# Amicus Curiae Brief — National Ass'n v. Defenders of Wildlife

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0293%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 644

## Text

IN THE
SUPREME COURT OF THE UNITED STATES

NATIONAL ASSOCIATION OF HOME BUILDERS,
Petitioner,
v.
DEFENDERS OF WILDLIFE, ET AL.
Respondents.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
V.
DEFENDERS OF WILDLIFE, ET AL.
Respondents.

On Wnits Of Certiorari To The United States
Court Of Appeals For The Ninth Circuit

BRIEF OF AMICI CURIAE THE AMERICAN ROAD
AND TRANSPORTATION BUILDERS ASSOCIATION
AND THE NATIONWIDE PUBLIC PROJECTS
COALITION
IN SUPPORT OF PETITIONERS

NICK GOLDSTEIN LAWRENCE R. LIEBESMAN*
American Road and RAFE PETERSEN
Transportation Builders STEVEN R. KELTON
Association Holland & Knight LLP
1219 28th Street, NW 2099 Pennsylvania Ave., NW
Washington, DC 20007 Washington, DC 20006
(202) 289-4434 (202) 955-3000

Of counsel *Counsel of Record

TABLE OF CONTENTS

TAREE GP AUT ROR TIES ccccccccccccccccscecsccccscscssssccsesesseees ili
INTERESTS OF THE AMICI CURIAE ............cceecseeeeeees l
SUMMARY OF ARGUMENT ...0.........:cccceseseeeeeeeeseeeeseees 4
ETE disaiitcssniieniinscnitduiiinianniiniliniapnianinicianiionnmetenientinnnncens 6
I. THE NINTH CIRCUIT'S ADOPTION OF

Il.

THE "BUT FOR" CAUSATION TEST
INTERPRETING PUBLIC CITIZEN WOULD
TRANSFORM THE ESA INTO A "SUPER"

LAND USE CONTROL LAW. .......0.0....2...-:00cceceeeeee eee 6
A. The Ninth Circuit's Decision Distorts Public
| A ae ena aaa ae a pens ae Tenors CRN maaan e OT 6

B. ESA Section 7(a)(2) Does Not Authorize
the Kind of Deviation from the Public Citizen
Ruling Adopted by the Ninth Circuit Here................ 8

IF UPHELD, THE NINTH CIRCUIT'S

RATIONALE WOULD SO EXPAND THE

SCOPE OF EFFECTS THAT MUST BE
ADDRESSED UNDER SECTION 7(A)(2) OF

THE ESA SO AS TO CONFLICT WITH THE
PRINCIPLES OF PROXIMATE CAUSATION
ENDORSED BY THE SUPREME COURT IN
SWEET HOME, PUBLIC CITIZEN, AND
METROPOLITAN EDISON. .............2.::0c0000-eee0eeeereees 15S

A. The Tort Principle of "Proximate
Causation" Is Not the Same as Factual
Re as REIT eee tee Re ree 15

B. Courts Have Adopted Proximate Causation
Principles Under the ESA, Just as They Have
Done Under NEPA and the CWA .............:ccc:cccees0es 17

il

C. Proximate Causation Principles Under ESA
and NEPA are Equally Applicable to the
Ie IIIc sscinccihncsisssinionssmnanecitecbbibicisheninniinse 21

Ii]. THE NINTH CIRCUIT'S RATIONALE, IF
UPHELD, WILL EXTEND FAR BEYOND
THE CWA ACTION AT ISSUE IN THE
CASE AND WOULD HAVE SIGNIFICANT
ADVERSE EFFECTS ON VITAL PUBLIC
PRR ee ccccciisevenieniecadesicnincsdenninsiiemannemnipanincmneianti 23

SEIT sscnsonsnnresiopncsnstsnencnnsbecsnmunnnseansneanincmvediiinutiians 29

iil

TABLE OF AUTHORITIES
CASES:
Adler v. Lewis, 675 F.2d 1085 (9th Cir. 1982).................6.. 20

Ariz. Cattle Growers’ Ass'n v. U.S. Fish & Wildlife,
ee CE EA, BE ctercencenniomsomeneennscasionennees 18

Babbitt v. Sweet Home Chapter of Cmtys. for a Great
tig Se IE IIE GUE tevinssitnccnpenininsevteinscseianssdinianniel passim

Ctr. for Biological Diversity v. Fed. Highway
Admin., 290 F. Supp. 2d 1175 (S.D. Cal. 2003).............00+ 20

City of Shoreacres v. Waterworth, 420 F.3d 440
IEEE aa ee ere e am ee RE .... 18, 19

Concerned about Trident v. Schlesinger,
400 F. Supp. 454 (D.D.C. 1975) oo... ccceceseeeeeteseeneneees 11

Defenders of Wildlife v. EPA, 420 F.3d 946
ST TaITTID MIINUU NU snnscsanssiesiesileiiitenitliieiciisenenieinaininseiineintiitineabla 8, 29

Dep't of Transp. v. Public Citizen, 541 U.S. 752

Envil. Def. Fund, Inc. v. U.S. Army Corps of Eng’rs,
SO eG i arccccncsttenncenscivncnntiactintintsiscencnnees 11

Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of
Eng'rs, 374 F. Supp. 2d 1116 (S.D. Fla. 2005) .................. 19

iv
Kleppe v. Sierra Club, 427 U.S. 390 (1976) ..sccsesessessssssee. 19

Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766 (1983) .........cccsseseeseeeeseeceeeeneees passim

Natural Res. Def. Council v. EPA, 822 F.2d 104
ee a SGD ecscesenstnncnrcesennesessrenneesenioeninteninntanaenmmennennenss 9

Natural Res. Def. Council v. EPA, 859 F.2d 156
en Ne TIED cccenccnciosesstsnsccnssscincsciennstnnininnenemananeneemnmnnens 10

Okla. Wildlife Fed’n v. Army Corps of Eng’rs,
681 F. Supp. 1470 (N.D. Okla. 1988) .........ccccceseeseeneeeeceees 19

Palsgraf v. Long Island R.R. Co., 248 N.Y. 339
GIN sincsscssetsesdenhisnsnntinneceninensciegndsccedmmnemennientansigmmssinnseunts 15, 16

Palila v. Haw. Dep’t of Land & Natural Res.,
852 F.2d 1106 (9th Cir. 1988).............cccscscesseeesereeeeeees 17, 18

Potomac Alliance v. U.S. Nuclear Regulatory
Comm’n, 682 F.2d 1030 (D.C. Cir. 1982) .......::cccecceeeeeeeeees 19

Riverside Irrigation District v. Andrews,
TID Fe FOO COGIC. BGGS).nncccrcccceccsccccccnssccerscccsoceseses 9, 13

Sierra Club v. Glickman, 156 F.3d 606 (Sth Cir.

Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C.
STD cietsimerstetanenseininaiaimasemniinneienmnion sicennatnteniinnsees 19

v

Sierra Club v. Marsh, 976 F.2d 763 (1st Cir. 1992)........... 19
S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Bama, S44 UD. DS CABO. scvececcnscessecsoeessertscrsenstenstemanteonn 22
Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) .0.....e cee 18

Strycker's Bay Neighborhood Council v. Karlen,
OF CE, Be Gee cvsreneeseneneevenessntarnssannmnbnicnmmmciiiasaiiinnl 10

EVA V. Fit, 437 U.S. 153 (19TB).........cccoserserosesserssesoeses 4,12

Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Canale, FS UB. SED COPIED cccercscserssmnsevsenesensscenntinnniniasinsnn 10

Water Keeper Alliance v. EPA, 399 F.3d 486
GG Fi cts sonnccounssssrnsniecianiensennimmntesnnmennneenai 22

STATUTES:

Clean Water Act, 33 U.S.C. § 1251 et seq.
IE FIG wccreretinsisinsissenientientisatgnninininmia 14

National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

GED, 0 CII va secceeecsicinnssecsassenitesisianatanamsiiaaiiuaaa 10
GRUIIL: GIGI eesiissaccnsincccnsnecntecnsiasissiaaneaaiina 1

vi

Endangered Species Act, 16 U.S.C. § 1531 et seq.

Tn 13
Section T(A)(2) soecseecseeseesseenreeneenesstesnesseessessecssessssses PASSUM
EEE CE 22
EC 16
REGULATIONS:
I eee 13, 14
Ee 9
ADMINISTRATIVE MATERIAL
51 Fed. Reg. 19,926 (June 3, 1986) ............:cccecceeeeeseeeeeeeees 13
OTHER AUTHORITIES:

Am. Ass’n of State Highway & Transp. Officials,
Indirect and Cumulative Impact Analysis (Jan. 2006) ..20, 21

Cambridge Systematics, Inc., Unclogging America's
Antries, Effective Relief for Highway Bottlenecks (Feb.
SAREE ES eD, ee eeee E 27, 28

Dan B. Dobbs, The Law of Torts (2000) .........cv-0s+-000+ 15, 17

Emil H. Frankel, Statement Before the U.S. Senate Comm.
on Env’t and Pub. Works, Hearing on Project Delivery and
Envtl. Stewardship (Sept. 19, 2002)............ccccccccceeseseeeenees 25

Gov't Accounting Office, Testimony Before the
Committee on Environment and Public Works, U.S.
SIE (UD, AIEEE ccccocesccsssensesecensssereccenensesssveccenccesssvess 24

Vii

Albert C. Lin, Erosive Interpretation of Environmental Law
in the Supreme Court's 2003-2004 Term, Houston L. Rev.
SINT BOD cecsernccesscccevescocmmvanensntmnanensentanesnecsnesiin -- 17, 22

Robert Meltz, Congressional Research Serv., The
Endangered Species Act and Private Property: A Legal
PN Ce csticsencinccsnecicssnttinniintataneaniainieinisenbeasiaansiniien 22

J.B. Ruhl, State and Local Government Vicarious
Liability Under the ESA, Nat. Res. & Env't 70 (Fall
Se eniiatientainchaatiacchececmeecechasiacihlescub itn tetanic ieateiaiieaieasl 18

Texas Trans. Inst., 2004 Urban Mobility Report -
Performance Measure Survey for Las Vegas

ed 26

TransTech Mgmt., Environmental Streamlining: A

Report on Delays Associated with the Categorical

Exclusion & Environmental Assessment Process

EEL MITE -sinchctitesetecsiecisciiaihinaiveciiiiaistaiinaiiaiaithiaiiuibanidibdaiad 25, 26

U.S. Envtl. Prot. Agency, State Program Status ................... 8
U.S. Fed. Highway Admin., Public Roads (May/June

U.S. Fed. Highway Admin., Evaluating the

_ Performance of Environmental Streamlining

Development of a NEPA Baseline for Measuring
CD FID eccestsinicstnccintrctemintinmanemmmenannia 24

Vili

U.S. Fed. Highway Admin. Report to Congress on
Federal Highway Administration Streamlining
Activities in 2003 (Jume 2004) ..0.0.........:cccccsceeeeeeesceeeeeeenees 25

U.S. Fed. Highway Admin., Press Release
(Sept. 30, 2004) ......cccccsccssesssssesesssessessssssessssseneeseneseseeeeeee 27

U.S. Fish & Wildlife Serv., Biological Opinion
a eee 13, 14

The American Road and Transportation Builders
Association and the Nationwide Public Projects Coalition, as
Amici curiae, respectfully submit this brief in support of
Petitioners National Association of Home Builders and U.S.
Environmental Protection Agency ("EPA").'

INTERESTS OF THE AMICI CURIAE

The Amici are private entities, public sector agencies,
associations, and local governments that provide essential
public services covering transportation, flood control, water
supply, and waste water management.

Amici and their member organizations would be hard-
hit if the Ninth Circuit decision is affirmed. The ability of
Amici to timely meet essential public needs could be severely
harmed if public agencies must assess the speculative future
land use effects of potential development on listed species in
order to meet the “insure” mandate under Section 7(a)(2) of
the Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq.
The implications of upholding the Ninth Circuit would
extend far beyond the Clean Water Act ("CWA") National
Pollutant Discharge Elimination System ("NPDES"), 33
U.S.C. § 1342, program transfer to Arizona at issue in this
case, and will impact federal agency actions necessary for
many vital public works projects across the nation.

The Amici consist of the following:

' All parties have consented to the filing of this brief. The Amici have
filed letters of consent with the Clerk. Pursuant to this Court's Rule 37.6,
Amici state that no counsel for any party-in this case authored this brief in
whole or in part, and no person or entity other than the Amici and their
counsel have made a monetary contribution to the preparation and
submission of this brief.

2

The American Road and Transportation Builders
Association ("ARTBA") is made up of more than 5,000
member organizations in the transportation construction
industry, including construction contractors; professional
engineering firms; federal, state, and local transportation
administrators; heavy equipment manufacturers; and
materials suppliers. These member companies employ more
than 2.5 million people in the transportation construction
industry in the United States. ARTBA’s members are
responsible for construction of vital public infrastructure
projects such as highways, bridges, airports, railroads and
mass transit facilities.

The Nationwide. Public Projects Coalition
("NPPC") is a not-for-profit association that is made up of
regional and local government agencies involved in water
supply, flood control, irrigation, wastewater and stormwater
management, street and highway construction and
maintenance, and environmental quality amenities. These
agencies represent over 12 million constituents, extending
from Connecticut to California, and from Alaska to Georgia.
NPPC works on behalf of members of the public to ensure
that vital public infrastructure services are provided in a safe,
timely and environmentally-beneficial fashion. Consisting
of public agencies and firms that provide vital infrastructure
and services, NPPC’s members must ensure that a
responsible balance is achieved between environmental,
health, and safety goals and the protection of human lives
and property. NPPC members often encounter ESA issues in
providing these services. NPPC's members are typified by
the following agencies:

1) The Metropolitan Denver Water Authority
("MDW A\") is a political subdivision and public corporation
of the State of Colorado. MDWA is made up of twenty
cities and special districts that provide municipal water

3

and/or wastewater services for the metropolitan Denver area
and serve more than 1.5 million persons. MDWA's member
agencies serve some of the fastest-growing counties in the
nation.

