National Ass'n of Home Builders v. Defenders of Wildlife

551 U.S. 644, 127 S. Ct. 2518, 168 L. Ed. 2d 467, 2007 U.S. LEXIS 8312
CourtSupreme Court of the United States
DecidedJune 25, 2007
Docket06-340
StatusPublished
Cited by918 cases

This text of 551 U.S. 644 (National Ass'n of Home Builders v. Defenders of Wildlife) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S. Ct. 2518, 168 L. Ed. 2d 467, 2007 U.S. LEXIS 8312 (2007).

Opinions

[649]*649Justice 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. We conclude that it does not. The transfer of permitting authority to state authorities — who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Spe[650]*650cies Act and other federal environmental protection statutes — was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit.

I

A

The Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq., established a National Pollution Discharge Elimination System (NPDES) that is designed to prevent harmful discharges into the Nation’s waters. The Environmental Protection Agency (EPA or Agency) initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. See 33 U. S. C. § 1342; see also § 1251(b) (“It is the policy of Congress that the Stat[e]... implement the permit progra[m] under sectio[n] 1342 ... of this title”). If authority is transferred, then state officials — not the federal EPA — have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.1

Under § 402(b) of the CWA, “the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to [the EPA] a foil and complete description of the program it proposes to establish and administer under State law or under an interstate compact,” as well as a certification “that the laws of such State . . . provide adequate authority to carry out the described program.” 33 U. S. C. § 1342(b). The same section provides that the EPA “shall approve each submitted program” for transfer of permitting authority to [651]*651a State “unless [it] determines that adequate authority does not exist” to ensure that nine specified criteria are satisfied. Ibid. These criteria all relate to whether the state agency that will be responsible for permitting has the requisite authority under state law to administer the NPDES program.2 2 If the criteria are met, the transfer must be approved.

The Endangered Species Act of 1973 (ESA), 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., 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. See 50 CFR §§17.11, 222.101(a), 223.102, 402.01(b) (2006).

[652]*652Section 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); see also 50 CFR §402.14(h). 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); see also 50 CFR § 402.14(h)(3). 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.

[653]*653B

In February 2002, Arizona officials applied for EPA authorization to administer that State’s NPDES program.3 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. App. to Pet. for Cert, in No. 06-340, p. 564.

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Cite This Page — Counsel Stack

Bluebook (online)
551 U.S. 644, 127 S. Ct. 2518, 168 L. Ed. 2d 467, 2007 U.S. LEXIS 8312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-assn-of-home-builders-v-defenders-of-wildlife-scotus-2007.