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

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697d

Nos. 06-340 and 06-549

IN THE

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS, ef al.

Petitioners,

DEFENDERS OF WILDLIFE, ef al.

Respondents.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

DEFENDERS OF WILDLIFE, ef al.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

JULIE ANNA PoTTs ELLEN STEEN

DANIELLE QUIST Counsel of Record

AMERICAN FARM BUREAU THOMAS R. LUNDQUIST

FEDERATION KIRSTEN L. NATHANSON

600 Maryland Ave., NW CROWELL & MORING LLP

Suite 1OOOW 1001 Pennsylvania Ave., NW

Washington, DC 20024 Washington, DC 20004-2595

(202) 406-3600 (202) 624-2500

Attorneys for American Farm Bureau Federation

QUESTIONS PRESENTED

Amicus will address the following questions:

1. Whether the Environmental Protection Agency

(“EPA”) “authorizes” and is the legal cause of effects of

private land use activities, within the meaning of § 7(a)(2) of

the Endangered Species Act (“ESA”) where § 402(b) of the

Clean Water Act (“CWA”) does not allow EPA to consider

effects on ESA-listed species in transferring CWA

permitting authority to a State, and where the direct cause of

such effects is a private land use initiative which requires

some State-issued permit.

2. Whether the panel below improperly mandated a

construction of ESA § 7(a)(2) where that construction is not

the only permissible interpretation of the ESA, is contrary to

the agencies’ interpretation of a statute and rules they

administer, and is not compelled by Tennessee Valley Auth.

v. Hill, 437 U.S. 153 (1978).

(1)

TABLE OF CONTENTS

TTA R TAT EE l

Re tr II icesscnicignsiocnsennseninsieenspnliansncunissinitensnarenatane 3

IE ciiccecstintssiontsnindnnsciniadenmpennimnaneninianinenieneenneneies 4

I. ESA § 7(a)(2) operates within a federal

agency’s range of discretion under its

ae nsccecsincsinicsiiasiecssiehecesisdadebicsiainisinaninnadsevidiineuinadil 4

TED ierenssanntcinnnsiiniinisdatcsidienssasininlaphenbiniaaitendbeanvntnniien 30

TABLE OF AUTHORITIES

Cases

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)............. 19

Am. Forest & Paper Ass'n v. U.S. Envil. Prot.

Agency, 137 F.3d 291 (Sth Cir. 1998)... eee ee eeeeeeee 24

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40

STU TITTT copinnseniaianitenaniiesimnnedinspbialasiadpsiibeiaiundiibnessibiietangteaninisien ll

Auer v. Robbins, 519 U.S. 452 (1997) .0.......cccceceeeeeeeeeeeeees 19

Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Oregon, 515 U.S. 687 (1995) .....cccceeeeeeee passim

Bennett v. Spear, 520 U.S. 154 (1997).....ccccceceseeeeeteeeees 29

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

eee: er Ce icsaiciinieciciiciincinsianiibesmmnisisinonsniaeemmenincsis 19

Defenders of Wildlife v. U.S. Envtl. Prot. Agency,

420 F.3d 946 (9th Cir. 2005), reh’g denied, 450

Fp a aE ly SE ecsscscnentstecieniisdesniedtuiniaond passim

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

SEITEN TU icssdiststiseciseuisialinnbseciidideiiaionneditlaiaedibeasviainnagatiasatiiaiiniah 7, 8,9

Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255

ee Tee A GO Pistciicicenisinciictisiciatateentemnatinitini 25, 29

Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426

SER SOUT EE cnsnsiicinnincsinsesnsiininantedintessiintenssensemmanuies 13

Forsham v. Harris, 445 U.S. 169 (1980) .00.........: cece 13

Ground Zero for Non-Violent Action v. U.S. Dep't

of Navy, 383 F.3d 1082 (9th Cir. 2004) 0000.0... 25

Kremer v. Chem. Constr. Co., 456 U.S. 461

IIT cessesieiteanidaseiiiiiaitabeiiclaspneniianieniibiniebiinibimnatinnibinbeiiieie 26, 27

Lucas v. South Carolina Coastal Council, 505

| __RST RSS reDTe e at AR OT 11

Lujan v. Defenders of Wildlife, 504 U.S. 555

IUPUI iii asisdareaeeenineninbiepeiniaiiindin 19

Marbled Murrelet v. Babbitt, 111 F.3d 1447 ae

Sistas. UPPED asssdeiihiaditcaiiaeiseiisanincaiiiesidichiaiaisidisddieadliniatuitaiiaddeteinns 6

Nat’l Cable & Telecomm. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005)................000c000 4, 23

Natural Res. Def. Council v. U.S. Envtl. Prot.

Agency, 859 F.2d 156 (D.C. Cir. 1988) 20... 9

Norton v. S. Utah Wilderness Alliance, 542 U.S.

ee eiiciaisasiitatsteciisitahdiilitlhaniuianhiai inde iiinbiini tanec 6, 12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

SS cesthciiesclindatiicanesvonpioiaciiiaiaitadinaaicic aes aaipiiiliaauidiniaia 11

Platte River Whooping Crane Habitat Maint.

Trust v. Fed. Energy Regulatory Comm'n, 962

Pe ee ee AAS CM icccascicnanensininicsnnneienansnindiii 21,24

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .....cccceee. 22

Riverside Irrigation Dist. v. Andrews, 758 F.2d

TR UE eeniviccttessscnseesiinnnscennanionaiiiniaticdsdanibninien 24

Rodriguez v. United States, 480 U.S. 522 (1987) ............. 30

(ili)

Save the Bay, Inc. v. U.S. Army Corps of Eng’rs,

ET TAS CI cncctcnesstsaninctnnedectnncsisedtonsnets 9

Sierra Club vy. Babbitt, 65 F.3d 1502 (9th Cir.

___—_ BREE IRR Nanette anon nN E REE nO AoE NONE ERD oO TO 25

Solid Waste Agency of N. Cook County v. U.S.

Army Corps of Eng’rs, 531 U.S. 159 (2001) ............0. 27

Strahan v. Linnon, 967 F. Supp. 581, 607-08 (D.

Mass. 1997), aff’d, 1998 WL 1085817 (Ist Cir.

ari tissshiansinonsnsdeeeabatpdaieséeisdtinidaedaddimnpedaniatinetiipaddlieininiminaseaieen 24

Tennessee Valley Auth. v. Hill, 437 U.S. 153

EEE aE acasthdcinincininacnpnnieticccntenneensenesnapiiiieseiisininasiienieeiens passim

United States v. Booker, 543 U.S. 220 (2005) .........sssse 22

United States v. Mead Corp., 533 U.S. 218 (2001) .......... 19

United States v. Orleans, 425 U.S. 807 (1976)..............0.. 13

W. Watersheds Project v. Matejko, 468 F.3d 1099

SII TET ciiscnictsiieadoiiepencapemevasinentebenianiliniansentigniatenlinnta 25

Watt v. Alaska, 451 U.S. 259 (1981)... cece eeeeteeeeeteeeee 26

Western Watersheds Project v. Matejko, 468 F.3d

Fr a: BRD se ccesesionsonsmisonccsvenevennenpencmennssosesesee 12

Wetlands Action Network v. U.S. Army Corps of

Engrs, 222 F.3d 1105 (9th Cir. 2000)... ceeeeeeeeeeee 9

Statutes and Regulations

Endangered Species Act of 1973, 16 U.S.C.

