# 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%3A25

## Record

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

## Text

GXt{c Nos. 06-340 and 06-549

IN THe

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS. ef al.
Petitioners
Vv.
DEFENDERS OF WILDLIPE. e7 al.
Respondents.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
Petitioner.
- Vv.
DEFENDERS OF WILDLIFE. e7 al.
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF OF AMICI CURIAE
AMERICAN BIRD CONSERVANCY,
ENVIRONMENTAL DEFENSE,
NATIONAL AUDUBON SOCIETY,
NATURAL RESOURCES DEFENSE COUNCIL,
SIERRA CLUB, THE WILDERNESS SOCIETY,
AND WORLD WILDLIFE FUND
IN SUPPORT OF RESPONDENTS

MICHAEL J. BEAN
COUNSEL OF RECORD
ENVIRONMENTAL DEFENSE
IS7S CONNECTICUT AVE NW
Surrk 600
W \SHINGTON, D.C. 20009
(202) 387-3500

Marci 27, 2007

TABLE OF CONTENTS

Page

I ieee ili
INTERES 1S OF AMICT CURITAL. ......... In prior proceedings in this case regarding the transfer to Arizona, as
well as when considering similar transfers to other states, EPA and the
Service have taken the position that Section 7(a)(2) applies.
Notwithstanding those earlier positions, EPA now maintains categorically
that “there is no need to conduct Section 7 consultations on proposed
actions to approve State NPDES programs because such actions are not
the cause of any impact on listed species and do not constitute
discretionary federal agency actions to which Section 7 applies.” Brief
for Petitioner EPA (“EPA Br.”) at 49 (quoting the Fish and Wildlife
Service). This “clarification” of EPA’s position took place after the
decision of the Court of Appeals in this case, and occurred in the context
of a transfer of NPDES authority to Alaska, the only state without a
single freshwater endangered or threatened species. See
http://ecos.fws.gov/tess_public/StateListing.do?state=all (visited March
18, 2007). In light of this irregular procedure and for reasons set forth at
length in Respondents’ brief, EPA’s decision should be remanded for
further proceedings consistent with the requirements of Section 7(a){2).

6

of Section 7(a)(2) and misapprehends the focus of that
provision.

The focus of Section 7(a)(2) is on “actions” and their
implementation. It plainly seeks to influence how actions are
“carried out” by federal agencies, and not simply the process
by which decisions to act are made. EPA asserts that
whenever a federal agency merely carries out a decision
required by the terms of another statute, it is Congress that is
responsible for the ensuing effects, not the agency. However,
Section 7(a)(2) is clear on its face that it applies to any action
“carried out” by a federal agency, even when that action is
pursuant to a statute, like the Clean Water Act, that was
enacted prior to the ESA and, not surprisingly, makes no
explicit mention of endangered species.

Rather than imply a limitation to actions over which
an agency has discretion, the ordinary meaning of the phrase
“carried out” connotes a much broader reach. “Carry out”
means “to put into execution” (Webster’s Third New
International Dictionary, 1966), “to bring to a successful
conclusion” (Merriam Webster Pocket Dictionary, 1994), or
“to follow or obey” (American Heritage Dictionary, 4” ed.
2001). A soldier, for example, “carries out” the order of an
officer, though the soldier's action can hardly be
characterized as discretionary. By the same token, an agency
whose action simply effectuates a decision according to
specified criteria nevertheless “carries out” that action. Thus,
when EPA transfers NPDES authority to a state, it “carries
out” an action clearly subject to Section 7(a)(2). This Court
in TVA v. Hill, 437 U.S. 153, 186 n. 32 (1978) characterized
its holding as “giv{ing] effect to the plain words of the
Statute, namely that §7 affects all projects which remain to be
authorized, funded, or carried out.” The plain meaning of
Section 7 is no less clear today.

7

B. The Reach Of Section 7(a)(2) Is Not
Circumscribed By Decisions Limiting the
Reach of NEPA

Because Section 7(a)(2)’s primary focus in on how
agency actions are carried out, it is fundamentally different
from the National Environmental Policy Act (“NEPA”).
NEPA requires an environmental impact statement to
accompany “every recommendation or report on proposals
for legislation and other major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
§4332(2)(C). NEPA’s focus is on the decision-making
process of federal agencies. See Baltimore Gas and Electric |
Co. v. Natural Resources Defense Council, 462 U.S. 87, 100
(1983) (NEPA requires a hard look at environmental effects
and “that the ‘hard look’ be incorporated as part of the
agency’s process of deciding whether to pursue a particular
federal action”) (emphasis added). Section 7(a)(2) of the
ESA, in contrast, reaches well beyond the “process of
deciding whether to pursue” an action to the matter of how to
implement that action (the “carrying out” of the action). It
requires that in carrying out any action, a federal agency
“insure” that it is unlikely to have any of the effects
proscribed there.

