ENDANGERING THE ENDANGERED SPECIES ACT: NATIONAL ... Quaresimo.pdf · 2009] Endangering the Endangered Species Act 1149 endangered species ever enacted by any nation.”34 Nonetheless,

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ENDANGERING THE ENDANGERED SPECIES ACT: NATIONAL ASSOCIATION OF HOME BUILDERS V.

DEFENDERS OF WILDLIFE AND ITS THREAT TO THE SURVIVAL OF ENDANGERED SPECIES PROTECTION

Kristen M. Quaresimo*

I. INTRODUCTION

Congress enacted the Endangered Species Act of 1973 (ESA)1 to combat further species extinction and implement programs for the protection of endangered species.2 Specifically, Congress sought to “prevent animal and plant species endangerment and extinction caused by man’s influence on ecosystems, and to return the species to the point where they are viable components of their ecosystems.”3 To effectuate these goals, section 7 of the ESA4 (section 7) imposes a “no jeopardy” obligation on federal agencies, requiring them to insure that their actions will not jeopardize any species listed as endangered or threatened.5 However, the United States Supreme Court decision in National Association of Home Builders v. Defenders of Wildlife6 (NAHB), handed down in June of 2007, created a loophole in the ESA and an exception to section 7’s mandate.7

The issue faced by the Court involved the relationship between the ESA and the Clean Water Act (CWA).8 The CWA was enacted

* B.A., Legal Studies, Quinnipiac University, 2006; J.D., Albany Law School, 2009; Member, Albany Law Review. I would like to thank my parents for their love and support, Colin, John, Heather, and Mary for bringing out the brighter side of law school, and Paul Grosswald for his guidance in writing this article.

1 16 U.S.C. §§ 1531–44 (2006). 2 Id. § 1531(b). 3 H.R. REP. NO. 95–1625, at 5 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, 9455. 4 16 U.S.C. § 1536 (2006). 5 Id. Section 4 of the ESA directs the Secretary of the Interior to “publish in the Federal

Register a list of all species determined by him or the Secretary of Commerce to be endangered species and a list of all species determined by him or the Secretary of Commerce to be threatened species.” Id. § 1533(c)(1).

6 511 U.S. 644, 666–668 (2007). 7 See infra Part III.B. 8 33 U.S.C. § 1251–1387 (2000).


1146 Albany Law Review [Vol. 72

by Congress in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.”9 Section 402 of the CWA establishes the National Pollutant Discharge Elimination System.10 Under this program, the United States Environmental Protection Agency (EPA) has authority to issue permits for the discharge of pollutants into navigable waters.11 A state may submit to the EPA an application to take over this authority and issue permits for discharges into waters within its jurisdiction.12 Pursuant to subsection (b), the Administrator of the EPA “shall approve” the state’s permitting program if it satisfies nine enumerated criteria.13

In NAHB, the State of Arizona applied to the EPA for a transfer of permitting authority.14 Defenders of Wildlife strongly opposed the transfer due to its potential impact on several endangered species in the state.15 In its 5-4 decision, the Court found that the criteria set forth in section 402(b) of the CWA (section 402(b)) created a statutory mandate directing the Administrator to approve the transfer unless one of the nine requirements was not met.16 Because none of these criteria involved the protection of endangered species, the Court held that the EPA did not have the authority to consider any impact the transfer might have on endangered species.17

The Court in effect created an exception to section 7, excusing agencies from their “no-jeopardy duty” where their actions are governed by an express statutory mandate.18 In removing this important shield for endangered species, the Court relied on 50 C.F.R. § 402.03, which states that “[s]ection 7 . . . appl[ies] to all actions in which there is discretionary Federal involvement or control.”19 Although courts must “give substantial deference” to an

9 Id. § 1251(a)–(b). 10 Id. § 1342. 11 Id. § 1342(a)(1). 12 Id. § 1342(b). 13 Id. 14 551 U.S. at 652. 15 See id. at 655. 16 Id. at 664. 17 See id. (stating that the EPA’s consideration of the impact on endangered species would

create an additional criterion and therefore “alter[] § 402(b)’s statutory command”). 18 Id. at 2536. 19 50 C.F.R. § 402.03 (1986) (emphasis added). This regulation was promulgated by the


2009] Endangering the Endangered Species Act 1147

agency’s interpretation of a statute,20 the EPA’s interpretation of section 7 is inconsistent with the policy and purpose behind the ESA as well as the clear language of the statute.21 Therefore, the regulation is not a reasonable interpretation of the ESA and should have been declared invalid under the Chevron doctrine.22 Nonetheless, the Court upheld § 402.03 as a reasonable interpretation of section 7.23 As such, Congress must now step in and revise section 7 so as to clearly express its intent and ensure the survival of the most valuable form of endangered species protection.

This Note examines the Court’s reasoning behind the NAHB decision and focuses specifically on § 402.03’s interpretation of section 7. Part II discusses the fundamentals of, and the history behind, the ESA and the section 7 consultation process. Part III examines the circuit split regarding the scope of section 7 and the Supreme Court’s resolution of the issue. Part IV analyzes § 402.03 under the Chevron doctrine in light of the ESA’s legislative history. Part V discusses how the text of section 7 itself harmonizes the ESA with the CWA and other statutory mandates. Finally, Part VI discusses the negative impact of the NAHB decision on endangered species protection efforts and proposes a solution to future frustration of those efforts.

II. FUNDAMENTALS OF THE ESA

A. Evolution of Endangered Species Protection in the United States

In 1965, the Department of the Interior submitted a request to Congress for “legislation designed to protect rare and endangered native species of fish and wildlife.”24 In its request, the Department noted that at that time “some 24 birds and 12 mammals native to the United States and the Commonwealth of Puerto Rico [had]

National Marine Fisheries Service and the Fish and Wildlife Service. See Jan Hasselman, Holes in the Endangered Species Act Safety Net: The Role of Agency “Discretion” in Section 7 Consultation, 25 STAN. ENVTL. L.J. 125, 144 (2006).

