Supreme Court Limits
the Endangered Species Act
Environment News Service 6/25/07
WASHINGTON, DC, June 25, 2007 (ENS) -
In a 5-4 decision today, the U.S. Supreme Court today limited
the obligation of federal agencies under the Endangered
Species Act to ensure that their actions do not jeopardize
federally listed threatened or endangered species.
In two combined cases - EPA v. Defenders of Wildlife and
National Association of Home Builders v. Defenders of Wildlife
- the court reversed an appeals court decision that required
the U.S. EPA to consider the protection of listed species
before handing Clean Water Act permitting authority over to
The Clean Water Act requires that the EPA transfer
permitting powers to the states if nine criteria are met.
The Endangered Species Act, ESA, requires that a federal
agency must consult with other relevant agencies to ensure its
actions do not jeopardize the continued existence of any
endangered species or threatened species.
The question resolved by the court ruling is whether the
ESA consultation requirement is effectively a tenth criterion
on which the transfer of Clean Water Act permitting power must
be based. The majority concluded that it is not.
Delivering the majority opinion, Justice Samuel Alito
wrote, "The transfer of permitting authority to state
authorities - who will exercise that authority under
continuing federal oversight to ensure compliance with
relevant mandates of the Endangered Species Act and other
federal environmental protection statutes - was proper. We
therefore reverse the judgment of the United States Court of
Appeals for the Ninth Circuit."
In his dissent, Justice John Stevens expressed the opinion
that the Endangered Species Act works in harmony with other
federal mandates and should not be trumped by other federal
laws without the express direction of Congress.
Rodger Schlickeisen, president of Defenders of Wildlife
said, "Todayís decision, while unfortunate, should apply only
to a very narrow category of actions by federal agencies -
actions compelled by the terms of another federal law - and
should not be read as a broad abrogation of the authority of
the Endangered Species Act."
Expressing the view that the majority opinion, "ignores the
clear intention of Congress when they enacted the Endangered
Species Act," Schlickeisen said, "We are concerned that the
Courtís decision, combined with the Bush administrationís
clear history of undermining the effectiveness of the
Endangered Species Act, could lead to additional extinctions
of American wildlife - extinctions which the Act is intended
National Association of Home Builders President Brian
Catalde was pleased with the ruling.
"This decision recognizes that we must always maintain a
balance when we look at environmental regulations. We can't
say that the Endangered Species Act is an 'uber-statute' that
should slow down regulatory decisions under the Clean Water
Act even as we recognize that both laws concern issues that
are vital to preserving this earth for the next generation."
"This decision also tells us that the U.S. Supreme Court is
helping to preserve housing affordability by striking down
efforts at unnecessary, duplicative regulation," he said.
"Forcing the EPA to issue discharge permits in Arizona,
which an unfavorable Supreme Court decision would have
required," said Catalde, "would have cost builders more time
and money, making homes less affordable in affected areas."
In the case of one protected species in Arizona, the U.S.
Fish and Wildlife Service estimated that Endangered Species
Act consultations delayed the typical development by five to
18 months and, when added to the cost of onsite mitigation and
project modifications, cost between $1.7 million and $2.7
million, said Catalde.