This critical difference between the focus of Section
7(a)(2) and that of NEPA distinguishes this case from
Department of Transportation y. Public Citizen, 531 U.S.
752 (2004). In Public Citizen the Court held that it was the
President’s decision to allow Mexican trucks to operate in the
United States - not the Federal Motor Carrier Safety
Administration’s (“FMCSA”) carrying out of one aspect of
that decision — that, for NEPA’s purposes, was most
important. As a result, the Court in Public Citizen reasoned
that no purpose would be served by requiring the FMCSA to
assess the environmental impact of a decision that the
President had already made. Unlike NEPA, which governs
only the decision-making process, the duty to “insure”

8

imposed by Section 7(a)(2) clearly rests with the agency that
“carries out” an action, and seeks to influence how that
action is carried out, not just how it is decided upon.*

Moreover, the Services themselves explicitly rejected
NEPA-derived limitations on the scope of Section 7 only
months before this Court decided TVA v. Hill. In January
1978, they jointly promulgated regulations in which the only
issue regarding the reach of Section 7 concerned its
application to previously initiated, nearly completed federal
actions. 43 Fed. Reg. 869 et seg. (Jan. 4, 1978). The
Services expressly followed the decision of the Sixth Circuit
in Hill v. TVA, 549 F.2d 1064, 1071-72 (1977), and rejected
“the incorporation of the NEPA case law into the section 7
regulations.” 43 Fed. Reg. at 872. Their rejection of NEPA
precedent as controlling Section 7 was effectively endorsed
by this Court in TVA v. Hill, in which Chief Justice Burger
found that NEPA decisions “are completely inapposite,”
because NEPA and the ESA “serve different purposes,” with
NEPA’s requirements being essentially procedural whereas
Section 7’s are substantive. 437 U.S. 153, 188 n. 34. The
Services’ regulations remained in effect when Congress
amended the ESA in 1978, 1979, and again in 1982.

Keenly aware of this Court’s conclusion that
“Congress has spoken in the plainest of words, making it
abundantly clear that the balance has been struck in favor of
affording endangered species the highest of priorities,” 437
U.S. at 194, Congress took no action to limit the reach of

P Moreover, Public Citizen did not hold that NEPA was inapplicable to
the actions of the Federal Motor Carrier Safety Administration, but only
that the effects of those actions were not substantial enough to trigger the
preparation of an environmental impact statement. By contrast, here the
government argues that EPA’s delegation decision — and every other
putatively “non-discretionary” federal action - lies wholly outside the
reach of Section 7(a)(2). Nothing in Public Citizen warrants that
extension of its holding.

5 eee
Section 7. Instead, its response in 1978 was to fashion a
special process through which federal actions could be
exempted from the requirements of Section 7 after they had
undergone interagency consultation and been found to
conflict with those requirements. Nothing Congress said or
did when amending the ESA in 1978, 1979, or 1982, when
its attention was squarely focused on Section 7’s duty to
“insure,” suggests that it had any different view of the scope

of that duty than the very one reflected in the 1978
regulations.

If. ©THE REFERENCE IN THE REGULATIONS TO

“DISCRETIONARY FEDERAL
INVOLVEMENT OR CONTROL”
DISTINGUISHES COMPLETED ACTIONS
FROM ONGOING ACTIONS

A. History Of The Regulations

EPA relies heavily upon a Service regulation stating that
Section 7 applies “to all actions in which there is
discretionary Federal involvement or control.” 50 C.F.R.
§402.03. That reliance is misplaced, for the history of the
regulation shows that its only purpose was to distinguish
completed from ongoing federal actions.

The question of Section 7’s application to actions
already under way when a species was listed arose soon after
the ESA’s enactment. It was at the core of the suit filed in
1976 to halt TVA’s construction of Tellico Dam, which had
been authorized by Congress a decade earlier and was
estimated by TVA to be 70 to 80 percent complete when a
recently discovered fish was listed in 1975. At the time,
there were no regulations interpreting Section 7. Rather, the
U.S. Fish and Wildlife Service on April 22, 1976,
promulgated non-regulatory “Guidelines to Assist Federal
Agencies in Complying with Section 7 of the Endangered
Species Act of 1973.” They advised that when

10

“considering whether section 7 applies to
actions in the ... implementation stage ...
Federal agencies should determine if ...
substantial work remains to be done which
would, independent of the effect of earlier
work performed, in and of itself jeopardize the
continued existence of a listed species or
modify or destroy critical habitat of a listed
species. If ... such work on a Federal project
remains to be performed, then the
requirements of section 7 should be
satisfied.”

Weeks later, the district court decided Hill v. TVA,
419 F.Supp. 753 (E.D. Tenn. 1976). TVA had argued that it
had no discretion to do anything other than complete the
dam, “point[{ing] out ... that the money appropriated to it was
for the Tellico Project alone and that it had no authority to
use the funds other than for that purpose.” /d. at 760, n. 8.
The court refused to enjoin completion of the dam, because
“[aJt some point in time a federal project becomes so near
completion and so incapable of modification that a court of
equity should not apply a statute enacted long after inception
of the project to produce an unreasonable result.” /d. at 760.

Like the guidelines they replaced, the first regulations
proposed to implement Section 7 applied it to all federal
actions except those for which there was no “substantial
work” remaining that would independently jeopardize the
continued existence of a listed species. 42 Fed. Reg. 4868 et
seq. (Jan. 26, 1977). Shortly after they were proposed, the
Sixth Circuit rejected any exemption for previously initiated,
nearly completed projects. Hill v. TVA, 549 F.2d 1964 (6"
Cir. 1977). Before the Sixth Circuit, “TVA claimfed] to

> The 1976 guidelines were never published. The quotation here is taken
from Hill v. TVA, 419 F.Supp. 753, 761 (E.D. Tenn. 1976).

I]

have done everything possible to save the snail darter, short
of abandoning work on the dam,” which it asserted was
“innately unreasonable.” /d. at 1074. Relying upon NEPA
decisions, TVA argued that “the terminal phases of ongoing
projects” should not be considered “actions” subject to
Section 7. /d. at 1070. Expressly rejecting the “NEPA cases
which waive compliance based upon advanced project
construction,” the Sixth Circuit held that “continued work,
directed toward impoundment, violates” Section 7. 549 F.2d
at 1072.