20 McNabb ex rel. McNabb v. Bowen, 829 F.2d 787, 791 (9th Cir. 1987). 21 See discussion infra Part IV.A. 22 See discussion infra Parts III.B, IV.B. 23 See discussion infra Part III.B. 24 Press Release, U.S. Dep’t of the Interior, Interior Department Requests Legislation to

Protect Endangered Species of Wildlife (Jun. 15, 1965), available at http://www.fws.gov/news/historic/1965/19650615.pdf.



become extinct since settlement of the 50 states.”25 In response, the 89th Congress enacted the Endangered Species Preservation Act of 1966.26 The Act authorized the Secretary of the Interior (the Secretary) to “initiate and carry out a comprehensive program to conserve, restore, and where necessary to bolster wild populations to propagate selected species of native fish and wildlife.”27 Three years later, Congress implemented more protective endangered species programs in the Endangered Species Conservation Act of 1969.28 The 1969 Act created the listing process, authorizing the Secretary to maintain a list of species threatened with extinction.29 The Act also banned importation from a foreign country of any listed species unless approved by the Secretary.30 Existing state laws were amended to make unlawful the sale or purchase of listed species by any person who knew or should have known through the “exercise of due care” that the “animal was taken in any manner in violation of the laws or regulations of a State or foreign country.”31 Finally, the legislation increased the amount that could be appropriated “to acquire lands for the purpose of conserving, protecting, restoring, or propagating any endangered species.”32

Although this legislation laid the foundation for effective endangered species preservation efforts, by 1973 species were still disappearing at an alarming rate of one per year, a pace which seemed to be “accelerating.”33 Recognizing the need for further protection, Congress enacted the ESA, labeled by the Supreme Court as “the most comprehensive legislation for the preservation of

25 Id. 26 S. REP. NO. 93-307 (1973), as reprinted in 1973 U.S.C.C.A.N. 2989, 2990. 27 Id. (emphasis omitted). 28 See id. at 2990–91. 29 Id. 30 Id. at 2991 (“[T]he Secretary [may] issue permits for the importation of listed animals

for scientific, educational zoological or propagational purposes [and may] permit for one year the importation of such animals or products for commercial purposes if the importer was a party to a contract entered into prior to the date the animal was placed on the list if the importer would otherwise suffer ‘undue economic hardship.’”).

31 Id. at 2991. “These provisions supplement an existing statute which currently prevents the interstate sale or purchase of fish, mammals, or birds in violation of State or foreign law.” Id.

32 Id. The amount of funds used, however, was limited to $2.5 million per area, $5 million per year, and a $15 million “total ceiling.” Id.

33 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 176 (1978) (citing Hearings on Endangered Species Before a Subcommittee of the House Committee on Merchant Marine and Fisheries, 93d Cong. 306 (1973) (statement of Stephen R. Seater, Director of Public Relations, Defenders of Wildlife); H.R. REP. NO. 93-412 (1973), reprinted in 1 CONG. RESEARCH SERV., A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 140, 143 (1982).



endangered species ever enacted by any nation.”34 Nonetheless, the Department of the Interior has estimated “that there are 20 species becoming extinct per decade in the United States and an even greater number entering the endangered category. If this rate applies worldwide an estimated 300 extinctions occur per decade.”35 The Merchant Marine and Fisheries Committee also noted that

[a]ll available evidence suggests that the rate of extinction of many species of plants and animals has increased significantly in the post-industrial era. In many cases the process of extinction has been associated with an increase in man’s ability to alter natural habitats for his own devices. The loss of habitat for many species is universally cited as the major cause for the extinction of species worldwide.36

The ESA serves as a means for limiting the impact of man and industry on endangered species by declaring that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes” of the statute.37 Therefore, the ESA essentially “mandates that federal agencies use whatever tools are necessary to accomplish this goal.”38 As such, the ESA does much more than simply create a conservation “program”; rather, it serves as the vehicle for taking active steps toward wildlife preservation.39 With 1,353 species currently listed as threatened or endangered in the United States (612 animal species and 746 plant species),40 the importance of the ESA’s protections cannot be denied.

B. Section 7 Consultation Process

As noted, early endangered species legislation presented difficulty “in expanding the practical effect of the program to the spirit of the original legislation.”41 Specifically, the original laws “‘simply [did]

34 Tenn. Valley Auth., 437 U.S. at 180. 35 H.R. REP. NO. 95-1625, at 5 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, 9455. 36 Id. 37 16 U.S.C. § 1531(c)(1) (1973). 38 Richard Mallory, Obligations of Federal Agencies Under Section 7 of the Endangered

Species Act of 1973, 28 STAN. L. REV. 1247, 1249 (1976). 39 George Cameron Coggins, Conserving Wildlife Resources: An Overview of the

Endangered Species Act of 1973, 51 N.D. L. REV. 315, 322 (1974) (quoting 16 U.S.C. § 1531(b) (1973)).

40 U.S. Fish and Wildlife Service, General Statistics for Endangered Species, http://ecos.fws.gov/tess_public/SummaryStatistics.do (last visited Oct. 12, 2008).

41 S. REP. NO. 93-307 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2991.



not provide the kind of management tools needed to act early enough to save a vanishing species.’”42 One such “management tool” was created in the ESA through section 7’s consultation process. Section 7(a)(2) states that

[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, 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 or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the [Endangered Species] Committee pursuant to subsection (h) of this section.43

Thus, section 7(a)(2) prohibits federal agencies from taking action that may threaten the survival of a species without first obtaining a waiver from the Endangered Species Committee. Agencies therefore have an obligation to insure that their actions will not jeopardize the existence of a listed species or adversely modify the species’ critical habitat. In fulfilling this obligation, agencies are required to follow a detailed and comprehensive procedure.

Before an agency acts, it must first consult with the Secretary as to “whether any species which is listed or proposed to be listed may be present in the area of such proposed action.”44 If the Secretary determines that a listed species “may be present,” the agency seeking to take action must prepare a biological assessment to identify any such species or any critical habitat of such species that will likely be affected by the agency’s proposed action.45 If the agency determines, based on either the biological assessment or otherwise, that the proposed action may affect a listed species or the critical habitat of a listed species, the agency must formally consult with either the Fish and Wildlife Service or the National Marine Fisheries Service46 to see how the proposed action will affect the

42 Id. (quoting President Richard Nixon, Environmental Message: Environmental Awakening (Feb. 8, 1972)).

43 16 U.S.C. § 1536(a)(2) (2000). 44 Id. § 1536(c)(1). 45 Id. (emphasis added); see also Steven G. Davison, Federal Agency Action Subject to

Section 7(a)(2) of the Endangered Species Act, 14 MO. ENVTL. L. & POL’Y REV. 29, 53 (2006). 46 I will hereinafter refer to these collectively as “the Services” or either one alone as “the



species or its critical habitat.47 Such consultation is not required if the biological assessment or an informal inquiry to either of the Services reveals “that the proposed action is not likely to adversely affect [a] listed species or [its] critical habitat.”48

If the action is likely to affect a listed species, however, the Service must issue a Biological Opinion analyzing “the nature and extent of the effects of the proposed action of the federal agency and the cumulative effects the action will have on listed endangered or threatened species protected by the ESA and on [the] critical habitat of such species.”49 The document must summarize the information on which the service’s opinion is based and provide a detailed description of how the action will affect the species or habitat.50 If the species is likely to be jeopardized or its critical habitat adversely modified, the service that was consulted must suggest any “reasonable and prudent alternatives” that will not jeopardize the species.51 If no such alternatives are available, the agency cannot proceed with the action.52

Section 7’s command that agencies insure that their actions will not harm a listed species is clearly one of high importance.53 Because it “is the only part of [the] ESA that can exert a practical effect on agency actions when the conservation of protected species collides with primary agency objectives,”54 failure to respect section 7’s procedures can have severe consequences on wildlife as well as Congress’s goal of stronger species protections.

