# Petition for Writ of Certiorari — Environmental Protection Agency v. Defenders of Wildlife

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 1105

## Text

oupreme Coy
FILE H! U.S.

CY 06-549 0cT 23 2006
Ne. OFFICE OF THE CLERK

In the Supreme Court of the Anited States

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, PETITIONER

v.

DEFENDERS OF WILDLIFE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record
SUE ELLEN WOOLDRIDGE
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART

ROGER R. MARTELLA, JR. Assistant to the Solicitor
Acting General Counsel General

MICHAEL G. LEE ANDREW C, MERGEN
Attorney DAVID C. SHILTON
Environmental Protection Attorneys

Agency

Washington, D.C. 20460 Department of Justice

Washington, D.C. 20530-0001

(202) 514-221 ;

QUESTION PRESENTED

Whether Section 7(a)(2) of the Endangered Species Act of
1973, 16 U.S.C. 1536(a)(2), which requires each federal agency
to insure that its actions do not jeopardize the continued
existence of a listed species or modify its critical habitat,
overrides statutory mandates or constraints placed on an
agency’s discretion by other Acts of Congress.

(1)

PARTIES TO THE PROCEEDINGS

The United States Environmental Protection Agency is
the petitioner in this Court and was a respondent in the court
of appeals. '

The following parties are respondents in this Court and
were petitioners in the court of appeals: Defenders of
Wildlife, Center for Biological Diversity, and Craig Miller.

The following parties are respondents in this Court and
were intervenors in the court of appeals: National Associa-
tion of Home Builders, State of Arizona, and Arizona
Chamber of Commerce.

(II)

TABLE OF CONTENTS

Page
I ee re ne Era 1
ES ox cnceeakeeennhet b4ubbnddkeeinseksvensnbes 1
Statutory provisions involved ..............eeceeeeeeeees 2
fs ict ceded ia hee eiauads deeenuee sb euneneste 2
Reasons for granting the petition ....................005- 9
DE ccuscuvdenndcaVecbunaeeenassesiis “ouneeend 27

TABLE OF AUTHORITIES -

Cases:

American Forest & Paper Ass’n v. EPA, 137 F.3d 291

PEE cists dedtsnedbavednnsedieenes passim
Arkansas v. Oklahoma, 503 U.S. 91 (1992) .....2....... 2
Babbitt v. Sweet Home Chapter of Communities, 515

DE tsctudecdauh Weadbaes thu eanvnes 18, 26
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ..... 18
Conservation Law Found. of New England, Inc. v.

Andrus, 623 F.2d 712 (1st Cir. 1979) ............... 20
Cook County v. United States ex rel. Chandler, 538

PE ices acurreedeLeresenebbadensebens 17
Defenders of Wildlife v. Administrator, EPA, 882

£ 4 ik SB PPPTTTTT TTT Terr TTT eee 20, 21
Department of Transp. v. Public Citizen, 541 U.S. 752

PE” hi etpe wees dee biiee ease ae eee 12, 13, 18, 23
Morton v. Mancari, 417 U.S. 535 (1974) 2... eee. 10
Operation of Mo. River Sys. Litig., In re, 421 F.3d

I id Guu cedsveenkedebissen wes 21

Platte River Whopping Crane Habitat Maintenance
Trust v. FERC, 962 F.2d 27 (D.C. Cir. 1992) . 8, 9, 19, 21

Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir. 1978) 2... 2
TVA v. Hill, 487 U.S. 153 (1978) ............... 15, 16, 19

(IIT)

IV

Case—Continued: : Page

Watt v. Alaska, 451 U.S. 259 (1981) .............0008- 10

Statutes and regulations:

Act of Dec. 28, 1979, Pub. L. No. 96-159, § 4, 93 Stat.
BD cecveccesccnsenchevesudeabscsseueeeieeene 17

Federal Water Pollution Control Act, 33 U.S.C. 1251
et seq.:

SUG. TO oo :kcncisssssecdecseeee 2
33 U.S.C. 1342(b) (§ 402(b)) .......... ee eee passim
SE DL.. GI od cc ciciecddcvcensnanecs 2,6
SE UBL: SRD oc ckiscatdiddviansieeee 2

Endangered Species Act of 1973, 16 U.S.C. 1531
et seq.:

SEU BE.. CRD sc iidccescssssdinueeeeeeeee 2
OR TFARAS. TERMS) os ccekcvevuderccaunacunceen 13
DE UA SHEED 000 00.0000000eceeenseneaeeeene 21
16 U.S.C. 1533 (2000 & Supp. IV 2004) ............ 3
16 U.S.C. 1536 (1976) (Pub. L. No. 93-205, § 7, 87

— RTT Te ee 14
16 U.S.C. 1536(a)(1) ($ T(a)(1)) «0.2... eee ee eee 13, 15
16 U.S.C. 1536(a)(2) (§ 7(a)(2)) 2... ee ee eee passim
OD Sa: SD 0 000054400kedeen Oiecceonvceane 3
16 U.S.C. 1536(b)(3)(A) (8 T(b\B)(A)) .. 6... 3, 13,14
BO UES. TED so cc nccvesscuneesseensoaeeeee 3
SUBS. SBS GS... on. ccvcvisdsvecseasesseee 20

Endangered Species Act Amendments of 1978, Pub.
L. No. 95-632, 92 Stat. 3751:
Ph f. See 15, 16
© S, OB Beat. SIT GIGD oo cccvcsccsvcvcesesecuees 16

V

Statute and regulations—Continued: Page
EE ses es ead cceedeeenoneeneseess 17
50 C.F .R.:
Pt. 17:
i een odie eeeeneeesese ees one
Pt. 222:
EE ee 3
TEC ak dnd Cee b ei denenenesecetecesess 3
eGR EE he Rint ekouse6bb6bES 06540 00s00000800 3
i dete eeu see dkenseceecencoecnes 3
ES She peeedeeniesseus 4, 14, 17, 26
Chine cesenesbetesadseceers passim
eet eldgecgenuensssssese 3
EE cite e edb tdenéegt-eesseces sees. 3
Do. eb ied ceeeeuneesaceseseses 3
Miscellaneous:
IGEEIED co ccccccsecccccccesceces 15
61 Fed. Reg. (1996):
ARGU eRGsddbhaveseande@ereeescecesces: 24
re 24
DT Seer tiue seh ekeaneenss¥ees sencececcceede 24
EE EE OS ne 24
63 Fed. Reg. 33,657-33,658 (1998) ................0065 24
Hi4 Fed. Reg. (1999): «
EEE ee 24
i ere Ue ee Seca ccegeeneetacsesees 24
66 Fed. Reg. (2001):
a. eiencvacccesees 24

ce ined see e cei eadecesceessseeee 24

VI
Miscellaneous—C ontinued: Page
67 Fed. Reg. (2002):
NI ieee ee cc ele eee ieee aaa 4, 23
TEED ccccccceseccccccccesecsccscoccocecsusens 5
FED ccvcccansesctncccvccsccceecsdceesseeeni 24

H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. (1978) .. 16

In the Supreme Court of the Gnited States

No.

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, PETITIONER

v.
DEFENDERS OF WILDLIFE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States En-
vironmental Protection Agency (EPA), respectfully petitions for
a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. 1a-67a) is reported
at 420 F.3d 946.

JURISDICTION

The judgment of the court of appeals was entered on August
22, 2005. Petitions for rehearing were denied on June 8, 2006
(App. 68a-69a). On August 30, 2006, Justice Kennedy extended
the time within which to file a petition for a writ of certiorari to
and including October 6, 2006. On September 27, 2006, Justice
Kennedy further extended the time to and including October 23,
2006. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

(1) -

STATUTORY PROVISIONS INVOLVED

Section 7ta)-(b) of the Endangered Species Act of 1973, 16
U.S.C. 1536(a)-(b), and Section 402(b) of the Federal Water
Pollution Control Act (Clean Water Act or CWA), 33 U.S.C.
1342(b), are reproduced in the appendix to this petition (App.
117a-124a).