The Services’ final regulations in 1978 provided that
“Section 7 applies to all activities or programs where Federal
involvement or control remains which in itself could
jeopardize the continued existence of a listed species or
modify or destroy its critical habitat.” 50 C.F.R. §402.03, as
set forth at 43 Fed. Reg. 869, 875 (Jan. 4, 1978). The final
regulation was identical to those proposed a year earlicr, but
the Services made clear that they too now rejected NEPA
analogies in determining Section 7’s reach:

“It was originally believed that retroactive
situations under NEPA and the Act were
analogous enough to warrant the incorporation
of the NEPA case law into the Section 7.
regulations.”

“The Sixth Circuit Court of Appeals in the
recent case of Hill v. TVA ... specifically
considered this analogy and rejected it.

The Court noted that as long as some Federal
discretionary contro] or involvement remained
that could avoid jeopardizing the listed
species or adversely modifying or destroying
its critical habitat, the degree of completion of
a project was irrelevant. In light of the Sixth
Circuit Court of Appeal’s analysis, therefore,
the FWS and NMFS now reject the analysis of
retroactivity in the proposed rulemaking’s

~

12

preamble and adopt the rationale of the Sixth
Circuit.”

43 Fed. Reg. at 872.

In 1983, the Services proposed an overhaul of their
regulations implementing Section 7. 48 Fed. Reg. 29990 et
seq. (June 29, 1983). Proposed §403.03 said: “Section 7 and
the requirements of this Part apply to all actions in which
there is Federal involvement or control.” Like both the 1978
regulations and the 1976 guidelines, the proposed regulations
drew no distinction between “discretionary” and “non-
discretionary” actions. Nor did the proposed definition of
“action,” which included “all activities of any kind
authorized, funded, or carried out, in whole or in part, by
Federal agencies.” See proposed §402.2, 48 Fed. Reg. at
29998. Thus, proposed §402.3 reaffirmed the longstanding
view of the Services that - apart from completed actions —
Section 7 applied without qualification or limitation to all
federal actions.

The rulemaking initiated in 1983 yielded final
regulations in 1986. 51 Fed. Reg. 19926 et seq. (June 3,
1986). Those regulations renumbered proposed §402.3 as
§402.03 and inserted the word “discretionary” immediately
before the phrase “Federal involvement or control.”. Given
that the proposed regulations, the 1978 final regulations, and
the 1976 guidelines had not limited Section 7’s applicability
to actions in which there was “discretionary” federal
involvement or control, one would have expected the
Services to explain the intention behind the addition of this
word, particularly if it was meant to effect a limitation
beyond the established limitation covering completed
actions. However, the Services said nothing on the matter.
Instead, the entirety of the explanation offered for §402.03
was as follows:

. “This section, which explains the applicability
of section 7, implicitly covers Federal

13

activities within the territorial jurisdiction of
the United States and upon the high seas as a
result of the definition of ‘action’ in $402.02.
The explanation for the scope of the term

‘action’ is provided in the discussion under
$402.01 above.”

51 Fed. Reg. at 19937 This explanation addressed the quite
different issue of the extraterritorial application of Section 7,
and specifically it sought to make clear that the term “action”
in §402.03 was limited to actions occurring in the territorial —
United States or on the high seas. Accordingly, it is far more
plausible that the final regulations adopted in 1986 intended
no departure from the settled understanding that Section
7(a)(2) applies broadly to all yet-to-be completed federal
actions, than that the Services intended a wholly new class of

exempt activities for which they offered not a word of
explanation.

B. Subsequent Interpretation By The Services

The conclusion from the foregoing history is consistent
with how the Services appear to understand their own
regulation in their jointly published Consultation Handbook:
Procedures for Conducting Consultation and Conference
Activities Under Section 7 of the Endangered Species Act
With only two possible exceptions, whenever reference is
made in the Handbook to “discretionary” federal actions, the
context clearly applies to previously initiated, not yet
completed, actions.

. www.fws.gov/endangered/consultations/s7hndbk/s7hndbk.htm (visited
March 22, 2007).

” See, e.g., Handbook, page 2-15 (“water projects that predate the Act are
subject to consultation if the agency retains any discretion in continuing
project operations”); page 4-28 (discussing the types of analyses required

14

The only two occasions where the Handbook refers to
“discretionary” federal actions more broadly provide little
support for EPA’s position here. In fact, the first reference
appears to contradict that position:

“The Act requires action agencies to consult
or confer with the Services when there is
discretionary Federal involvement or control
over the action, whether apparent (issuance of
a new Federal permit), or Jess direct (State
operation of a program that retains Federal
Oversight, such as the National Pollution
Discharge Elimination System Program).”

Handbook at 2-6. Rather than support EPA’s position, this
appears to say that “state operation” of the NPDES program,
subject to retained federal oversight, is an action on which
consultation is required. The other reference memorializes
the Services’ understanding of- the holding in Platte River
Whooping Crane Critical Habitat Maint. Trust v. FERC, 962
F.2d 27 (D.C.Cir. 1992):

for “ongoing discretionary operations of Bureau [of Reclamation] and
Corps of Engineers water facilities”); pp. 4-60, B-12, and B-32
(discussing requirement to reinitiate consultation on an ongoing project
“where discretionary Federal agency involvement or control over the
action has been retained (or is authorized by law)”); pp. 6-5, B-16, and B-
25 (discussing requirement to initiate formal consultation on action that
was the subject of “conferencing” regarding a species that had been
proposed for listing if, “prior to the completion of the action or while [the
agency] still maintains any discretionary authority” the species is listed);
page. B-48 (advising that no “reinitiation notice” need be included in the
report that concludes the conferencing process for projects affecting
species that are proposed to be listed “if discretionary Federal agency
involvement has terminated”; and p. E-24 (Service project leaders have a
“continuing responsibility to determine if discretionary ongoing activities
of the Service” comply with the requirements of Section 7).