Service.” 47 50 C.F.R. § 402.14(a) (1989). 48 50 C.F.R. § 402.14(b) (1989); see also Nat’l Wildlife Fed’n v. Fed. Emergency Mgmt.

Agency, 345 F. Supp. 2d 1151, 1168 n.16 (W.D. Wash., 2004) (“A finding of ‘not likely to adversely affect’ can be made only if the effects of the proposed action on the listed species are expected to be ‘discountable, or insignificant, or completely beneficial.’” (citation omitted)).

49 Davison, supra note 45, at 57–58 (citations omitted). 50 16 U.S.C. § 1536(b)(3)(A) (2000). 51 Id. 52 See Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985) (noting that if the agency

action would jeopardize a listed species or harm its critical habitat, “then the action may not go forward unless [the Service] can suggest an alternative that avoids such jeopardization, destruction, or adverse modification”) (citing 16 U.S.C. § 1536(b)(3)(A)).

53 Mallory, supra note 38, at 1252. 54 Id.



III. DRAWING THE LINE: THE DISPUTE OVER THE SCOPE OF SECTION 7

A. The Circuit Split

As mentioned, 50 C.F.R. § 402.03, promulgated by the Services,55 states that section 7 applies “to all actions in which there is discretionary Federal involvement or control.”56 Section 7, however, mentions only actions “authorized, funded, or carried out” by an agency and makes no reference to an agency’s discretion.57 Such conflicting language makes the duties of a federal agency under section 7 rather ambiguous. The issue presented is this: does section 7’s requirement that federal agencies “insure” that their actions will not jeopardize any listed species or critical habitat apply to all agency actions, regardless of whether they are discretionary or mandatory, or does it apply only to those in which the agency may exercise its discretion?

There are two lines of cases that examine this question. The first limits section 7’s reach, holding that where an agency is commanded by statute to take a certain action, the agency lacks authority to consider any impact the action might have on endangered species.58 In other words, “[w]here there is no agency discretion to act, the ESA does not apply.”59 The second line of cases suggests the opposite, holding that even where section 7 is not explicitly mentioned in the statute governing an agency’s action, the agency must still comply with the “no jeopardy” requirement regardless of whether a specific statutory mandate is present.60

55 The Fish and Wildlife Service and the National Marine Fisheries Service are the agencies responsible for promulgating regulations governing implementation of the ESA. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 664 (2007).

56 50 C.F.R. § 402.03 (1986) (emphasis added). 57 16 U.S.C. § 1536(a)(2) (2000). 58 See Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 297–99 (5th Cir. 1998) (where a

state’s application for the transfer of pollution permitting authority satisfies the nine criteria set forth in § 402(b) of the CWA, EPA lacks authority to consider the transfer’s impact on endangered species); Platte River Whooping Crane Critical Habitat Maint. Trust v. Fed. Energy Regulatory Comm’n, 962 F.2d 27, 30, 32 (D.C. Cir. 1992) (because licenses for the operation of hydroelectric facilities granted under the Federal Power Act cannot be altered “absent an express reservation of modification authority . . . in the original license,” the Federal Energy Regulatory Commission cannot attach “environmental protective conditions” upon a renewed license).

59 Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125–26 (9th Cir. 1998). 60 See Defenders of Wildlife v. EPA, 882 F.2d 1294, 1299–300 (8th Cir. 1989) (“Even though

a federal agency may be acting under a different statute, that agency must still comply with



The Ninth Circuit’s decision in Defenders of Wildlife v. EPA61 falls within the second line of cases. In that case, the State of Arizona was granted pollution permitting authority under section 402(b) of the CWA.62 EPA consulted with the Fish and Wildlife Service after determining that the transfer could affect several listed species in Arizona.63 The Service’s office in Arizona “expressed serious reservations about the proposed transfer.”64 Concluding that the transfer would cause “the loss of protections to species resulting from the section 7 process,” the Service asked EPA to consider the impact of that loss in the Biological Opinion.65 The Service stressed that the transfer would preclude federal agencies from consulting with developers about the potential impacts of pollution permits on endangered species.66 The Biological Opinion recommended the transfer, noting that this problem was caused by “the absence of the section 7 process” in section 402(b) and not because of the transfer itself.67 EPA approved the transfer two days after the Biological Opinion was issued.68 The Defenders brought an action against EPA claiming that EPA inadequately considered the impact on listed species and their habitat.69 The court framed the issue as “whether the obligation in section 7(a)(2) to ‘insure’ against jeopardizing listed species empowers the EPA to make decisions to preserve listed species and their habitat even if the [CWA] does not so specify.”70 The court noted that

[u]nless an agency has the authority to take measures necessary to prevent harm to endangered species, it is

the ESA . . . . The ultimate burden remains on the acting agency to insure any action it pursues [will not jeopardize] protected species.”); Conservation Law Found. v. Andrus, 623 F.2d 712, 714–15 (1st Cir. 1979) (before approving plans for shore-line exploration under the Outer Continental Shelf Lands Act, the Secretary must first consider the plan’s impact on endangered species even though the Act does not explicitly direct the Secretary to do so).

61 420 F.3d 946 (9th Cir. 2005). 62 Id. at 949–50. 63 Id. at 952. 64 Id. Because § 7 does not apply to the states, Fish and Wildlife Service feared that

without mandatory consultation, Arizona might issue permits without considering mitigating measures designed to prevent destruction of species’ critical habitats. Id.

65 Id. 66 Id. at 953. It is important to note, as the court did, that previous § 7 consultations have

lead to various measures implemented for the protection of listed species in Arizona, including several which the Fish and Wildlife Service concluded could be affected by the present transfer decision. Id.