2) The Consolidated Mutual Water Company
("“CMWC") is mutually owned, and serves an estimated
population of 100,000 people in Jefferson County, Colorado,
in the western region of Metropolitan Denver. CMWC
acquires its water supply from lakes and streams.

3) Rancho California Water District ("RCWD")
provides water and sewer service over a 150 square mile area
in southwestern Riverside County, California. Thousands of
residents and businesses rely on RCWD for potable water.
The ESA has delayed and driven up costs on numerous
capitol improvement projects undertaken by RCWD.

4) The Cobb County-Marietta Water Authority
("“CCMWA") is a political subdivision of the State of
Georgia. CCMWA is a regional water wholesaler that
supplies water to municipalities and counties serving more
than 780,000 people in the rapidly growing Metro-Atlanta
area. Included are all of Cobb County and its municipalities,
all of Paulding County, and portions of Douglas County,
Cherokee County, and Fulton County.

5) The West Valley Water District of Rialto,
California ("WVWD") is an independent special district that
serves water customers living in southwestem San
Bernardino County and northern Riverside County. WVWD
depends on local surface water resources, five groundwater
basins and the California State Water Project to meet the
needs of more than 50,000 persons.

4
SUMMARY OF ARGUMENT

1) The Ninth Circuit's misapplication of Public
Citizen with respect to EPA's duty under Section 7(a)(2) of
the ESA improperly requires that agency to speculate on
future impacts to listed species from development. Because
EPA's NPDES authority is limited to the regulation of
discharges into navigable waters—not land development—
the CWA may not be interpreted to require the Agency to
address the potential consequences far removed from its
scope of authority in order to meet the "insure" duty under
Section 7(a)(2). In essence, the Ninth Circuit's ruling would
transform the CWA into a "super land use” contro} statute to
achieve the goals of the ESA. Nothing in this Court's 1978
decision in TVA v. Hill allows for such an expansion of an
agency's organic authority to further ESA's goals.

2) The Ninth Circuit's adoption of the "but for" test
distorts the tort principle of "proximate causation." The
Ninth Circuit's rationale would so expand the scope of
effects that must be considered under Section 7(a)(2) as to
require federal agencies to speculate regarding the
unforeseeable consequences of agency actions on local
development activities. The effect of the decision would be
to undermine the principles of proximate causation endorsed
by this Court in Sweet Home, Public Citizen, and
Metropolitan Edison with respect to the ESA and NEPA.

3) The Ninth Circuit's rationale, if upheld, will
extend far beyond EPA's CWA transfer action at issue in this
case. If ESA considerations are found by the Court to
expand federal agencies duties beyond the limits of their
discretionary authorities, those agencies will be required to
speculate as to the impact of future development on the
siting of important public projects. The result will be a
Significant increase in costs and delays for vital projects,

5

such as much needed highway improvements, that could
compromise essential safety and environmental needs.

6
ARGUMENT

I. THE NINTH CIRCUIT'S ADOPTION OF THE
"BUT FOR" CAUSATION TEST
INTERPRETING PUBLIC CITIZEN WOULD
TRANSFORM THE ESA INTO A "SUPER"
LAND USE CONTROL LAW.’

The Ninth Circuit misapplied Department of
Transportation v. Public Citizen, 541 U.S. 752, (2004), in
concluding that the requirement of Section 7(a)(2) of the
ESA for agencies to "insure" that actions do not result in
"jeopardy" or “adverse modification of [critical] habitat"
makes private land use activity an "effect" of EPA's action to
approve Arizona's assumption of the NPDES permit
program. This adoption of a “but for" test distorts the Public
Citizen ruling and elevates the ESA into a "super" land use
control statute.

A. The Ninth Circuit's Decision Distorts Public
Citizen.

This Court in Public -Citizen squarely and
unanimously rejected the “but for" causation test in
construing the scope of effects that must be considered under
the National Environmental Policy Act ("NEPA"), 42 U.S.C.
§ 4321 et seq. Examining whether NEPA required the
Federal Motor Carrier Safety Administration ("FMCSA") to
consider the effects of a rule imposing registration and safety

> While the Court certified four questions, and requested all parties to
brief a fifth question, this brief addresses only the following question:
Did the Ninth Circuit incorrectly apply the holding of Department of
Transportation v. Public Citizen, 541 U.S. 752 (2004), in concluding that
EPA's approval of Arizona's NPDES permitting program was the legally
relevant cause of impacts to endangered species resulting from future “
private land use activities?

7

requirements on Mexican domiciled motor carriers operating
in the United States, the Court held that "where an agency
has no ability to prevent a certain effect due to its limited
Statutory authority over the relevant actions, the agency
cannot be considered a legally relevant ‘cause’ of the effect.”
Public Citizen, 541 U.S. at 770. There, FMCSA did an
Environmental Assessment under NEPA focusing on those
effects that were “likely to arise from the increase in the
number of roadside inspections of Mexican trucks and
buses," id. at 761, but "did not consider the environmental
impact that might be caused by the increased presence of
Mexican trucks in the United States." Jd. at 752. FMCSA
concluded that it lacked the discretion to prevent the entry of
Mexican trucks into the United States since the decision to
allow entry flowed from the President's Executive Order to
lift a long-standing moratorium and that of Congress in
granting the President such authority while simultaneously
limiting FMCSA's discretion. /d. at 766. In upholding
FMCSA's decision, the Court adopted the "familiar doctrine
of proximate cause from tort law" in holding that a "but for”
causal relationship is insufficient to make an agency
responsible for a particular effect under NEPA and the
relevant regulations. Jd. at 767. See also, Metro. Edison Co.
v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983)
(NEPA requires "a reasonably close causal relationship"
between the environmental effect and the alleged cause).

Here, while the Ninth Circuit correctly recognized
the Public Citizen principle of "legally sufficient" causation,
the court then proceeded to completely misapply that
principle in holding that Section 7(a){2)'s “insure” language
imposed a duty on EPA to conduct a far reaching analysis of
the impact of development projects on ESA-listed species
that may be dependent on state issuance of NPDES permits.
"Neither the [U.S. Fish and Wildlife Service, ("FWS")] nor
the EPA makes any argument that justifies the Biological

et

8

Opinion's failure to analyze, in detail, the likely effect of
such future development projects fostered by pollution
permits on specific species." Defenders of Wildlife v. EPA,
420 F.3d 946, 973 (9th Cir. 2005). By imposing such a
requirement, the court essentially mandated EPA to require
detailed consideration of how a state's assumption of the 402
NPDES program would become the "catalyst" of a series of
land use impacts far removed in time and space from
issuance of NPDES permits by the State. EPA would be
forced to "crystal ball" land use impacts that may occur in
the future such as assessing local development plans for
upland projects that have little if any relationship to
discharges of pollutants into navigable waters. As we
discuss below, this misapplication would especially affect
many public works projects such as federally funded
highway construction that may facilitate development at
some point in the future.