15

“Annual operating permits issued prior to
issuance of a new hydropower license are
subject to the section 7 consultation if the
Federal agency has discretion to determine the
terms of the annual permits.”

Handbook at 4-29. Closer examination, however, reveals
that this memorialization of Platte River does not advance
the government's position either.

In Platte River, certain dam licensees under the
Federal Power Act were entitled to annual interim renewals
of their expiring fifty-year licenses under the same terms as
the original licenses until the Federal Energy Regulatory
Commission (“FERC”) could process a longer term renewal.
The Handbook appears to regard this situation as an example
of a completed federal action for which there is no remaining
federal involvement that “in itself’ could jeopardize a listed
species. Thus, this single reference in the Handbook hardly
stands for the broader proposition that the Services regard all

non-discretionary federal actions as beyond the reach of
Section 7(a)(2).

Whatever the Services’ understanding of Platte River
may be, an important distinction exists between the facts
there and those here. Platte River noted that FERC would
soon consult formally with the Service in connection with the
pending relicensing. 962 F.2d at 33. Thus, Platte River dealt
only with the temporary extension of existing dam operations
and their impacts; formal consultation was imminent and
would consider any changes needed to insure no jeopardy to
listed species. Here, however, the status quo is not being
continued temporarily, but is being fundamentally altered,

16

and the decision is of indefinite duration, rather than
transitory.®

Il. EPA’S CONTENTION IS INCONSISTENT
WITH THE PURPOSES OF SECTION 7(a)(2)
AND THE CENTRAL ROLE OF THE
INTERAGENCY CONSULTATION PROCESS
IN RESOLVING APPARENT CONFLICTS —

A. The Purposes Of The ESA Would Be
Frustrated By EPA’s Contention

EPA’s effort to create an exception not found in the
plain language of Section 7(a)(2) would frustrate the
purposes of the ESA. Those purposes are to provide “a
means whereby the ecosystems upon which - endangered
species and threatened species depend may be conserved”
and a “program for the conservation of such ... species.” 16
U.S.C. §1531(6). The purpose of “conserving” such species
can only be met by “bring[ing] any endangered species or
threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary,” i.e.,
to the point at which a species has recovered and can be
removed from the official list of such species. Jd. §1532(3).

* It is also unclear whether Platte River even dealt with Section
7(a)(2). In a pivotal sentence, the DC Circuit reasoned that “the statute
directs agencies to ‘utilize their authorities’ to carry out the ESA's
objectives; it does not expand the powers conferred on an agency by its
enabling act.” 962 F.2d at 34 (emphasis in original). However, the phrase
“utilize their authorities” appears only in Section 7(a)(1), 16 U.S.C.
§1536(a)(1), which imposes affirmative duties of federal agencies to
further the conservation of listed species. Whether or not Section 7(a)(1)
expands agency powers is irrelevant to Section 7(a)(2) which clearly
restricts how federal agencies carry out the activities they are empowered
to undertake.

17

Section 7(a)(2) is central to these purposes for several
reasons. First, it is the ESA’s only mechanism for ensuring
against the destruction or adverse modification of areas
designated as “critical habitat” because they are “essential to
the conservation” of a listed species. 16 U.S.C. §1533(5).
When Congress enacted the ESA, critical habitat was one of
its innovations, and yet the only regulatory consequence that
attaches to critical habitat does so through Section 7(a)(2).
Second, for plants, which comprise most of the listed species
in the United States,” Section 7(a)(2) is generally the only
significant mechanism in the ESA to guard against
deleterious activities. '°

Finally, that Congress viewed Section 7(a)(2) as
critical to accomplishing the ESA’s goals is evident from the
extraordinary procedures required to secure relief from it.
Whereas the taking prohibition in Section 9 can be waived
simply by means of a permit issued by the Service for any
“otherwise lawful activity,” 16 U.S.C. 1539(a)(1)(B), waiver
of the prohibitory duties of Section 7(a)(2) is only available
in the event of a Presidentially declared major disaster, 16
U.S.C. §1536(p), a finding of the Secretary of Defense that a
waiver is “necessary for reasons of national security,” 16
U.S.C. §1536(j), or as a result of a determination on. the
record by a super-majority of a specially constituted
committee of Cabinet-level officials that the activity for
which the waiver is sought “is of regional or national
significance” and has no reasonable and prudent alternative.
16 U.S.C. §1536(h). No other duty imposed by any other

9 See http://ecos.fws.gov/ess_public/Boxscore.do (visited March 18,
2007). As of March 18, 2007, of the 1310 endangered or threatened
species in the United States, 744 were plants.

© Although Section 9 of the ESA, 16 U.S.C. §1538, broadly prohibits the
“taking” of endangered fish or wildlife, this prohibition does not extend
to plants. Instead, plants are afforded substantially less protection.
Compare 16 U.S.C. §1538(a)(1)(B) with 16 U.S.C. §1538(a)(2)(B).

18

provision of the ESA requires such extraordinary procedures
to secure an exemption from it, yet EPA’s contention would
effectively exempt an entire class of federal activities of
indeterminate scope'' from this core requirement of the ESA.