67 Defenders of Wildlife v. EPA, 420 F.3d 946, 953 (9th Cir. 2005). 68 Id. at 954. 69 Id. at 955. 70 Id. at 963.



impossible for that agency to “make certain” that its actions are not likely to jeopardize those species. Otherwise, agencies would be forced to choose between violating section 7’s prohibition on agency actions that are likely to jeopardize listed species and acting beyond their powers to protect such species.71

The court refused to force agencies to make that choice, concluding that section 7’s obligation that agencies “insure” that their actions will not jeopardize listed species “is an obligation in addition to those created by the agencies’ own governing statute.”72

Arizona and EPA based their arguments on § 402.03’s application of section 7 solely to discretionary federal actions.73 Given that section 402(b) of the CWA directs EPA to approve a state’s application if it meets nine enumerated criteria, EPA claimed that it had no “‘discretion’ to act on behalf of listed species.”74 EPA therefore argued that section 7 does not apply to transfer decisions under section 402(b).75 Interestingly, the court suggested that EPA’s recognition of its section 7 duty to consult with the Service demonstrated that EPA itself did not interpret section 7 to apply only to discretionary actions.76 The court also noted that other courts interpreting § 402.03 have found that section 7(a)(2) does not apply where the “challenged action has not been ‘authorized, funded, or carried out’ by a federal agency,” but that it does apply “where the agency in question [has] continuing decision-making authority over the challenged action.”77 Thus, the court concluded that the case law involving § 402.03 collectively interprets the regulation as coterminous with section 7(a)(2)’s provision that all actions ‘‘‘authorized, funded, or carried out’ by a federal agency” are subject to the no-jeopardy requirement.78 Because approval of Arizona’s application was “an agency action ‘authorized’ by the

71 Id. at 964. 72 Id. at 967 (emphasis added); see also Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032

(9th Cir. 2005) (stating that “an agency cannot escape its obligation to comply with the ESA merely because it is bound to comply with another statute that has consistent, complementary objectives”).

73 Defenders of Wildlife , 420 F.3d at 967. 74 Id. 75 Id. at 968. 76 Id. (“[EPA] recognizes that it had a duty to consult, a duty the regulations would

preclude if the federal involvement in or control of the transfer decision was not sufficiently ‘discretionary.’”).

77 Id. at 968–69. 78 Id. at 969.



EPA,” the court found that EPA’s transfer decision fell within section 7’s reach, triggering its consultation requirement as well as its mandate that agencies “insure” that their actions are unlikely to jeopardize any listed species.79

B. The Supreme Court’s Solution: The NAHB Decision

Unfortunately this environmental success was short-lived. The Supreme Court in NAHB overturned the Ninth Circuit’s decision in Defenders of Wildlife v. EPA less than two years later.80 The issue handed to the Court was essentially one of regulatory and statutory interpretation. Specifically, the Court faced the question of whether the Services’ interpretation of section 7, as articulated in § 402.03, was a valid construction of the statute.81 In answering this question, the Court turned to its 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.82 There the Court laid out the most basic rule guiding a court’s review of agency statutory interpretation. More commonly known as the Chevron doctrine, the rule directs the reviewing court to ask two questions:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.83

Although under Chevron an agency is given great deference in its interpretation of a statute, this deference is not without limitation. If “the court determines that, given the intention of Congress to achieve some goal, ‘there are compelling reasons that [the agency interpretation] is wrong,’ the court may invalidate the agency’s

79 Id. at 971. 80 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). 81 See id. at 664. 82 Id. at 665 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842–43 (1984). 83 Chevron, 467 U.S. at 842–43.



action.”84 Therefore, a reviewing court cannot blindly accept any agency interpretation. Rather, the court must ensure that the interpretation abides not only by the statute’s plain language, but also by Congress’s intent in enacting the statute. As such, the court “should not defer to an agency position which is contrary to an intent of Congress.”85

Since the ESA itself is ambiguous as to which statute—the ESA or the CWA—should prevail, it is clear that Congress did not expressly answer the question at issue. As directed by Chevron, the Court examined the reasonableness of § 402.03’s instruction that section 7 applies to “actions in which there is discretionary Federal involvement or control.”86 The Court viewed the regulation as harmonizing the two statutes—“applying [section] 7(a)(2) to guide agencies’ existing discretionary authority, but not reading it to override express statutory mandates.”87 The Court felt that including the term “discretionary” was in line “with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to ‘insure’ that such action will not jeopardize endangered species.”88 Therefore, the Court found the Services’ interpretation reasonable under the Chevron doctrine.89

The Court’s decision also turned on whether the instruction in section 402(b) of the CWA that EPA “shall approve” a state’s permitting plan if it meets the nine listed criteria is mandatory or discretionary.90 The Court held that section 402(b) “does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer ‘shall’ be approved if the specified criteria are met.”91 Therefore, the Court found section 402(b) to be an express statutory mandate.92 As such, the Court held that EPA did not have authority to deny a state’s transfer application if the proposed permitting program met the

84 Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1350 (6th Cir. 1994) (quoting Boettger v. Bowen, 923 F.2d 1183, 1186 (6th Cir. 1991).

85 Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992). 86 Nat’l Ass’n of Home Builders, 551 U.S. 644, 666 (2007) (quoting 50 C.F.R. § 402.03

(1986)). 87 Id. 88 Id. at 667. 89 Id. at 666. 90 Id. at 661; 33 U.S.C. § 1342(b) (2000). 91 Nat’l Ass’n of Home Builders , 551 U.S. at 663. 92 Id. at 661.



nine criteria enumerated in the statute.93 The Court stated that applying section 7 “literally” would add a tenth requirement to section 402(b).94 The “mandatory and exclusive” list would therefore be “replac[ed] . . . with a new, expanded list that includes [section] 7(a)(2)’s no-jeopardy requirement.”95 The Court stated that such a reading of section 7 would repeal not only section 402(b) of the CWA, but also other federal statutes “mandating agency action” by subjecting them to the no-jeopardy requirement.96 As such, the Court held that when an agency action is governed by a statutory mandate not expressly listing endangered species protection as a precondition for approval, that agency is not bound by section 7’s no-jeopardy duty.97

IV. AN UNREASONABLE INTERPRETATION: § 402.03 UNDER THE CHEVRON DOCTRINE

Although the Court found that § 402.03 is a reasonable interpretation of section 7 under Chevron, the extensive legislative history revealing Congress’s intent to make endangered species protection a top priority proves otherwise. Part A reviews this legislative history and demonstrates that § 402.03 is inconsistent with Congress’s intent. Part B analyzes the NAHB Court’s reasons for finding § 402.03 permissible under Chevron and then refutes that reasoning.

A. Congressional Intent Behind the ESA

As noted, a court cannot accept an agency’s interpretation of a statute under Chevron if that interpretation is contrary to Congress’s intent in enacting the statute.98 The Court’s application of Chevron fails to adequately address the validity of § 402.03 in light of the purposes behind the ESA. Close examination of the legislative history of section 7 and the ESA as a whole reveals that the regulation is in fact a flawed interpretation of section 7.

