Academic journal article The Review of Litigation

A Divided Duty: The EPA's Dilemma under the Endangered Species Act and Clean Water Act concerning the National Pollutant Discharge Elimination System

Academic journal article The Review of Litigation

A Divided Duty: The EPA's Dilemma under the Endangered Species Act and Clean Water Act concerning the National Pollutant Discharge Elimination System

Article excerpt

I. INTRODUCTION

The Endangered Species Act1 ("ESA") and the Clean Water Act2 ("CWA") are two of the most significant and prominent environmental statutes ever enacted by Congress. Although both statutes concentrate on protecting the environment, they serve very different purposes. The principal objective of the ESA is the conservation of endangered and threatened wildlife and plant species. Similarly, the principal objective of the CWA is to protect human beings and the environment by regulating pollution. Unfortunately, while both seek to protect the environment, the statutes do not always work in harmony. When the statutes collide, these diverging concerns must be reconciled.

Such an encounter recently arose in the American Southwest, where the Ninth Circuit held in Defenders of Wildlife v. EPA3 that the Environmental Protection Agency's ("EPA") delegation of the CWA National Pollutant Discharge Elimination System ("NPDES") was arbitrary and capricious for violating section 7 of the ESA. The Ninth Circuit's decision is important for several reasons. First, the Ninth Circuit's decision incorrectly interprets the statutory and regulatory texts involved regarding the applicability of section 7 to the EPA's delegation of the NPDES to the states. This errant decision has cost the State of Arizona millions of dollars. second, the opinion creates a circuit split; the Fifth Circuit, in 1998, reached an opposite conclusion while analyzing a similar situation in American Forest and Paper Association v. EPA.4 Third, the opinion illustrates the need for Congress to intercede and correct the problem through legislation. Assistance from the United States Supreme Court or the executive branch's administrative agencies5 may also be needed to clarify the applicability of ESA section 7 and the interpretation of 50 C.F.R. § 402.03. To date, however, the courts have been unable to adequately resolve the conflict. This need is of critical importance considering the pivotal role section 7 performs in the conservation of species and Congress's increased reliance on federally delegable programs.6 Also, this suggests that Congress may have unearthed a loophole to avoid ESA section 7 by drafting statutes in mandatory language. This conflict places the EPA in a precarious position. Like a child who has been given conflicting instructions from his parents on how to carry out his daily chores, the EPA is ordered to obey the commands of both the ESA and the CWA, but cannot satisfy one without disobeying the other.

This Note attempts to sketch the basic legal arguments describing the conflict between the two statutes and to examine the pertinent court decisions that have come to shape the present day case law. Part I contains a more detailed analysis of the ESA, its language, legislative history, pertinent case law, and effects. Part II provides a more extensive account of the CWA NPDES program, concentrating on the Act's intent, textual language, requirements, legislative history, and case law. Part III briefly summarizes and offers to explain the inherent conflict created by these statutes. Part IV contains a look at how the Fifth Circuit approached this situation in American Forest. Part V investigates the Ninth Circuit's approach in Defenders and its misunderstanding of the current state of the law surrounding section 7 and its applicability to the NPDES. Part VI reviews why the majority opinion in Defenders may be correct in theory but is incorrect in its application of the law that surrounds this subject. Part VII sets out the analysis of Judge Thompson's dissent in Defenders, which offers a better understanding and application of the current law.

The Ninth Circuit's decision in Defenders appears correct when compared to the original intent of the ESA and the U.S. Supreme Court's interpretation of the statute and section 7 in Tennessee Valley Authority v. Hill.1 Since the days of the Hill decision, however, a body of case law interpreting section 7 has developed that has curtailed the applicability of the provision and its protections. …

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