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

oIFs —

(10

No. (10) 0°

In the

Supreme Court of the United States

~~

NATIONAL ASSOCIATION OF HOME BUILDERS, et al..

Petitioners,

v.

DEFENDERS OF WILDLIFE, et al.,

Respondents.

—~—

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

sa

a

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

— a

DAMIEN M. SCHIFF M. Keto Horvee

Ot Counsel Couns! of Record

Pacttic Legal Foundatin Pacifc egal Foundation

3900 Lennane Drive. Suite 200 3900 Lennane Drive, Suite 200

Sacramento, Calitorma 95834 Sacramento, California 95834

Telephone: (916) 419-711) Telephone: (916) 419-7111

Facsimile: (916) 419-7747 Facsimile. (916) 419-7747

Counsel for Amicus Curiae Pucatc Legal Foundation

* Thos case ts consolidated with No 06-549

i

QUESTIONS PRESENTED

1. Whether Section 7(a)(2) of the Endangered Species

Act of 1973, 16 U.S.C. § 1536(a)(2), which requires each

federal agency to insure that its actions do not jeopardize the

continued existence of a listed species or modify its critical

habitat, overrides statutory mandates or constraints placed on an

agency’s discretion by other Acts of Congress.

2. Whether the court of appeals correctly held that the

Fnvironmental Protection Agency’s decision to transfer

pollution permitting authority to Arizona under the Clean Water

Act, see 33 U.S.C. § 1342(b), was arbitrary and capricious

because it was based on inconsistent interpretations of

Section 7(a)(2) of the Endangered Species Act of 1973,

16 U.S.C. § 1536(a)(2); and, if so, whether the court of appeals

should have remanded to the Environmental Protection Agency

for further proceedings without ruling on the interpretation of

Section 7(a)(2).

TABLE OF CONTENTS

Page

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POE Ee PRUNE 6 oe ce secscccsssccceesss iv

IDENTITY AND INTEREST OF AMICUS CURIAE .... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT ..............eceeeeee 1

SEE bi bid eine edeeeeneeune bees cheereneus 2

I. SECTION 7(a)(2) OF THE ENDANGERED

SPECIES ACT DIRECTS AGENCIES TO USE

THEIR EXISTING AUTHORITY TO AVOID

JEOPARDIZING SPECIES, WITHOUT

PROVIDING ADDITIONAL AUTHORITY

TO ACCOMPLISH THAT END .............555 2

A. Under a “Plain Meaning” Analysis,

Section 7(a)(2) Applies Only to .

Discretionary Federal Actions ............... 3

B. Principles of Deference to Agency

Interpretation of Statutes Require

That the Court Defer to the Secretary

of the Interior's Determination That

Section 7(a)(2) Applies Only to

Discretionary Federal Agency Action ......... 6

lil

TABLE OF CONTENTS—Continued

Page

Il. EVEN IF SECTION 7(a)(2) OF THE

ENDANGERED SPECIES ACT PROVIDES

INDEPENDENT AUTHORITY TO

FEDERAL AGENCIES TO AVOID

SPECIES JEOPARDY, THE SPECIFIC

COMMAND OF SECTION 402(b) OF THE

CLEAN WATER ACT TRUMPS ANY

GENERAL COMMAND OF SECTION 7(a)(2)

THATIES TO THe CONTRARY... eccsccccees 8

ETC EL TOT TTT ET TOT eT CTCL TT LOT 10

iV

TABLE OF AUTHORITIES

Page

Cases

Blanchette v. Connecticut General Ins. Corps.,

6 tna dexaedes sauna nesesnaenne- 5

BP Am. Prod. Co. v. Burton, 127 8. Ct. 638 (2006) .°.... 3

Bulova Watch Co. v. United States,

Cede ke iy bbs kes waoe wer 8

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) ............ 6-7

Chickasaw Nation v. United States,

i 6cceteevieedeceeesdeseuaneess 3

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

og re 8

Defenders of Wildlife v. EPA,

420 F.3d 946 (9th Cir. 200°)... 00. eee eee 3-4, 6-7

Defenders of Wildlife v. EPA,

450 F.3d 394 (9th Cir. 2006) .............0.0005- 4,9

Edmond vy. United States, 520 U.S. 651 (1997) .......... 8

FDA v. Brown & Williamson Tobacco Corp.,

S2ZO UB. UDO CBO) occ ccccccccccccccsccccccvce 6

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ........... 6

Radzanower v. Touche Ross & Co.,

426 U.S. 148 (1976) 0.0... ce ee ee eee 8-9

Rapanos v. United States, 126 S. Ct. 2208 (2006). ....... ]

