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Supreme Court to hear case questioning ESA's primacy
January 8, 2007
Allison Winter, Greenwire reporter

The Supreme Court will consider a case this year that could decide to what extent the Endangered Species Act can override other laws.

The court added to its docket Friday evening a pair of consolidated appeals -- EPA v. Defenders of Wildlife and National Association of Homebuilders v. Defenders of Wildlife -- that question whether federal agencies must comply with the Endangered Species Act when implementing other laws.

It will be the first time the court has heard a substantive case on the Endangered Species Act in the past decade, attorneys on the case say. Oral arguments are expected in April.

At issue is EPA's 2002 decision to transfer its stormwater-discharge permits to the state of Arizona. Environmentalists successfully sued over the program, saying the agency must consider the effects of the permits on endangered species. The 9th U.S. Circuit Court of Appeals ruled in their favor.

But NAHB and EPA appealed the case to the Supreme Court. They argue that when Congress allowed EPA to transfer permitting to states, it said they must meet nine criteria in the Clean Water Act to issue the permits. Endangered Species Act compliance would add a 10th criterion that was not required in the law, the groups argue.

"It effectively asks if ESA is a öber-statute and can overlay any other act of Congress," said Duane Desidiro, an attorney for the builders group.

Desidiro said if the 9th Circuit ruling were to stand, it could be applied to any state permits with a federal origin, including hazardous waste and federal housing.

But Jason Rylander, an attorney with Defenders of Wildlife, said the case is a "simple 'look before you leap' proposition" to make sure the Supreme Court considers water permits effects on endangered species.

Developers must obtain the permits for stormwater that passes through pipes, ditches or other channels into waterways. In Arizona, the permits have allowed thousands of housing units that environmentalists say could harm habitat for the southwestern willow flycatcher, minnows, pupfish and other imperilled plants and animals along the San Pedro River Basin.

If EPA issued the permits, it would have to complete a formal consultation process with the Fish and Wildlife Service over whether any species might be affected. But state agencies do not have the same stringent consulting requirements as the federal government.

In deciding to hear the cases, the court asked attorneys to answer whether EPA's decision to transfer its permitting authority in the first place was based on inconsistent views of ESA, and if the case should have gone back to the agency for further review.

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