To achieve the far-reaching purposes of the ESA,
Congress was as encompassing and inclusive as it possibly
could have been throughout the law. For example, there are
no limitations on the plants and animals potentially subject to
the ESA’s protection. They include “any member of the
animal kingdom, including without limitation any mammal,
fish, bird ..., amphibian, reptile, mollusk, crustacean,
arthropod or other invertebrate,” as well as “any member of
the plant kingdom.” 16 U.S.C. §1532(8) and (14). By
including all invertebrates and plants, Congress went well
beyond any earlier federal conservation law. M. Bean, The
Evolution of National Wildlife Law (1“ ed. 1977) at 445-46.
Neither are there are any limitations on the persons subject to
the ESA’s requirements. They include an exhaustive list of
natural, corporate, and governmental “persons” as well as
“any other entity subject to the jurisdiction of the United
States.” 16 U.S.C. §1532(13). There are no limitations on
the federal agencies subject to the ESA’s duties. They
include “any department, agency, or instrumentality of the
United States,” regardless of whether they manage land or
have other environmental responsibilities. Jd. §1532(7).

Like the examples just cited, Section 7(a)(2) is similarly.
all-encompassing, applying to “each federal agency” and to
“any action authorized, funded, or carried out” by that
agency. Here, however, the government contends that when
Congress said “any action,” it really meant “some actions.”

'' As EPA itself notes, “it may require significant factual or legal analysis
to determine whether a potential effect on listed species is properly
attributable to an action mandated by Congress or to a related
discretionary judgment.” EPA Br. at 44.

19

That contention is not only contrary to the plain meaning of
Section 7(a)(2), but would frustrate the far-reaching purposes
of the ESA by excluding from its reach an expansive
category of federal actions.

B. EPA’s Position Undermines the Pivotal
Role That Congress’ Intended the
Interagency Consultation Process to Play in
Resolving Seeming Conflicts

1. The Role of the consultation process is
not simply to identify potential conflicts,
but to seek out ways to avoid them,
which it has largely done successfully.

Compliance with the prohibitory duty of Section 7(a){2)
is facilitated through a process of “consultation” between the
“action agency” that authorizes, funds, or carries out the
action and the Service. Consultation is not simply a means
of determining whether a federal action transgresses the
Statutory prohibition. It is also, and more importantly, a
mechanism to explore fully the opportunity to reconcile
seeming conflicts between the survival imperatives of
affected species and the objectives of a particular federal
action. Congress, particularly since its substantial revision of
the consultation process in 1978, has regarded that process as
the lynchpin to the success of Section 7.

When Congress enacted the ESA, Section 7 was one of
its most significant changes from earlier legislation. M. Bean
& M. Rowland, The Evolution of National Wildlife Law (3
ed. 1997) at 199. From the beginning, Section 7’s duties
were to be accomplished “in consultation” with the Service.
The original Act did not further elaborate on the nature of
this consultation duty. In 1978 and 1979, following this
Court’s decision in TVA v. Hill, Congress emphatically
affirmed the pivotal role that consultation was to play in the

20

workings of Section 7. Most importantly, the consultation
process was to provide for a searching inquiry not only into
the consequences of proposed federal actions, but also into
any reasonable and prudent alternative that could avoid the
prohibited impact of jeopardizing the continued existence of
any listed species, or destroying or adversely modifying its
critical habitat. See 16 U.S.C. §1536(b)(3) and (4). To
ensure the integrity of the consultation process and to ensure
that action agencies consulted in good faith, Congress
prohibited them from making any irreversible or irretrievable
commitment of resources that had the effect of foreclosing
the formulation or implementation of reasonable and prudent
alternative measures. ESA §7(d), 16 U.S.C. §1536(d). This
requirement was taken directly from the Services’ 1978
regulations, clear evidence that Congress was fully aware of
them. See 50 C.F.R. §402.04(a)(3) at 43 Fed. Reg. 875 (Jan.
4, 1978).

The process by which federal agencies comply with
Section 7(a)(2) is straightforward and can terminate at any of
three stages: (1) upon a unilateral determination by the
action agency that its proposed action will not affect any
listed species or critical habitat; (2) upon a determination by
the action agency, following “informal consultation,” that its
action is “not likely to adversely affect” any such species or
habitat, provided the Service concurs therewith; or (3) upon
issuance by the Service, following “formal consultation,” of a
biological opinion that evaluates whether the proposed
action, Or any reasonable and prudent alternative to it,
complies with Section 7(a)(2)’s duty to insure no jeopardy to
species or adverse modification of critical habitat. See 50
C.F.R. $402.14. In general, it has been extremely rare for
any proposed federal action to proceed through all three steps
of the compliance process only to meet with a negative
biological opinion that identifies no reasonable and prudent
alternatives within the authority of the action agency. The
formal consultation process between action agencies and the
Service has generally been quite successful in identifying

21

reasonable and prudent alternatives that allow action agency
objectives to be met without jeopardizing the continued
existence of listed species or adversely modifying their
critical habitats. ' Likewise, in the informal consultation
process that comprises the second stage above, action
agencies often adopt modifications or compensatory
measures as part of their proposed actions to eliminate any
likelihood that the actions will adversely affect listed species
or critical habitat.