Tennessee Valley Authority v. Hill,

437 U.S. ISS (IDTE) 2. cc cccccccccccccccecccees 10

United States v. Madigan, 300 U.S. 500 (1937) ......... 5

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. Welden, 377 U.S. 95 (1964) ..........4. 5

Statutes

DP Sa, B CNGED 6 oo ceccnceseesbennewneeenen 2-3

SP Wen © CPOE ED 0 0.uiod0edsivccedavecaenen 4

Regulation

POR Bis GTR etciicasdedvacssenssbeseneans 6-7

Rules

OU GA. Te FF sc sincasvsdicdedseuenss4ueeaeenera l

Soe PPTTTETTTIL Cre err ee l

Miscellaneous

VII The Oxford English Dictionary (2d ed. 1989) ........ 3

Sedgwick, Theodore, 7he Interpretation and Construction

of Statutory and Constitutional Law (2d ed. 1874)..... )

l

IDENTITY AND

INTEREST OF AMICUS CURIAE'

Under Supreme Court Rule 37, Pacific Legal Foundation

(PLF) respectfully submits this brief amicus curiae in sinport of

Petitioner National Association of Home Builders. Written

consent was granted by counsel for all parties and lodged with

the Clerk of this Court.

PLF was founded over thirty years ago and is widely

recognized as the largest and most experienced nonprofit legal

foundation of its kind. PLF litigates matters affecting the

public interest at all levels of state and federal courts and

represents the views of thousands of supporters nationwide.

PLF advocates limited government, individual rights, and free

enterprise. PLF has litigated numerous cases addressing the

need for a balanced approach to environmental regulation, and

PLF attorneys were counsel of record in Rapanos v. United

States, 126 S$. Ct. 2208 (2006), decided by this Court last Term.

PLF’s analysis of the interplay between the relevant

provisions of the Endangered Species Act and Clean Water Act

will provide a valuable and necessary viewpoint to assist the

Court in resolving the case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case concerns the scope of the duty to avoid jeopardy

to listed species, imposed upon all federal agencies by

Section 7(a)(2) of the Endangered Species Act. The extent of

that duty is dictated by the plain meaning of Section 7(a)( 2),

further clarified through sound canons of construction.

Section 7(a)(2) applies only to discretionary federal actions. It

' Pursuant to Rule 37.6, Amicus Curiae affirms that no counse! for

any party authored this bnef in whole or in part and that no person

or entity made a monetary contribution specifically for the prepara-

tion or submission of this brief.

2

provides a rule of prioritization for all federal agencies,

directing them to conduct their statutorily mandated duties in a

manner best suited to avoid jeopardy to protected species,

provided that such activity is consistent with their pre-existing

duties.

Here, the Administrator of the Environmental Protection

Agency (EPA) determined that the State of Arizona had met all

nine criteria necessary to the transfer of permitting authority

under the National Pollutant Discharge Elimination System

(NPDES), pursuant to Section 402(b) of the Clean Water Act.

To hold that the Administrator's determination was flawed

because it was inconsistent with the dictates of Section 7(a)(2)

of the Endangered Species Act would ignore the latter

provision’s plain meaning, improperly refuse to accord

deference to the relevant agency's regulatory interpretation of

the scope of Section 7(a)(2), and do violence to the canonical

admonition that subsequently enacted “general” statutory

provisions do not implicitly amend existing “specific” statutory

provisions.

ARGUMENT

I

SECTION 7(a)(2) OF THE ENDANGERED

SPECIES ACT DIRECTS AGENCIES

TO USE THEIR EXISTING AUTHORITY

TO AVOID JEOPARDIZING SPECIES,

WITHOUT PROVIDING ADDITIONAL

AUTHORITY TO ACCOMPLISH THAT END

Under Section 7(a)(2), federal agencies must insure that no

action jeopardizes the continued existence of a listed species or

destroys or adversely modifies a species” cntical habitat. See

16 U.S.C. § 1536(a)(2). By its plain terms, Section 7(a)(2)

applies only to those actions over which the agency has some

measure of discretionary control. Thereforé, the Section 7(a)(2)

3

duty does not apply to agency action mandated by separate

statute. And even if this interpretive result were not compelled

by the plain meaning of the text, it would follow as a matter of

judicial deference to agency regulatory interpretation.