93 Id. at 663–64. 94 Id. at 662. 95 Id. 96 Id. at 664. The Court’s reasoning is based on the doctrine against implied repeals, which

states that “‘repeals by implication are not favored’ and will not be presumed unless the ‘intention of the legislature to repeal [is] clear and manifest.’” Id. (alteration in original) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)).

97 See Id. at 669. 98 See supra notes 84–85 and accompanying text.



As one commentator noted, “[t]he dominant theme pervading all Congressional discussion of the proposed Act was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources.”99 Congress exhibited much concern for “the irreplacable [sic] loss to aesthetics, science, ecology, and the national heritage should more species disappear.”100 Specifically, much testimony focused on the “unknown uses that endangered species might have,” including significant medical uses, such as finding a cure for cancer.101 As stated in a report of the House Committee on Merchant Marine and Fisheries, endangered species “are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.”102

Clearly Congress had deep concern for the protection of endangered species and high hopes to make species extinction a thing of the past. In promulgating § 402.03, the Services ignored these concerns. As noted, § 402.03 restricts section 7’s application to actions where agencies may exercise their discretion in making a decision.103 Under the regulation, section 7 does not apply to mandatory actions where the agency is required by statute to act in a particular way. Congress, however, did not intend to leave out any category of agency actions. To the contrary, Congress deliberately chose not to place qualifications on section 7’s “no-jeopardy” duty. Both the language and the legislative history of section 7 confirm that § 402.03 conflicts with the clear intent of Congress.

The contrasting language of section 7(a)(1) and section 7(a)(2) proves that Congress did not intend to limit the application of section 7. Section 7(a)(1) directs agencies to “utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of [listed] species.”104 Section 7(a)(2)

99 Coggins, supra note 39, at 321. 100 Id. (citing H.R. REP. NO. 93-412, at 1 (1973), reprinted in 1 CONGRESSIONAL RESEARCH

SERVICES, A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 140 (1982); S. REP. NO. 93-307 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2990–92).

101 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 178–79 (1978). 102 H.R. REP. NO. 93-412, at 4–5 (1973), reprinted in 1 CONGRESSIONAL RESEARCH

SERVICES, A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 140, 144 (1982).

103 50 C.F.R. § 402.03 (1986). 104 16 U.S.C. § 1536(a)(1) (2006) (emphasis added).



does not mention an agency’s existing “authorities.” Rather, section 7(a)(2) simply directs an agency to proceed with “any action authorized, funded, or carried out” by the agency in a manner unlikely to harm listed species.105 House Report 93-412 notes that section 7(a)(2) imposes a “further require[ment]” beyond section 7(a)(1).106 The Ninth Circuit explained the contrast:

“[T]he ‘further requirement’ imposed by section 7(a)(2) turns on the distinction between using existing authority to promote conservation of species and conferring an additional, do-no-harm obligation—and reciprocal authority—applicable when the agency’s own actions could cause harm to endangered species.”107

Congress could have limited the application of section 7(a)(2) to an agency’s existing authority just as it did in section 7(a)(1). This would be similar to Congress expressly restricting section 7’s application to discretionary actions. If an agency did not have “existing authority” in the form of an express statutory mandate to consider the impact on listed species, it would not be obligated to do so under the ESA. Instead, Congress chose to make section 7(a)(2) more stringent. The fact that Congress did not include “existing authorities” in subsection (a)(2) as it did in subsection (a)(1) suggests that Congress did not intend to place qualifications on an agency’s obligation to consider the potential harm to listed species.

Congress consciously chose to omit the limitations placed on section 7 by earlier endangered species legislation from the 1973 Act. The Endangered Species Act of 1966 placed an express qualification on section 7 by making agencies responsible for preservation efforts only “insofar as is practicable and consistent with the[ir] primary purposes.”108 This sort of qualification is typically seen in statutes where Congress intended to give agencies leeway for compliance.109 Several advocates of stricter protections for endangered species criticized this language and cautioned Congress against adopting a similar qualification in the 1973 version of the Act.110 The main concern was that the qualification

105 Id. § 1536(a)(2). 106 H.R. REP. NO. 93-412, at 14 (1973), reprinted in 1 CONGRESSIONAL RESEARCH SERVICES,

A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 140, 153 (1982).

107 Defenders of Wildlife v. EPA, 420 F.3d 946, 965 (9th Cir. 2005). 108 Endangered Species Act of 1966, Pub. L. No. 89-669, 80 Stat. 926 (current version at 16

U.S.C. § 1536 (2006)). 109 Mallory, supra note 38, at 1253. 110 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 182–83 (1978).



could be interpreted to mean that endangered species protection must give way to “other agency purposes.”111 The 1973 bill approved by the Senate included a qualification requiring agencies to “carry out such programs as are practicable for the protection of species listed.”112 However, the House took the advocates’ advice and omitted all qualifications on agencies’ responsibilities and passed a bill containing a provision essentially mirroring the present version of section 7.113 Although the Conference Committee essentially adopted the Senate’s bill, it adopted the House’s version of section 7.114 All qualifications on agencies’ responsibilities were therefore removed. This was no mistake, as suggested by the House manager of the bill, Representative Dingell:

Section 7 “substantially amplifie[s] the obligation of [federal agencies] to take steps within their power to carry out the purposes of this act. . . . [T]he agencies of Government can no longer plead that they can do nothing about [species extinction]. They can, and they must. The law is clear.”115

It is also clear, therefore, that Congress did not intend to excuse any form of agency action from an assessment of its potential impacts on endangered species. Section 7 states that federal agencies must “insure that any action authorized, funded, or carried out [by them] . . . is not likely to jeopardize the continued existence of any endangered species or threatened species.”116 Therefore, the provision expressly applies to any federal agency action regardless of whether that action is discretionary or mandatory. Thus, § 402.03’s limitation on section 7’s no-jeopardy obligation clearly goes against the express language of section 7.117 The regulation also conflicts with Congress’s intent that the duty to protect endangered species attaches to all federal agency actions—discretionary or mandatory, practicable or impracticable—as well as Congress’s

111 Id. at 182 (quoting Endangered Species: Hearings Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment of the Comm. on Merch. Marine & Fisheries, 93d Cong. 333 (1973) (statement of Robert C. Hughes, Chairman, Sierra Club’s National Wildlife Committee)).

112 S. Rep. No. 93-307, at 42–43 (1973), reprinted in 1 CONGRESSIONAL RESEARCH SERVICES, A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 225, 266–67 (1982) (emphasis added).