B. ESA Section 7(a)(2) Does Not Authorize the Kind
of Deviation from the Public Citizen Ruling
Adopted by the Ninth Circuit Here.

The Ninth Circuit latches on to the "insure" language
of Section 7(a)(2) as creating a substantive duty that required
EPA and FWS consultation to consider far-reaching
development projects that are “interrelated or
interdependent" with the discharge permitted by the permit.
Defenders, 420 F.3d at 951, 972-973. However, the fact that
Congress created a duty on agencies to "insure" against such
harm to listed species does not expand the underlying
authority of a federal action agency to engage in such
analysis. Private land use activities are not "caused" by the

> The states still without NPDES authorization include: Alaska, Idaho,
Massachusetts, New Hampshire, and New Mexico. U.S. Envt). Prot.
Agency, State Program Status, available at
http://cfpub.epa.gov/npdes/statestats.cfm.

9

EPA decision to transfer the NPDES program to Arizona and
therefore cannot be an "effect" of that decision. Moreover,
the “substantive/procedural" distinction that the lower court
adopts between the ESA and NEPA does not somehow
expand the “effects” analysis that EPA may consider in
making a transfer decision. When EPA and FWS consult
under Section 7 regarding issuance of an NPDES permit, that
consultation is limited to effects within the "action area”
limited by the water body receiving the discharge and
downstream areas—not some unrelated land use activity.
See 50 C.F.R. § 402.02 ("Action area means all areas to be
affected directly or indirectly by the Federal action and not
merely the immediate area involved in the action"). See
also, Riverside Irrigation Dist. v. Andrews, 758 F.2d 508,
512 (10th Cir. 1985)(Corps considered how decreased water
flow would hurt the endangered whooping cranes because
the agency “is required, under both the Clean Water Act and
the Endangered Species Act, to consider the environmental
impact of the discharge that it is authorizing").

The principles set forth by the D.C. Circuit regarding
EPA's NPDES permitting authority and NEPA are equally
applicable to the CWA/ESA interface. The D.C. Circuit
squarely held that NEPA does not expand EPA's
administration of the NPDES permit program to require
reguiation of the underlying activity as opposed to the effects
of the discharge itself. The court overturned an EPA
regulation that would ban the construction of a new
industrial source pending issuance of a discharge permit.
Natural Res. Def. Council v. EPA, 822 F.2d. 104, 128 (D.C.
Cir. 1987)("Until the private owner applies for a discharge
permit, then, EPA lacks authority to regulate the owner's
activities under NEPA and the Clean Water Act. EPA's
construction ban thus seems directly contrary to Congress’
clear intent, as elucidated by the expressly limited statutory
definition of ‘major Federal action”). In a follow-up

10

decision, the court concluded that “neither the Clean Water
Act nor NEPA authorizes EPA's imposition of non-water
quality permit conditions." Natural Res. Def. Council v.
EPA, 859 F.2d. 156 (D.C. Cir. 1988). The court admonished
EPA to not use NEPA to "“transmogrify its obligation to
regulate discharges into a mandate to regulate the plants or
facilities themselves. To do so would unjustifiably expand
the agency's authority beyond its proper perimeters.” Jd. at
170. The court then noted that "the CWA does not empower
the agency to regulate point sources themselves; rather,
EPA's jurisdiction under the operative statute is limited to
regulating the discharge of pollutants. Thus, just as EPA
lacks authority to ban construction of new sources pending
permit issuance, so the agency is powerless to impose permit
conditions unrelated to the discharge itself.” Jd.

The Ninth Circuit's decision ignores these principles.
The court's attempt to distinguish the ESA from NEPA does
not provide a basis to expand the factors EPA must consider
under CWA Section 402(b) to encompass far-reaching land
use impacts of activities permitted under the NPDES permit
program. While courts have held that NEPA is essentiaily a
procedural statute*, Congress did direct federal agencies to
Strive to achieve certain substantive goals. Section 101 of
NEPA requires the federal government to use "all practicable
means and measures" to protect environmental values. Sec.
101(a), 42 U.S.C. § 4331(a).°

* See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435
U.S. 519, 558 (1978) and Strycker's Bay Neighborhood Council v.
Karlen, 444 U.S. 223, 227 (1980) (NEPA's mandate to the agencies is
“essentially procedural”).

* The other main goal of Section 101 calls for the Federal Government
"to use all practicable means, consistent with other essential
considerations of national policy, to improve and coordinate Federal
plans, functions, programs, and resources to the end that the Nation may

(1) fulfill the responsibilities of each generation as trustee of the

it

Courts have recognized NEPA's. goals. See
Concerned about Trident v. Schlesinger, 400 F. Supp. 454,
480 (D.D.C. 1975) ("Section 101, in effect, sets out specific
environmental goals to serve as a set of policies to guide
agency action affecting the environment and declares
NEPA's basic substantive policies")(internal citations
omitted). See also, Envtl. Def. Fund, Inc. v. U.S. Army
Corps of Eng'rs, 470 F.2d 289, 297 (8th Cir. 1972)("The
language of NEPA, as well as its legislative history, make it
clear that the Act is more than an environmental full-
disclosure law. NEPA was intended to effect substantive
changes in decision-making"). These obligations to integrate
environmental factors into the decision-making process are
no less significant than those imposed by ESA with respect
to the responsibilities of federal agencies. Yet, as Public
Citizen and other cases have recognized, those
responsibilities can only be exercised within the limits of an
agency's discretion set forth by Congress; any effects
analysis must be directly related to an agency's enabling
authority.

environment for succeeding generations,

(2) assure for all Americans safe, healthful, productive, and
aesthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other
undesirable and unintended consequences; .

(4) preserve important historic, cultural, and natural aspects of
our national heritage, and maintain, wherever possible, an
environment which supports diversity and variety of individual
choice;

(5S) achieve a balance between population and resource use
which will permit high standards of living and a wide sharing of
life’s amenities; and

(6) enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources.”

Sec. 101(b), 42 U.S.C. § 4331(b).

12

Under the Ninth Circuit's interpretation of Public
Citizen, the reach of an agency's duty to assess indirect
effects would become unlimited. The Ninth Circuit's
reliance on TVA v. Hill, 437 U.S. 153 (1978), to justify such
a result is completely misplaced. The effects analysis in Hill
resulting in the Court's sweeping language that the Section 7
“msure" command "admits of no exceptions" does not in any
way justify expanding the express factors in Section 402(b)
of the CWA to reach the kind of land use impacts discussed
by the court below. Hill dealt with the direct effects of the
Congressionally authorized Tellico Dam project on the
aquatic habitat of the snail darter where the undisputed
evidence showed that the completion of that dam would
result in jeopardy to that species. The Court recognized the
close causal relationship between the construction of the dam
on the Tennessee River and the habitat of the snail darter
within the river.°

The legislative history of the ESA analyzed by the
Court at length in Hill reveals a key principle: while the
Section 7 duties were intended by Congress to be imposed
on each federal agency, that duty was not unlimited;
agencies would have to exercise that duty within the confines
of their underlying authority. As the Hill Court noted in
quoting from Representative Dingell's comments on the
Conference Report, "[Section 7] substantially amplifies the
obligation of (federal agencies] to take steps within their
power to carry out the purposes of this act." Hill, 437 U.S.
at 183 (emphasis added). That qualifier is essential to
understanding the limits of the reach of "effects" that the
ESA obligates EPA (and for that matter, any other federal

® “(T]he snail darter apparently lives only in that portion of the Little
Tennessee River which would be completely inundated by the reservoir
created as a consequence of the Tellico Dam's completion." Hill, 437
US. at 161.