1531-44:

ESA § 2(a)(5), 16 U.S.C. 1531(a)(5) .cccsccccssesessveee 27, 29

ESA § 2(c), 16 U.S.C. 1531(C) cccsccccsssecsssueccsssescesseecssees 29

ESA § 2(c)(1), 16 U.S.C. 153 1(C)(1) cececcsseesssveeeneees 13, 15

ESA § 2(c)(2), 16 U.S.C. 1531(C)(2) ceeccsecccssecessseessseeen 27

ESA § 4(b)(2), 16 U.S.C. 1533(b)(2)...ccccscccccssecessvecesee 29

(iv)

ESA § 4(b), 16 U.S.C. 1533(d).............ecccscsoscroees 27, 29

ESA § 4(f), 16 U.S.C. 1533(f) ccccccsscscccseescsssscesssssueesseee 29

BUA 8G, 06 UGC. 19GG ececcacsscancovesossvevncorcinstsnteonnvenns 29

ESA § 6(g)(2), 16 U.S.C. 1535(g)(2)seccccssssecsseeeeeseseesee 27

ESA § 7, 16 U.S.C. 1536 ceccccsscccssseccssvecssssecssssseseee passim

ESA § 7(a), 16 U.S.C. 1536(a) ..ccccccsssecsssseccssssessssnscseen 29

ESA § 7(a)(1), 16 U.S.C. 1536(a)(1) ..ccccscscecseseseeseseeeen 15

ESA § 7(a)(2), 16 U.S.C. 1536(a)(2) seccssseccssseeeseee passim

ESA § 7(b)(3), 16 U.S.C. 1536(b)(3)-.ccceccccsseecsssseeesenee 10

ESA § 7(b)(4), 16 U.S.C. 1536(b)(4)...ccccsccccesseeeeee 28, 29

ESA § 7(e)(3)(A)(i), 16 U.S.C. 1536(e)(3)(A)(i) woe... 16

ESA § 7(e)-(p), 16 U.S.C. 1536(€)-(P) seccccssssececssssseeeee 29

ESA § 9, 16 U.S.C. 1538 cecccccssecscssesccssecsesseccssssesessuceeen 29

ESA § 9(a)(1), 16 U.S.C. 1538(a)(1) .ccccccscsecsssssecsesseeen i

ESA § 9(a)(1)(B), 16 U.S.C. 1538(a)(1)(B) ....e..cscees00e 28

ESA § 9(g), 16 U.S.C. 1538(g) .ccccscscsssssssesesssssvecesssssees 11

ESA § 10(a)(2), 16 U.S.C. 1539(a)(2) ..eccscceesssseeeee 28, 29

ESA § 10(d), 16 U.S.C. 1539(d) ..sccccsssscscssssesssssvecsenseees 29

ESA § 11(€)(6), 16 U.S.C. 1540(€)(6) ..cccccccecccsseecssseeee 29

ESA § 11(g), 16 U.S.C. 1540(g) ..cccccccsssssecessssssecssessevees 29-

Federal Water Pollution Control Act

(“Clean Water Act’), 33 U.S.C. 1251-1387:

CWA § i01(b), 33 U.S.C. 1251(b) ..... 10, 27

CWA § 309(a)(1)-(3), 33 U.S.C. 1319

CR Ec cerssernscisesscnnnicnniisilanauaianiiiasiémiitiniegiasaaimamnlnl 6

CWA § 402(b), 33 U.S.C. 1342(b) .... ee passim

CWA § 402(c), 33 U.S.C. 1342(c¢)........ eee 6, 7,12

CWA § 402(d), 33 U.S.C. 1342(d) ..... 6, 7, 12

CWA § 502(14), 33 U.S.C. 1362(14) ...... eee 2

National Environmental Policy Act, 42 U.S.C.

iii iccisiiciccsicncnsseiueldiansi¢naciiouistinedaentainiinsdiaesaae ia 7,13

Gis Sea ccctcctactstnniciecisiniihinisanitiiiaeiniiaiies ae 2

40 C.F.R. 1508.8 ........ SNE TS RRR We Neer REN 2 aia 7

(v)

EE Te 7

SS 28

| 7

EE ee passim

Ee 5

Lh) | ee 7

ES ae 4, 18, 25

Other Authorities

119 Cong. Rec. 25,694 (July 24, 1973) c.ccccccccccccssseeereneu 14

119 Cong. Rec. 42,913 (Dec. 20. 1973) .cccccccccccseseeeersesen 14

125 Cong. Rec. 29,437 (Oct. 24, 1979) .occccccceeseeseeen 16,17

BLACK’S LAW DICTIONARY (8th ed. 2004)... 7

H.R. Conf. Rep. No. 96-697, 1979 U.S.C.C.A.N.

caine 16

H.R. Conf. Rep. No. 97-835, 1982 U.S.C.C_AN.

SS NN 28

HR Rep. No. 97-567, 1982 U.S.C.C.A.N. 2807 sosccoo.--. 28

James Kilbourne, The Endangered Species Act

Under the Microscope: A Closeup Look from a

Litigator’s Perspective, 21 ENVTL. L. 499

James Rasband, Privrity, Probability, and

Proximate Cause: Lessons from Tort Law

About Imposing ESA Responsibility for Wildlife

Harm on Water Users and Other Joint Habitat

Modifiers, 33 ENVTL. L. 595 (2003) .............cccccceeeeeeees 11

(vi)

Jan Hasselman, Holes in the Endangered Species

Act Safety Net: The Role of Agency

“Discretion” in Section 7 Consultation, 25

STAN. ENVTL. L. J. 125 (2006)....0...........cceeeeeees 9, 20, 21

Jonathan Adler, Judicial Federalism and the

Future of Federal Environmental Regulation,

a en Ce Sie ee caiintnciiinhininsteiiiienatiteninatncncnninans ll

Jonathan Cannon, Environmentalism and the

Supreme Court: A Cultural Analysis, 33

Se Sade, Set UII enistiecieieidincniisiseesinlabinninimnibemabiiiaatinn 21

Rex E. Lee, Conference on the Office of the

Solicitor General of the United States, 2003

ea ee Wb Se cchernitscishinssbendaasniiiianiiliniiasiiniiitediis 20

Ronald Dworkin, Law's Empire (1986)..............ccccc0e0000+ 21

Shannon Petersen, Endangered Species in the

Urban Jungle: How the ESA Will Reshape

American Cities, 19 STAN. ENVTL. L. J. 423

Sherry Bosse, Defenders of Wildlife v. EPA:

Testing the Boundaries of Federal Agency

Power Under the ESA, 35 ENVTL. L. 1025

(vii)

INTERESTS OF AMICUS CURIAE

Amicus curiae American Farm Bureau Federation

(“AFBF”)' is a voluntary general farm organization. AFBF

represents more than five million member families through

member organizations in all 50 States and Puerto Rico.

The Ninth Circuit found that § 7(a)(2) of the Endangered

Species Act (“ESA”) overrides the mandate of Clean Water

Act (“CWA”) § 402(b), 33 U.S.C. 1342(b), to “approve” a

State’s proposed National Pollutant Discharge Elimination

System (“NPDES”) permitting program if nine specified

criteria are satisfied. Defenders of Wildlife v. U.S. Envil.

Prot. Agency, 420 F.3d 946 (9th Cir. 2005), reh'g denied,

450 F.3d 394 (9th Cir. 2006) (“Defenders”) (Fed. Pet. App.

la-67a, 68a-92a). Because State program approval has the

effect of transferring NPDES permitting authority from EPA

to the State, under the ruling below, EPA now must either

continue to issue federal permits for CWA discharges in

Arizona or find ways to ensure that Arizona “voluntarily”

will meet EPA’s asserted § 7(a)(2) duties. Jd. at 977 (Fed.

App.59a-60a).

' This brief was not authored in whole or in part by counsel

for a party, and no person or entity other than AFBF, its members,

and its counsel made a monetary contribution to the preparation and

submission of this brief. All parties have consented to the filing of

this brief. All parties other than the United States submitted letters to

the Court consenting to the filing of all amicus curiae briefs. The

consent of the United States has been filed with the clerk.

* ESA § 7(a)(2) provides: “Each Federal agency shall, in

consultation with and with the assistance of the Secretary [who acts

through the U.S. Fish and Wildlife Service or National Marine

Fisheries Service (the “Service”)] insure that any action authorized,

funded, or carried out by such agency .. . is not likely to jeopardize

the continued existence of any endangered species or threatened

species [“listed species”] or result in the destruction or adverse

modification of designated critical habitat.” 16 U.S.C. 1536(a)(2).

AFBF members are directly affected by the questions

presented here. AFBF’s membership includes operators of

all species of livestock farms subject to NPDES regulation as

“concentrated animal feeding operations.” See 33 U.S.C.

1362(14); 40 C.F.R. 122.23. These members would face

increased procedural and substantive regulatory burdens

under the Ninth Circuit’s view that ESA § 7(a)(2) overrides

the directives of the CWA.

More generally, the Ninth Circuit’s reasoning “would

modify not only EPA’s obligation under the CWA, but every

categorical mandate applicable to every agency.” Defenders,

450 F.3d at 398-99 and n.4, 401 (Kozinski, J., dissenting

from denial of rehearing) (Fed. App. 69a, 74a-79a, 82a).

Acceptance of the Ninth Circuit’s logic thus would

undermine the ability of federal agencies to promptly issue

any number of permits, loans, insurance, or other

government services under the standards specified in the

organic law for each program. Many AFBF members rely

on such federal programs or services. Hence, they have

substantial interests in the reversal of the decision below.