A. Under a “Plain Meaning” Analysis,

Section 7(a)(2) Applies Only to

Discretionary Federal Actions

The process of judicial construction of statutes begins and

generally ends with the text of the statute, where that text is

clear. See, e.g., BP Am. Prod. Co. v. Burton, 127 S. Ct. 638,

643 (2006) (“Unless otherwise defined, statutory terms are

generally interpreted in accordance with their ordinary

meaning.”). To flesh out the meaning of any given text, and as

part of the plain meaning analysis, the Court may rely upon

canons of interpretation. See Chickasaw Nation v. United

States, 534 U.S. 84, 85 (2001) (canons assist in determining

legislative intent). In this instance, the plain meaning of

Section 7(a)(2), in combination with the canon against implied

amendment of statutes, requires that Section 7(a)(2) be

interpreted as applying only to discretionary federal agency

action.

Under Section 7(a)(2), a federal agency must “insure”

that none of its actions causes. jeopardy. See 16 U.S.C.

§ 1536(a)(2). The ordinary and natural meaning of “insure” is,

as the Ninth Circuit recognized, “*[t]o make certain, to secure,

to guarantee (some thing, event. etc.).”” Defenders of Wildlife

v. EPA, 420 F.3d 946, 963 (9th Cir. 2005) (quoting VII The

Oxford English Dictionary 1059 (2d ed. 1989)). That

definition, however, presents a difficulty. An agency can only

make certain or guarantee an outcome over which it has some

measure of control. If an agency has no authority to direct a

particular result, then it cannot in any fair sense of the word

“insure” that such result will transpire. Thus, if an agency ts

congressionaily mandated to do Y, and if X will jeopardize a

4

listed species’s continued existence, then the agency cannot

insure that its actions will avoid jeopardy to the species.

Presented with this conundrum, the Ninth Circuit resolved

it in favor of the creation of a meta-statutory duty, imposed by

Section 7(a)(2), that implicitly amends every federal organic

statute, amplifies all existing agency authority, and, to that

extent, repeals any contrary directives. In other words, the

court’s reading grafted Section 7(a)(2) onto every federal

statute. See Defenders of Wildlife, 420 F.3d at 964-65. Yeta

much more plausible resolution, rejected by the court below,

would be to interpret Section 7(a)(2) to apply only to

discretionary federal actions. According to this interpretation,

to the extent that an agency has discretion to fulfill its statutory

obligation X through choices A or B, and where A would cause

jeopardy but B would not, then the agency must select choice B;

but if the agency is not authorized to do B, then it must do A

notwithstanding its jeopardy implications. This interpretation

of Section 7(a)(2) is not only plausible; it is mandated by the

well-established canon that implied amendments are disfavored.

There can be no question that an interpretation of

Sectiom 7(a)(2) requiring federal agencies to craft all their

actions so as to avoid jeopardy would effectively amend

Section 402(b) of the Clean Water Act. That provision by its

own terms requires the EPA Administrator to transfer NPDES

permitting authority to a state if that state meets an exhaustive

list of nine specified criteria. See 33 U.S.C. § 1342(b)(1)-(9).

A broad interpretation of Section 7(a)(2) would add a tenth

consideration—whether the state can operate the NPDES

system without causing specics jeopardy-—to the existing

factors that the Administrator must take into account when

making the permitting authority transfer decision. That such a

result would obtain was recognized by Judge Berzon, author of

the onginal panel decision. See Defenders of Wildlife v. EPA,

450 F.3d 394, 404 n.2 (9th Cir. 2006) (Berzon, J., concurring in

the order denying petition for rehearing en banc). But

5

Section 7(a)(2) nowhere mentions the Clean Water Act or any

other federal statute. Thus, the interpretation adopted

by the Ninth Circuit produces an implied amendment of

Section 402(b).

Under a traditional statutory analysis, this broad

interpretation of Section 7(a)(2) cannot stand. The Court

normally will not presume that a later-in-time statute impliedly

amends a pre-existing statutory duty. F.g., Blanchette v.