13

agency) to address. That limitation has been consistently
followed by the FWS in developing regulations governing
the Section 7(a)(2) duties of federal agencies. See, e.g.,
Interagency Cooperation--Endangered Species Act of 1973,
as Amended; Final Rule, 51 Fed. Reg. 19,926, 19,937 (June
3, 1986) (codified at 50 C.F.R. Part 402)("These counterpart
regulations would allow individual Federal agencies to ‘fine
tune’ the general consultation framework to reflect their
particular program responsibilities and obligations"). Other
Circuit Courts have recognized these limits. See Sierra Club
v. Glickman, 156 F.3d. 606, 616 n.5 (Sth Cir. 1998)(the
“duty to consult [under Section 7(a)(2)] and the duty to
conserve [under Section 7(a)(1)] is tempered by the
authorities of each agency"); Riverside Irrigation Dist., 758
F.2d. at 512 (the ESA "does not, by its terms, enlarge the
jurisdiction of the Corps of Engineers under the Clean Water
Act”).

In fact, the record below reflects FWS and EPA's
joint understanding that the “effects” analysis for EPA's
transfer action under Section 402(b) does not reach the
private development activities that may impact upland
habitat of listed species within Arizona such as the pygmy
owl. The FWS Biological Opinion clearly states that the loss
of the Section 7 consultation following Arizona's assumption
of the NPDES program will not be the legally sufficient
cause of increased development:

Developments are driven by any number of
factors, including but not limited to demand,
supply economics, political decisions, zoning
regulations and financial market stability.
Based upon the best available information,
development in the action area will not be
caused by EPA's proposed approval . . . We
believe that the assumption of the program by

14

the State of Arizona will not cause
development, and concur that EPA's CWA-
mandated approval of the program has only an
attenuated causal link to the reduction in
Federal ESA conservation responsibilities.

U.S. Fish and Wildlife Service Biological Opinion 21-23
(Dec. 3, 2002), available at http://www.fws.gov/southwest
/es/arizona/Documents/Biol_Opin/020268_EPA_approval_o
f_AZ_AZPDES.pdf. This interpretation was further clarified
in an exchange of letters between EPA and FWS in October,
2006.’ FWS's historic interpretation along with its specific
application in consulting over the EPA's Section 402(b)
actions undermines the Ninth Circuit's rationale that such
indirect land use effects must be considered by the agency.

Finally, not only would imposing such a duty exceed
the CWA and ESA obligations, it would undermine the
“cooperative federalism” inherent in the CWA. The CWA
specifically limits the authority of federal agencies to intrude
into state and local matters. CWA Section 101(b)("It is the
policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution, to plan the development and
use .. . of land and water resources"). The Ninth Circuit's
reasoning would undermine these federalism principles.
EPA would be forced to speculate on the future land use
impacts on the habitat of an ESA-listed species from
virtually any development that may at some point in the
future require a State NPDES permit. This would
necessarily require EPA to assess and perhaps override local
zoning and planning decisions that may be enabled by such

” The agencies involved with the ESA have now clearly determined that
ESA Section 7(a)(2) does not apply to CWA Section 402(b). See EPA
Pet. App. 93a-102a (App. C), 103a -110a (App. D), Lila — 116a (App.
E).

15

permit decisions. In effect, EPA would become the “land
use czar" for any development that may impact a listed
species within a state seeking to assume the NPDES
program. That result is clearly not what Congress intended
~when it enacted both the CWA and the ESA.

Il. IF UPHELD, THE NINTH CIRCUIT'S
RATIONALE WOULD SO EXPAND THE
SCOPE OF EFFECTS THAT MUST BE
ADDRESSED UNDER SECTION 7(A)(2) OF
THE ESA SO AS TO CONFLICT WITH THE
PRINCIPLE OF PROXIMATE CAUSATION
ENDORSED BY THE SUPREME COURT IN
SWEET HOME, PUBLIC CITIZEN, AND
METROPOLITAN EDISON.

A. The Tort Principle of Proximate Causation Is Not
the Same as Factual Causation.

The Ninth Circuit's adoption of the “but for" test
undermines the long standing common law principle of
"proximate causation" that has been repeatedly adopted by
this Court in construing the scope of effects that must be
considered under various federal environmental statutes.
"Proximate cause” is the not the same as "but for" factual
cause. It is "not about causation at all but about the
appropriate scope of responsibility." Dan B. Dobbs, The
Law of Torts 443 (2000). The lessons from the classic
Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928),
illustrate the importance of this legal principle. Every
student who has taken Torts 101 knows the Palsgraf story:
A passenger boarding a train slips; a railroad employee tres
to help but causes the passenger to drop a package; the
package contained fireworks which exploded with enough
force to knock the scales at the other end of the platform
down on the unlucky Mrs. Helen Palsgraf. Though she won

16

her claim for negligent damages in the jury trial, she lost
upon appeal: the railroad employee was not liable because
his actions were too remote from the final effect. Palsgraf
epitomizes how one is liable only for the harm or injury that
is foreseeable—"the orbit of the danger as disclosed to the
eye of reasonable vigilance." Jd. at 343.

The Ninth Circuit's rationale would stand Palsgraf on
its head. All federal agencies conducting ESA consultations
with the FWS (not just EPA under CWA Section 402(b)),
would be responsible for the unforeseeable, undefined future
results of their actions on listed species or face liability under
the ESA. In effect, an undefined chain of events could
increase the scope of the ESA liability for years to come.*
Public sector agencies represented by your Amici and that are
responsible for building the nation’s infrastructure and
transportation systems would find it very difficult to obtain
ESA clearance because of the endless, infinite harms that
could occur in the distant future, even where those agencies
have no control over the decisions that may result in such
impacts. Rather, as it has done in the past, this Court should
use proximate cause as the controlling limitation on liability.
As Judge Andrews said in his well known Palsgraf dissent:
"What we do mean by the word ‘proximate’ is that, because
of convenience, of public policy, of a rough sense of justice,
the law arbitrarily declines to trace a series of events beyond
a certain point. This is not logic. It is practical politics.”
Palsgraf at 352 (Andrews, dissenting).’