STATEMENT

1. The Clean Water Act “anticipates a partnership between
the States and the Federal Government, animated by a shared
objective: ‘to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33 U.S.C. 1251(a)).
Under the CWA, the National Pollutant Discharge Elimination
System (NPDES) is administered by EPA unless and until
authority to administer the program within a particular State is
transferred to state officials. The Act provides that “the
Governor of each State desiring to administer its own permit
program for discharges into navigable waters within its juri-
sdiction may submit to [EPA] a full and complete description of
the program it proposes to establish and administer under State
law or under an interstate compact.” 33 U.S.C. 1342(b). The
CWA further states that EPA “shall approve each submitted
program unless [it] determines that adequate authority does not
exist” to ensure that nine specified criteria are satisfied. /bid.;
see 33 U.S.C. 1342(b)(1)-(9). Section 402(b) thus prescribes “a
system for the mandatory approval of a conforming State
program.” Shell Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir.
1978). After NPDES permitting authority has been transferred
to state officials, EPA can object to a state-issued permit only if
it is “outside the guidelines and requirements” of the CWA. 33
U.S.C. 1342(d)(2).

2. Congress enacted the Endangered Species Act of 1973
(ESA) to protect and conserve endangered and threatened
species. 16 U.S.C. 1531(b). To accomplish that goal, Congress

3

directed the Secretaries of Commerce and the Interior to list
threatened and endangered species and designate their critical
habitats. See 16 U.S.C. 1533 (2000 & Supp. IV 2004). The Fish
and Wildlife Service (FWS) implements the ESA with respect to
species under the jurisdiction of the Secretary of the Interior.
See 50 C.F.R. 17.11, 402.01(b). The National Marine Fisheries
Service (NMFS) administers the Act with respect to species
under the jurisdiction of the Secretary of Commerce. See 50
C.F.R. 222.101(a), 223.102.

Section 7(a)(2) of the ESA requires that “|ejach 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 (hereinafter in this section referred to as an
‘agency action’) is not likely to jeopardize the continued existence
of any endangered species or threatened species.” 16 U.S.C.
1536(a)(2). Section 7(b)(3)(A) states that, once the consultation
process has been completed, “the Secretary shall provide to the
Federal agency and the applicant, if any, a written statement
setting forth the Secretary’s opinion, and a summary of the
information on which the opinion is based, detailing how the
agency action affects the species or its critical habitat.” 16
U.S.C. 1536(b)(3)(A). Section 7(b)(3)(A) further provides that,
“{ilf jeopardy or adverse modification is found, the Secretary
shall suggest those reasonable and prudent alternatives which he
believes would not violate subsection (a)(2) of [Section 7] and can
be taken by the Federal agency * * * in implementing the
agency action.” 16 U.S.C. 1536(b)(3)(A).

Regulations promulgated jointly by the Secretaries of
Commerce and the Interior furnish a structure for consultation
concerning the likely effects on listed species of proposed federal
actions. See 50 C.F.R. Pt. 402; see also 16 U.S.C. 1536(b) and (c).
Inter alia, the regulations establish a process of “formal
consultation,” see 50 C..R. 402.14, which culminates in the
issuance of a biological opinion (BiOp), see 50 C.F.R. 402.14(h),
that includes a “detailed discussion of the effects of the action on
listed species or critical habitat,” 50 C.F.R. 402.14(h\(2). The

4

term “effects of the action” is defined to include “indirect
effects,” ie., “those that are caused by the proposed action and
are later in time, but still are reasonably certain to occur.” 50
C.F.R. 402.02. The regulations further provide that “Section 7
and the requirements of this. part apply to all actions in which
there is discretionary Federal involvement or control.” 50 C.F.R.
402.03.

3. In January 2002, Arizona officials requested EPA’s
authorization to administer the NPDES program in that State.
App. 7a. In June 2002, EPA announced that it had initiated
consultation with FWS pursuant to Section 7(a)(2) of the ESA.
See 67 Fed. Reg. 49,919 (2002). During the consultation process,
FWS staff expressed concern that the transfer of NPDES
authority might have indirect effects on species listed under the
~ ESA. That concern was grounded in the fact that, whereas EPA
itself. would be required by Section 7(a)(2) to consult with FWS
in order to assess the likely effects on listed species of individual
permitting decisions under the CWA, Arizona officials would be
under no similar obligation, since Section 7(a)(2) of the ESA
applies only to federal agency action. See C.A. App. 116-117."

