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. …