* Section 7 incidental take statements protect federal agencies from
Section 9 liability: “any taking that is in compliance with the terms and
conditions specified in a written statement provided under subsection
(b)(4)({iv) of this section shall not be considered to be a prohibited taking
of the species concerned.” ESA Section 7(0)(2).

® In addition to being practical, proximate cause supports justice. As one
legal scholar noted:

The separation of proximately-caused consequences

17

B. Courts Have Adopted Proximate Causation
Principles Under the ESA, Just as They Have
Done Under NEPA and the CWA.

This Court has recognized that the ESA does not alter
Or modify proximate causation principles. In Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687, 708 (1995), the Court specifically addressed
proximate causation in a facial challenge to the validity of
the FWS "harm" regulation, to the extent that it prohibited
habitat modification as a taking under Section 9.'° Justice
O'Connor gave two reasons for concurring with the Court's
upholding of the FWS's definition of "harm": (1) because it
"1s limited to significant habitat modification that causes
actual, as opposed to hypothetical or speculative, death or
injury to identifiable protected animals,” id. at 708-709; and
(2) the regulation's application "is limited by ordinary
principles of proximate causation, which introduce notions
of foreseeability." Jd. at 709. Importantly, she saw "no
indication that Congress . . . intended to dispense with
ordinary principles of proximate causation. Strict liability . .
. does not normally mean liability for every consequence,

from the broader universe of actually-caused
consequences is a policy-driven process that asks
whether the resultant harms are so clearly outside the
risks [a defendant} created that it would be unjust or at
least impractical to impose liability.

Albert C. Lin, Erosive Interpretation of Environmental Law in the
Supreme Court's 2003-2004 Term (Houston L. Rev., Summer 2005).
Using proximate cause thus facilitates or expresses "a value judgment
about the appropriate scope of liability ... .". Dobbs, supra, at 447.

0 The question in Sweet Home was whether the FWS's definition of
“harm"—including the phrase, “significant habitat modification or
degradation where it actually kills or injures wildlife," was facially
invalid. Sweet Home, 515 U.S. at 687.

18

however remote, of one's conduct.” /d. at 712.'!

Subsequent ESA cases have built on Sweet Home's
adoption of proximate causation as a limiting factor.'? In
Arizona Cattle Growers’ Ass'n v. U.S. Fish and Wildlife, 273
F.3d 1229 (9th Cir. 2001), the court found that "it would be
unreasonable for the Fish and Wildlife Service to impose
conditions on otherwise lawful land use if a take were not
reasonably certain to occur as a result of that activity." Jd. at
1243. See also, Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir.
1997)("when interpreting a term in a statute [like the ESA]
which is, like ‘cause’ here, well-known to the common law,
the court is to presume that Congress intended the meaning
to be interpreted as in the common law").

Proximate causation has long been an accepted part
of NEPA case law in assessing the scope of indirect effects
that must be considered by federal agencies. When the
Public Citizen Court noted that "NEPA requires ‘a
reasonably close causal relationship’ akin to proximate cause
in tort law,” Public Citizen, 541 U.S. at 767, it relied heavily
on this Court's previous analysis in Metropolitan Edison Co.,
460 U.S. at 775 (the potential of mental anxiety from
restarting a nuclear plant "lengthens the causal chain beyond

'' Justice O'Connor analyzed Palila v. Hawaii Department of Land and
Natural Resources, 852 F.2d 1106 (9th Cir. 1988), in terms of proximate
Causation to determine that it is not a take under ESA to permit mouflon
sheep to eat mamane-naio seedlings that, when full grown, might have
fed and sheltered endangered palila birds. “Destruction of the seedlings
did not proximately cause actual death or injury to identifiable birds; it
merely prevented the regeneration of forest land not currently inhabited
by actual birds.” Sweet Home, 515 U.S. at 713-714.

, Legal commentators also used proximate cause-like analysis to point
out that permitting is not the cause of development, and that land use
authorizing agencies are not vicariously liable for Section 9 take. See -
J.B. Ruhl, State and Local Government Vicarious Liability Under the
ESA, 16 Nat. Res. & Env't 70 (Fall 2001).

19

the reach of NEPA"). These principles have been adopted by
numerous courts over the years. See e.g., City of Shoreacres
v. Waterworth, 420 F.3d 440, 452 (Sth Cir. 2005)("a plaintiff
mounting a NEPA challenge must establish that an alleged
effect will ensue as a ‘proximate cause,’ in the sense meant
by tort law, of the proposed agency action").

These NEPA decisions have applied such principles
in articulating a “rule of reason" standard in assessing the
extent of effects that must be considered under that statute.
As the D.C. Circuit has stated, "The starting point in any
analysis of an agency's compliance with . . . NEPA is the
‘rule of reason,’ under which a federal agency proposing a
major action must consider only the reasonably foreseeable
environmental effects of the action." Potomac Alliance v.
U.S. Nuclear Regulatory Comm'n, 682 F.2d 1030, 1035
(D.C. Cir. 1982).

Courts have particularly applied the principles of
proximate causation in limiting the scope of speculative
future effects that must be considered under NEPA.'* For

') See Kleppe v. Sierra Club, 427 U.S. 390 (1976)(the mere
contemplation of future action was not sufficient to require preparation of
an environmental impact statement); Sierra Club v. Marsh, 976 F.2d 763,
768 (ist Cir. 1992)("Agencies must consider only those indirect effects
that are ‘reasonably foreseeable.’ They need not consider potential effects
that are highly speculative or indefinite"), Sierra Club v. Mainella, 459 F.
Supp. 2d 76, 81 (D.D.C. 2006)("The [NEPA process] must include,
among other things, a detailed statement descnbing the reasonably
foreseeable environmental impact{s]")(internal quotations omitted), Okla.
Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 681 F. Supp. 1470, 1489
(N.D. Okla. 1988)("If, however, the effects cannot be readily ascertained
and if the alternatives are deemed remote and only speculative
possibilities, detailed discussion of environmental effects is not
contemplated under NEPA"); Fla. Keys Citizens Coalition, Inc. v. U.S.
Army Corps of Eng'rs, 374 F. Supp. 2d 1116, 1151 (S.D. Fla.,
2005)("Any attempt to assess the cumulative impacts from such future
projects would be pure speculation and is not required").

20

example, courts have held that NEPA review of federal aid
highway projects need not always analyze the environmental
effects of future segments that may be connected to the
project under review. Adler v. Lewis, 675 F.2d 1085, 1096-
1097 (9th Cir. 1982)(segmentation is suitable when four
factors are met: "(1) the section must be as long as
practicable to permit consideration of environmental matters
on a broad scope, (2) the section must have independent
utility, (3) the length of the highway selected must assure an
adequate opportunity for the consideration of alternatives,
and (4) the segment should fulfill important state and local
needs").'4

The official highway community, itself, operates with
the understanding that it is not responsible for future effects:

A transportation agency has no _ legal
responsibility or authority to approve or direct
the course of development, and usually other
local or regulatory entities must take
intervening actions before such development
could occur. Therefore even when a “but for”
relationship exists between a transportation
project and development trends, a
transportation project may not necessarily be
the proximate cause of land use changes, pace
or location of development and resultant ~
environmental impacts. For a transportation
project that has economic development as part
of the project purpose, the causal relationship
is made closer as a matter of policy, and land

'* See also, Ctr. for Biological Diversity v. Fed. Highway Admin., 290 F.
Supp. 2d 1175, 1190 (S.D. Cal. 2003)(three private development projects
that were conditioned on a proposed federal project are not subject to
federal NEPA requirements).

