the hapless toad? As an appellate court judge, Roberts seemed at least a bit suspicious of the ESA’s constitutional pedigree.

While Defenders v. EPA doesn’t raise any constitutional questions, Bush’s Supreme Court appointees may not be natural friends of the ESA.

Currently, TVA v. Hill, a 1978 Supreme Court decision, remains the preeminent case on the ESA. It’s chock full of delicious language.

That Court tells us that the ESA “admits of no exception,” and “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” I’d hate to see a new decision that undercuts this language.

And I fear that the prospects for Defenders of Wildlife may be slim. The ESA isn’t some sort of trump that overrides provisions of all other laws.

It may be that Defenders can eke out a victory based on the specific language of the ESA and relevant provisions of the CWA. However, some members of the court may see this as a prime opportunity to redefine the scope of our protection of endangered species.

The court’s decision to add a second question to the case may provide an opportunity for environmentalists to escape relatively unscathed. Should the court simply decide that the Ninth Circuit should have allowed EPA to revisit its decision because of legal inconsistencies, the justices may have little opportunity to chip away at the relative importance of the ESA.