Endangering the Endangered Species Act: National Association of Home Builders v. Defenders of Wildlife and its threat to the survival of endangered species protection.

• Author: Quaresimo, Kristen M.
• Position: COMMENTS

1. 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).s The CWA was enacted 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. [section] 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 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 [section] 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 [section] 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 [section] 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.

2. FUNDAMENTALS OF THE ESA

   1. 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] 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 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.

   2. 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] 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...