That, in fact, is what EPA did in American Forest &
Paper Ass'n v. United States EPA, 137 F.3d 291 (5" Cir.
1998). In that case, EPA never got to the third step of the
compliance process; it never formally consulted with the
Service or secured from it a biological opinion that examined
the proposed transfer of permitting authority to Louisiana.
Instead, as ‘the Fifth Circuit’s opinion makes clear, “EPA
devised” a scheme whereby, in exchange for transferring
permitting authority to Louisiana, EPA secured the state’s

'2 The House report on the 1982 ESA amendments noted that “the
consultation provisions have functioned extremely well as a means
whereby potential conflicts between the conservation of [listed] species
and the carrying out of Federal activities can be avoided.” H.R. Rep. No.
97-567, at 24 (1982), reprinted in 1982 U.S.C.C.A.N. at 2824. During
floor debate, Rep. Forsythe reported that “in the last 3 fiscal years ...
there have been 10,762 consultations conducted under the Endangered
Species Act. Of those, ... only 192, 1.8 percent, resulted in a finding that
the project in question would jeopardize the continued existence of an
endangered species. Of those 192 projects, modifications were made in
185 and they went forward. Only seven projects in 3 years were stopped,
and | would point out that of those seven at least five, and perhaps all
seven, were stopped for reasons unrelated to the Endangered Species
Act.” 128 Cong. Rec. 12958 (June 8, 1982). For similar, more recent
statistics, see T, Rabot, The Federal Role in Habitat Protection,
Endangered Species Bulletin, vol. 24, no. 6 at 10-11 (Nov./Dec. 1999),

www.fws.gov/endangered/esb/99/11-12/10-11.pdf (visited March 18,
2007).

22

consent that if the state failed to satisfy the Service's
endangered species concerns with respect to particular
permits, EPA would veto those permits. 137 F.3d at 294.
EPA’s adoption of this procedure was not the result of formal
consultation with the Service, for there was none. Rather,
“public comments ... prompt{[ed] EPA to adopt” it. /d. at
296.

This procedural history of American Forest is important
because it clarifies the issue that the Fifth Circuit actually had
before it. EPA, without benefit of formal consultation with
the Service, modified its original proposed action in a way
that it thought would meet the “not likely to adversely affect”
test of the second stage of the compliance process. The Fifth
Circuit held that EPA’s conditioning of its approval upon
Louisiana’s consent to the scheme described above exceeded
EPA’s statutory authority. However, because no formal
consultation ever took place, EPA and the Service never
undertook the exhaustive examination of all potential
alternatives to reduce the likelihood of jeopardy that a formal
consultation would have required. That the one measure
chosen by EPA after informal consultation to justify its “not
likely to adversely affect” determination exceeded its
authority does not mean that there were no other permissible
measures that might have been identified though formal
consultation. Put differently, even if, as the Fifth Circuit
asserted, “EPA lacks authority to modify the plain language
of the CWA by adding to the list of enumerated
requirements,”’* there may be other measures EPA can

3 td. at 298, n. 6. In reaching this conclusion, the Fifth Circuit reasoned
that although CWA §402(b)(6), 33 U.S.C. §1342(b)(6), allows EPA to
veto a state permit based on the Secretary of Army’s concerns regarding _
anchorage and navigation, “Congress could have, but did not, grant EPA
an analogous veto power to protect endangered species.” Id. at 298.
Regarding both this section and CWA §304(i), 33 U.S.C. §1314(i), which
authorizes EPA to issue regulations governing the approval process for
State programs, the court drew support for its conclusion from the fact

23—__—

undertake that would satisfy the requirements of Section
7(a)(2). Indeed, it is the purpose of formal consultation to
explore whether there are such alternatives. The Fifth Circuit
opinion should not be understood to presuppose the outcome
of a formal consultation process that had never occurred.

Yet, that is in effect the interpretation EPA advances
here. Indeed, EPA goes beyond American Forest by
asserting that the transfer of permitting authority to a state
never need proceed past the first stage of the compliance
process because such transfers do not meet the “may affect”
test of that stage. That contention not only goes beyond
American Forest, but it goes beyond any position previously
taken by EPA in connection with any previous transfer of
permitting authority.’

The practical consequence of the government’s position
that “non-discretionary” federal actions lie wholly outside the
reach of Section 7(a)(2) is that any agency that thinks it has
no discretion but to carry out an action will never get past
Step One of the compliance process. There can be no serious
doubt that TVA, for example, believed it had no discretion
but to forge ahead with the completion of Tellico Dam.

that “neither section even mention{s] endangered species or the ESA.”
Id. It would have been remarkably prescient had Congress done so,
since the ESA had not yet been enacted.

” Although prior to 1993 the transfer of NPDES permitting authority was
accomplished without consultation, the record does not reveal the basis
for this fact. For 30 states, permitting authority was transferred cither
prior to enactment of the ESA or before there were any regulations
implementing the Section 7 consultation process. As of 1993, however,
following the significant expansion of the NPDES program caused by the
requirement for stormwater discharge permits, EPA consulted on all
transfers of NPDES permitting authority. For none of the pre-1993
transfers does the record reveal whether EPA made threshold “may
affect” determinations or, if it did, what the basis for those determinations
was.

24

Because Step One determinations are made unilaterally by
action agencies that need neither notify nor solicit the views
of the Service on those determinations, the rule advocated by
the government here will create a powerful incentive for
agencies to self-characterize their actions as non-
discretionary and thus bypass the consultation process that

Congress deemed central to accomplishing the purposes of
the ESA.