21

use changes or future development may be
considered as indirect impacts of the project.
Am. Ass'n of State Highway and Transp. Officials, Indirect
and Cumulative Impact Analysis 19-20 (Jan. 2006), available
at http://www.trb.org/NotesDocs/25-25(11)_FR.pdf. This
same report reflects on the “tenuous” causal relationship
between a transportation project and any resulting land use
changes or increased development: "A complex interplay of
intervening public and private actions must occur before
development takes place; variables other than transportation,
such as market demand, site suitability, capital availability,
market feasibility, and regulatory controls, play a significant
role in making development decisions." Id. at 20.'°

C. Proximate Causation Principles Under ESA and
NEPA are Equally Applicable to the ESA/CWA
Interface.

The body- of ESA and NEPA law adopting proximate
causation principles is equally applicable to the ESA/CWA
interface at issue in this case. There is no rational basis to
justify the Ninth's Circuit's reliance on Section 7(a)(2)'s
“insure” language to justify deviating from these principles
when the Sweet Home Court clearly found that "proximate
causation" provided a limitation in assessing Section 9 "take"
liability under the FWS's "harm" definition regarding habitat
modification. Section 7(a)(2)'s direction that the agency
action should "insure" not to cause "jeopardy" or “adverse
modification" of critical habitat, is no less important than
Section 9's direction that agency action not cause a take of a

'S Indeed, connecting NEPA to the future effects of our nation's

infrastructure is ultimately a policy decision. Public Citizen, 541 U.S. at
767 ("proximate cause analysis turns on policy considerations and
considerations of the ‘legal responsibility’ of actors”).

22

listed species. In fact, in the 1982 amendments, Congress
expressly linked the two sections by creating an “incidental
take" exception following Section 7 consultations and the
development of "reasonable and prudent alternatives" in a
FWS Biological Opinion. See ESA Section 7(b)(4)(iv).'°

Indeed, just as there is no basis for deviating from
these principles under the ESA, there is similarly no basis
under the CWA. Courts have found that "limiting effects
analysis" is consonant with its statutory language. In
addition to the two National Resources Defense Council
cases cited earlier, recent case law holds that the CWA
“gives the EPA jurisdiction to regulate and control only
actual discharges—not potential discharges, and certainly
not point sources themselves." Water Keeper Alliance v.
EPA, 399 F.3d. 486, 505 (2d Cir. 2005).'’ Water Keeper
Alliance supports Amici’s reading that Congress did not
intend Section 402 of the CWA to expand a permit agency's
authority to make the issuance of NPDES permits by the
state the “proximate cause" of private land use activity.
Because EPA's NPDES program is primarily concerned with
discharge permits—not future road building or land
development—the CWA does not require the agency to

'° “Provision for incidental take permits exempting landowners from

Section 9 was added to the ESA in order to give landowners not
requiring federal permits the same opportunity to develop their property
as those proceeding under Section 7." Robert Meltz, Congressional
Research Service, The Endangered Species Act and Private Property: A
Legal Primer, n.19 (Mar. 7, 1993), quoting House Conf. Rep. No. 304,
97th Cong., 2d Sess., reprinted in [1982] U.S. Code Cong. & Ad. News
2860, 2870.

"” Professor Lin, supra note 9, also commented that this Court, in a case
regarding pollution of the Florida Everglades, “hinted at a role for tort
causation” in allowing two arguments for consideration on remand (the
Government's “unitary waters" argument, and the water district's
“indistinguishable parts of the same water body” theory). Albert Lin at
614-15, citing S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,
541 U.S. 95 (2004).

23

address potential consequences far removed from its scope
of authority.

Clearly, the required cause-and-effect relationship
between NPDES program approval, endangered species, and
future development is simply lacking. For this Court to
uphold the Ninth Circuit's decision based solely on some
vision of what might happen in the future—something
unrelated to EPA's 402(b) authority—would violate the
Sweet Home, Public Citizen, and Metropolitan Edison
principles. Since EPA cannot regulate land use activities
including public works projects of your Amici—
fundamentally state and local issues—the Ninth Circuit's
decision expands the CWA without Congressional approval.
Whatever tenuous link the 9th Circuit found between
NPDES program approval and Section 7(a)(2) jeopardy, if
any, is beyond the CWA and should therefore be rejected.

lil. THE NINTH CIRCUIT'S RATIONALE, IF
UPHELD, WILL EXTEND FAR BEYOND THE
CWA ACTION AT ISSUE IN THE CASE AND
WOULD HAVE SIGNIFICANT ADVERSE
EFFECTS ON VITAL PUBLIC PROJECTS.

The ramifications of the Ninth Circuit's interpretation
of the scope of Section 7(a)(2) consultation are significant.
The Ninth Circuit's decision could severely impact the
process of decision-making for many vital proyects
sponsored by your Amici by elevating ESA considerations
above other factors that must be considered in the review of
public works projects. The transportation planning process
in which ARTBA and NPPC members must participate
typifies these consequences. Regulatory and administrative
efforts required by ESA regulations account for a significant
part of the delays faced by transportation projects.

24

For example, ARTBA member projects in California
have recently been delayed more than two years due to ESA
concerns over the San Bernardino Kangaroo Rat. If the
Ninth Circuit’s reasoning is allowed to stand, the scope of
the ESA will be greatly broadened. The statute will, in
effect, become a “trump card" in relation to other
environmental requirements of the transportation planning
process. ESA considerations will have to be not only
examined in terms of transportation construction projects,
but also any future development that may be linked in the
future to those projects. This type of prediction would be
impossible to measure. As a result, transportation projects
could face a substantial increase in ESA-related delays
because planners would not be able to forecast indirect
impacts to species caused by their projects.

According to a recent report by the U.S. Government
Accountability Office ("GAO")'®, as many as 200 major
steps are already involved in developing a transportation
project. According to the same report, it typically takes
between nine and 19 years to plan, gain approval of, and
construct a new major federally funded highway project.’
This process involves dozens of overlapping state and
federal laws, including ESA implementation, NEPA, state
NEPA equivalents, wetland permits, clean air conformity,
etc. Often times these procedures mask disparate agendas or,
at a minimum, demonstrate an institutional lack of
interagency coordination that results in a seemingly endless
string of delays.

A recent study by the U.S. Federal Highway
Administration ("FHWA") found the time required to
process environmental documents for large projects has

'8 GAO Testimony Before the Committee on Environment and Public
Works, U.S. Senate, GAQ-02-1067T (Sept. 19, 2002).
" Id.