Connecticut General Ins. Corps., 419 U.S. 102, 133-34 (1974)

(“{A] new[er] statute will not be read as wholly or even

partially amending a prior one unless there exists a ‘positive

repugnancy’ between the provisions of the new and those of the

old that cannot be reconciled.”); United States v. Welden, 377

U.S. 95, 103 n.12 (1964) (“Amendments by implication . . . are

not favored.”); United States v. Madigan, 300 U.S. 500, 506

(1937) (“[T]he modification by implication of the settled

construction of an earlier and different section is not favored-’).

This approach is bolstered by the complete absence of any

expressed congressional intent that Section 7(a)(2) abrogates or

amends al] conflicting or contrary federal statutory obligations.

Presumably, Congress could easily have achieved that end

through one of two means. First, Congress could have provided

that, “notwithstanding any law to the contrary, federal agencies

shall insure that none of their actions jeopardizes a listed

species.” Second, Congress could have dropped the reference

to “insure” (which implies a measure of control over the effects

of the activity) and simply have directed that “no federal agency

shall jeopardize a listed species.” Instead of these options,

Congress chose to condition the jeopardy-avoidance obligation

principally by imposing that responsibility within the existing

framework of federal agency duties, and by intimating that the

responsibility is dependent to some degree on the agency having

control over its actions. In the absence of any textual indication

to the contrary, the irresistible conclusion is that Section 7(a){2)

does not alter any of the existing substantive and mandatory

6

obligations of federal agencies; and, furthermore, that Congress

did not add any criteria to the requirements for NPDES

permitting authority transfer set forth in Section 402(b).

B. Principles of Deference to Agency

Interpretation of Statutes Require That the

Court Defer to the Secretary of the Interior’s

Determination That Section 7(a)(2) Applies

Only to Discretionary Federal Agency Action

Where a given statutory provision is susceptible to more

than one reasonable interpretation, this Court will defer to a

reasonable interpretation offered by the agency charged with

administration of the statute in question. See Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-

44 (1984). In this case, the Secretary of the Interior, through the

United States Fish and Wildlife Service, has interpreted

Section 7(a)(2) to “apply to all actions in which there is

discretionary Federal involvement or control.” 50 C.F.R.

§ 402.03. That interpretation is entitled to Chevron deference.

An agency interpretation merits deference if the relevant

statutory text is ambiguous and the proffered interpretation is

reasonable. See FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132 (2000); INS v. Aguirre-Aguirre, 526 U.S.

415, 424 (1999). The Ninth Circuit attempted to avoid the

Chevron question by interpreting Section 402.03 to be

coterminous with Section 7(a)(2)’s application to all actions

“authorized, funded, or carried out” by a federal agency. See

Defenders of Wildlife, 420 F.3d at 969. But that answer

fundamentally mischaracterizes the purpose of Section 402.03.

That provision does not so much determine what activity counts

as agency action but what agency action implicates a federal

agency's Section 7(a)(2) jeopardy-avoidance duty, i.e., what

J

type of action requires that the agency “insure” that jeopardy

does not ensue.”

Properly understood, then, Section 402.03 embodies the

responsible agency's answer to the question of how far the

jeopardy-avoidance duty of Section 7(a)(2) extends. That

answer merits this Court’s deference if Section 7(a)(2) is

ambiguous, and if the interpretation is reasonable. Amicus

believes that the use of the word “insure” is not ambiguous

because its plain meaning, fleshed out through canons of

statutory construction, indicates that Section 7(a)(2) applics

only to discretionary actions. But assuming arguendo that

“insure” is ambiguous, and that the agency must then choose

between a broad and narrow conception of Section 7(a)(2), the

latter interpretation is unquestionably reasonable, given that-t

provides independent meaning to Section 7(a)(2) without

producing the implied meta-statutory amendment which results

from the interpretation adopted by the lower court.

Accordingly, whether the Court interprets Section 7(a)(2)

through traditional plain meaning and canonical methods, or

instead applies a Chevron analysis, the answer is the same:

Section 7(a)(2) does not apply to nondiscretionary federal

agency action. And because Section 402(b) mandates that the

EPA Administrator transfer NPDES permitting authority to a

qualifying state without mention of the Endangered Species

Act, that transfer must be completed upon completion of the

nine conditions, the implications for fisted species

notwithstanding.

