National Association of Home Builders v. Defenders of Wildlife

Supreme Court of the United States · 2007 · Administrative Law

Administrative LawClean Water ActEndangered Species ActNPDESstate permitting transferChevronagency deferenceimplied repeal

Facts

Clean Water Act § 402(b) provides that EPA shall approve a state's application to administer its own NPDES permitting program unless EPA determines that the state lacks adequate authority to satisfy nine specified statutory criteria. Arizona applied for transfer of permitting authority, EPA consulted with FWS, and FWS ultimately issued a biological opinion concluding the transfer would not jeopardize listed species and that the loss of federal § 7 consultation on future state permits was not an indirect effect of EPA's approval. EPA determined that Arizona satisfied all nine § 402(b) criteria and approved the transfer. Respondents argued that ESA § 7(a)(2) required EPA to deny the transfer unless it ensured no jeopardy to endangered species, effectively adding another condition to the CWA transfer decision.

Issue

Whether ESA § 7(a)(2)'s consultation and no-jeopardy requirements operate as an additional condition on EPA's approval of a state's Clean Water Act § 402(b) application to assume NPDES permitting authority. Also, whether the Ninth Circuit correctly held that EPA's approval was arbitrary and capricious because the agencies allegedly relied on inconsistent positions regarding § 7.

Rule

When another statute imposes a mandatory, nondiscretionary duty on an agency, ESA § 7(a)(2) does not override that duty. Under 50 CFR § 402.03, to which the Court deferred under Chevron, § 7(a)(2) applies only to actions involving discretionary federal involvement or control, and a CWA § 402(b) transfer must be approved once the statute's nine exclusive criteria are met.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Congress creates a federal warehouse-safety licensing program. The statute provides that the Logistics Safety Bureau shall approve a state's application to run the program unless the Bureau finds the state lacks any of seven specifically listed enforcement powers. Oregon satisfies all seven, but biologists warn that future state-issued warehouse permits may indirectly increase traffic near habitat used by a threatened owl.

If environmental groups argue that ESA § 7(a)(2) requires the Bureau to deny Oregon's application unless it can ensure no jeopardy to the owl, what is the best answer?

Explanation. The majority held that where another statute imposes a mandatory duty and sets out exclusive criteria, ESA § 7(a)(2) does not operate as an additional condition. Reading ESA § 7(a)(2) to require denial here would effectively amend or partially repeal the earlier statute's mandatory command. Under 50 CFR § 402.03, to which the Court deferred, § 7(a)(2) applies only where there is discretionary federal involvement or control.