25

doubled over the past two decades.” In the 1970s, the
average time for completion of an environmental impact
statement ("EIS") was 2.2 years. Former U.S. DOT
Assistant Secretary for Policy Emil Frankel recently reported
that from 1999-2001 the median time for completing an EIS
was 4.4 years. 21 However, delays in the transportation
project environmental review and approval process are not
only limited to large projects. According to FHWA, three
percent of federally funded transportation improvement
projects require an EIS; the remaining 97 percent require an
environmental assessment ("EA")(6.5 percent) or
categorical exclusion ("CE")(90.6 percent). A recent ee
conducted by the National Cooperative Highway Research
Program stated:

[D]elays in completing [EA and CE] reviews
are encountered frequently despite the
minimal environmental impacts associated
with such projects. Even if such project-level
delays are individually small, their cumulative
impact may be significant because most
transportation projects are processed as CEs or
EAs.”

® U.S. Fed. Highway Admin., Evaluating the Performance of
Environmental Streamlining Development of a NEPA Baseline for
Measuring Continuous Performance, available at
http://www.environment.fhwa.dot.gov/strming/baseline/section2.asp.

*! Emil H. Frankel, Asst. Sec’y for Transp. Policy, U.S. Dep't of
Transp., Statement Before the U.S. Senate Comm. on Env't and Pub.
Works, Hearing on Project Delivery and Envtl. Stewardship (Sept. 19,
2002).

2 U.S. Fed. Highway Admin. Report to Congress on Federal Highway
Administration Streamlining Activities in 2003 (June 2004), available at
http: /Iwww.environment.fhwa.dot.gov/strming/rtc060¢rpt.asp.

3 Environmental Streamlining: A Report on Delays Associated with the
Categorical Exclusion & Environmental Assessment Process, Prepared
for the AASHTO Standing Committee on Highways by TransTech
Management under NCHRP contract number HR 20-7(129) (Oct. 2000).

26

According to the above report, 63 percent of all state
DOTs responding to the survey reported environmental
process delays with preparation of CEs, and 81 percent
reported similar delays involving EAs.”* These delays triple
average environmental review times for CEs—from about
eight months to just under two years—and have more than
doubled review times for EAs, from under 1.5 years to about
3.5 years.”

A prime example of the hurdles caused by complex
regulation can be found in the case of U.S. 95 in Las Vegas,
Nevada. This project involved widening an interstate
highway from six to ten lanes. The project had already
satisfied all of the necessary NEPA requirements and was
under construction. However, a supplemental NEPA
document was allowed to be introduced (a single air quality
monitoring study modeled in Los Angeles, not Las Vegas)
two years after the Record of Decision had been issued. This
resulted in a nearly year-long work stoppage. Indeed,
although these delays were caused by NEPA, had an ESA-
listed species been impacted, the Ninth Circuit's reasoning
that Section 7({a)(2)'s “insure” language elevated the ESA
above other requirements would have most certainly led to
even greater delays by requiring consideration of future
speculative land use effects on listed species.

These potential consequences are best understood in
light of the safety and environmental needs to be met by the
U.S. 95 project. In the year 2002 alone, traffic congestion
cost Las Vegas area residents and businesses $364 million
and resulted in the additional consumption of 33 million
gallons of motor fuel.” The segment of U.S. 95 at issue in

4 Id.

> Id.
26

Texas Transportation Institute, 2004 Urban Mobility Report,

27

this case serviced and accessed some of the fastest growing
neighborhoods in Las Vegas. An estimated 190,000 vehicles
traveled through the portion of U.S. 95 to be widened each
day, with peak hour traffic reaching as high as 11,900
vehicles.”’ Traffic congestion slowed commuters to one-half
of the 55 mile-per-hour speed limit on the corridor.” Also,
between 2000 and 2002 there were 3,535 motor vehicle
crashes on one section of U.S. 95." In its present state, the
U.S. 95/1-95 interchange in Las Vegas has been rated as one
of the 25 "worst bottlenecks” in the United States.” The
improvements that make up the U.S. 95 widening project are
needed in order to keep pace with the rapid population
growth currently being experienced in the Las Vegas area
and prevent the effects of traffic congestion from worsening.

The widening of U.S. 95, once completed, will lead
to enormous environmental, public health and safety
benefits. Once finished, the improvement of U.S. 95 will
result in a significant reduction in so-called “greenhouse
gasses." Specifically, there will be a 58.8 ton reduction in
carbon monoxide emissions, a 54.3 ton reduction in volatile
organic compounds, and an 87.8 ton reduction in carbon
dioxide emissions between now and the year 2025.”
Further, it is estimated that within that time span there will
be an 87.8% reduction in motor fuel usage by U.S. 95
commuters, which translates to 231,654,731 gallons of motor
fuel saved (or 68.9 gallons per commuter over the life of the
project).** Also, the time Las Vegas commuters spend stuck

Performance Measure Survey for Las Vegas, 2 (Sept. 2004).

- U.S. Fed. Highway Admin., Press Release, Sept. 30, 2004.
Id.

°° Id.

” Cambridge Systematics, Inc.. Unclogging America's Arteries,

Effective Relief for Highway Bottlenecks - study conducted for American

Highway Users Alliance, 3 (Feb. 2004).

*" Id. at 63.

* Id.

28

in traffic will decrease by an average of 86.5%, which for
commuters who use U.S. 95 twice per day, would mean 30
minutes of time saved daily while driving through the area to
be improved.’ Finally, the U.S. 95 improvements are
projected to result in 3,524 fewer total motor vehicle crashes,
14 fewer fatalities, and 1,730 fewer injuries to commuters
through 2025.**

These examples demonstrate the types of problems
caused by delaying transportation and other public works
projects. These problems will only be exacerbated if the
Ninth Circuit’s reasoning is allowed to stand and the ESA's
"insure" language transforms the already extensive and time
consuming review process into a requirement to treat ESA
goals above all other considerations. Planners will be forced
to account for effects on species that they have no feasible
way of being able to project. The ESA will become the
driving force behind a review process driven more by
speculation over future land use impacts on species habitat
than scientific certainty governed by reason.

el

** Id. at 62. Delays in the environmental teview and approval process
for transportation improvement projects can have tragic consequences.
According to the U.S. DOT, more than 42,000 people are killed each
year on the nation's highways. U.S. Fed. Highway Admin., Public Roads
(May/June 2003), available at
http://www.tfhre.gov/pubrds/03may/02.htm.

29
CONCLUSION

The Amici ARTBA and NPPC respectfully request

this Court to reverse the Ninth Circuit's ruling in Defenders
of Wildlife. :

Respectfully submitted,

LAWRENCE R. LIEBESMAN*
RAFE PETERSEN

STEVEN R. KELTON

Holland & Knight LLP

2099 Pennsylvania Ave, NW
Washington, DC 20006
(202) 955-3000

*Counsel of Record

NICK GOLDSTEIN

American Road and Transportation Builders Association
1219 28th Street, NW

Washington, DC 20007

(202) 289-4434

Of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0293%3A13. Public record. Not legal advice.