SUMMARY OF ARGUMENT

The split panel opinion in Defenders found that ESA

§ 7(a)(2) overrides the explicit commands of other statutes.

Here, § 7(a)(2) was read to negate CWA § 402(b)’s directive

that EPA “shall approve” a State’s NPDES permitting

program if nine exclusive criteria are satisfied. This aspect

of the opinion is incorrect for many reasons.

First, in this setting, no “action authorized, funded, or

carned out by” EPA proximately causes impacts to listed

species that might trigger ESA § 7 duties. Rather, any such

impacts would be caused by private land use activities

regulated by the State of Arizona. To the extent that EPA’s

“approval” of a State’s NPDES permitting program would

have a “but for” causal relationship to subsequent species

impacts, the /egally relevant cause nevertheless is the action

of Congress. Congress limited EPA’s discretion and directed

in CWA § 402(b) that EPA “shali approve” State programs

that meet specified requirements.

Second, the implementing agencies have concluded that

§ 7 applies only if the federal action agency has discretionary

authority under its organic laws to modify its action based on

wildlife concerns. Courts owe Chevron deference to the

agencies’ interpretation of ESA §7 and Auer deference to

the agencies’ interpretation of rules like 50 C.F.R. 402.03.

That deference is determinative here because the agencies’

interpretation of ESA §7 is permissible. For example, as

ESA §2(c) and §7 as originally adopted only instruct

federal agencies to “utilize their authorities” to protect listed

species, the agencies can permissibly conclude that ESA

§ 7(a)(2) does not require action in contravention of the

directives of an agency’s organic laws. As in another ESA

decision, a conclusion that “the Secretary’s interpretation is

reasonable suffice[s] to decide this case.” Babbitt v. Sweet

Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687,

703 (1995).

Third, Tennessee Valley Auth. v. Hill, 437 U.S. 153

(1978), does not bar the agencies’ interpretation of ESA § 7.

As the existence of an ESA § 7 violation was conceded in

that case, the Court’s opinion did not express a holding on

§ 7. The dicta in TVA v. Hill concerned distinct issues and

did not address what the law would be if TVA were acting

under a statutory obligation to close the dam gates. Further,

TVA v. Hill includes favorable dicta that ESA § 7 describes

the “obligation of [federal] agencies to take steps within their

power to carry out ESA objectives. 437 U.S. at 182-84

(emphasis added). Since ESA §7 allows the agencies’

interpretation, even if dicta in TVA v. Hill provides some

support for the Ninth Circuit’s conclusion, the agencies’

view should be upheld. Nat’! Cable & Telecomm. Ass'n v.

Brand X Internet Servs., 545 U.S. 967, 980-82 (2005).

ARGUMENT

I. ESA § 7(a)(2) Operates Within a Federal Agency’s

Range of Discretion Under Its Organic Laws

The principal question presented is whether ESA

§ 7(a)(2) overrides the directives and limitations of other

federal statutes. The view of the United States and the

agencies implementing § 7, as codified at 50 C.F.R. 402.03

and 402.16, is that ESA § 7(a)(2) operates only to the extent

that a federal agency has discretion to act in favor of listed

species under its organic laws. The view adopted by the

court below is that ESA § 7(a)(2) constrains, and provides

new authority governing, every federal agency action ~— even

in contravention of those laws.

Many statutes direct federal agencies to issue permits,

grants, insurance, or other benefits if a prescribed set of

standards is satisfied. Under the panel majority’s ruling,

ESA § 7(a)(2) bars such action: (1) procedurally, until the

federal agency completes “consultation” with the relevant

Service (here, the U.S. Fish and Wildlife Service (“FWS”));

and (2) substantively, unless the agency can “insure” that the

action Congress directed in another statute is not likely to

jeopardize the continued existence of a listed species or

adversely modify its critical habitat. Defenders, 420 F.3d at

961-69 (Fed. App. 26a-44a). That view “transformed the

ESA into an overriding mandate that trumps an agency’s

obligations under its own governing statute.” Defenders,

450 F.3d at 398 (Fed. App. 74a) (Judge Kozinski, dissenting

from denial of rehearing).

Here, it was uncontested that Arizona satisfied the nine

exclusive criteria Congress specified in CWA § 402(b). In

those circumstances, § 402(b) commands that EPA “shall

approve” a State’s application to administer its own NPDES

program. 33 U.S.C. 1342(b). The opinion below reads ESA

§ 7(a)(2) to negate that legislative directive. The Ninth

Circuit’s view is not persuasive.

1. ESA §7(a)(2) concerns solely the effects of an

“action authorized, funded, or carried out by” a federal

agency. 16 U.S.C. 1536(a)(2). Biological opinions prepared

in some consultations address “how the agency action affects

the species or its critical habitat.” /d § 1536(b)(3) (emphasis

added); see 50 C.F.R. 402.14. Thus, one way to look at the

interpretive issue is: what “[e]ffects” are caused by “action

authorized, funded, or carried out” by EPA when EPA

approves a State NPDES permitting program pursuant to

CWA § 402(b)? The court below failed to properly analyze

the relevant action “authorized, funded, or carried out” by

EPA and the effects “proximately caused” by that action.

a. EPA “shall approve” a qualified State NPDES

permitting program. 33 U.S.C. 1342(b). After EPA

approval of the program, the State (and not EPA)’ may — or

may not ~ issue NPDES permits for pollutant discharges

within the State’s borders. See id. § 1342(b)-(c); see also

§ 1319(a)(1)-(3). EPA has little discretionary control over

this approval, which amounts to a certification that the

State’s program meets a _ specific list of statutory

requirements. Jd. § 1342(b). Nor can EPA, after approval,

either require or prohibit the issuance of permits by the State,

provided such permits meet all applicable CWA guidelines

and requirements. /d. § 1342(c), (d).

The relevant “action” that EPA “carries out” under

CWA § 402(b) is the “approval” of the State program, but

that action “authorizes” no polluting activity or impacts to

listed species. Future pollutant discharges - which may or

may not be authorized pursuant to State-issued NPDES

permits — are not “authorized, funded, or carried out” by

EPA in any rational sense of those words. Therefore, they

cannot be the relevant “action” under ESA § 7.4 Moreover,

while EPA’s CWA §402(b) approval is a necessary

prerequisite to a State’s implementation of its own NPDES

permitting program, EPA cannot be said to “authorize” the

State’s future permit issuance where that power is conferred

> EPA’s permitting authority is automatically suspended 90

days after submittal of a proposed State program. 33 U.S.C. 1342(c).

Accord Marbled Murrelet v. Babbitt, 111 F.3d 1447, 1450

(9th Cir. 1997) (where a State, not federal, agency “has the discretion

to influence the private action,” there is no federal “‘agency action’

under §7 of ESA”). EPA’s “action” under CWA § 402(b) is

complete when the transfer occurs. Hence, there is no continuing

federal action under CWA § 402(b) that is subject to ESA § 7(a)(2).

See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 73 (2004).

directly by Congress in the CWA itself and is implemented

pursuant to independent State law. See 33 U.S.C. 1342(b)-

(c). Thus, even to the extent that State permit issuance is

“authorized” (i.e., made lawful) under CWA § 402(b), it is

not “authorized” by EPA and, therefore, is not the relevant

EPA “action” for ESA § 7 purposes.

b. Causation concepts under the National

Environmental Policy Act, 42 U.S.C. 4332 (“NEPA”) and

the ESA are nearly identical for two reasons. First, NEPA

and ESA rules only make the federal agency responsible for -

the direct or indirect effects “caused by the action.” 40

C.F.R. 1508.8; 50 C.F.R. 402.02 (definition of “effects of the

action”); see id. § 402.14(g) and (h)). Second, this Court has

limited NEPA and ESA “causes” to “proximate causes.”

Dep't of Transp. v. Public Citizen, 541 U.S. 752, 767-79

(2004); Sweet Home, 515 U.S. at 697 n.9 & 700 n.13.

“Proximate cause” means the “direct cause ...; producing

cause; [or] primary cause” and refers to the “cause that

directly produces an event.” BLACK’S LAW DICTIONARY

“Cause” 234 (8th ed. 2004).

In Public Citizen, this Court distinguished the impacts

caused by agency action (which must be analyzed ina NEPA

document) from the impacts proximately caused by other

branches of government <there, the President and Congress,

and, here, the Congress). Dep't of Transp. v. Public Citizen,

541 U.S. 752 (2004). The Court found that “a ‘but for’

causal relationship is insufficient to make an agency

responsible for a particular effect under NEPA and the

relevant regulations.” 541 U.S. at 767. Instead, the Court

returned to the “familiar doctrine of proximate cause from

tort law” to “draw a manageable line between the causal

changes that may make an actor responsible for an effect and

those that do not.” /d.

According to the Court, the “legally relevant cause of

entry of the Mexican trucks [into the U.S., possibly resulting

in greater air pollution] is not [the agency’s] action, but

instead the actions of the President in lifting the moratorium

and those of Congress in granting the President this authority

by limiting [the agency’s] discretion.” 541 U.S. at 769.

“Since [the Federal Motor Carrier Safety Administration] has

no ability to categorically prevent the cross-border

operations of Mexican motor carriers,” the agency “simply

lacks the power to act on whatever information might be

contained in the EIS” on air pollution impacts and cannot be

forced to consider in depth the “environmental impact of an

action it could not refuse to perform.” 541 U.S. at 768-69.

Similarly, this Court has limited ESA “causes” by

“ordinary requirements of proximate causation,”

emphasizing that “proximate cause” is narrower than “but

for” causation. Hence, Public Citizen and Sweet Home

strongly support that EPA’s NPDES program approval is not

the legally relevant cause of the effects on listed species that

may follow after subsequent State issuance of an NPDES

permit, because EPA lacks responsibility for the effects of

“action it could not refuse to perform.” 541 U.S. at 768-69.

See also id. at 767 (“proximate cause analysis turns on policy

considerations and _ considerations of the ‘legal

responsibility’ of actors”). Judge Kozinski’s analysis, in

> Sweet Home, 515 U.S. at 697 n.9 & 700 n.13; see id. at

708-15 (O’Connor, J., concurring). Sweet Home narrowly construed

FWS’s rule on the “harm” form of an ESA § 9 wildlife “take” (e.g.,

the limit to “proximate cause”) and sustained the rule under that

construction. Surprisingly, the Ninth Circuit did not mention Sweet

Home and reasoned that a “‘but-for’ causal chain” is the “obvious

cause analysis.” Defenders, 420 F.3d at 961-62 (Fed. App. 27a-28a).

The Ninth Circuit does not seem to have accepted this Court’s

teachings that but-for causation is insufficient in many settings.

dissent, is persuasive that the “holding in Public Citizen

applies equally to this case: Because EPA had no discretion

under the CWA to decline to transfer NPDES permitting

authority to Arizona, it did not need to consider the transfer’s

potential effects on endangered species.”*-

c. Further, EPA cannot be the legal cause of non-

water quality impacts to listed species that might be

associated with some private land use activities that also

require a State-granted NPDES permit. The CWA only

provides jurisdiction over water quality issues within waters

of the United States. Hence, both EPA and States lack CWA

authority to control impacts to listed species that do not

involve water pollution.’ “[W]here 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. Accordingly, the agencies correctly

found that, when EPA approves a State program under CWA

§ 402(b), the potential non-water quality impacts of future

° Defenders, 450 F.3d at 399 (Fed. App. 77a). Even an

storney sympathetic to Respondents’ views has stated Public Citizen

“suggests the opposite outcome from the one reached by the

Defenders majority. If the agency lacked authority under the CWA to

deny a transfer application, then its decision would not be the ‘cause’

of any harm that resulted. The [Defenders] court did not explain this

apparent contradiction.” Jan Hasselman, Holes in the Endangered

Species Act Safety Net: The Role of Agency “Discretion” in Section 7

Consultation, 25 STAN. ENVTL. L. J. 125, 193 and n.309 (2006).

” ~ See Wetlands Action Network v. U.S. Army Corps of

Eng 'rs, 222 F.3d 1105, 1116-17 (9th Cir. 2000); Natural Res. Def.

Council v. U.S. Envtl. Prot. Agency, 859 F.2d 156, 169-71 (D.C. Cir.

1988); Save the Bay, Inc. v. U.S. Army Corps of Eng’rs, 610 F.2d

322, 326-37 (Sth Cir. 1980).

permitted activities do not trigger ESA §7 duties. See

NAHB App. 114.

EPA’s approval of a State program as directed by CWA

§ 402(b) also is not the proximate cause of any adverse water

quality impacts to listed species that may result from

permitted activities. Any such impacts are directly produced

or proximately caused by private decisions to utilize land and

other resources in a given way. Further, only the discharge

associated with those private activities is subject to CWA

regulation, and the permit issuer is the State under State law

— not EPA. EPA’s remoteness from, and inability to control

in its CWA § 402(b) approval, impacts to listed species mean

that EPA is not a legal cause of those impacts. See NAHB

App. 113-15 (analysis in FWS’s biological opinion); Fed.

App. 95a-110a (EPA’s and FWS’s subsequent clarification).

In sum, EPA is not a “proximate cause” of any impacts

to listed species that may be caused by private development

that is supported by a State-issued NPDES permit. If any

federal action constitutes a “proximate cause” of those

potential impacts, it can only be the action of Congress.

Congress: (1) established in the CWA a strong policy in

favor of State administration (33 U.S.C. 1251(b));

(2) directed in CWA § 402(b) that EPA “shall approve” State

programs under specified conditions; and (3) limited ESA

§ 7(a)(2) to the “[e]ffects” of actions “authorized, funded, or

carried out” by a “Federal agency” (16 U.S.C. 1536(a)(2),

1536(b)(3)), and did not include the effects of State actions.

* _ FWS so interpreted the statutes in its contemporaneous

biological opinion, as did EPA in the “elevation” document. NAHB

Pet. App. 113-15, 563-65; see Defenders, 420 F.3d at 953-54, 960-61

(Fed. App. 9a-lla, 2S5a-27a). EPA and the Services subsequently

reaffirmed that interpretation in documents considered at high agency

levels. See Fed. App. 93a-1 16a.

d. Because any causation discussion by this Court

could have implications in other ESA contexts, a few general

principles bear mention.

In important senses, while agencies partially regulate

private land use and other activities, at least with respect to

being a “cause” of “take” within the meaning of ESA

§ 9(a)(1) and (g), 16 U.S.C. 1538(a)(1) and (g), regulatory

agencies are not proximate causes of the impacts of private

land uses.” Under the Fifth Amendment, a landowner may

make any non-noxious use of private lands. Hence,

regulatory exercises of the police power constrain, but are

not necessary to “authorize,” private land uses.'° For similar

reasons, State-regulated private action is not “State action”

for Fourteenth Amendment purposes.'' Additionally, a

% Jonathan Adler, Judicial F ederalism and the Future of

Federal Environmental Regulation, 90 IOWA L. REV. 377, 429

(2005); James Rasband, Priority, Probability, and Proximate Cause:

Lessons from Tort Law About Imposing ESA Responsibility for

Wildlife Harm on Water Users and Other Joint Habitat Modifiers, 33

ENVTL. L. 595, 625-26 (2003).

' E.g., Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1022-30 (1992); Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 414-17 (1922) (“Every restriction upon the use of property

imposed in the exercise of the police power deprives the owner of

some right theretofore enjoyed.”).

‘| The “State action” question encompasses a causation

aspect: “whether the allegedly [unlawful] conduct is fairly attributable

to the State.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999). “Action taken by private entities with the mere approval or

acquiescence of the State is not state action.” 526 U.S. at 52.

“[W]here the commission has not put its own weight on the side of

the proposed practice by ordering it,” a regulated utility’s practice is

not State action caused by a State. Jackson v. Metro. Edison Co., 419

U.S. 345, 357 (1974).

sovereign’s decision to not regulate more strictly “cannot be

the threshold for legal or proximate cause.”

e. EPA does have oversight roles over State

NPDES permit issuance and program administration under

33 U.S.C. 1342(c) and (d). EPA may — or may not — object

to State-issued permits for a variety of reasons related to

compliance with CWA requirements. Under both the ESA

and NEPA, claims of unlawful agency inaction fail without

some “discrete agency action that it is required to take.”

SUWA, 542 U.S. at 61-65; Western Watersheds Project v.

Matejko, 468 F.3d 1099, 1107 (9th Cir. 2006) (an agency’s

“failure to exercise discretion . . . is [not] an ‘agency action’

for purposes of section 7(a)(2), so as to require

consultation”). More generally, partial federal funding and

oversight of a State program often do not federalize State

2 “If it were, the United States would be a ‘cause’ of

contamination in every CERCLA action because the federal

government always could have enacted legislation regulating

industrial activity.” United States v. Iron Mountain Mines, Inc., 987

F. Supp. 1263, 1275 (E.D. Cal. 1997). In an analogous area,

commentators reject the theory that inadequate regulation makes a

State regulator a culpable cause of “take.” They do so on grounds of

causation, the ESA’s text, and under cooperative federalism

principles under the ESA and Tenth Amendment. See Adler, 90

IOWA L. REV. 429-30; Rasband, 33 ENVTL. L. at 623-28; Valerie

Brader, Shell Games: Vicarious Liability of State and Local

Governments for Insufficiently Protective Regulations Under the ESA,

45 NAT. REs. J. 103 (2005); J.B. Ruhl, State and Local Government

Vicarious Liability Under the ESA, 16 NAT. RES. & ENv’T 70 (ABA

Fall 2001); Shannon Petersen, Endangered Species in the Urban

Jungle: How the ESA Will Reshape American Cities, 19 STAN.

ENVTL. L. J. 423, 438-54 (2000). While a comparison of the

language of ESA § 7(a)(2) with that of § 9(a)(1) and (g) may produce

slightly different analyses on proximate causation, we wish to make

the Court aware of the ESA § 9 issues regarding who is a legally

culpable “cause” of “take.”

actions. Forsham v. Harris, 445 U.S. 169, 178-80 (1980);

United States vy. Orleans, 425 U.S. 807, 816-18 (1976).

Hence, EPA’s oversight should not transform a State-granted

NPDES permit into federal “agency action” within the

meaning of ESA § 7(a)(2).

2. The history of ESA §7 confirms the federal

agencies can permissibly construe § 7(a)(2) as operating

within the boundaries of an agency’s authority under its

organic laws. ESA § 2(c)(1) states the “policy of Congress

that all Federal departments and agencies shall ... utilize

their authorities in furtherance of the purposes of this

chapter.” 16 U.S.C. 153l(c)(l1). The “utilize their

authorities” language strongly supports the view -that ESA

§ 7 supplements where an agency’s organic laws allow

consideration of wildlife matters, but does not supplant

limitations and directives in those organic authorities. '

Indeed, that was the clear intent of ESA § 7 as enacted

in 1973. ESA §7 then consisted of two sentences and no

subsections. The second sentence provided: “Federal

departments and agencies shall, in consultation with . . . the

Secretary, utilize their authorities in furtherance of the

purposes of this Act by carrying out [“conservation”]

programs ... and by taking such action necessary to insure

that actions authorized, funded, or carried out by them do not

'* The “utilize their authorities” phrasing in ESA § 2(c)(1)

and §7 is similar to the phrase that NEPA applies “to the fullest

extent possible.” 42 U.S.C. 4332. Thus, there is a close analogy

between NEPA and the ESA. This Court has construed the NEPA

phrase to mean, “where a clear and unavoidable conflict in statutory

authority exists, NEPA must give way.” Flint Ridge Dev. Co. v.

Scenic Rivers Ass'n, 426 U.S. 776, 788 (1976) (because the

Disclosure Act compels federal approval within 30 days, no EIS is

required under NEPA).

jeopardize the continued existence of” listed species or

adversely modify critical habitat. 87 Stat. 884, 892 (1973).

The House manager described that § 7 of the Conference bill

“substantially amplifie[s] the obligation of [federal agencies]

to take steps within their power to carry out the purposes of

this act.”’* Thus, as originally adopted, what eventually

became ESA § 7(a)(2) only required that federal agencies

“utilize their authorities” to “insure” against extinction of

listed species, where the agency’s organic laws provided

relevant discretion. '°

It is true that the 1973 ESA removed qualifiers from

predecessor statutes and from bills to the effect that agencies

should preserve listed species only “insofar as is practicable

and consistent with the[ir] primary purposes.” T7VA v. Hill,

437 U.S. at 181-82. In that sense, the ESA gives

“endangered species priority over the ‘primary missions’ of

federal agencies.” 437 U.S. at 185. But this can be

'* 119 Cong. Rec. 42,913 (Dec. 20. 1973) (remarks of Rep.

Dingell) (emphasis added), quoted in relevant part in TVA v. Hill, 437

U.S. at 184-85. Rep. Dingell cited as an example that, “[ujnder

existing law, the Secretary of Defense has some discretion” on

whether to conduct “bombing activities” in “whooping crane” habitat

so, under the ESA, the “Secretary of Defense would be required to

take the proper steps.” Jd. (emphasis added). In Rep. Dingell’s other

cited example (concerning grizzly bears), the National Park Service

and Forest Service also had discretion to protect wildlife values. See

id.; 16 U.S.C. 1, 528.

'S The Conference Report adopted the provisions in §§ 2(c)

and 7 of H.R. 37 that federal agencies shall “utilize their authorities.”

As that phrasing is not contained in the Senate-passed version of § 7,

the Senate debates do not address § 7 as enacted. Still, § 2(b)(4) of S.

1983 stated the purposes of the Act included to “insure that all

[federal] departments . . . seek, within the scope of their authority and

administrative jurisdiction, to protect endangered and threatened

species.” 119 Cong. Rec. 25,694 (July 24, 1973) (emphasis added).

comfortably read as merely meaning that, where a federal

agency’s primary statutory duty also allows consideration of

wildlife matters, ESA §7 gives priority to avoiding the

extinction of listed species.

That is a different question from the one presented here:

where a statute precludes action based on wildlife concerns,

does ESA § 7 negate that statutory limit? The answer to the

presented question is “no” under the better reading of the

1973 ESA. The holding and essential logic of 7VA v. Hill do

not dictate otherwise. See pages 20-23, below.

After TVA v. Hill, through ESA amendments enacted in

1978 and 1979, Congress broke apart the long second

sentence in § 7, forming what is now § 7(a)(1) and § 7(a)(2).

The “utilize their authorities” language followed its closer

antecedent into the “conservation” provision in 16 U.S.C.

1536(a)(1). We assume that Petitioners will again show that

the absence of “utilize their authorities” in current § 7(a)(2)

does not reflect a legislative intent to expand the scope of

that provision. See Fed. Pet. at 14-17.

An intent to expand the stringency of § 7(a)(2) should

not be read into the 1978 and 1979 amendments for at least

three reasons. First, the amendments maintained the “policy

of Congress” that federal agencies “utilize their authorities in

furtherance” of ESA purposes. 16 U.S.C. 1531(c)(1).

Second, the 1979 ESA amendments reduced the

§ 7(a)(2) compliance standard. Hence, it would be illogical

to infer an intent to increase the stringency or breadth of

§ 7(a)(2). The 1979 amendments moved §7 from

prohibiting a federal action unless the action agency could

“insure” that the proposed action “do[es] not jeopardize the

continued existence of a” listed species (87 Stat. 892 (1973))

to allowing an agency action to proceed if it is “not likely to

jeopardize” (16 U.S.C. 1536(a)(2)). The legislative intent

was to allow more agency actions to pass muster under § 7.'°

Third, some elements of the ESA exemption procedures

added by the 1978 amendments would not make sense if

§ 7(a)(2) barred an action that is compelled by another

statute. E.g., 16 U.S.C. 1536(e)(3)(A)(i) (consideration of

alternatives that are within an agency’s range of authority,

but would not violate § 7(a)(2)); see Fed. Pet. Reply at 5-6

n.l_ Hence, the 1978 legislative intent can reasonably be

'© After TVA v. Hill described the potency of the enacted

ESA, the 1979 Congress became concerned that ESA § 7 could be

read as prohibiting federal actions unless the federal agency could

insure there was no possibility of jeopardy. As Rep. Breaux stated in

describing his adopted floor amendment:

No matter how many precautions are taken, there may be a small

chance that the agencies’ action will end up jeopardizing the

species. No agency can or should be expected to give a 100-

percent guarantee of no adverse impact. I am concerned that the

language of the existing statute [“insure . . . do not jeopardize”)

could be interpreted to require this guarantee. The language I

have proposed ... allows Federal agencies to consider the

probability or likelihood of jeopardizing a listed species in

deciding whether to go ahead with a particular action.

125 Cong. Rec. 29,437 (Oct. 24, 1979).

The Conference Report noted the “not likely to jeopardize”

phrasing “continues to give the benefit of the dombt to the species,

and would continue to place the burden on the action agency to

demonstrate .. . that its action will not violate Section 7(a)(2).” H.R.

Conf. Rep. No. 96-697 at 12, 1979 U.S.C.C.A.N, 2572, 2576. Still,

the ESA § 7(a)(2) “benefit of the doubt” was narrowed. It does not

resolve all small risks of jeopardy in favor of listed species, but only

risks near 50%. Only then could a federal agency not make a “not

likely to jeopardize” finding. There should not be “negative

biological opinions [finding jeopardy] whenever the action agency

cannot guarantee with certainty that the agency action will not

jeopardize” the species. /d. Thus, Congress moved in the direction

that less certainty is required to comply with ESA § 7(a)(2).

read as providing, in the Endangered Species Committee

provisions, another exemption from ESA §7. The 1978

amendments do not undercut Petitioners’ position that, from

the beginning, ESA § 7(a)(2) also exempted actions where

the federal agency lacked discretion under its organic laws to

act on the basis of wildlife concerns.

3. The court below, in parsing ESA § 7(a)(2), gave

unwarranted weight to the word “insure.” The panel

majority rationalized that to “insure” is to “make certain”

and, unless § 7(a)(2) is read to supply “authority to take

measures necessary to prevent harm to endangered species, it

is impossible for that agency to ‘make certain’ that its

actions are not likely to jeopardize those species.”

Defenders, 420 F.3d at 963-64 (Fed. App. 31a-32a).

That rationale has an ipse dixit quality. Further, it

plucks one word from its ESA § 7 context — ignoring other

pertinent provisions, like “utilize their authorities” (discussed

above) — and imposes an unusual meaning on “insure.”

The dictionary meaning of “insure” is to “make certain.”

Thus, “insure” concerns the /evel of certainty for substantive

compliance with § 7(a)(2), not whether § 7(a)(2) overrides

limitations Congress stated in other laws. The 1979

Congress used “insure” in precisely this sense, when it

reduced the level of certainty for § 7(a)(2) compliance."

'7 See note 16, and accompanying text. In particular, Rep.

Breaux stated the “act currently requires Federal agencies to insure

that any action does not jeopardize listed species.” 125 Cong. Rec.

29,437 (Oct. 24, 1979). His amendment alters the certainty suggested

by “insure” so that federal agencies are “to insure that their actions

are ‘not likely’ to jeopardize” listed species” as “[n]o agency can...

give a 100 percent guarantee.” /d.

_ 4. This Court’s precedents call for deference to the

impiementing agencies’ interpretation of ESA §7 and to

FWS’s interpretation of its regulations.

ESA §7 rules provide that “Section 7 and the

requirements of this part apply” only to “actions in which

there is discretionary Federal involvement or control,” and

consultation might be reinitiated only “where discretionary

federal involvement or control has been retained or is

authorized by law.” 50 C.F.R. 402.03, 402.16 (emphasis

added). The most natural reading of these provisions is that

§ 7(a)(2) applies only when an agency has discretion under

its organic laws to modify its action due to wildlife effects.

The panel majority, however, improperly construed

§ 402.03 to add nothing.'* After relying on “insure” and

other rationales to conclude that ESA § 7(a)(2) can only be

interpreted to establish an overriding authority and obligation

paramount to any contrary statutory mandate, the panel then

construed § 402.03 to be merely “coterminous with the

statutory phrase ... actions ‘authorized, funded, or carried

out’ by a federal agency. Defenders, 420 F.3d at 967-69

(Fed. App. 39a-43a). The panel’s construction of the rule

thus allowed it to avoid addressing the conflict between the

Service’s interpretation of the statute (as embodied in the

rule) and the court’s own interpretation — and to avoid giving

deference to the Service’s entirely permissible view.

‘8 See Sherry Bosse, Defenders of Wildlife v. EPA: Testing

the Boundaries of Federal Agency Power Under the ESA, 35 ENVTL.

L. 1025, 1042-47 (2006). In Judge Kozinski’s well-crafted words,

“{uJnable to reconcile this regulation with its newly expansive

interpretation of the ESA’s mandate, the majority simply finds that

the word ‘discretionary’ in the regulation is meaningless.”

Defenders, 450 F.3d at 398 (Fed. App. 75a).

FWS has now definitively articulated its interpretation

of § 402.03 to mean that “Section 7 does not require

agencies to act on grounds of species protection where the

agency, ... because of statutory limitations .. ., lacks legal

discretion to do so.” Fed. App. 110a. In this Court, FWS’s

interpretation of its own rule should be “controlling” as it is

not “plainly erroneous or inconsistent with the regulation.”

Auer v. Robbins, 519 U.S. 452, 461-62 (1997).

The statutory interpretation codified at 50 C.F.R. 402.03

and 402.16 deserved a less strained reading and at least some

deference from the Ninth Circuit. It now warrants Chevron

deference, as all the agencies implementing § 7(a)(2) have

joined in that interpretation. '

The intended reach of ESA § 7(a)(2) is ambiguous in

light of the “utilize their authorities” language, the absence

of legal causation where agency discretion is lacking, and

'9 — The Services’ construction of ESA § 7 in the 50 Part 402

rules, in isolation, might not warrant deference under Chevron

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45

(1984). An agency must have delegated statutory authority before it

can issue binding legal rules. See Adams Fruit Co. v. Barrett, 494

U.S. 638, 649-50 (1990). The four Justices reaching the issue and the

Solicitor General have concluded that the Services’ “consultation” or

“assistance” role under 16 U.S.C. 1536(a)(2) does not provide

authority to issue ESA § 7 rules binding on the action agencies who

seem to have the lead responsibility under ESA § 7’s text. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 568-70 (1992).

Here, all the agencies that collectively implement ESA § 7(a)(2)

have joined in the common interpretation that § 7(a)(2) does not

apply and “does not expand EPA’s authority to address the concerns

of listed species where Congress has limited the Agency’s ability to

consider such concerns.” Fed. App. 96a (EPA letter); see, e.g., Fed.

App. 108a (FWS response). That formal, uniform interpretation by

all implementing agencies warrants deference under Chevron. United

States v. Mead Corp., 533 U.S. 218, 227-34 (2001).

other aspects of the statutory framework and _ history

discussed above” The federal agencies can and have

resolved that ambiguity in their interpretation of §-7(a)(2)

and its implementing rules. Therefore, a conclusion that “the

[agencies’] interpretation is reasonable suffice[s] to decide

this case.” Sweet Home, 515 U.S. at 703.

5. Another crucial rationale in the opinion below is

that 7VA v. Hill, 437 U.S. 153 (1978), “confirms th[e] textual

interpretation” that ESA § 7(a)(2) supplies the agency

“authority [and duty] to take measures necessary to prevent

harm to endangered species.” Defenders, 420 F.3d at 964

(Fed. App. 32a). Yet, that was not a holding in TVA v. Hill.

While some dicta in TVA v. Hill arguably support the result

below, other dicta and the lack of a pertinent holding leave

ample room for the agencies’ reasonable ESA construction.

TVA v. Hill did not express any holding interpreting § 7

because a violation of § 7 was conceded. 437 U.S. at 171-

73. The questions before the Court were whether: (1) the

legislative history of appropriations acts overrode § 7; and

(2) courts could decline to grant an injunction where a future

federal action (closing the Tellico Dam gates) was expected

to directly cause the extinction of the snail darter. 437 U.S.

at 156, 171-73, 184-95."

*° “Nowhere in the legislative history of the ESA and its

amendments is there any explicit discussion of the operation of § 7 on

‘nondiscretionary’ agency actions.” Hasselman, 25 STAN. ENVTL. L.

J. at 133.

1 TVA vy. Hill was an unusual case in many ways. It was

briefed early in a new Administration under shifting signals.. The

government’s brief provided TVA’s position on the ESA in the main

body, and FWS’s opposite position in an appendix. See Rex E. Lee,

Conference on the Office of the Solicitor General of the United States,

2003 BYU L. REV. |, 27-28 (2003). TVA v. Hill was authored by

(continued...)

The Court answered “no” to both questions. Different

questions are presented here. For example, “the Supreme

Court never specifically addressed the question of whether

TVA had the ‘discretion’ to not finish the dam. Nor did such

an argument play a prominent role in the briefing before the

court.” Hasselman, 25 STAN. ENVTL. L. J. at 137 n.4.

Further, TVA v. Hill concluded that the Jegis/ative

history of an appropriations act cannot override a substantive

statute like ESA § 7. 437 U.S. at 189-93. TVA v. Hill did

not address the issue here of what happens when substantive

statute (like CWA §402(b)) mandates specific action

regardless of potential wildlife impacts. “TVA, which did not

even consider whether section 7 allows agencies to go

beyond their statutory authority to carry out purposes of the

ESA, is hardly authority to the contrary.” Platte River

Whooping Crane Habitat Maint. Trust v. Fed. Energy

Regulatory Comm’n, 962 F.2d 27, 33-34 (D.C. Cir. 1992).

Significantly, TVA was “carrying out” a federal dam

project that would directly impact a listed species. 437 U.S.

at 173-74 and n.18, 186-87 and n.32. The result may well be

different here, where the only action “carried out” by EPA is

the “approval” — more in the nature of a certification — of

Arizona’s NPDES program as compliant with CWA

(continued)...

Chief Justice Burger, who “initially voted in dissent,” then “assigned

himself the opinion for the Court, after it became clear that a majority

of the justices were for affirming the Sixth Circuit.” Jonathan

Cannon, Environmentalism and the Supreme Court: A Cultural

Analysis, 33 ECOLOGY L.Q. 363, 416 (2006). The “undercurrent of

skepticism places the Court’s opinion much closer to the two

dissenting opinions than might first appear.” /d. Finally, at least one

noted legal scholar has criticized the mode of legal analysis in TVA v.

Hill. Ronald Dworkin, Law's Empire 20-23, 313-47 (1986).

A a. a -

§ 402(b) criteria. The later actions that may affect listed

species would be private actions and State regulatory actions,

not the federal actions to which ESA § 7(a)(2) applies.

More generally, much of TVA v. Hill is lengthy dicta

and ESA background. It is “contrary to all traditions of our

jurisprudence to consider the law on [a] point conclusively

resolved by broad language in cases where the issue was not

presented.” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 n.5

(1992); see United States v. booker, 543 U.S. 220, 239-41

(2005) (prior decisions regarding the Sentencing Guidelines

did not establish precedent on issues “not [earlier]

presented”). Hence, TVA v. Hill does not resolve this case.

Notably, some dicta in TVA v. Hill support Petitioners’

view that ESA §7 applies only within the limits of an

agency’s legal power:

[T]he House manager of the bill, Representative Dingell,

provided an interpretation of the Conference bill ...

“(Section 7] substantially amplifie[s] the obligation of

[federal agencies] to take steps within their power to

carry out the purposes of this act.”

437 US. at 182-84 (emphasis added). The snippets cited in

the opinion below do not dictate the opposite conclusion.”

2 The panel rationalized that, when this Court stated ESA

§ 7’s “very words affirmatively command all federal agencies “to

insure that actions authorized, funded or carried out by them do not

jeopardize’” (437 U.S. at 173), the “affirmative command” must

override other laws. Defenders, 420 F.3d at 964 (Fed. App. 32a-33a).

This Court’s observation that “insure ... do not jeopardize” is an

“affirmative command” does not resolve the distinct issue here of

whether that command overrides contrary statutory directives.

The panel also cited from 437 U.S. at 184, 193-94 that the “plain

intent of Congress in enacting this statute was to halt and reverse the

trend towards species extinction, whatever the cost.” Defenders, 420

(continued....)

It also is highly significant that TVA v. Hill was decided

before the Services had adopted the regulations that ESA § 7

applies only to “discretionary” actions, and before Chevron

and its progeny required greater judicial deference to agency

interpretations of statutes and rules. As ESA § 7 allows the

agencies’ current interpretation, the agencies might even

overrule an earlier judicial opinion favoring a different

interpretation. Brand X, 545 U.S. at 980-86. Even if there

have been inconsistent agency interpretations of ESA

§ 7(a)(2) in the past, courts defer to the current interpretation

where it reflects the agency’s considered judgment. Brand

X, 545 U.S. at 980-82.

The Ninth Circuit erred in finding that TVA v. Hill

allows only one construction of the ESA. Thus, a conclusion

that “the Secretary’s interpretation is reasonable suffice[s] to

decide this case.” Sweet Home, 515 U.S. at 703.7

(continued) . . .

F.3d at 964 (Fed. App. 33a). But the emphasis was on “whatever the

cost” to rebut “TVA’s claim that the Act was not intended to stop” a

project that “was near completion” (437 U.S. at 184) and to rebut

TVA’s view that courts should have equitable discretion to decline an

injunction where the federal agency’s own future action would cause

the extinction of a listed species (id. at 171-74, 193-95).

Further, the court below also relied on the “primary purpose”

and “first priority” legislative history cited in TVA v. Hill. Defenders,

420 F.3d at 964-65 (Fed. App. 34a). That is distinguished at pages

14-15, above. And again, this Court did not address any argument

that TVA lacked discretion to not close the dam gates. Dicta in TVA

v. Hill on distinguishable issues should not be controlling on the

scope of ESA § 7(a)(2) presented and briefed in the current appeals.

23 Sweet Home sustained FWS’s regulatory view of “harm,”

even though it seemed to be inconsistent with the ESA views of

“[{b]oth the Senate and House floor managers of the bill.” 515 U.S. at

727-28 (Scalia, J., dissenting).

6. The agencies’ construction of ESA § 7(a)(2) as not

overriding limits on an agency’s legal authority accords with

many lower court decisions. As the D.C. Circuit stated, the

ESA “does not expand the powers conferred on an agency by

its enabling act.” Platte River, 962 F.2d at 33-34."

The decision below directly conflicts with Am. Forest &

Paper Ass'n v. U.S. Envil. Prot. Agency, 137 F.3d 291 (Sth

Cir. 1998). There, the Fifth Circuit concluded that EPA

could not attach endangered species conditions to a CWA

§ 402(b) transfer to Louisiana as EPA “‘shall approve’

proposed state permitting programs that meet nine specified

requirements.” 137 F.3d at 297. “[N]othing in the ESA

grants the agency the authority” to add to or countermand the

direction in CWA § 402(b), as “Section 7 of the ESA...

confers no substantive powers.” 137 F.3d at 298. Section 7

is not a “font of new authority” but directs “agencies to

channel their existing authority in a particular direction.”

137 F.3d at 299.

4 The ESA “does not, by its terms, enlarge the jurisdiction of

the Corps of Engineers under the Clean Water Act.” Riverside

Irrigation Dist. v. Andrews, 758 F.2d 508, 512 (10th Cir. 1985). This

1985 decision may be one reason why the 1986-adopted 50 C.F.R.

402.03 and 402.16 state that ESA §7 is limited to “discretionary”

federal actions within an agency’s “authority.” See James Kilbourne,

The Endangered Species Act Under the Microscope: A Closeup Look

from a Litigator’s Perspective, 21 ENVTL. L. 499, 529 (1991). The

concept that ESA § 7 does not apply where the federal agency had no

discretion to consider wildlife impacts also underlies Strahan vy.

Linnon, 967 F. Supp. 581, 607-08 (D. Mass. 1997), aff'd, 1998 WL

1085817 at *3 (ist Cir. 1998) (“pursuant to SO C.F.R. § 402.03, the

requirements of § 7 do not apply to the Coast Guard's documentation

and inspection duties” because “the Coast Guard is required to issue

Certificates of Documentation and Inspection if certain statutory

criteria are met, none of which reference environmental concerns”).

The Ninth Circuit as well had read § 7(a)(2) not to be an

overriding constraint on every federal agency action in many

decisions prior to Defenders.*’ Defenders cannot be fully

reconciled with earlier Ninth Circuit precedents. Accord

Judge Thompson’s dissent at 420 F.3d 979-81 (Fed. App.

64a-66a); Judge Kozinski’s dissent at 450 F.3d 398 (Fed.

App. 75a); Bosse, 35 ENVTL. L. at 1042-47.

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), for

example, involved a pre-ESA agreement to provide for future

construction of reciprocal rights-of-way across intermingled federal

and private lands. Under that contract, the federal agency’s review of

the proposed road was “limited to three factors unrelated to the

conservation of the threatened spotted owl.” 65 F.3d at 1508. “In

light of the statute’s plain language,” the panel’s view that the

“regulations supply the answer” by referring to “discretionary”

federal control, and “deferring” to the agency’s interpretation, the

panel concluded that ESA § 7(a)(2) does not apply “where, as here,

the federal agency lacks the [wildlife-related] discretion to influence

the private action.” 65 F.3d at 1509.

Limited discretion in a post-ESA contract defeated claims of

broad ESA § 7(a)(2) duties in Envtl. Prot. Info. Ctr. v. Simpson

Timber Co., 255 F.3d 1073 (9th Cir. 2001). The panel held:

Because the FWS has not retained discretionary control over

Simpson’s incidental take permit [regarding spotted owls] that

would inure to the benefit of the marbled murrelet or the coho

salmon [two subsequently listed species], the FWS is not

required to reinitiate consultation to consider the permit’s effects

on those species.