113 H.R. 37, 93d Cong. (1973); see also Tenn. Valley Auth., 437 U.S. at 182. 114 H.R. REP. NO. 93-740, at 10 (1973) (Conf. Rep.), reprinted in 1973 U.S.C.C.A.N. 2989;

see also Tenn. Valley Auth., 437 U.S. at 182–83. 115 119 CONG. REC. 42,913 (1973) (emphasis added). 116 16 U.S.C. § 1536 (2000) (emphasis added). 117 See id.; 50 C.F.R. § 402.03 (1986).



focus on placing endangered species protection at the top of the priority list. In fact, § 402.03’s application of section 7 solely to discretionary agency actions accomplishes exactly what Congress wanted to avoid when it adopted the House version of section 7: it conveys the message that endangered species protection should give way to other, non-discretionary agency actions.118

One of the most celebrated cases in environmental law and the leading case for acknowledging the importance of the ESA is Tennessee Valley Authority v. Hill (TVA).119 The Court in TVA relied heavily on the legislative background of the ESA. The Court acknowledged Congress’s concern for species extinction and therefore strictly enforced the ESA, concluding that “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.”120 In that case, the Tennessee Valley Authority’s (the Authority) construction on the Tellico Dam and Reservoir Project along part of the Little Tennessee River was brought to a standstill when scientists discovered a new species of perch, known as the snail darter, in an area of the river near the Tellico project.121 The snail darter became a listed species under the ESA in 1975, and the Tellico area of the river was designated as the darter’s “critical habitat.”122 The respondents sought to enjoin completion of the project, arguing that further construction would cause the extinction of the snail darter and therefore violate the ESA.123 Although the Secretary found that the Tellico project could have an adverse effect on the darter’s habitat,124 the district court sided with the Authority.125 The Authority’s main argument was that the ESA did not apply to the Tellico project because construction was over half-way finished at the time the statute was enacted and 70 to 80 percent complete when the darter was officially placed on the endangered species list.126 The court of appeals reversed and remanded, instructing the lower court to issue a permanent injunction halting the Tellico project.127 The Supreme Court affirmed, thereby suggesting that

118 See 16 U.S.C. § 1536 (2000); 50 C.F.R. § 402.03 (1986). 119 437 U.S. 153 (1978). 120 Id. at 184 (emphasis added). 121 Id. at 158–59. 122 Id. at 161–62. 123 Id. at 164. 124 Id. at 162. 125 Id. at 165. 126 Id. 127 Id. at 168.



the ESA was powerful enough to permanently cease construction on a nearly completed dam—on which Congress had spent over $100 million—all for the protection of a three-inch fish.128

The Court noted that “[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than those in [section] 7 of the [ESA] . . . [its] language admits of no exception,” and that the Authority’s argument “ignore[s] the ordinary meaning of plain language.”129 The Court conceded that its holding would require “the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds.”130 Nevertheless, the Court firmly declared that the ESA’s language and legislative history undoubtedly reveal that “Congress has spoken in the plainest of words, making it abundantly clear that [a] balance has been struck in favor of affording endangered species the highest of priorities.”131 Because the appellate court’s decision was in accord with this “balance” and with Congress’s intent, the Court upheld the injunction.132

The NAHB Court brushed TVA off as “ha[ving] no occasion to answer the question presented in [NAHB].”133 Because there was no statutory mandate that the Authority construct the Tellico Dam, the Court determined that the project was a discretionary agency action.134 As such, the Court viewed TVA as support for “the position, expressed in § 402.03, that the ESA’s no-jeopardy mandate applies to every discretionary agency action.”135 Even if the Tellico project was a discretionary action, it does not necessarily follow that the TVA decision supports § 402.03. As Justice Stevens notes in his dissent, “[n]ot a word in [TVA] stated or suggested that [section] 7 obligations are inapplicable to mandatory agency actions . . . [n]or did the opinion describe [the Authority’s] attempted completion of the Tellico Dam as a discretionary act.”136 The Court therefore made an unfounded conclusion that TVA is irrelevant “to the question whether [section] 7(a)(2) applies to non-discretionary actions.”137

128 Id. at 172–73. 129 Id. at 173. 130 Id. at 174. 131 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978) (emphasis added). 132 Id. at 194–95. 133 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 670 (2007). 134 Id. at 670. 135 Id. at 671. 136 Id. at 676 (Stevens, J., dissenting). 137 Id. at671.



While it is true that TVA did not answer the precise question of the interplay between the ESA and the CWA, it did address the legislative history relevant to that question. Significantly, Congress has expressly approved the strict holding in TVA, which it identified as “the celebrated snail darter case.”138 In House Report 95-1625, the House outlines the TVA case, noting that “[i]n reaching [its] conclusion the Court indicated that the legislative history of the act revealed that Congress intended to halt and reverse the trend toward species extinction—whatever the cost.”139 It seems unlikely that Congress would emphasize this point, as well as the fact that the Tellico project was brought to a permanent standstill,140 if it disagreed with the Court’s interpretation. Given that Congress expressly approved the TVA Court’s assessment of the ESA’s legislative background, the NAHB Court was wrong in downplaying the importance of TVA.

B. Department of Transportation v. Public Citizen: The Court’s Chevron Analysis

The Court in NAHB relied on Department of Transportation v. Public Citizen141 as support for its finding that § 402.03 is a reasonable interpretation of section 7 and therefore entitled to deference under Chevron.142 That case involved vehicle safety regulations promulgated by the Federal Motor Carrier Safety Administration that resulted in the President’s lifting of a moratorium preventing Mexican trucks from using United States roads for their trade.143 The Court found that the President’s lifting of the moratorium, not the agency’s actions, directly caused the entry of the Mexican trucks.144 The Court stated that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.”145 Because the agency was not the “legally relevant cause” of any environmental effects of the trucks’ entry, the Court concluded that the agency was

138 H.R. REP. NO. 95-1625, at 10 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, 9460. 139 Id. 140 Id. 141 541 U.S. 752 (2004). 142 Nat’l Ass’n of Home Builders, 551 U.S. at 663–68. 143 541 U.S. at 759–62. 144 Id. at 766. 145 Id. at 770.



not required under the National Environmental Policy Act to consider the environmental impacts of allowing the trucks to enter the U.S.146

The NAHB Court felt that the “basic principle” of Public Citizen—“that an agency cannot be considered the legal ‘cause’ of an action that it has no statutory discretion not to take”—supported the Services’ conclusion that section 7 only applies to discretionary agency actions.147 However, the Court itself noted that Public Citizen was not entirely relevant to the case at hand.148 Public Citizen involved the National Environmental Policy Act, which imposes merely a procedural statutory requirement, while section 7 imposes a substantive requirement.149 Moreover, the truck safety regulations at issue in Public Citizen were not closely related to environmental concerns, while the agency action in NAHB is directly related to environmental concerns.150 And, as discussed by Justice Stevens in his dissent, the “basic principle” relied on by the majority is inapplicable to NAHB.151 As Justice Stevens pointed out, the agency in Public Citizen could not countermand the President’s lifting of the moratorium.152 Once the trucks entered the United States, the agency “was required by statute to register the vehicles if certain conditions were met.”153 As such, “any potential [National Environmental Policy Act] concerns were generated by another descisionmaker, the President, and not the [agency].”154 The situation in NAHB is quite different:

Here, by contrast, EPA is not required to act ministerially once another person or agency has made a decision. Instead, EPA must exercise its own judgment when considering the transfer of [National Pollution Discharge Elimination System (NPDES)] authority to a State; it also has its own authority to deny such a transfer. Any effect on endangered species will be caused, even if indirectly, by the agency’s own decision to transfer NPDES authority.155

In Public Citizen the President, rather than the agency, was the

146 Id. 147 Nat’l Ass’n of Home Builders, 551 U.S. at 666. 148 Id. 149 Id. 150 Id. 151 Id. at 692 n. 13 (Stevens, J., dissenting). 152 Id. 153 Id. 154 Id. (emphasis added). 155 Id.



cause of any environmental effects stemming from the entry of the trucks into the United States.156 Therefore the agency was not obligated to consider any impact its regulations might have on the environment.157 Here, however, EPA would in fact be the direct cause of any impacts on endangered species. The connection between Public Citizen and NAHB is therefore a loose one. As such, the NAHB Court’s reliance on Public Citizen does not hold up when compared with the extensive legislative history demonstrating that § 402.03 is contrary to Congress’s intent and therefore not a reasonable interpretation under Chevron. Ignoring the legislative history, the Court relied on the loosely-related decision in Public Citizen as its basis for upholding § 402.03 under Chevron. However, Chevron analysis must be conducted against the legislative backdrop of the statute in question. Because the legislative backdrop of the ESA does not permit the interpretation articulated in § 402.03, the regulation is not a reasonable and permissible construction of section 7 under Chevron.158 Thus the Court was wrong in relying on § 402.03 as the foundation for its decision.

V. THE “GOD SQUAD”: SECTION 7’S HARMONY PROVISION

Given that § 402.03 conflicts with Congress’s intent and defeats the purposes behind section 7, the regulation cannot truly harmonize the ESA and the CWA. What the NAHB Court failed to acknowledge is that the text of section 7 itself harmonizes the two statutes. Section 7 prevents an agency from taking on a project likely to affect endangered species “unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section.”159 The Committee to which the statute refers is the Endangered Species Committee, commonly known as the “God Squad.”160 In 1978, a series of hearings was conducted by the House Subcommittee on Fisheries and Wildlife Conservation and the Environment “to determine the nature and extent of current conflicts under the act, and the likelihood of future conflicts between listed species and federally authorized activities.”161 Congress recognized that some conflicts between

156 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 759, 769 (2004). 157 Id. 158 See discussion supra Part IV.A. 159 16 U.S.C. § 1536(a)(2) (2000) (emphasis added). 160 Nat’l Ass’n of Home Builders, 551 U.S. at 687 (Stevens, J., dissenting). 161 H.R. REP. NO. 95-1625, at 12 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, 9462.



federal agency activities and endangered species are inevitable.162 Congress also recognized that the likelihood of such conflicts would only increase as more species became listed.163 As such, the Subcommittee called for “some flexibility . . . in the act to allow consideration of those cases where a [f]ederal action cannot be completed or its objectives cannot be met without directly conflicting with the requirements of Section 7.”164

Congress therefore created in the 1978 amendments an Endangered Species Committee to implement “a procedure through which [f]ederal agencies may be considered for an exemption from [section 7]’s mandate.”165 If section 7 consultation reveals that an agency action cannot go forward because it would be harmful to a listed species or a critical habitat, the agency may apply to the Endangered Species Committee for an exemption.166 If the Committee finds that “(1) there are no reasonable and prudent alternatives to the federal action, (2) the action is in the public interest on a regional or national basis, and (3) the benefits of the action clearly outweigh the benefits of alternatives that do not jeopardize preservation of the species,” it is authorized to grant an exemption allowing the agency action to occur even though it might harm an endangered species or its habitat.167

Clearly Congress understood that endangered species preservation will inevitably conflict with some important agency actions like those seen in NAHB. It therefore provided a reasonable way to harmonize the ESA with other statutory mandates. The difference between Congress’s method of harmonization and that articulated in § 402.03 and encouraged by the NAHB Court is that Congress does not undermine the purposes of the ESA.168 The Committee reflects “Congress’[s] view that the ESA should not yield to another federal action except as a final resort and except when authorized by high level officials after serious consideration.”169

162 Id. at 13. 163 Id. 164 Id. 165 Id. at 3. 166 16 U.S.C. § 1536(g) (2006). 167 ROBERT V. PERCIVAL, ET. AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY

875 (5th ed. 2006); see also 16 U.S.C. § 1536(h)(1)(A). 168 See H.R. REP. NO. 95-1625, at 14 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, 9464

(“The bill [creating the Endangered Species Committee] attempts to retain the basic integrity of the Endangered Species Act, while introducing some flexibility which will permit exemptions from the Act’s stringent requirements.”).

169 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 688 (2007)



More importantly, it reflects Congress’s intent to make endangered species protection a top priority that will be sacrificed only where the Committee—not the courts—deems it necessary.170 Congress anticipated these conflicts and provided a way to resolve them. Congress’s approach, rather than an agency regulation clearly undermining the purposes of the ESA, should prevail.

VI. A PROPOSAL TO CONGRESS: ENSURING THE SURVIVAL OF SECTION 7

The Supreme Court in NAHB has given agencies the green light to approve certain projects without first conducting a section 7 consultation.171 Consequently, projects falling under specific statutory mandates may proceed regardless of whether they will jeopardize an endangered species or its critical habitat. In his dissent, Justice Breyer highlights two examples of statutory mandates that do not expressly list species preservation as a factor in the agency decision-making process. The first involves a statute directing the old Federal Power Commission (now the Federal Energy Regulatory Commission, or FERC) to issue “certificate[s] of public convenience and necessity” as part of the permitting process for new natural gas pipelines:

[A] certificate shall be issued to any qualified applicant therefor . . . if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed . . . and that the proposed service . . . is or will be required by the present or future public convenience and necessity.172

Justice Breyer notes that, “given a new pipeline’s potential effect upon habitat and landscape, it seems reasonable to believe, once Congress enacted the [ESA], the [FERC] would act within its authority in taking species-endangering effects into account.”173 However, NAHB now precludes FERC from doing so despite the potential of a new pipeline to significantly damage the habitat of an endangered species.

