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

/

' ,

, ) =

a

Nos. 06-340, 06-549

IN THE

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS

AND THE ENVIRONMENTAL PROTECTION AGENCY

Petitioners,

Vv.

DEFENDERS OF WILDLIFE ET AL.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

_

BRIEF OF AMICI] CURIAE NATIONAL

HYDROPOWER ASSOCIATION, AMERICAN PUBLIC

POWER ASSOCIATION, NORTHWEST

HYDROELECTRIC ASSOCIATION, THE CITY OF

TACOMA, PUBLIC UTILITY DISTRICT NO. 1 OF

CHELAN COUNTY, PUBLIC UTILITY DISTRICT

NO. 1 OF DOUGLAS COUNTY, PUBLIC UTILITY

DISTRICT NO. 1 OF GRANT COUNTY, PACIFICORP,

AND THE UNITED WATER CONSERVATION

DISTRICT IN SUPPORT OF PETITIONERS

SAM KALEN

Counsel of Record

MICHAEL A. SWIGER

MATTHEW A. LOVI

VAN NESS FLLDMAN, PLC.

10850 Thomas Jefferson Str. N.W.

Washington. D.C. 20007

(202) 298-1 800

February 20, 2007 Counsel for Amici Curiae

WiILSON-EPES PRINTING CO INC —- (202) 789-0096 - WASHINGTON D C 20002

QUESTION PRESENTED

In this brief, Amici respond solely to the following ques-

tion presented by Petitioner Environmental Protection Agency:

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

16 U.S.C. § 1536(a)(2), which requires each federal agency

to insure that its actions do not jeopardize the continued

existence of a listed species or modify its critical habitat,

overrides statutory mandates or constraints placed on an

agency’s discretion by other Acts of Congress.

(1)

ey

-—

Dae x

ho

:

a

i

5

oh,

FS,

> Fass,

35> ate

oe Seat

TABLE OF CONTENTS

QUESTION PRESENTED. ......cccsseccssecsssselessecssvesssseeeen

TABLE OF CITED AUTHORITIES ...ccccccccscccccceceseesees

INTERESTS OF AMICI CURIAE ceccooscsocccscssccessessecseeeee

A. The Amici Represent Interests of the

United States’ Hydroelectric Industry .........

B. The Impact of the Ninth Circuit’s Decision

on the Hydroelectric Group ....................006+

SUMMARY OF ARGUMENT.......................sccssssssseees

ITE ceienttensiiiainttinaiiniilinsnininmeininniuinaiidanies

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

SPECIES ACT OF 1973 DOES NOT OVER-

RIDE STATUTORY MANDATES OR CON-

STRAINTS PLACED ON AN AGENCY’S

DISCRETION BY OTHER ACTS OF

TD sn tscccisintiininsnensapnnnccsdiocipessirniniena

A. The Endangered Species Act..............:.::004

B. The Ninth Circuit's Decision Improperly

Expands the Scope of the Endangered

RII NIN <icinccsiseusiccleheaileciiteiddiiauisslepiriiiobnneanionicns

C. Since TVA v. Hill, Federal Courts Have

Uniformly Rejected Efforts to Expand

the Application of § 7(A)(2) to Non-

na

TOT evinsreseisiiiincioniipdeddabeiiieniainsiatusiuniinnnpenininietinidiaie

(111)

a

12

12

12

13

iv

TABLE OF CITED AUTHORITIES

CASES Page

Am. Forest & Paper Ass'n v. EPA, 137 F.3d 291,

IIE SUUUITTEN cecenictibcgesicciibaigelidtedichicienie 17, 22, 23

Babbitt v. Sweet Home Chapter of Cmties. for a

Great Or., 515 U.S. 687 (1995).......cceccceeeeeeeeees 17

Bennett v. Spear, 520 U.S. 154 (1997) oe 14

Cal. Sportfishing Prot. Alliance v. Pac. Gas &

Elec. Co., 472 F.3d 593 (9th Cir. 2006) ............ )

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

Council, Inc., 467 U.S. 837 (1984)... 17

Citizens Against Rails-to-Trails v. Surface

Transp. Bd., 267 F.3d 1144 (D.C. Cir. 2001)..... 17, 18

Defenders of Wildlife v. EPA, 420 F.3d 946 (9th

aa mE ciasaiandlscississdcciieslciaalaiebaaieaaniedlineaiiibioniaiaihe passim

Defenders of Wildlife v. EPA, 450 F.3d 394 (9th

ee SN iscdscieclb che hiinieatulilniidlneidiadesalaicinniiaainheie 8, 16

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

iar cachaaiaccnteiddasenhatniedidiciguniaidbnibiin 16,17

Edelman vy. Lynchburg College, 535 U.S. 106

IT scxionslithiaiihuinipceidiiibamadetipeitiedaibvcbiiieiicinianenebenaiin 20

EEOC v. Associated Dry Goods Corp., 449 U.S.

i scisessiiicisnichesieSitbidiuutinsishaiiasaubesiditiiedsinicaiedse 20

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) .......... 20

Envil. Prot. Info. Ctr. v. Simpson Timber Co..

255 F.3d 1073 (9th Cir. 2001) .............:eceeeeee 13, 17,24

First lowa Hydro-klec. Coop. v. Fed. Power

ey) Be Lip Bll | nee 5

Ground Zero Center for Non-Violent Action v.

U.S. Department of the Navy, 383 ¥.3d 1082

I a 24

Marbled Murrelet v. Babbitt. 8¥ F.3d 1068 (9th

a a 16, 17, 24

Natl Cable & Telecomms. Ass'n v. Brand X

Internet Servs... 545 U.S. 967 (2005) ................. 17

Vv

TABLE OF CITED AUTHORITIES—Continued

Page

Nat'l Wildlife Fed’n v. U.S. Army Corps of

Eng 'rs, 384 F.3d 1163 (9th Cir. 2004) .............. 18

Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337 (9th

CUR. FU eee ivcccinsncnicneiinesnicninessiicstalapiniipigainiideaaimmmmamata 18

Natural Res. Def. Council v. Houston, 146 F.3d

FESS Ce, FE cteestesssesitectntineinaiiaia 16, 17, 23, 24

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

FP Gee isccicnsssceventenntetindsitisiisiiiisaniaaiagiaaniaiaes 13

Pac. Gas & Elec. Co. v. FERC, 720 F.2d 78

GEA. GAR. FR Perescsicssiinnncnnsniissiniitaiimdniadedbanaian 6

Pacific Rivers Council v. Thomas, 30 F.3d 1050

PUIG. FUTUR scaccnssduntinenencnitnianinmasamaiiaaiaiiani 13

Platte River Whooping Crane Critical Habitat

Maintenance Trust v. FERC, 962 F.2d 27

GE. CR, Fie icenncncseenctsesincstccadanniiat 9, 15, 17,21, 22

Riverside Irrigation Dist. v. Andrews, 568 F.

DU, Se Ca GHD, Fe cciccctienstnnvtninainisiapammaies 21

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

SER COG Ga. CTD secccicccicnsstenniencnpiptiiiiialendiog 2)

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

POU anciccsssninsepescsnidastrentediiniiienimameniiniaeiinians 13, 23

Sw. Ctr. for Biological Diversity v. U.S. Bureau

of Reclamation, 143 F.3d 515 (9th Cir. 1998)... 26

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

(FFF Ei censarcstisoncrsnessncesensitiesaniindanmmanaaaiias passim

Turtle Island Restoration Netwerk v. National

Marine Fisheries Service. 340 F.3d 969 (9th

CE. BE Posscnrscsccsescucttinssensteinasimsiammaaaniaie 24

W. Watershed Project v. Matejko, 456 F.3d 922

CSE CE, BOGE mceccscissesnemsiusnitiadasiaiaaai 13

vi

TABLE OF CITED AUTHORITIES—Continved

STATUTES Page

Federal Power Act, 16 U.S.C. §§ 791-828

(2000).

ad 6

ERO 6

§ 10(a(1), 16 U.S.C. § 803(a)1) «0... 6

I iii cccecrcsedesenenesensnninseesrace passim

a 6

8 8 dS saeniniesaaniil 6

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

seq. (2000).

as San: Ue BPE cxcnceesesnessesenseussnsennees 25

§ 7(aX1), 16 U.S.C. § 1536(a)1) 0... ees 25

§ 7(ay(2), 16 U.S.C. § 1536(a)(2) «00... ec eeeeeee passim

§ 7(a(3), 16 U.S.C. § 1536(a)(3) ........ ee 12

§ 7(a)(4), 16 U.S.C. § 1536(a)(4) «0... 12

§ 7(B)(3)(A), 16 U.S.C. § 1536(b)(3)(A).......... 13

Ek od 12, 22

Clean Water Act, 33 U.S.C. § 1251 ef seq. (2000).

OS BE oR en 14, 22

8 lh 5

OTHER STATUTES

16 U.S.C. $§ 5501-5509 (2000) ........... cece 24

| renee 14

Act of December 28, 1979, Pub. L. No. 96-159,

a ccc nsienteneencennneemmastapens 20

River and Harbor Act of 1945, Pub. L. No. 79-

ee I SII ccsscnscesiesiastenenidinamsnennanniane 18

REGULATIONS

IS C.F.R. § 16.18(B), (c) (2006).............000000........

es EL. Eee On 13, 26

«

Vil

TABLE OF CITED AUTHORITIES—Continued

Page

RE NT passim

ee DR a 13

OTHER MATERIALS

ob 8 Sg rene 17

Patrick A. Parenteau, The Exemption Process

and the God Squad, reprinted in ENDAN-

GERED SPECIES ACT: LAW, POLICY,

AND PERSPECTIVES 13f (Baur & Irvin eds.

See sicesiciinicicarinincinsinisiiatapiatintiiia aati iasaaeintaties 22

Zygmunt J.B. Plater, Statutory Violations and

Equitable Discretion, 70 Calif. L. Rev. 524

aaa cieriaietanicinecabenieutinaiittiicanienielltcinsiaianiehasisiliabasniieslaiale 19

IN THE

Supreme Court of the United States

Nos. 06-340, 06-549

NATIONAL ASSOCIATION OF HOME BUILDERS

AND THE ENVIRONMENTAL PROTECTION AGENCY

Petitioners,

Vv.

DEFENDERS OF WILDLIFE ET AL.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE NATIONAL

HYDROPOWER ASSOCIATION, AMERICAN PUBLIC

POWER ASSOCIATION, NORTHWEST

HYDROELECTRIC ASSOCIATION, THE CITY OF

TACOMA, PUBLIC UTILITY DISTRICT NO. 1 OF

CHELAN COUNTY, PUBLIC UTILITY DISTRICT

NO. 1 OF DOUGLAS COUNTY, PUBLIC UTILITY

DISTRICT NO. 1 OF GRANT COUNTY, PACIFICORP,

AND THE UNITED WATER CONSERVATION

DISTRICT IN SUPPORT OF PETITIONERS

INTERESTS OF AMICI CURIAE '

This brief solely addresses the Ninth Circuit holding that

the Endangered Species Act (“ESA”) includes an affirmative

' Pursuant to Rule 37.6, the Hydroelectric Group states that no counsel

for another party authored this brief, and that only Hydroelectric Group

members made monetary contributions to its preparation and submission

2

grant of authority to an action agency to disregard other

statutory limitations, and that the nature of the agency

action—whether it is discretionary or not—is not altogether

significant. The Ninth Circuit decision creates the potential

for unnecessary and irreconcilable conflicts between the ESA

and other statutes. These conflicts could disrupt or interfere

with the Nation’s electrical energy supply. To prevent —

potential conflicts between the ESA and Federal Power Act

(“FPA”), the Amici submit this brief in support of the

Petitioners.

A. The Amici Represent Interests of the United

States’ Hydroelectric Industry.’

The National Hydropower Association (*“NHA”); Ameri-

can Public Power Association (“APPA”); Northwest Hydro-

electric Association (“NWHA”): City of Tacoma, Washing-

ton (“Tacoma”); Public Utility District No. 1 of Chelan

County. Washington (“Chelan”); Public Utility District No. 1

of Douglas County. Washington (“Douglas”); Public Utility

District of Grant County, Washington (“Grant”); PacifiCorp;

and United Water Conservation District (*UWCD”) (collec-

tively referred to as “the Hydroelectric Group”) represent

interests of the United States’ hydroelectric industry.

> Consent by all of the parties has been given to the Hydroelectric

Group for filing this brief. Petitioners National Association of Home

Builders, Southern Arizona Hlome Builders Association. Home Builders

Association of Central Arizona, Arizona Chamber of Commerce, Arizona

Mining Association, Arizona Association of Industries, Greater Phoenix

Chamber of Commerce. and American Forest & Paper Association;

Respondents Defenders of Wildlife, Center for Biological Diversity. and

Craig Miller: and the State of Arizona have submitted letters to the Court

consenting to the filing of all amicus curiae briets in this matter. The US.

Environmental Protection Agency (“EPA”) has provided written consent

to the Hydroelectric Group to file this briet. The Hydroelectric Group

submitted EPA’s consent letter to the Court concurrent with its filing of

this brief

3

NHA is a national association representing the interests of

the United States’ hydroelectric industry. NHA represents

sixty-one percent of domestic, non-federal hydroelectric

capacity, constituting almost 80,000 megawatts (“MW”),

across North America. NHA’s 140 members include com-

munity-owned utilities, investor-owned utilit.es, independent

power producers, equipment manufacturers, environmental

and engineering consultants, and attorneys from all regions of

the country.

APPA is a national organization representing the interests

of more than 2,000 community-owned electric utilities

throughout the United States that deliver electric energy to

approximately forty-three million citizens. Hydroelectric

projects comprise over twenty-one percent of public power’s

total generation.

NWHA is a non-profit trade association that represents and

advocates on behalf of the Northwest hydroelectric industry.

NWHA has 84 members from all segments of the industry.

Tacoma, Chelan, Douglas and Grant are municipal corpo-

rations chartered under the laws of the State of Washington.

They own and operate municipal electric utility systems that

engage in the generation, transmission, and distribution of

electric power and energy in the State of Washington. They

also purchase and sell electric energy and power at wholesale

and retail.

Tacoma owns and operates four hydroelectric projects with

a total generating capacity of 719 MW. Fighty-seven percent

of the electricity Tacoma produces or purchases for its

customers is produced from hydroelectric projects.

Chelan owns and operates three hydroelectric projects with

a total generating capacity of 2,000 MW, providing electricity

to its customers and selling approximately sixty-three percent

of the total generating capacity of these facilities to other

wholesale purchasers throughout the Pacific Northwest.

4

Douglas owns and operates the Wells Hydroelectric Pro-

ject, an 840 MW facility located on the Columbia River, and

sells approximately seventy percent of the total generating

capacity of this facility under long-term power sales contracts

to one public utility district, four Pacific Northwest investor-

owned utilities and one Indian tribe.

Grant owns and operates four hydroelectric projects with a

total generating capacity of over 2,000 MW, providing elec-

tricity to its customers and selling over sixty percent of the

total generating capacity of these facilities to other wholesale

purchasers throughout the Pacific Northwest.

PacifiCorp is a regulated electric company serving retail

customers in portions of the states of Utah, Oregon, Wyom-

ing, Washington, Idaho and California. It delivers clectricity

to customers in Utah, Wyoming and Idaho as Rocky Moun-

tain Power and to customers in Oregon, Washington and

California as Pacific Power. PacifiCorp owns and operates

50 hydroelectric plants and serves as the operator for two

additional hydroelectric projects. PacifiCorp’s hydroelectric

projects have an installed capacity of about 1,073 MW, which

represents nearly 11 percent of the company's annual power

generation.

UWCD is a public Special District under the laws of the

State of California. UWCD owns and operates facilities, and

manages programs, for the recharge of groundwater supplies

in the highly productive but overdrawn aquifers in central

Ventura County, California. These aquifers support a popula-

tion that exceeds 350,000 and an agricultural economy of

approximately $1.5 billion per year. The water supplies for

UWCD’s groundwater recharge activities originate from stor-

age and diversion projects in the Santa Clara River watershed.

Some of these projects have federal involvement. including

the Santa Felicia Project. which co-generates electrical energy

from flows otherwise discharged for water resource manage-

ment purposes. Up to 2.4 MW of electricity is generated

>

under a Federal Energy Regulatory Commission (“FERC”)

license and sold entirely to the Southern California Edison

Company.”

Together, NHA, APPA, NWHA, Tacoma, Chelan, Doug-

las, Grant, PacifiCorp, and UWCD generate a significant

percentage of all electricity in the United States, and a

significant portion of the non-federally generated electric

power in the Northwest. Hydroelectric projects are an impor-

tant source of this energy, accounting for nearly ten percent

of national electric production each year and more than eighty

percent of national renewable energy. The nation’s hydro-

electric projects also provide numerous other benefits to the

communities in which they are located, such as municipal and

industrial water supply, navigation, flood control, irrigation,

recreation, and fish and wildlife habitat.

B. The Impact of the Ninth Circuit’s Decision on

the Hydroelectric Group.

Almost ali non-federally-owned hydroelectric projects are

subject to the FPA’s comprehensive regulatory scheme.

Congress enacted the FPA (and its predecessor statute, the

Federal Water Power Act of 1920) in order “to secure a

comprehensive development of national resources. ...” First

lowa Hydro-klec. Coop. v. Fed. Power Comm'n, 328 U.S.

152, 180-81 (1946). Under the FPA, FERC has exclusive

authority to issue licenses authorizing the construction, oper-

ation. and maintenance of new and existing hydroelectric

* Other projects include the Freeman Diversion Project, which does not

generate electrical energy but was constructed under a loan from the U.S.

Bureau of Reclamation (“BOR”). and other river management programs

for which U.S. Army Corps of Engineers ("Army Corps”) Clean Water

Act ("CWA") § 404 permits are sought. Because of the extensive federal

involvement in these projects. they also may be impacted by the Ninth

Circuit decision, but differently than the UWCD FERC-licensed hydro-

electric projects.

6

projects.’ See 16 U.S.C. §§ 797(e). 803(a)(1), 808, and 817(b).

In carrying out its statutory responsibilities, FERC is required

to consider all the factors affecting the public interest in the

comprehensive development of a waterway, including appro-

priate conditions to protect the environment.’ /d. §§ 797(e),

803(a)(1).

To encourage and attract the enormous amount of capital

required to develop hydroelectricity, Congress included safe-

guards in the FPA to help ensure positive returns -on in-

vestments. For example, FPA § 15 requires that licenses be

issued on reasonable terms. 16 U.S.C. § 808(a)(1). Under

FPA § 6, FERC is authorized to issue licenses with terms of

up to fifty years and is prohibited from amending licenses,

once they are accepted, without the consent of the licensee.

16 U.S.C. § 799; Pac. Gas & Elec. Co. v. FERC, 720 F.2d 78,

83-84 (D.C. Cir. 1983). Although many new licenses contain

reopeners and/or adaptive management provisions, FPA § 28

restricts the authority to alter the terms of a license, or other-

wise impair the rights of the licensee, once a license has been

issued. 16 U.S.C. § 822.

Because of the complexities of the FERC relicensing pro-

cess, the processing time—i.c. the time from license applica-

tion to FERC’s issuance of the license —is substantial, aver-

aging fifty-two months, with many projects taking much

* Federally operated projects, such as those operated by the Tennessee

Valley Authority, the Bonneville Power Administration, the Army Corps,

and BOR are not licensed by FERC.

* In addition to the FPA. hydroelectric projects are now subject to the

requirements of a variety of environmental statutes, such as the National

Environmental Policy Act ("NEPA™). the CWA, the Fish and Wildlife

Coordination Act, the Federal Land Policy and Management Act, and the

National Historic Preservation Act. This includes being subject to the

requirements of § 7 of the ESA.

7

longer.” This results in a very large number of existing

FERC licenses expiring prior to the completion of the FERC

relicensing process.

Under FPA § 15, if, by the expiration of an existing

license, FERC does not issue a new license for the project or

does not otherwise achieve a federal takeover of the project,

“the commission shall issue from year to year an annual

license to the then licensee under the terms and conditions of

the existing license until the property is taken over or a new

license is issued as aforesaid.” 16 U.S.C. § 808(a)(1). In

addition, FERC’s regulations provide, in part, that “[t]he

Commission will issue an annual license to an existing

licensee under the terms and conditions of the existing license

upon expiration of its existing license. . . . ”, and further that

“{ajn annual license issued under this section will be

considered renewed automatically without further order of the

Commission, unless the Commission orders otherwise.” 18

C.F.R. § 16.18(b), (c).

There are approximately 2.500 hydroelectric projects across

the country subject to FERC relicensing. Between 2005-

2015, licenses for 127 projects with over 21.000 MW of

hydroelectric capacity have expired or will expire.’ Nearly

all of these projects will require the issuance of annual

licenses prior to the completion of the relicensing.

Many of these projects are located in areas where ESA-

listed species reside or where critical habitat has been desig-

° FERC, Report on Hydroelectric Licensing Policies, Procedures, and

Regulations, Comprehensive Review and Recommendations Pursuant to

§ 603 of the Energy Act of 2000 (May 2001) available at http. www

ferc.gov legal maj-ord-reg ‘land-docsorte final.pdf (last visited Feb. 13.

2007).

* FERC, Table of Issued Licenses (Feb. 8, 2007). available at http:

www.ferc.gov industries hydropower gen-into licensing licenses.xls_ (last

visited Feb. 8, 2007).

8

nated. This is not surprising, because there are presently over

1,800 species listed as either endangered or threatened by the

U.S. Fish and Wildlife Service (“USFWS”) and the National

Marine Fisheries Service (“NMFS”) (collectively referenced

as “Service Agencies”).” Of these, over 700 species were

added to the lists between 1990 and the end of 2005.

Moreover, as of February 5, 2007, critical habitat has been

designated for 485 of these species.’

As explained below. the Ninth Circuit’s decision in De-

fenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005)

(“Defenders I") threatens to expand the reach of ESA § 7

beyond what Congress intended. And, if affirmed, the

decision could have significant impacts on the operation of

non-federal hydroelectric projects; seriously disrupt FERC’s

hydroelectric relicensing program; and require significant

resources of not only FERC, USF WS, and NMFS, but also of

licensees and third parties.

Judge Kozinski, dissenting to the decision to deny en banc

rehearing, stated “[iJf the ESA were as powerful as the

majority contends, it would modify not only EPA’s obligation

under the CWA, but every categorical mandate applicable to

every federal agency.” Defenders of Wildlife v. EPA, 450 F.3d

394. 399 n4 (9th Cir. 2006) (Kozinski, J.. dissenting)

(“Defenders IT’). One such categorical mandate involves the

statutory limitations placed upon FERC under the FPA, such

as When it issues annual licenses pursuant to § |15(a). See 16

U.S.C. § 808(a)(1) (“the commission shall issue from year to

year an annual license to the then licensee under the terms

and conditions of the existing license”). Based upon these

constraints and the lack of agency discretion, the D.C. Circuit

* http:’ ecos.fws.gov tess public’ SpeciesCountReport.do (last visited

Feb. 13, 2007).

* http: ecos.fws.gov tess public CriticalHabitat.do?nmts=! (last visited

Feb. 13, 2007).

9

in Platte River Whooping Crane Critical Habitat Mainte-

nance Trust v. FERC, 962 F.2d 27, 33-34 (D.C. Cir. 1992)

(“Platte River’), found that FERC issuance of an annual

license is not subject to the ESA § 7 consultation require-

ments. Although the Ninth Circuit never questioned the ulti-

mate holding in Platte River, the court’s suggestion that

§ 7 overrides statutory directives and constraints placed upon

an agency nevertheless casts an unnecessary cloud on FERC’s

issuance of annual licenses during the FERC relicensing pro-

cess.

The application of § 7(a)(2) to FERC .and other federal

agency actions pursuant to the FPA, however, is not before

this Court and is not fully briefed. Obviously, between

federal laws, there are significant differences and nuances

regarding the nature and scope of agency discretion. This ts

especially true with respect to the differences between the

FPA’s annual license provisions and the CWA’s National

Pollutant Discharge Elimination System (“NPDES”) Permit

Program. transfer decision provisions.'' These differences

-

Because the issuance of a new license at the end of relicensing is

more than ministerial, FERC complies with the procedural and substan-

tive aspects of § 7(a)(2) when it issues a new license. See Cal. Sport-

fishing Prot. Alliance v. Pac. Gas & Elec. Co., 472 F.3d 593, 598-99 (9th

Cir. 2006).

'' For example, in its decision, the Ninth Circuit correctly recognized

that, because FERC was obligated to issue the annual license “without any

deliberation.” the FERC action of issuing an annual license is different

from the EPA action of making a NPDES transfer decision. Defenders /,

420 F.3d at 970. This distinction is noteworthy. The CWA does require

EPA to evaluate (or deliberate) as to whether specific criteria have been

met prior to making the transfer decision. See 33 U.S.C. § 1342(b) (The

Administrator shall approve each submitted program unless he determines

that adequate authority does not exist. . .”) (emphasis added). There may

be some discretion inherent within this administrative evaluation. In

contrast, the FPA requires that FERC issue an annual license without any

deliberation or evaluation as to whether specific criteria have been met. If

the license has expired and the project is subject to relicensing, FERC

lO

10

and nuances are material in determining the applicability of

§ 7(a)(2) to a specific agency action. As such, to the extent

that the Court deems it necessary to address the Petitioner

EPA’s Question Presented pertaining to § 7(a)(2), Amici

urges this Court to limit the scope of its ruling to clarifying

the relationship of § 7(a)(2) to the CWA’s NPDES transfer

decision at issue in this case.

Regardless, the Ninth Circuit should be reversed because

of the fundamental errors contained within its expansive

decision. Not only could the Ninth Circuit’s conclusion that

§ 7 overrides other statutory constraints threaten to disrupt

FERC’s relicensing program and its issuance of annual

licenses, but it could cause precipitous decisions that would

modify and disrupt ongoing project operations. By expand-

ing the reach of the ESA, the Ninth Circuit’s analysis might

be construed as requiring FERC to initiate § 7 consultations

on numerous hydroelectric projects when FERC’s enabling

statute and applicable regulations provide no discretion to

impose the sought-after limitations.

Federal licensing or permitting programs could not func-

tion effectively under such a scenario. FERC, for instance,

might feel compelled to rely upon a biological opinion

developed in the abstract and without an adequate record, and

direct the licensee to adopt major modifications of project

structures and operations immediately without an appropriate

administrative process and substantial evidence. Such modif-

cations would likely include altered flow regimes, spill

requirements, and other hastily adopted and costly terms and

conditions that would have to be implemented in advance of

any FERC proceeding. Such modifications could also impair

the delivery of electric power with little or no correspond-

must issue an annual license under the terms and conditions of the

existing license. lo U.S.C. § 808(a)(1). FERC has absolutely no discre-

tion under such circumstances.

~

1]

ing benefit to listed species, and could even result in harm

to species.

The Ninth Circuit decision, therefore, creates the potential

for unnecessary and irreconcilable conflicts between the ES.A

and other statutes, which could disrupt or interfere with the

Nation’s electrical energy supply. To prevent potential con-

flicts between the ESA and FPA, the Hydroelectric Group

files this Amicus Brief in support of the Petitioners.

SUMMARY OF ARGUMENT

The Hydroelectric Group’s Amicus Brief focuses solely on

the Ninth Circuit's assertions that the ESA includes an

affirmative grant of authority to an action agency to disregard

other statutory limitations, and that the nature of the agency

action —whether it is discretionary or not-—is not altogether

significant. In this regard, the Ninth Circuit erred by

concluding that the § 7(a)(2) obligations are obligations “in

addition to those created by the agencies’ own governing

statute.” Defenders I, 420 F.3d at 967. Unless reversed, the

Ninth Circuit decision will undermine the established prin-

ciple that § 7(a)(2) applies only to “actions in which there is

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

§ 402.03.

The Ninth Circuit erred by construing the Service Agen-

cies joint interpretation that § 7(a)(2) applies to discretionary

agency actions, 50 C.F.R. § 402.03, as a “gloss” on and as

being “congruent” and “coterminous with” the ESA’s statu-

tory reference to actions “authorized, funded, or carried out

by the agency.” According to the Ninth Circuit, § 7 is

triggered unless “the agency in question had ‘no ongoing

regulatory authority’ and thus was not an entity responsible

for decisionmaking with respect to the particular action in

question.” Defenders [, 420 F.3d at 968. This expansive

interpretation is contrary to Ninth Circuit precedent. imper-

missibly rejects the expert agencies” interpretation of § 7(a)(2).

12

and conflicts with the substantial ESA jurisprudence support-

ing the Service Agencies’ interpretation.

Section 7 is only triggered if there is an identifiable, dis-

cretionary agency action that is being authorized, funded or

carried out.

ARGUMENT

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

SPECIES ACT OF 1973 DOES NOT OVERRIDE

STATUTORY MANDATES OR CONSTRAINTS

PLACED ON AN AGENCY’S DISCRETION BY

OTHER ACTS OF CONGRESS.

A. The Endangered Species Act.

Pursuant to § 7 of the ESA and its implementing regu-

lations, every federal agency is required to consult with either

the USFWS or NMFS prior to authorizing, funding, or

carrying out any action that may affect any listed species. '

Section 7(a)(2) of the ESA provides:

Each Federal agency shall. in consultation with and with

the assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency (here-

inafier in this section referred to as an “agency action”)

is not likely to jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of [designated

critical] habitat . . . unless such agency has been granted

an exemption for such action by the Committee pursuant

to subsection (h) of this section.

Regulations implementing § 7(a)(2) state: “Section 7 and the

requirements of this part apply to all actions in which there is

—_—

'’ Other aspects of § 7 include a provision that directs federal agencies

to utilize their authorities for the conservation of listed species (16 U.S.C.

§ 1536(a1)). a procedure for conferencing on proposed species and

proposed critical habitat (16 ULS.C. § 1536(a4)), an early consultation

option (16 LS.C. § 1536(a)(3)). as well as an exemption process the

Endangered Species Committee (ESC) (16 U.S.C. § 1536¢e)).

13

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

§ 402.03 (emphasis added).

To assist the federal agency in determining whether the

substantive standards of § 7(a)(2) will be met. the Service

Agency (either USFWS or NMFS, depending upon the spe-

cies involved) provides a “biological opinion” that includes a

“summary of the information on which the opinion is based”,

a “detailed discussion of the effects of the action on listed

species and critical habitat”, and the Service Agency’s opin-

ion on “whether the action is likely to jeopardize the con-

tinued existence of a listed species or result in the destruction

or adverse modification of critical habitat... .” 50 C.F-.R.

§ 402.14(h); see also 16 U.S.C. § 1536(b)(3)(A): 50 C.F.R.

§ 402.02 (defining “biological opinion”).

B. The Ninth Circuit’s Decision Improperly Ex-

pands the Scope of the Endangered Species Act.

The Ninth Circuit, not only incorrectly but also unnec-

essarily, casts a cloud on when the procedural and substantive

obligations under § 7 are triggered. To begin with, the lower

court opinion conflates the scope of a § 7 consultation with

when a consultation is required. In order to assess whether a

§ 7(aX2) consultation is required, it must be determined

whether there is any affirmative, identifiable federal agency

action’ and, if so, whether the action is ministerial or

° See Tenn. Valley Auth. v. Hill, 437 US. 153, 186-88 (1978)

TVA"), WO Watershed Project v. Matejko, 456 F.3d 922, 930 (9th Cir.

2006) (“Ninth Circuit cases have emphasized that § 7(a)(2) consultation

stems only from “affirmative actions” of an agency”): Envitl, Prot. Info.

Ctr. v. Simpson Timber Co., 255 &.3d 1073, 1079-82 (9th Cir. 2001);

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

affirmative and discrete agency action is apparent. See Norton v. S. Utah

Wilderness Alliance. 542 US. 55, 66 (2004). Yet, the Ninth Circuit, cit-

ing its earlier decision in Pacific Rivers Council v- Thomas, 30 F.3d 1050.

1053 (9th Cir. 1994), further suggests that there may be instances where

the retention of power to authorize and carry out future discretionary

14

discretionary. If § 7 is required, then the federal agency must

engage in the correct procedure to ensure that the action is not

likely to jeopardize the continued existence of an endangered

or threatened species or result in the adverse modification or

destruction of critical habitat. .

Here, the agencies engaged in a consultation and the

USFWS prepared a biological opinion, and by doing so

necessarily obviated the need to explore whether § 7 consul-

tation is required.'* The principal issue, therefore, involved

the later inquiry: whether EPA acted arbitrarily and ca-

priciously in relying upon a biologica! opinion that allegedly

did not include a sufficient analysis of the effects of the

action, and also whether the USFWS acted arbitrarily and

capriciously in issuing such a biological opinion.'”

decisions is somehow itself an agency action. Defenders 1, 420 F.3d at

969-70. But the mere ability to undertake an affirmative act in the future,

even if the agency has the discretion to do so, is not any such affirmative

and discrete agency action triggering § 7(a(2). TVA, 437 U.S. 153, dis-

cussed later, involved an “action” that was going to be "carried out" and it

does not support circumventing the “action” requirement under § 7(a)(2).

* The original challenge to the USFWS’ biological opinion in this case

occurred in the district court, presumably under this Court's reasoning in

Bennett v. Spear, 520 U.S. 154, 170 (1997), which concluded that chal-

lenges to a Service Agency's biological opinion are to be brought under

the Administrative Procedure Act, and presumably in district court pursu-

ant to 28 U.S.C. § 1331. Defenders 1, 420 F.3d at 955-56. The case was

transferred to the court of appeals, consistent with other precedent in the

Ninth Circuit and elsewhere suggesting such challenges must be brought

originally in the court of appeals when the underlying agency action is

reviewable initially in the court of appeals. /d

' See Defenders 1, 420 F.3d at 949-50 (Judge Berzon began her opin-

ion by stating that the principal issue is whether, when engaging in an

analysis of the effects of a CWA § 402 transfer decision, the ESA requires

that EPA consider the impact on endangered and threatened species and

their habitat when it concludes that it lacks the authority to take into

account the effects of the action on such species or their habitat.); see a/so

id at 955 (“EPA failed adequately to consider the transfer’s impact on

15

The lower court could have easily ended its opinion by

concluding that EPA acted arbitrarily and capriciously, be-

cause it “relied during the administrative proceedings on

legally contradictory positions” (Defenders [, 420 F.3d at

959), and remanded the matter back to EPA for further

consideration and a reasoned explanation.'® It chose not to

do so; instead, it embarked upon a foray into § 7 generally,

and in doing so erroneously questioned the longstanding view

that § 7 only applies when there is an identifiable federal

agency action and one that is not ministerial but involves

some level of discretion.

This Amicus Brief, therefore, focuses solely on the Ninth

Circuit’s journey into the contours of § 7 and its assertions

that the ESA includes an affirmative grant of authority to an

action agency to disregard other statutory limitations, and that

the nature of the agency action —whether it is discretionary or

not—is not altogether significant. In this regard, the Ninth

Circuit erred by concluding that the § 7(a)(2) obligations are

obligations “in addition to those created by the agencies’ own

governing statute.” Defenders 1, 420 F.3d at 967. Unless

reversed, the Ninth Circuit decision will undermine the

established principle that § 7(a)(2) applies only to “actions in

which there is discretionary Federal involvement or control.”

See 50 C.F.R. § 402.03: see also Platte River, 962 F.2d at 33-

34 (§ 7 simply “directs agencies to ‘utilize their authorities” to

endangered and threatened species. . .”); id. at 957 (here, lack of ade-

quate consultation between the EPA and the FWS”).

'° If the decision had been remanded back to FPA. the court could have

avoided ruling on the adequacy of the biological opinion until after EPA

rendered a new final agency action that would again be reviewable.

Nevertheless, the court reviewed in part “B” of its opinion (Defenders |

420 F.3d at 959-62) the adequacy of the biological opinion —and con-

cluded that it too lacked reasoned decisionmaking. because of its effects

analysis. And so the court could have avoided parts “C" and “D” of its

opinion.

. 16

carry out the ESA’s objectives; it does not expand the powers

conferred on an agency by its enabling act”); Natural Res.

Def. Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir.

1998) (“[w]here there is no agency discretion to act, the ESA

does not apply”). cert. denied. 526 U.S. 1111 (1999)."’

The Ninth Circuit erred by construing the Service Agen-

cies’ joint interpretation that § 7(a)(2) applies to discretionary

agency actions, 50 C.F.R. § 402.03, as a “gloss” on and as

being “congruent” and “coterminous with” the ESA’s statu-

tory reference to actions “authorized, funded, or carried out

by the agency.” According to the Ninth Circuit, § 7 is

triggered unless “the agency in question had_‘no ongoing

regulatory authority’ and thus was not an entity responsible

for decisionmaking with respect to the particular action in

question.” Defenders 1, 420 F.3d at 968. As Judge Kozinski

recognized in the dissent to the denial of the petition for

rehearing en banc and as explained below, this expansive

interpretation is contrary to Ninth Circuit precedent, imper-

missibly rejects the expert agencies” interpretation of § 7(a)(2)

and conflicts with the substantial ESA jurisprudence support-

ing the Service Agencies’ interpretation. Defenders II, 450

F.3d at 398 (Kozinski, J., dissenting). Section 7 is only

triggered if there is an identifiable, discretionary agency

action that is being authorized, funded or carried out.

'’ Discretion is essential to determining the applicability of § 7(a)(2) to

an agency action for primarily two reasons. First, an agency action that

does not cause jeopardy or adverse modification is not barred by § 7(a)(2)

prohibitions. 16 U.S.C. § 1536(a)(2). Discretion defines the boundary of

causation. See Dep't of Transp. v. Public Citizen, 541 U.S. 752, 769

(2004). Simply put, for an action that ts pursuant to a categorical statutory

mandate (i.e. a non-discretionary. ministerial action), the statutory man-

date, not the agency action, is the cause of the impacts on listed species.

Second, when an agency undertakes a non-discretionary action, the

agency does not have an opportunity to structure the action to avoid jeop-

ardy or adverse modification. 74, 437 US. at 183, Marbled Murrelet v

Babbitt, 83 F.3d 1068, 1073-75 (9th Cir, 1996).

i7

Over twenty years ago, the Service Agencies jointly recog-

nized that Congress did not intend that § 7 would apply to

non-discretionary agency actions.'® 50 C.F.R. § 402.03; 51

Fed. Reg. 19,937 (1986) (“a Federal agency’s responsibility

under § 7(a)(2) permeates the full range of discretionary

authority. . .” (emphasis added)). Under the agencies’ inter-

pretation, an action is non-discrctionary if the agency has

decision-making authority, yet is not empowered to act to

protect endangered or threatened species. Defenders 1, 420

F.3d at 979 (Thompson, J., dissenting). ESA jurisprudence

uniformly followed these expert agencies” interpretation. See

Natural Res. Def. Council, 146 F.3d at 1125-26; Am. Forest

& Paper Ass'n v. EPA, 137 F.3d 291, 298 (Sth Cir. 1998);

Marbled Murrelet, 83 F.3d at 1073-75; Platte River, 962 F.2d

at 33-34; Envil. Prot. Info. Ctr., 255 F.3d at 1079-82. This is

because non-discretionary actions, or those over which an

agency has no control, do not afford the agency an oppor-

tunity to structure the action to avoid jcopardy or adverse

modification. TVA, 437 U.S. at 183."°

'* If the siatute is ambiguous on this issue and the Service Agencies’

construction is reasonable, courts are required to uphold the Agencies’

statutory interpretation. Nat’ Cable & Telecomms. Ass'n v. Brand X

Internet Servs., 545 U.S. 967, 980 (2005), Chevron U.S.A., Inc. v. Natural

Res. Def. Council. Inc., 467 U.S. 837, 843-44 (1984). Because of the Ser-

vice Agencies’ expertise and delegated statutory authority, this regulatory

interpretation is entitled to deference. See Babhitt v. Sweet Home Chapter

of Cmties. for a Great Or, 515 U.S. 687, 703 (1995) (“The latitude the

ESA gives the Secretary in enforcing the statute, together with the degree

of regulatory expertise necessary to its enforcement, establishes that we

owe some degree of deference to the Secretary's reasonable interpreta-

tion.”’).

’ A similar rationale exists for compliance with the NEPA, the CWA,

and the River and Harbor Act of 1945, Pub. L. No. 79-14, § 2, 59 Stat. 10

(1948). See Public Citizen, 54) U.S. 752: Citizens Against Rails-to-Trails

vo Surface Transp. Bd., 267 F.3d 1144. LIST (D.C. Cir. 2001) (the

agency does not have sufficient discretion to affect the outcome of its

auctions, and its role is merely ministerial, the information that NEPA

18

This Court’s seminal decision in 7VA v. Hill does not sug-

gest otherwise, although, admittedly, some courts and com-

mentators have expanded this Court’s holding in 7VA beyond

the facts and issues presented there. In 7VA, there undoubt-

edly remained a § 7 triggering event—something left to be

“carried out.” TVA still had the discretion to decide whether

to proceed with the project, but at considerable cost and not

contrary to any other non-discretionary duty or obligation.

The plaintiffs sought to prevent TVA from “carrying out” its

final.construction and operation of the Tellico Dam. The

parties agreed that the federal action would result in an

undeniable violation of the ESA—the complete eradication of

the endangered snail darter. The primary issue was whether

the plain language of the ESA could be applied to the final

stages of the construction and implementation of the Tellico

Dam project. The United States argued that the ESA should

not apply to all actions, but rather only those:

That present the agency with reasonable alternatives; it

refers to a stage in the decision-making process where

the agency has not substantially completed an “action”

but is still in reasonable position of being able to avoid

authorizing it, funding it. or carrying it out.

Brief for the Petitioner at 24-25, TVA v. Hill, 437 U.S. 153

(1978) (No. 76-1701). In short, the United States sought to

avoid § 7 altogether because it had substantially completed

the project and believed that it would be too costly to reverse

course. The Court rejected reading into the ESA. any such

exception, but in doing so the Court clearly indicated it was

not suggesting that § 7 would apply to non-discretionary

provides can have no affect on the agency's actions. and therefore NEPA

is inapplicable.”); Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1343-44

(9th Cir. 1998), Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng ‘rs, 384

F.3d 1163, 1179 (9th Cir. 2004) (the Ninth Circuit construed the CWA

ae the River and Harbor Act of 1945 in pari mater ria by limiting the

CW A's application to discretionary activities. ).

19

actions.” The Court quotes from the legislative history an

example raised by Congressmen Dingell: if the Secretary of

Defense has discretion in exercising bombing activities in the

Gulf of Mexico, he would be required to ensure that his

activities do not jeopardize the continued existence of the

nearby whooping cranes.*! TVA, 437 U.S. at 183.