4

* The Ninth Circuit did not address that aspect of the problem

because it held that Section 7(a)(2) provides independent power to

federal agencies to fulfili their jeopardy-avoidance obligations; and

thus, in the lower court’s view, there is no need to read “insure”

restrictively. See Defenders of Wildlife, 420 F.3d at 963-67.

3 .

II

EVEN IF SECTION 7(a)(2) OF

THE ENDANGERED SPECIES ACT

PROVIDES INDEPENDENT AUTHORITY

TO FEDERAL AGENCIES TO AVOID

SPECIES JEOPARDY, THE SPECIFIC

COMMAND OF SECTION 402(b) OF THE

CLEAN WATER ACT TRUMPS ANY

GENERAL COMMAND OF SECTION 7(a)(2)

THAT IS TO THE CONTRARY

For the reasons stated in the previous section, Amicus

contends that Section 7(a)(2) provides no independent authority

to federal agencies, and thus of necessity applies only to

discretionary federal actions. But if this Court should interpret

Section 7(a)(2) to provide such authority, Amicus contends that

the general command of Section 7(a)(2) must yield to the

specific command of Section 402(b).

A traditional canon of statutory exegesis is that “specific”

statutory provisions prevail over “general” provisions. See,

e.g., Edmond v. United States, 520 U.S. 651, 657 (1997)

(“Ordinarily, where a specific provision conflicts with a general

one, the specific governs.”); Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 445 (1987) (“As always, where

there is no clear intention otherwise, a specific statute will not

be controlled or nullified by a general one, regardless of the

priority of enactment.”) (internal brackets, emphasis, and

quotation marks omitted); Bulova Watch Co. v. United States,

365 U.S. 753, 758 (1961) (“[]]t is familiar law that a specific

statute controls over a general one without regard to priority of

enactment.”) (internal quotation marks omitted).

“The reason and philosophy of the rule is, that when

the mind of the legislator has been turned to the

details of a subject, and he has acted upon it, a

subsequent statute in general terms, or treating the

9

subject in a general manner, and not expressly

contradicting the original act, shall not be considered

as intended to affect the more particular or positive

previous provisions, unless it is absolutely necessary

to give the latter act such a construction, in order that

its words shall .have any meaning at all.”

Radzanower v. Touche Ross & Co., 426 U.S. 148, 153

(1976) (quoting Theodore Sedgwick, The Interpretation and

Construction of Statutory and Constitutional Law 98 (2d ed.

1874)).

In 1972, Congress specifically provided nine exclusive

criteria as conditions to the transfer of NPDES permitting

authority to the states under Section 402(b). Defenders of

Wildlife v. EPA, 450 F.3d at 402 (Kleinfeld, J., dissenting from

denial of rehearing en banc). Shortly thereafter, Congress

generally provided in Section 7(a)(2) for a_ federal

administrative obligation to avoid actions that would jeopardize

protected species. The former provision sets forth precise bases

for authorizing a particular activity, the transfer of NPDES

authority, by a particular federal actor, the EPA Administrator.

In contrast, the latter provision sets forth at the highest level

of generality possible (because it is applicable to all federal

agencies) a duty, not specific to any particular activity, to

refrain from jeopardizing species. Section 402(b) is thus

more “specific,” within the meaning of the canon, than

Section 7(a)(2).

Of course, merely because the one provision is more

specific does not necessanly mean that it will trump the general.

As noted above, the general can control the specific if

“absolutely necessary to give the latter act such a construction,

in order that its words shall have any meaning at all.” But here

the circumstances do not implicate that exception.

Section 7(a)(2) retains considerable meaning even if it cannot

preclude the transfer of NPDES permitting authonty; for it

10

applies to every discretionary federal activity, regardless of

type, and makes the avoidance of agency-caused species

jeopardy the highest discretionary priority of federal agencies.

See Tennessee Valley Authority v. Hill, 437 U.S. 153, 174, 194

(1978). Accordingly, interpreting Section 402(b) as trumping

Section 7(a)(2) in no way renders the latter a nullity; and thus

the canon in favor of specific over general provisions applies

with full vigor.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

DATED: February, 2007.

Respectfully submitted,

DAMIEN M. SCHIFF M. REED HopPerR

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

3900 Lennane Drive, Suite 200 3900 Lennane Drive, Suite 200

Sacramento, California 95834 Sacramento, California 95834

Telephone: (916) 419-7111 Telephone: (916) 419-7111

Facsimile: (916) 419-7747 Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation