U.S. Supreme Court to Hear Arizona Case Challenging ESA Primacy
by Joe Gelt
A situation in Arizona is garnering national attention
with the U.S. Supreme Court agreeing to hear a pair of consolidated appeals
— EPA v. Defenders of Wildlife and the National Association of Homebuilders
v. Defenders of Wildlife. The appeals raise the issue whether federal
agencies must comply with the Endangered Species Act when implementing
other laws.
This is considered a landmark case with national implications and one
of the most significant ESA cases to come before the Court in a decade.
Oral arguments are expected to begin next month.
At issue is whether the U.S. Environmental Protection Agency erred in
2002 when it allowed Arizona primacy to administer its own storm water
discharge program. With state primacy, the National Pollutant Discharge
Elimination System program or NPDES became AZPDES. A NPDES or AZPDES permit
is required to discharge wastewater into a navigable stream.
Environmentalists sued EPA arguing that the agency did not consider the
effect the transfer decision might have on endangered species. EPA claimed
it lacked the authority to consider such impacts.
| Rapanos Case Muddies Navigable Waters When the Defenders of Wildlife v Arizona National Pollutant Discharge Elimination System case is decided some fear a possible repeat performance as when the Supreme Court ruled on joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers. The cases addressed the question: Does the Clean Water Act protect wetlands adjacent to small tributaries that flow into larger water bodies? A plurality of five justices agreed in principle that the EPA and the Army Corps of Engineers misinterpreted the Clean Water Act when they denied permits to developers wanting to build on wetlands a considerable distance from “navigable waters” as defined by the act. Associate Justice Antonin Scalia wrote the plurality opinion that found that the Corps’ “expansive interpretation” of the Clean Water Act was not “based on a permissible construction of the statute.” Associate Justice Kennedy, however, wrote a separate concurring opinion that sharply diverged from the majority by calling on the Corps to consider whether the wetlands in question possess “a significant nexus” with navigable waters. Some legal experts say the decision raised more questions than it answered about the course of environmental regulations. It set off a series of lower-court battles in efforts to determine its meaning. Some look to Congress to decide the issue by redefining its definition of “navigable waters” under the Clean Water Act, stating clearly which waters and wetlands qualify for protection. Meanwhile the Corps and EPA are expected to issue guidance on the issue. This is the same court that will rule on Defenders/AZPDES, with four justices generally favoring a broad interpretation of environmental laws, four with a strict constructionist view and a swing vote. Some observers refer to Rapanos as a “4-1-4” decision.
|
Are species protected?
In taking on what was previously a federal responsibility, the state does
not have the same ESA enforcement authority and responsibilities as EPA.
When EPA administered the program the agency would consult with U.S. Fish
& Wildlife Service about any threat to a species, with the result
that a permit might be withheld or mitigating activities required. The
state does not confront the same stringent requirements
The 9th U.S. Circuit Court of Appeal agreed with the environmental interests
stating, “that the EPA did have the authority to consider jeopardy
to listed species in making the transfer decision, and erred in determining
otherwise. For that reason among others, the EPA’s decision was
arbitrary and capricious.”
The 9th Circuit Court denied a petition for rehearing, and the original
ruling stood; the case was appealed to the Supreme Court.
Michael Ford, an environmental attorney with Bryan Cave says, “The
basic issue we hope the court will decide is whether ESA requirements
trump those of other laws ... in the face of a program or statute that
does not call for it. It is whether the ESA is an overarching piece of
regulation that applies to all other environmental laws.”
EPA and NAHB argue that Congressional approval for EPA to transfer the
permitting authority to the states required that the states meet nine
criteria of the Clean Water Act when issuing their permits. The storm
water runoff program essentially evaluates CWA compliance. Since ESA compliance
is not included among the criteria, they say it would go beyond the law’s
intent to require it.
Case has broad implications
At issue is not just AZPDES; all the other CWA-delegated programs throughout
the country could be challenged. Ford says, “A lot of the programs
have been delegated since the 70s. The 45 other states, and I don’t
know how many Indian Tribes, that already have delegation ... could these
be challenged if the court rules in favor of the environmental groups
on this one?”
Implications could go beyond the CWA to affect other state permitting
programs with a federal lineage. If the 9th Circuit ruling were to stand,
some lawyers argue it could be applied to state involvement in hazardous
waste and federal housing permitting. Other delegated programs such as
the Clean Air Act and the Resource Conservation and Recovery Act also
could be affected.
By taking the case, the Supreme Court has settled one issue, at least
for the time being. If it had refused the case, questions would have been
raised about ADEQ-issued permits: which remain valid and for how long
and also the status of pending applications. That the court is taking
the case means that Arizona will maintain the program, at least until
a decision is issued which is expected later this year. ADEQ is still
issuing permits.
Other environmental cases
This is one of this year’s Supreme Court cases that court watchers
with an environmental interest have followed with special attention as
having particular significance in the making of environmental law. In
Rapanos v. United States the Court addressed the federal government’s
authority over wetlands. (See above sidebar)
Another case is Massachusetts v EPA. Environmental groups faulting the
federal government’s response to global warming petitioned EPA to
regulate carbon dioxide and other greenhouse gases from new motor vehicles.
They argued that greenhouse gases are air pollutants and regulated under
the Clean Air Act. They cited Section 202 of the act which states that
the federal government is to regulate “any air pollutant”
that can “reasonably be anticipated to endanger public health or
welfare.”
EPA denied the petition in August 2003 stating that the act does not authorize
the agency to regulate greenhouse gas emissions. And even if it did, EPA
said it would not because the link between greenhouses emissions and global
warming is not unequivocally established.
The U.S. Supreme Court accepted the case for review on June 26, 2006.
The case has not been decided.
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