Indeed, the legislative history surrounding the changes to

§ 7 confirms that the provision was not intended to confer

additional statutory authority upon agencies or impliedly

repeal statutory limitations governing agency actions. In 1973,

when Congress enacted the ESA, it directed agencies to:

utilize their authorities in furtherance of the purposes of

|the] Act by carrying out programs for conservation of

endangered species and threatened species . . . and by

taking such action necessary to insure that actions

authorized, funded, or carried out by them do not

jeopardize the continued existence of such endangered

species...

Endangered Species Act of 1973, Pub. L. No. 93-205, § 7, 87

Stat. 884. 892 (1973). The obligations of federal agencies to

carry out conservation programs (now contained in § 7(a)(1))

and to avoid jeopardy (now contained in § 7(a)(2)) were both

qualified by the phrase “utilize their authorities.”

*’ Now, many years later, perhaps the most fundamental question

presented by 7)'4 v. Hill is overlooked. As the environmental law pro-

fessor who litigated the case explains, the issue was whether courts

contronted with having to remedy a violation of the Act (and in 744 it

was admitted) should be able to override a clear congressional mandate,

i.e. statutory no-jeopardy obligation, in deciding whether or not to tssue

an injunction. Zygmunt J.B. Plater, Statutory Violations and Equitable

Discretion, 70 Calit. L. Rev. $24 (1982).

| Congressman Dingell prefaced this example by stating “[Section 7]

substantially amplifie|s] the obligation of [federal agencies] to take steps

within their power to carry out the purposes of this act.” 714,437 US. at

183 Cemphasis added).

20

When Congress added the § 7 consultation requirements

and separated the § 7 conservation and jeopardy avoidance

obligations into two separate sentences in 1978, it explained

that the revision was merely a restatement of “existing law.”

H.R. Conf. Rep. No. 95-1804, at 18 (1978), reprinted in-1978

U.S.C.C.A.N. 9484, 9486 (emphasis added). At that time.

agencies’ obligations under “existing law” were clearly lim-

ited by their authorities. In 1979, Congress further divided

§ 7(a) into subsections without making changes to the

language pertaining to the conservation and jeopardy avoid-

ance obligations. See Act of December 28, 1979, Pub. L.

No. 96-159, § 4, 93 Stat. 1226. In 1982 and 1988, Congress

amended the ESA without amending § 7(a).

Signiiicantly, in adopting the 1988 amendments to the ESA

two years after the Service Agencies clarified the role of

agency discretion in the consultation process, Congress did

not repudiate the regulatory construction adopted by the

Service Agencies. See Edelman v. Lynchburg College, 535

U.S. 106, 117-18 (2002) (“By amending the law without

repudiating the regulation, Congress “suggests its consent to

the Commission's practice.’”) citing EEOC vy. Associated Dry

Goods Corp.. 449 U.S. 590, 600 n.17 (1981) and EEOC vy.

Shell Oil Co., 466 U.S. 54, 69 (1984).

Contrary to the Ninth Circuit decision, theretore. Congress

enacted significant amendments to the ESA in 1978, 1979,

1982, and 1988 without expanding § 7(a)(2) to compel agen-

cies to override statutory mandates or constraints on agency

discretion. The legislative history of these ESA amendments

does not support the conclusion that Congress intended to

dramatically enlarge the scope of § 7(a)(2) to act outside the

realm of agency discretion.”

= See. e.g, ILR. Rep. No. 95-1625, at 11-12 and 19-20 (1978), re-

printed in 1978 U.S.C.C.A.N. 9453, 9461-62. 9469-70 (App. 490-92,

App. 494-97). S. Rep. No. 96-151, at 3-4 (1979) (App. 503-04): HLR.

2|

C. Since TVA v. Hill, Federal Courts Have

Uniformly Rejected Efforts To Expand The

Application Of § 7(A)(2) To Non-Discretionary

Actions.

Since TVA v. Hill, federal courts have uniformly rejected

efforts to expand the application of § 7(a)(2) to non-dis-

cretionary actions.”’ Therefore, the Ninth Circuit’s summary

rejection of the caselaw and, in particular, its treatment of the

D.C. Circuit’s analysis-in_Platte River, is fundamentally

flawed.

In Platte River, petitioners challenged annual licenses

issued by FERC for two hydroelectric projects on the Platte

River. The petitioners argued that ESA § 7 required that

FERC do “whatever it takes” to protect the threatened and

endangered species that inhabit the Platte River. Under the

FPA, however, FERC was precluded from altering the terms

of an existing license when issuing annual licenses given to a

hydroelectric plant. Platte River, 962 F.2d at 34.

The D.C. Circuit, after examining the requirements im-

posed by ESA §§ 7(ay(l) and 7(a)(2). rejected as “far

fetched” the effort to apply § 7 in an instance where the

Conf. Rep. No. 96-697, at 12-16 (1979), reprinted in 1979 U.S.C.C.ALN.

2572, 2575-79 (App. 509-17), H.R. Rep. No 97-567. at 24-29 (1982),

reprinted in 1982 U.S.C.C.A.N. 2807, 2824-29 (App. 518-28): S. Rep.

No. 97-418, at 19-20 (1982) (App. 537-42): Pub. L. No. 100-478, 102

Stat. 2306 (1988) (Endangered Species Act Amendments of 1988).

** In Riverside Irrigation District v. Andrews, 758 F.2d SO8, 512 (10th

Cir. 1985), the Tenth Circuit held that the Army Corps had a mandatory

obligation to consider the impacts of projects that it authorizes or funds,

but it never questioned the lower court’s conclusion that “fw hile the

Endangered Species Act does not expand the scope of federal agencies’

authority, its clear language ‘shall insure’ directs them to exercise their

authority under other statutes to the fullest extent possible to carry out its

aims.” Riverside Irrigation Dist: v. Andrews, 568 F. Supp. $83, 588 (D

Colo. 1983).

22

agency—in that case, FERC—had no authority to impose

conditions on a hydroelectric licensee. /d. at 33-34. The

court observed that § 7 simply “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,” adding that 7V/A is “hardly authority to the contrary.”

Id. at 34.

The Ninth Circuit, however, erroneously rejects the Platte

River decision and concludes that it does not reflect a full

consideration of the text and history of § 7(a)(2), Defenders 1,

420 F.3d at 970-71. Yet, the precise issue, including the

legislative history of § 7(a)(2) and the difference between

§ 7(a)(1) and § 7(a)(2), was briefed and presented to the D.C.

Circuit Court. The Ninth Circuit’s characterization of Platte

River, therefore, is unsubstantiated and belied by the facts.~*

Platte River has been followed by the majority of courts.

In American Forest and Paper, EPA argued that the ESA

required that it consider impacts to endangered species when

deciding whether to approve Louisiana’s NPDES permit-

ting program under CWA § 402(b). Am..Forest & Paper

Ass'n, 137 F.3d at 298-99. The Fifth Circuit disagreed. The

court first concluded that the agency’s action was “non-

discretionary” because the language of CWA § 402(b) clearly

states that the “EPA ‘shall’ approve submitted programs

unless they fail to meet one of the nine listed requirements.””°

** The Ninth Circuit’s further suggestion that the availability of an

exemption is somehow relevant (Defenders /, 420 F.3d at 970) ignores the

function of the exemption. The ESC, 16 U.S.C. § 1536(e)(1), can exempt

an agency action from the ESA, but it has no authority to exempt an

agency from other laws. For a discussion of the ESC by one who par-

ticipated in the process, sve Patrick A. Parenteau, [he Exemption Process

and the God Sqaad, reprinted in ENDANGERED SPECIES ACT: LAW,

POLICY, AND PERSPECTIVES 131 (Baur & Irvin eds. 2002).

* Unlike the Fifth Circuit, based upon its expansive definition of dis-

cretion. the Ninth Circuit erroneously concluded that the FPA action of

23

Id. at 297. The court then determined that § 7(a)(2) does not

override statutory constraints on agency discretion. The court

found that § 7(a)(2) “confers no substantive powers” and “the

ESA serves not as a font of new authority, but as something

far more modest: a directive to agencies to channel their

existing authority in a particular direction.” /d. at 298-99.

Next, even the Ninth Circuit's own prior cases recognize a

limitation on when § 7 may apply. In Sierra Club v. Babbitt,

several environmental organizations sought to enjoin the

construction of a logging road on a right-of-way crossing

Bureau of Land Management (“BLM”) forestland. Before

beginning the new road construction, BI.M was contractually

entitled to review the proposed route and object to the project

only if the “route 1) was not the most direct, 2) would

substantially interfere with existing or planned facilities, or 3)

would result in excessive soil erosion.” Sierra Club, 65 F.3d

at 1505. The Ninth Circuit held that BLM’s contractual

agreement relating to the right-of-way limited the agency's

continuing ability to influence the private conduct to three

factors unrelated to species conservation. The court con-

cluded that, pursuant to 50 C.F.R. § 402.03, § 7 did not apply.

because BLM lacked the requisite “discretionary Federal

involvement or contro].” Jd. at 1509 (emphasis in original).

Explaining further, the court stated that. “where . . . the fed-

eral agency lacks the discretion to influence the private

action, consultation would be a meaningless exercise: the

agency simply does not possess the ability to implement

measures that inure to the benefit of the protected species.”

Id.

In Natural Resources Defense Council v. Houston, the

Ninth Circuit found that federal reclamation laws gave

the Bureau of Reclamation sufficient discretion to trigger a

approving the NPDES transfer to a state involved discretion. Defenders /,

420 F.3d at 970. 7

24

§ 7(a)(2) consultation. Natural Res. Def. Council, 146 F.3d at

1126 (“government is to renew the contracts on ‘mutually

agreeable’ terms, that water rights are based on the amount of

available project water, and that the Secretary of the Interior

has the discretion to set rates to cover an appropriate share of

the operation and maintenance costs.”) (citations omitted).

In Turtle Island Restoration Network vy. National Marine

Fisheries Service, 340 F.3d 969 (9th Cir. 2003), the Ninth

Circuit analyzed whether NMFS’s issuance of a fishing per-

mit pursuant to the High Seas Fishing Compliance Act

(“HSFCA”), 16 U.S.C. §§ 5501-5509, was a discretionary

agency action invoking the ESA’s consultation requirements.

Id. at 970. The court defined discretion by stating that “the

discretionary control retained by the federal agency must have

the ability to inure to the benefit of a protected species.” /d. at

974 (citation omitted). After examining the relevant statutory

provisions of HSFCA, which expressly allow NMFS to place

conditions and restrictions upon the issuance of a permit, the

court concluded that NMFS had “ample discretion” to include

conservation measures in an issued permit, thereby triggering

the ESA consultation requirement. /d. at 975.

Ground Zero Center for Non-Violent Action v. U.S. De-

partment of the Navy, 383 F.3d 1082 (9th Cir. 2004) involved

a challenge to the Navy’s decision to expand the Trident

submarine in Bangor, Washington. The. President had or-

dered the expansion and the Navy lacked discretion to ignore

that order. The Ninth Circuit concluded that § 7(a)(2) was

inapplicable, because the Navy lacked discretion to cease the

Trident operations or change the siting location. /d. at 1092.

Other Ninth Circuit precedent similarly recognizes that the

application of § 7(a)(2) depends upon the existence of mean-

ingful discretion. See Envil. Prot. Info. Ctr.. 255 F.3d at 1083

(agency did not retain discreuonary control over incidental

take permit because there was no requirement to reinitiate

consultation on subsequently listed species): Marhled Mur-

25

relet, 83 F.3d at 1073-75 (nondiscretionary actions or those

over which an agency has no control afford the agency no

opportunity to customize the action to avoid jeopardy or

adverse modification).

As these decisions demonstrate, consistent with other cir-

cuits, the Ninth Circuit historically has conditioned the

application of ESA § 7(a)(2) on whether the agency has dis-

cretion to take the relevant action to benefit the ESA-listed

species. As Judge Thompson recognized, “the court previ-

ously recognized that “an agency may have decisionmaking

authority and yet not be empowered, either as an initial matter

or in conjunction with some continuing authority, to act to

protect endangered or threatened species.” Defenders 1, 420

F.3d at 979 (Thompson, J. dissenting). The majority’s opin-

ion is the first instance where the Ninth Circuit has applied

§ 7(a)(2) where the agency lacks discretion.

The structure of the ESA underscores this case law.

Congress expressly stated that one of the purposes of the ESA

is that agencies “shall utilize their authorities in furtherance

of the purposes of this chapter.” 16 U.S.C. § 1531(c)(1). In

§ 7(a)(1), Congress repeated this prescription that “Federal

agencies shall. . . utilize their authorities in furtherance of the

purposes of this chapter... .” 16 U.S.C. § 1536(a)(1). Con-

yress’ intent to focus on the scope of an agency's authority

—or discretionary actions -is also evident elsewhere in

the ESA.”°

*’ When describing the consultation process, the Committee on En-

vironment and Public Works commented that “[iJt is the intent of the

committee that this review process would take place well before the

exercise of agency discretion which would result in contracts tor

construction, actual construction activities, or other potentially destructive

activity.” HLR. Rep. No. 1625, 95th Cong. 2d Sess. (1978), reprinted in A

LeGis. Hist. oF Tit ESA OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979

AND 1980 FOR THE COMM. ON ENV’ TE & PUBLIC WORKS OF THIF U.S.

SENATE, 97th Cong. 2d Sess. 744 (1982). When issuing a biological

26

Finally, a primary purpose of § 7(a)(2) consultation is to

insure that the Service Agencies with wildlife expertise have

meaningful opportunities to influence decisions by the action

agencies. Where the action agencies have no authority to

make decisions, and thus no discretion, this fundamental

purpose of the consultation processes cannot be achieved

because the ESA does not provide federal agencies with

additional authority to do what Congress has not otherwise

authorized to be done.

CONCLUSION

For the reasons set forth above, the Hydroelectric Group

respectfully requests that the Court reverse the Ninth Circuit's

decision in Defenders / and hold that § 7(a)(2) does not

override statutory mandates or constraints placed on an

agency’s discretion by other Acts of Congress.

Respectfully Submitted,

SAM KALEN

Counsel of Record

MICHAEL. A. SWIGER

MAITHEW A. LOVE

VAN NESS FELDMAN, P.C.

1050 Thomas Jefferson Str., N.W.

Washington, D.C. 20007

(202) 298-1 800

February 20, 2007 Counsel for Amici Curiae

opinion in which jeopardy exists, the Secretary is limited to suggesting

reasonable and prudent alternatives that “can be taken by the Federal

agency or applicant...” 16 U.S.C. § 1536(bM 3). SO C.FLR. § 402.02. CF

Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 3d

$15, 823 (9th Cir. 1998).