’ The focus of FWS field staff's concern was not that discharges permitted
by the State after a transfer of authority would cause adverse impacts on water
quality that in turn would jeopardize listed species. FWS agreed with EPA
that the proposed transfer of authority was unlikely to have that effect.
Rather, FWS field staff's concern was that the development associated with
such discharges might harm certain terrestrial species. Because large-scale
development could not as a practical matter go forward without CWA discharge
permits, EPA in its own administration of the CWA would treat the impacts of
associated development as impacts of the relevant CWA permits. EPA staff
pointed out, however, that if authority over the NPDES program in Arizona
was transferred to state officials, EPA would lack the power to object to state
permits based on such /on-water-quality-related impacts on listed species.
EPA turther stated that the transter of authority could not properly be
regarded as the cause of adverse impacts to terrestrial species, both because
the link between the two is speculative and attenuated as a factual matter, and
because the CWA directs EPA to approve a State’s application to assume
administration of the NPDES program if the criteria in Seetion 402(b) of the
CWA are met. FWS staff, by contrast, took the position that the consultation

5

On December 3, 2002, FWS issued its BiOp, which concluded
that the requested transfer of NPDES permitting authority
would not cause jeopardy to listed species. C.A. App. 204-231.
FWS stated that, “{alfter further reflection and analysis of
causation and the definition of indirect effects found in our
Consultation Handbook, our final opinion is that the loss of
section 7-related conservation benefits is not an indirect effect of
the approval action.” /d. at 223. FWS explained, inter alia, that
the

loss of any conservation benefit is not caused by EPA's
decision to approve the State of Arizona's program. Rather,
the absence of the section 7 process that exists with respect
to Federal NPDES permits reflects Congress’ decision to
grant States the right to administer these programs under
state law provided the State’s program meets the
requirements of 402(b) of the Clean Water Act.

Id. at 224. FWS also concluded that, even if the effects of the
transfer on listed species could properly be attributed to EPA,
other mechanisms were sufficient to support the conclusion that
the transfer of NPDES permitting authority was not likely to
jeopardize a listed species or adversely modify critical habitat.
See id. at 217-221.

After FWS issued the BiOp, EPA approved the transfer of
permitting authority to Arizona. C.A. App. 232; see 67 Fed. Reg.
at 79,629. EPA found that Arizona’s application met each of the
criteria for program approval specified in Section 402(b) of the
CWA. C.A. App. 258.

4. Defenders of Wildlife and other organizations filed a
petition for review in the court of appeals, contending that EPA
had acted arbitrarily and capriciously by approving Arizona’s

process must include an assessment of indirect effects that FWS believed the
transfer would have on terrestrial species. C.A. App. 117. Pursuant to pro-
cedures set forth in a pre-existing Memorandum of Agreement, tha’ inter-
agency dispute was elevated for resolution at higher levels within the agencies.
See id. at 116.

6

request for authority to administer the NPDES program. The
court of appeals granted the petition for review. App. la-67a.

a. The court of appeals first held that EPA’s approval of
Arizona’s transfer application was arbitrary and capricious
because EPA had “relied during the administrative proceedings
on legally contradictory positions regarding its section 7
obligations.” App. 23a; see App. 23a-28a. The court explained
that, although EPA had construed Section 7 of the ESA as
requiring it to consult with FWS concerning the effect on listed
species of the proposed transfer of permitting authority, FWS’s
no-jeopardy opinion was based in part on the premise that EPA
cannot deny a transfer application under Section 402(b) of the
CWA based on ESA concerns if the CWA criteria are satisfied.
See App. 23a-26a. The court concluded that EPA’s approval of
the transfer application “was not the result of reasoned decision-
making” because “the two propositions that underlie the EPA’s
action—that (1) it must, under the [ESA], consult concerning
transfers of CWA permitting authority, but (2) it is not
permitted, as a matter of law, to take into account the impact on
listed species in making the transfer decision—cannot both be
true.” App. 26a-26a. The court stated that it was therefore
required to “remand to the agency for a plausible explanation of
its decision, based on a single, coherent interpretation of the
statute.” App. 28a.

b. Rather than, in fact, remanding the case on that ground,
however, the court of appeals went on to hold that EPA had both
the power and the duty under the ESA to determine whether
transfer of NPDES permitting authority to state officials would
jeopardize listed species, and to deny a transfer application if it
found jeopardy to be likely, even though it is undisputed in this
case that the State of Arizona had satisfied the criteria (see 33
U.S.C. 1342(b)(1)-(9)) that trigger the requirement in 33 U.S.C.
1342(b) that EPA “shall” approve a State’s transfer application.
App. 28a-4sa; see App. 3la nll. That holding was grounded in
the court's view that Section 7 of the ESA provides aii

7

“affirmative grant of authority to attend to protection of listed
species,” over and above whatever obligations federal agencies
may have under their own governing statutes. App. 34a; see
App. 38a-39a. The court found that authority to be unaffected by
the CWA’s directive that EPA “shall approve” state applications
that satisfy the criteria set forth in 33 U.S.C. 1342(b). See App.
40a. The court of appeals also rejected the contention, advanced
by non-federal parties who had intervened in support of EPA,
that EPA’s approval of the State’s transfer application was not
subject to Section 7 of the ESA because it was not a “dis-
cretionary” action within the meaning of 50 C.F.R. 402.03. See

App. 40a-44a. The court construed that regulation’s reference to
- “discretionary” action to encompass all agency actions that are
“authorized, funded, or carried out” by the agency. App. 43a
(quoting 16 U.S.C. 1586(a)(2)).?

The court of appeals acknowledged that its conclusion that
Section 7(a)(2)’s obligations are triggered in this case even
though Section 402(b) of the CWA mandates approval of a
transfer application conflicts with decisions of two other courts
of appeals. See App. 44a-47a (citing American Forest & Paper
Assn v. EPA, 137 F.3d 291 (5th Cir. 1998), and Platte River
Whooping Crane Habitat Maint. Trust v. FERC, 962 F.2d 27
(D.C. Cir. 1992)). The court believed, however, that its holding
was supported by Ninth Circuit precedent and decisions of two
other courts of appeals. App. 42a-43a, 44a-46a, 47a-48a."

ce. Judge Thompson dissented, relying on 50 C.F.R. 402.03
and on an array of Ninth Circuit precedents holding that Section

* The court of appeals reached that cenclusion on an important question of
law despite the government's repeated request to have the opportunity for
additional briefing on the question should the court, contrary to the suggestion
of the government, decide to reach the issue. See App. 43a n.19.

’ The court of appeals also held that the other bases for FWS’s no-jeopardy
conelusion did not adequately support EPA's decision to approve the transfer
of permitting authority. App. 4Sa-6 la.

8

7T(a)(2) of the ESA does not encompass agency conduct as to
which the agency lacks discretion. See App. 63a-67a. Judge
Thompson explained:

Here, the EPA did not have discretion to deny transfer of the
pollution permitting program to the State of Arizona;
therefore its decision was not “agency action” within the
meaning of section 7 of the Endangered Species Act. The
Clean Water Act, by its very terms, permits the EPA to
consider only the nine specified factors. If a state’s proposed
permitting program meets the enumerated requirements,
the EPA administrator “shall approve” the program. 33
U.S.C. § 1342(b). This Congressional directive does not
permit the-EPA to impose additional conditions.

App. 65a-66a. Judge Thompson concluded that, because “(t]he
EPA’s authority to grant or to deny the State of Arizona’s
application to administer the pollution permitting program was
nondiscretionary,” the petition for review should be denied. App.
67a.

d. The court of appeals denied rehearing and rehearing en
bane, with six judges dissenting. App. 68a. Judge Kozinski,
writing for the dissenting judges, observed that, “[i]f 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.” App. 78a n.4. The
dissenting judges also explained that the Ninth Circuit’s decision
conflicts with rulings of two other courts of appeals, which have
held that the ESA does not expand the powers of federal
agencies or supersede contrary statutory mandates, but simply
directs agencies’ exercise of existing discretionary authority. See
App. 79a-Sla (citing American Forest & Paper Ass‘n v. EPA,
supra, and Platte River Whooping Crane Trust v. FERC, supra).

REASONS FOR GRANTING THE PETITION

This case presents the important question whether the no-
jeopardy and consultation requirements of Section 7(a)(2) of the
ESA can operate to preclude agency conduct that is mandated by
another Act of Congress. The Ninth Circuit answered that
question in the affirmative, holding that EPA’s approval of
Arizona’s application for transfer of NPDES authority violated
Section 7(a)(2), even though the CWA provides that EPA “shall
approve” a transfer application when specified criteria are met,
and it was undisputed that those CWA criteria were satisfied
here. That ruling is erroneous. Moreover, as both the majority
and dissenting judges recognized, the Ninth Circuit’s ruling
conflicts with decisions of two other courts of appeals, which have
properly construed Section 7(a)(2) of the ESA as channeling
federal agencies’ exercise of their existing discretionary
authority, but not as superseding constraints or overriding
mandates imposed by other laws. And because Section 7(a)(2)
applies to all federal agencies, the court of appeals’ decision has
government-wide significance. Review by this Court is war-
ranted in light of the erroneous nature of the court of appeals’
ruling; the square conflict with decisions of other circuits,
including in this specific context; and the practical importance of
the question presented for all manner of government actors.

1. Section 402(b) of the CWA states in unqualified terms that
EPA “shall approve” a State’s application to administer the
NPDES program “unless” the State fails to satisfy one or more
of the nine criteria set forth in the CWA itself. 38 U.S.C. 1342(b);
see App. 82a (Kleinfeld, J., dissenting from denial of rehearing
en bane) (“The ‘shall/unless’ formula makes the nine conditions
exclusive.”). In the instant case, “[njo party questioned the
EPA's determination that Arizona's transfer application met the
Clean Water Act factors.” App. 3lan.11. The court of appeals
nevertheless set aside EPA’s approval of Arizona’s transfer

10

application, holding that “Section 7(a)(2) [of the ESA] imposes a
duty on the EPA to ‘insure’ its transfer decision is not likely to
jeopardize protected species or adversely modify their habitat,”
and that EPA had failed adequately to perform that duty. App.
48a; see App. 6la-63a. In practical effect, the court treated
Section 7(a)(2) of the ESA as impliedly repealing the CWA’s
directive that EPA “shall approve” a state transfer application
that satisfies the CWA criteria and as effectively imposing a
tenth criterion. See App. 78a n.4 (Kozinski, J., dissenting from
denial of rehearing en banc).

That holding is erroneous. As this Court has repeatedly
recognized, “repeals by implication are not favored,” and “(t]he
intention of the legislature to repeal must be clear and manifest.”
Watt v. Alaska, 451 U.S. 259, 267 (1981) (citations and internal
quotation marks omitted). For the reasons that follow, Section
7(a)(2)’s no-jeopardy and consultation requirements are properly
construed to channel the exercise of federal agencies’ existing
discretionary authority, not to override other federal mandates
or to require species-protective measures that are forbidden by
other federal laws. That reading is particularly appropriate
because it avoids unnecessary conflicts between the ESA and
other Acts of Congress. See Morton v. Mancari, 417 U.S. 535,
551 (1974) (“[W]hen two statutes are capable of co-existence, it
is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as
effective.”). If Section 7(a)(2) is construed in that manner, its no-
jeopardy and consultation requirements are fully consistent with
the CWA’s directive that EPA “shall approve” any state NPDES
transfer application that satisfies the nine specified CWA
criteria.

a. Section 7(a)(2) of the ESA requires each federal agency to
“insure that any action authorized, funded, or carried out by such
agency * * * is not likely to jeopardize the continued existence
of any endangered specics or threatened species.” 16 U.S.C.

11

1536(a)(2). Section 7(a)(2) thus does not impose upon federal
agencies any affirmative duty to protect listed species from
harms caused by other actors, such as a state permittee. Rather,
a federal agency’s duty under that provision is simply to ensure
that the species is not jeopardized by actions attributable to the
agency itself. Where (as here) the conduct that is alleged to
cause harm to species is mandated by an Act of Congress, the
effect is not properly attributed to the federal agency that simply
carries out the statutory directive.

The gravamen of respondents’ challenge to the transfer of
NPDES authority is that Arizona’s permitting regime may be
less protective of listed species than is the NPDES program as
administered by EPA officials because the State’s individual
permitting decisions will not be federal agency actions and
therefore will not be subject to the no-jeopardy and consultation
requirements of Section 7(a)(2) of the ESA. Acceptance of that
position would frustrate Congress’s federalism-sensitive judg-
ment to transfer authority to States once the nine criteria are
met. And it is clearly that congressional judgment, not any dis-
cretionary agency action, that would be the cause of any adverse
impact that the transfer might entail.