2. EPA’s position ignores the authorities it
has that could reduce the likelihood of
prohibited impacts

Petitioners make much of the fact that, as originally
enacted, Section 7 required federal agencies to “utilize their
authorities in furtherance of the purposes of” the ESA by
“nsur[ing] that actions authorized, funded, or carried out by
them do not jeopardize the continued existence” of listed
species or destroy or modify their critical habitats.
Petitioners assert that the reference to “utiliz[ing] their
authorities” was intended by Congress to continue to apply to
the duties now set forth in Section 7(a)(2), even though that
language appears in Section 7(a)(1) and not in Section
7(a)(2). But even if those words were part of Section 7(a)(2),
they would not support the Petitioners’ position here. Where
Petitioners err is in construing those words confine the.
inquiry under Section 7(a)(2) to the precise authority for the
action in question. Instead, they should be read less
myopically to require inquiry into al] of the authorities that
an agency may have to reduce the likelihood of its action
having a prohibited impact.

Even if the CWA requires EPA to approve the
transfer of permitting authority to a state that meets the CWA
criteria, and even if Section 7(a)(2) of the ESA confers no
additional authority upon EPA to condition or qualify its
transfer, the requirements of Section 7(a)(2) still apply to
EPA’s action. Unlike in Public Citizen, where no purpose
would have been served by requiring FMCSA to prepare an

25

environmental impact statement explaining the effects of a
decision already made, the requirements of Section 7(a)(2)
are not nullified even if a particular decision is mandated, for
they affect how that decision is carried out.

Applying the consultation requirement of Section
7(a)(2) here will serve the salutary intended purpose of
exploring all means within EPA’s authority to reduce the
likelihood of jeopardizing the continued existence of any
listed species. EPA’s transfer decision, after all, triggers a
continuing duty on it to oversee the administration of the
state program. CWA §402(c), 33 U.S.C. §1342(c).
Moreover, EPA may object to the issuance of individual
permits that it deems to be “outside the guidelines and
requirements” of the CWA. CWA §402(d), 33 U.S.C.
§1342(d).'° Consultation between EPA and the Service at
the time of transfer can and should explore how EPA will
exercise its oversight and permit objection authorities to
reduce the likelihood that the continued existence of any
threatened or endangered species will be jeopardized as a
result of the transfer of NPDES authority. EPA and the
Service might, for example, agree upon a special set of
procedures they will jointly employ to provide special
scrutiny to permits in particular areas, or permits associated
with particular types of projects. Such special procedures
could supplement EPA’s genera! expertise with the Service's
particular biological expertise regarding the requirements of

ie The regulations that implement Section 7(a)(2) define “Effects of the
action” to include “direct and indirect effects of an action” as well as “the
effects of other activities that are interrelated or interdependent with that
action.” “Interrelated actions” refer to “those that are part of a larger
action and depend on the larger action for their justification.”
“Interdependent actions” refer to actions “that fave no independent utility
apart from the action under consideration.” 50 C.F.R. §402.02. EPA’s
post-delegation oversight activities are interdependent upon its delegation

action, inasmuch as they have no independent utility without the
delegation.

26

listed species. Indeed, special procedures such as these were
typically agreed upon as a result of the consultations that
took place with respect to the six states to which permitting
authority has been transferred since 1993.'°

3. If a truly irresolvable conflict exists, the
exemption process is the required means
of addressing it.

EPA relies heavily upon American Forest for the
proposition that Section 7(a)(2) merely “channels” existing
agency authority in a particular direction. This description
fundamentally mischaracterizes the role and function of
Section 7(a)(2), which both guides how agencies carry out
their various authorities and ultimately serves as a barrier to
or restraint upon what federal agencies could otherwise do.
TVA vy. Hill did not “channel” TVA’s authority into building
dams with permanently open gates. Rather it prevented TVA
from using its authority to close the gates on a nearly

completed dam that threatened to extirpate an endangered
fish.

Congress recognized, as a result of TVA v. Hill, that
there would on occasion be situations in which no reasonable
and prudent alternative to a proposed federal action meets the
requirements of Section 7(a)(2). When such irresolvable
conflicts exist, Congress established a special process by
which federal actions that conflict with Section 7(a)(2) may

© Petitioner National Association of Home Builders argues in its brief (p.
11) that when these consultations took place “EPA did not acknowledge
that it was legally obligated” to consult, but was free to do so voluntarily.
But what purpose does voluntary consultation serve unless, as a result of
such consultation, steps are identified that would tend to reduce the
likelihood of adverse impact to listed species? And if EPA can undertake
those steps following voluntary consultation, it can do so as a result of
consultation required by Section 7(a)(2).

27

be exempted therefrom. If EPA lacks the authority to
implement any alternative that is consistent with Section
7(a)(2), it may proceed with its action only by securing an
exemption through Section 7(h), 16 U.S.C. §1536(h).

Because the consultation process has almost always
avoided irresolvable conflicts, the exemption process has
rarely been used. Nevertheless, a seven-member
“Endangered Species Committee” can grant exemptions if at
least five of its members determine that the benefits of the
action for which exemption is sought “clearly outweigh the
benefits of alternative courses of action” that preserve the
species. 16 U.S.C. §1536(h)(1)(A)(ii). Congress intended
that in making this determination the Committee would
consider alternatives outside the action agency’s authority.
As explained by Senator Culver, the floor manager in the
Senate of the bill (S. 2899) that created the Committee, “[i]n
reviewing available alternatives to the action under review,
the committee would be charged to examine the benefits of
all available alternatives, not simply those which are within
the agency’s jurisdiction.” 124 Cong Rec. $10896 (daily ed.
July 17, 1978), reprinted in A Legislative History of the
Endangered Species Act of 1973, as Amended in 1976, 1978,
1979, and 1980 at 962-63 (1982, emphasis added). See also
50 C.F.R. §§450.01 and 453.03(a)(1)(ii) (Committee may
consider alternatives, “including both no action and
alternatives extending beyond... acting agency
jurisdiction”). Thus, even when an agency has no authority
to do anything to avoid conflict with its duty to insure no
jeopardy, it remains subject to Section 7(a)(2) and can avoid
its restraining effect only by securing an exemption.

