1/26/2010 7:08 PM. Kristen M. Quaresimo* I. INTRODUCTION

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1 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 ESA 4 (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 Wildlife 6 (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 U.S.C (2006). 2 Id. 1531(b). 3 H.R. REP. NO , at 5 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, U.S.C (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) U.S. 644, (2007). 7 See infra Part III.B U.S.C (2000). 1145

2 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 , 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 Id. 1342(a)(1). 12 Id. 1342(b). 13 Id U.S. at See id. at Id. at 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 C.F.R (1986) (emphasis added). This regulation was promulgated by the

3 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 as a reasonable interpretation of section 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 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 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

4 1148 Albany Law Review [Vol. 72 become extinct since settlement of the 50 states. 25 In response, the 89 th Congress enacted the Endangered Species Preservation Act of 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 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 (1973), as reprinted in 1973 U.S.C.C.A.N. 2989, Id. (emphasis omitted). 28 See id. at 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 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 (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).

5 2009] Endangering the Endangered Species Act 1149 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 H.R. REP. NO , at 5 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, Id 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, (last visited Oct. 12, 2008). 41 S. REP. NO (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2991.

6 1150 Albany Law Review [Vol. 72 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 Service 46 to see how the proposed action will affect the 42 Id. (quoting President Richard Nixon, Environmental Message: Environmental Awakening (Feb. 8, 1972)) 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

7 2009] Endangering the Endangered Species Act 1151 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 C.F.R (a) (1989) C.F.R (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 (citations omitted) 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 Id.

8 1152 Albany Law Review [Vol. 72 III. DRAWING THE LINE: THE DISPUTE OVER THE SCOPE OF SECTION 7 A. The Circuit Split As mentioned, 50 C.F.R , 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 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) C.F.R (1986) (emphasis added) U.S.C. 1536(a)(2) (2000). 58 See Am. Forest & Paper Ass n v. EPA, 137 F.3d 291, (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, (9th Cir. 1998). 60 See Defenders of Wildlife v. EPA, 882 F.2d 1294, (8th Cir. 1989) ( Even though a federal agency may be acting under a different statute, that agency must still comply with

9 2009] Endangering the Endangered Species Act 1153 The Ninth Circuit s decision in Defenders of Wildlife v. EPA 61 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, (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) F.3d 946 (9th Cir. 2005). 62 Id. at Id. at 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 Id. at Id. at 963.

10 1154 Albany Law Review [Vol. 72 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 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 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 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 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 Id. 75 Id. at 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 Id. at 969.

11 2009] Endangering the Endangered Species Act 1155 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 , 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 Nat l Ass n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). 81 See id. at Id. at 665 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, (1984). 83 Chevron, 467 U.S. at

12 1156 Albany Law Review [Vol. 72 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 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 (1986)). 87 Id. 88 Id. at Id. at Id. at 661; 33 U.S.C. 1342(b) (2000). 91 Nat l Ass n of Home Builders, 551 U.S. at Id. at 661.

13 2009] Endangering the Endangered Species Act 1157 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: UNDER THE CHEVRON DOCTRINE Although the Court found that 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 is inconsistent with Congress s intent. Part B analyzes the NAHB Court s reasons for finding 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 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 Id. at Id. at 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 See supra notes and accompanying text.

14 1158 Albany Law Review [Vol. 72 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 , the Services ignored these concerns. As noted, 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 nojeopardy duty. Both the language and the legislative history of section 7 confirm that 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 Id. (citing H.R. REP. NO , 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 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, ). 101 Tenn. Valley Auth. v. Hill, 437 U.S. 153, (1978). 102 H.R. REP. NO , 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) C.F.R (1986) U.S.C. 1536(a)(1) (2006) (emphasis added).

15 2009] Endangering the Endangered Species Act 1159 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 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 , 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 , 80 Stat. 926 (current version at 16 U.S.C (2006)). 109 Mallory, supra note 38, at Tenn. Valley Auth. v. Hill, 437 U.S. 153, (1978).

16 1160 Albany Law Review [Vol. 72 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 Although the Conference Committee essentially adopted the Senate s bill, it adopted the House s version of section 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, s limitation on section 7 s no-jeopardy obligation clearly goes against the express language of section 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 , at (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, (1982) (emphasis added). 113 H.R. 37, 93d Cong. (1973); see also Tenn. Valley Auth., 437 U.S. at H.R. REP. NO , at 10 (1973) (Conf. Rep.), reprinted in 1973 U.S.C.C.A.N. 2989; see also Tenn. Valley Auth., 437 U.S. at CONG. REC. 42,913 (1973) (emphasis added) U.S.C (2000) (emphasis added). 117 See id.; 50 C.F.R (1986).

17 2009] Endangering the Endangered Species Act 1161 focus on placing endangered species protection at the top of the priority list. In fact, 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 (2000); 50 C.F.R (1986) U.S. 153 (1978). 120 Id. at 184 (emphasis added). 121 Id. at Id. at Id. at Id. at Id. at Id. 127 Id. at 168.

18 1162 Albany Law Review [Vol. 72 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 , 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 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 Id. at Id. at Id. at Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978) (emphasis added). 132 Id. at Nat l Ass n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 670 (2007). 134 Id. at Id. at Id. at 676 (Stevens, J., dissenting). 137 Id. at671.

19 2009] Endangering the Endangered Species Act 1163 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 , 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 Citizen 141 as support for its finding that 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 , at 10 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, Id. 140 Id U.S. 752 (2004). 142 Nat l Ass n of Home Builders, 551 U.S. at U.S. at Id. at Id. at 770.

20 1164 Albany Law Review [Vol. 72 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 Id. 149 Id. 150 Id. 151 Id. at 692 n. 13 (Stevens, J., dissenting). 152 Id. 153 Id. 154 Id. (emphasis added). 155 Id.