255 F.3d at 1083. To the same effect are W. Watersheds Project v.

Matejko, 468 F.3d 1099, 1110 (9th Cir. 2006), and Ground Zero for

Non-Violent Action v. U.S. Dep't of Navy, 383 F.3d 1082, 1092 (9th

Cir. 2004) (ESA §7 did not apply “because the Navy lacks the

discretion to cease Trident II operations ... for the protection of

threatened species”). Thus, Defenders is contrary to considerable

Ninth Circuit precedent that ESA § 7(a)(2) and 50 C.F.R. 402.03 and

402.16 do not create overriding constraints applicable to even non-

discretionary agency action.

Moreover, the panel’s attempt to reconcile its opinion

with these precedents is unpersuasive. Under the Ninth

Circuit decisions discussed in note 25, a federal agency and

private party have the statutory authority to essentially

contract away the application of ESA § 7(a)(2) to future

federal agency actions. Congress should have at least an

equal ability to prevent the application of § 7(a)(2) to

particular actions by enacting laws that, like the contracts in

those cases, preclude consideration of wildlife factors.

7. <A particularly pernicious effect of transforming

ESA §7 into a super-statute is that it thwarts the will of

Congress as expressed in other statutes. In many statutes,

Congress has directed a federal agency to do X (e.g., issue a

permit, provide insurance or a grant) if particular conditions

are satisfied. Thus, interpreting ESA § 7(a)(2) to create an

overriding duty and authority despite such directives would

seriously impair the ability of federal agencies to issue (let

alone issue promptly) any number of permits, loans,

insurance, or other government services under the standards

specified in their organic laws. The panel’s view that ESA

§ 7(a)(2) adds a procedural consultation prerequisite, and

even may prohibit otherwise mandatory federal action,

frustrates the legislative objectives of the other statutes.

Yet, a “cardinal principle of statutory construction is that

repeals by implication are not favored” and that “wherever

possible, statutes should be read consistently.” Kremer v.

Chem. Constr. Co., 456 U.S. 461, 468 (1982). The “utilize

their authorities” language in ESA §§ 2(c) and 7 and the

supporting legislative history show there was no “clear and

manifest” (Watt v. Alaska, 451 U.S. 259, 267 (1981)) intent

to repeal the directives of other statutes. See pages 13-17

above.

Instead, the ESA and CWA should be read consistently,

as they are under Federal Petitioner's view. That is,

§ 7(a)(2) does not apply when another statute — here, CWA

§ 402(b) — directs agency action without consideration of

wildlife impacts. But ESA § 7(a)(2) applies, and ordinarily

is controlling, where the agency is taking action on which its

organic laws or contractual commitments leave room for

consideration of the particular wildlife issue. Thus, Federal

Petitioner’s position avoids repeals by implication. In

contrast, under the view in the opinion below, ESA § 7(a)(2)

repeals by implication the directives in many statutes.

Kremer found that Title VII of the 1964 Civil Rights

Act, and subsequent amendments, were not sufficiently clear

to repeal 28 U.S.C. 1738’s respect for State judgments. 456

U.S. at 468-76. This case presents similar factors. A

significant statute and its amendments (here, the ESA and

the 1978 and 1979 amendments) should not be read to negate

the CWA’s express language and important legislative

policies on cooperative federalism.

8. The CWA has a federalism objective that States

take the lead in _cegulating the water quality impacts of

private land uses.*° The ESA, as well, has strong provisions

on cooperative federalism and _ respect for State

prerogatives.”’ The strong pro-State policies in both the

6 33 U.S.C. 1251(b); Solid Waste Agency of N. Cook County

v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 166, 172-74 (2001).

7 See 16 U.S.C. 1531(a)(5) (“encouraging the States ...

through Federal financial assistance and other incentives, to develop

and maintain conservation programs”); 1531(c)(2) (“policy of

Congress that Federal agencies shall cooperate with State and local

agencies to resolve water resource issues in concert with conservation

of endangered species”); 1533(d) and 1535(g)(2) (State law on “take”

can sometimes be controlling), 1535(a)- (c) (federal funding of State

(continued....)

CWA and ESA are best served if ESA § 7(a)(2) does not

require EPA to condition or possibly prohibit altogether the

State assumption of NPDES permitting authority anticipated

by CWA § 402(b).

9. The accomplishment of ESA objectives does not

require that § 7(a)(2) be transformed into a vehicle to

regulate private activities (such as future State-permitted

NPDES discharges) that are not directly “authorized, funded,

or carried out” by a federal agency.

ESA § 9(a) generally makes it unlawful for “any person”

to “take” even a single member of an “endangered” wildlife

species. 16 U.S.C. 1538(a)(1)(B). Rules and other ESA

provisions extend the same “take” prohibition to most

“threatened” wildlife.” The “take” of wildlife refers to the

“actual death or injury of a protected animal,” including

wildlife deaths that indirectly result from private activities

(continued) . . .

ESA programs in voluntary cooperative agreements). Indeed,

“debates over the ESA centered on issues of federalism. Congress

was concerned about how not to infringe on state and local authority.”

Petersen, 19 STAN. ENVTL. L. J. at 441-43.

8 See 50 C.F.R. 17.31(a) (exercising the authority in 16

U.S.C. 1533(d) to make the “take” of most “threatened” wildlife

unlawful); Sweet Home, 515 U.S. at 690-93 & n.5.

The 1982 Congress softened-the absolute prohibition against

“take” to allow some productive land uses to proceed despite the

possibility of “incidental take.” See 16 U.S.C. 1536(b)(4),

1539(a)(2); Sweet Home, 515 U.S. at 700-01, 707-08. Permitting

incidental take “addresses the concerns of private landowners who are

faced with having otherwise lawful actions . .. prevented by section

9.” H.R. Conf. Rep. No. 97-835 at 29, 1982 U.S.C.C_A.N. 2860,

2870; see H.R. Rep. No. 97-567 at 15, 1982 U.S.C.C.A.N. 2807,

2815 (provisions adopted “in response to legitimate problems brought

before Congress” by “private landowners”).

that adversely modify habitat of listed wildlife. Sweet Home,

515 U.S. at 691 n.2; see id. at 696-03.

Sufficient protection for listed wildlife is provided by:

(1) the ESA § 9 take-avoidance duty on all persons; (2) the

ability to enjoin “take” through ESA § 11(g) citizen suits and

federal enforcement (16 U.S.C. 1540(e)(6) and (g)); (3) the

encouragement of voluntary habitat conservation plans in

ESA §10(a)(2) to resolve incidental take issues; and

(4) compensatory acquisition of habitat interests under ESA

§ 5, 16 U.S.C. 1534. ESA §7 should not be read broadly to

inject federal agencies like EPA into what should be the ESA

§ 9 take-avoidance obligations of private actors who require

no EPA “authorization” for their activities. See EPIC v.

Simpson, 255 F.3d at 1082-83.

10. As has been illustrated above, the ESA often

reflects a balance between competing legislative objectives.

This includes balancing the objective to protect listed species

against objectives to allow productive land uses, to reduce

costs, and to be respectful of State autonomy. See, e.g., 16

U.S.C. 1531(a)(5) and (c); 1533(b)(2), (d), and (f); 1535;

1536(a), (b)(4), and (e)-(p); 1539(a)(2) and (d). Statements

to the effect that the “plain intent of Congress . . . was to halt

... Species extinction, whatever the cost” (TVA v. Hill, 437

U.S. at 184) do not capture the nuances of the 1973 ESA. In

any case, however, such statements do not accurately reflect

the compromises in the current ESA. As this Court later

observed, the ESA includes “another objective” — “to avoid

needless economic dislocation produced by agencies

zealously but unintelligently pursuing their environmental

objectives.” Bennett v. Spear, 520 U.S. 154, 176-77 (1997).

TVA v. Hill is often invoked by lower courts to require

whichever interpretation most favors listed species. So it

was in the decision below. These appeals present an

opportunity for the Court to set the record straight.

“Deciding what competing values will or will not be

sacrificed to the achievement of a particular objective is the

very essence of legislative choice — and it frustrates rather

than effectuates legislative intent simplistically to assume

that whatever furthers the statute’s primary objective must be

the law.” Rodriguez v. United States, 480 U.S. 522, 526

(1987).

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

JULIE ANNA POTTS ELLEN STEEN