His second example concerns the “exclusive” list of factors that

(Stevens, J., dissenting). 170 Id. 171 Id. at 669. 172 Id. at 699 (Breyer, J., dissenting) (quoting 15 U.S.C. § 717f(e) (1988)). 173 Id.



the Food and Drug Administration (FDA) must consider before approving a new drug.174 This list, like the “list” in § 402(b) of the CWA, does not include endangered species preservation.175 Justice Breyer notes that the FDA should, pursuant to the ESA, “take account, when it grants or denies drug approval, of the effect of manufacture and marketing of a new drug upon the preservation or destruction of an endangered species.”176 However, NAHB prevents the FDA from considering any factors outside those listed in the statute regardless of whether its approval of a drug will adversely impact an endangered species.

Interestingly, section 7 consultation interferes with agency action to an extremely small degree.177 A study conducted by the World Wildlife Fund revealed

that nearly 100,000 section 7 consultations were undertaken between the FWS and other federal agencies during a five-year period. Approximately 95,000 of these were rapid, informal consultations, many of which occurred by telephone, and resulted in no delay or modification of a project. A total of 2,719 formal consultations occurred with 2,367 (87 percent) resulting in “no jeopardy” opinions. Only 352 “jeopardy” opinions were issued, and more than one-third of these involved only two proposed projects. Only 54 projects were terminated during the five-year period. Thus, only 0.3 percent of all consultations resulted in jeopardy opinions, and the vast majority of these projects were able to proceed after adopting “reasonable and prudent” alternatives identified by FWS in its opinion.178

What this study shows is that the section 7 consultation process is not a heavy burden weighing down on the shoulders of federal agencies. The process is usually quick, informal, and unlikely to interrupt or terminate the project in question. The benefit of species protection seems to far outweigh the minimal cost of section 7 consultation. As such, there is no need for the kind of loophole created by NAHB. The decision frustrates Congress’s efforts to strengthen endangered species protection and relieves agencies of section 7’s rather minor obligation, a move that could have major

174 Id. at 699–700 (citing 21 U.S.C. § 355(d) (2000)). 175 Id. 176 Id. 177 See PERCIVAL, supra note 167, at 906 (citation omitted). 178 Id. (citing WORLD WILDLIFE FUND, TALK IS CHEAPER THAN WE THINK: THE

CONSULTATION PROCESS UNDER THE ENDANGERED SPECIES ACT (1994)).



impacts. Accordingly, further action by Congress is vital to the survival of

section 7. As explained by Justice Stevens in his dissent, the Court “fails at [the] task” of giving “full effect” to “competing statutory mandates” and “unsuccessfully tries to reconcile the CWA and ESA by relying on a federal regulation” that “is fundamentally inconsistent with the ESA itself.”179 The “full effect” of the ESA is lost with § 402.03’s insertion of the term “discretionary.” Because § 402.03 fails the Chevron “reasonable and permissible interpretation” test, it should not have been followed by the Court. But the Court has made its decision, and now it is up to Congress to set things straight. Since “[t]he applicability of section 7 is of great importance because it stands as one of the major protections for endangered and threatened species,” Congress must clarify what actions are subject to the requirements of section 7.180

Congress could add a tenth criterion to section 402(b) of the CWA requiring EPA to consider the ESA before approving a state’s transfer application.181 Congress could also expressly exempt the NPDES program from section 7 consultation.182 But the problem with these “solutions” is that they are not actually solutions. Rather, they are temporary answers to the immediately obvious clash between the ESA and the CWA. This narrow issue of NAHB would simply reappear later as the ESA conflicting with another statutory mandate. With the precedent of NAHB at hand, courts would again find in favor of the statutory mandate and exempt the agency from section 7 consultation. Because the agency action would be permitted without considering its potential impact on endangered species, “[t]he power of the protections endowed by the ESA would be usurped and conservation efforts around the country would be greatly hindered.”183 As agencies and developers use § 402.03 and the NAHB decision as a way to circumvent ESA requirements, the importance of section 7 could slowly deteriorate and Congress’s intent would be continuously ignored. Therefore, the way for Congress to save section 7 is to rewrite the provision in a manner that clearly articulates Congress’s intent. Section 7(a)(2)

179 Nat’l Ass’n of Home Builders, 551 U.S. at 674 (Stevens, J., dissenting). 180 Brian P. Gaffney, A Divided Duty: The EPA’s Dilemma Under the Endangered Species

Act and Clean Water Act Concerning the National Pollutant Discharge Elimination System, 26 REV. LITIG. 487, 524 (2007).

181 Id. 182 Id. 183 Id.



should require federal agencies to “insure that any action [, regardless of whether the action is mandatory or discretionary,] authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence” of an endangered or threatened species or its critical habitat.184 This language clarifies the application of section 7 and conforms to Congress’s intent in enacting the ESA, something § 402.03 fails to do. More importantly, it prevents agencies and developers from using the very statute designed to protect endangered species as justification for actions jeopardizing the existence of such species.

VI. CONCLUSION

The NAHB decision is, unfortunately, another example of the “growing trend of courts to narrow the scope of the ESA.”185 What is even more unfortunate is that the Court’s reasoning behind the decision is flawed, as it rests on a federal regulation that wrongly interprets Congress’s intent in enacting the ESA. Because the regulation is contrary to Congress’s intent, it is not a reasonable agency interpretation under the Chevron doctrine and should not have been declared as such. In order to avoid further frustration of Congress’s objectives in enacting the ESA, Congress must revise section 7. Specifically, Congress must explicitly declare that section 7 applies to all federal agency actions, regardless of whether the action is mandatory or discretionary. In the end, Congress’s concern for endangered species and its efforts to make species preservation a top priority cannot be ignored. After all, the ESA “is the cornerstone of U.S. efforts to conserve biological diversity. It is a mechanism for saving species, the diversity within them, and the natural systems on which they depend.”186 Surely such an imperative vehicle for safeguarding some of the earth’s most important and beautiful resources deserves its own protection.

184 16 U.S.C. § 1536(a)(2) (2000). 185 Lynn Doiron, National Ass’n of Home Builders v. Defenders of Wildlife: The Supreme

Court Narrows the Scope of the ESA, 21 TUL. ENVTL. L.J. 111, 119 (2007). 186 PERCIVAL, supra note 167, at 864.

Documents

ENDANGERING THE ENDANGERED SPECIES ACT: NATIONAL ... Quaresimo.pdf · 2009] Endangering the Endangered Species Act 1149 endangered species ever enacted by any nation.”34 Nonetheless,