IV. EPA’S CONTENTION THAT NON-
DISCRETIONARY FEDERAL ACTIONS ARE
NOT SUBJECT TO SECTION 7(a)(2) WOULD
HAVE UNANTICIPATED NEGATIVE
CONSEQUENCES FOR FEDERAL AGENCIES

28

EPA’s contention that non-discretionary actions are not
subject to Section 7(a)(2) could have troubling ramifications
for federal agencies generally. In particular, agencies and
their officials carrying out putatively “non-discretionary”
actions could be liable for civil or criminal penalties, or
subject to injunction, for violating the ESA’s taking
prohibition without the authorization provided by Section
7(0)(2), 16 U.S.C. §1536(0)(2).

Those consequences stem from the interplay between
Section 7(a)(2) and the prohibition against “taking”
endangered fish or wildlife in Section 9(a)(1)(B), 16 U.S.C.
§1538(a)(1)(B). As Justice Scalia noted in Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon, 515 U.S.
687, 724 (1995), these provisions “do not operate in separate
realms; federal agencies are subject to both, because the
‘person(s]’ forbidden to take protected species under [Section
9} include agencies and departments of the Federal
Government.” (Scalia, J., dissenting; emphases in original).
Indeed, as Justice Scalia further noted in Bennett v. Spear,
520 U.S. 154, 172 (1997), an action agency that takes a listed
species exposes its employees to “substantial civil and
criminal penalties” because “persons” subject to the Act
explicitly include not only agencies and departments of the
Federal Government, but “any officer, employee, [or] agent”
thereof. 16 U.S.C. §1532(13).

The fact that federal agencies are subject to both
provisions prompted 1982 amendments that provided relief
from the taking prohibition in certain circumstances.
Congress’s concern was expressed as follows in the House
Committee Report:

“After complying with the rigorous demands
of the Section 7 consultation process, the
applicant or Federal agency receives no
assurance that any incidental and
unintentional takings contemplated under a

29

Section 7 consultation will not be prosecuted
under Section 9 which prohibits any taking.”

H. Rep. No. 97-567, 97" Cong., 2d Sess. at 15 (1982),
reprinted in 1982 U.S.C.C.A.N. 2815; see also S. Rep. No.
97-418, 97" Cong., 2d Sess. at 21-22 (1982). Congress
remedied this dilemma with amendments embodied in
Section 7(b)(4) and 7(0)(2), 16 U.S.C. 1536(b)(4) and
1536(0)(2). The former provides that if the Service
concludes, after consultation, that the federal action would
not violate Section 7(a)(2) but may result in the incidental
taking of a listed species, the Service must include in its
biological opinion “reasonable and prudent measures” to
minimize the impact of such incidental taking. The latter
provides that any taking that is in compliance with such
reasonable and prudent measures shall not be considered a
prohibited taking.

Unless federal actions undergo formal consultation, there
may be no means of securing for them relief from the ESA’s
taking prohibition. Section 10(a)(1)(B) of the ESA, 16
U.S.C. 1539(a)(1)(B), authorizes permits to take listed
species incidental to otherwise lawful activities, but it is well
established that permits under this provision are not available
to federal agencies.’ Section 7(b)(4) and Section

In explaining the new permitting provision of Section 10(a)(1)(B) in
1982, the House floor manager of bill characterized it as “involv[ing}
permits for the taking of endangered species when no other Federal action
is involved.” 128 Cong. Rec. 26188 (Sept. 30, 1982, remarks of Rep.
Breaux). Under the heading, “Who Can Apply for a Section 10 Permit?”
the Services’ Habitat Conservation Planning Handbook , available at
www.fws.gov/endangered/hep/hcpbook.htm (visited March 21, 2007),
explains that “Section 10 permits can be issued to state, municipal, or
tribal governments, corporations or businesses, associations, and private
individuals. They can be issued to entities that are a combination of
these, such as joint power authorities, watershed councils, and other
planning authorities.” Handbook at 3-1, In short, Section 10(a)(1)(B)

30

10(a)(1(B) thus provide mutually exclusive mechanisms to
authorize incidental take: the former for federal actions and
the latter for non-federal actions. The idea that there might
be some federal actions not subject to Section 7 — i.e., those
EPA characterizes as non-discretionary — clearly never
occurred to Congress. If EPA’s view is correct, then federal
agencies can never secure authorization to take listed species
when carrying out non-discretionary actions, because those
actions cannot be the subject of a biological opinion — the
only mechanism by which federal agencies can receive
authorization for such take. That Congress never
contemplated such an inexplicable result is certain, yet it is
precisely the result that flows from the legal proposition that
EPA asserts here.

CONCLUSION

The judgment below should be affirmed and the case
remanded for further proceedings consistent with the
requirements of Section 7(a)(2) of the ESA.

Respectfully submitted.
Michael J. Bean
Senior Attorney
Environmental Defense
March 27, 2007

permits are available to anyone except federal agencies. The Handbook
continues: “The standard method for authorizing take for Federal
agencies is through the Section 7 consultation process. Actions
authorized, funded, or carried out by Federal Agencies must go through
the Section 7(a)(2)consultation process” (emphasis added). Id. at 3-1 to
3-2.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0293%3A25. Public record. Not legal advice.