As FWS explained in its BiOp in this case, any harm to listed
species that may result from the challenged transfer is “not
caused by EPA’s decision to approve the State of Arizona's
program. Rather, the absence of the section 7 process that exists
with respect to Federal NPDES permits reflects Congress’
decision to grant States the right to administer these programs
under state law provided the State’s program meets the
requirements of [Section] 402(b) of the Clean Water Act.” C.A.
App. 224. FWS thus correctly recognized that Congress’s
decision to enact the mandatory directive contained in 33 U.S.C.
1342(b), rather than EPA’s compliance with that statutory
command, is the legal cause of any harm to listed species that the
transfer of NPDES permitting authority may entail. FWS

12

regulations implementing the ESA make clear that an agency is
required to take into account only those effects that are “caused”
by its actions. See C.A. App. 222-223 (citing 50 C.F.R. 402.02
(defining “indirect effects” as those that are both “caused” by the
proposed action and “are later in time, but still are reasonably
certain to occur”)).

The causation analysis in the FWS BiOp is strongly
supported by this Court’s subsequent decision in Department of
Transportation v. Public Citizen, 541 U.S. 752 (2004). The Court
in Public Citizen held that the National Environmental Policy
Act (NEPA) did not require the Federal Motor Carrier Safety
Administration (FMCSA) to prepare an Environmental Impact
Statement (EIS) assessing the environmental effects of allowing
Mexican trucks onto United States roads once the President
lifted a prior moratorium on Mexican trucks. The Court
explained that “NEPA requires a reasonably close causal
relationship between the environmental effect” and the pertinent
agency conduct before an EIS must be prepared. /d. at 767
(internal quotation marks omitted). The Court further observed
that

F MCSA has only limited discretion regarding motor vehicle
carrier registration: It must grant registration to all
domestic or foreign motor carriers that are willing and able
to comply with the applicable * * * requirements. FMCSA
has no statutory authority to impose or enforce emissions
controls or to establish environmental requirements
unrelated to motor carrier safety.

7d. at 758-759 (citation and internal quotation marks omitted). In
those circumstances, the Court reasoned, “the legally relevant
cause of the entry of the Mexican trucks is not FMCSA’s action,
but instead the actions of the President in lifting the moratorium
and those of Congress in granting the President this authority
while simultaneously limiting FMCSA’s diseretion.” /d. at 769.

13

Thus, the Court in Public Citizen concluded that, “where an
agency has no ability to prevent a certain effect due to its limited
statutory authority over the relevant actions, the agency cannot
be considered a legally relevant ‘cause’ of the effect.” 541 U.S. at

70. The same principle applies here. Because the CWA
forecloses EPA’s ability to deny a State's transfer application
based on projections of injury to listed species, EPA is not the
legal cause of any such harm that may result from activities that
are authorized by NPDES permits issued by the State of Arizona
after the transfer occurs. Instead, the legally relevant cause is
the action of “Congress in * * * limiting |EPA’s] discretion,”
Public Citizen, 541 U.S. at 769, by mandating approval of a
transfer application that satisfies the criteria in Section 402(b) of
the CWA. The agency’s approval of Arizona’s transfer appli-
cation therefore cannot properly be said to “jeopardize”—i.e.,
cause jeopardy to—the continued existence of any listed species."

b. Other provisions of the ESA reinforce the conclusion that
Section 7(a)(2)’s no-jeopardy and ancillary consultation
requirements do not apply to agency conduct that is mandated by
another federal statute. Section 2(¢) of the ESA reflects Con-
gress’s policy judgment that all federal agencies “shall utilize
their authorities in furtherance of” the statute’s purposes. 16
U.S.C. 1531(e)(1) (emphasis added). Section 7(a)(1) similarly
provides that agencies “shall * * * utilize their authorities in
furtherance of the purposes of [the ESA] by carrying out
programs for the conservation of endangered species.” 16 U.S.C.
1536(a)(1) (emphasis added). And Section 7(b)(3)(A), which
governs the inter-agency consultation process, states that, “[ilf
jeopardy or adverse modification is found, the Secretary shall
suggest those reasonable and prudent alternatives which he

‘Alternatively, EPA’s lack of discretion in this area might support a

conclusion that EPA's approval of a State's transfer application in accordance
with the CWA’s command is not an “ageney action” within the meaning of
Section 7(aX2) of the FSA. See App. tija (Thompson, .1., dissenting).

14

believes would not violate [Section 7(a)(2)] and can be taken by
the Federal agency * * * in implementing the agency action.”
16 U.S.C. 1536(b\(3)(A) (emphasis added). The italicized
language in each of those provisions reflects Congress’s intent
that federal agencies’ efforts to prevent harm to listed species
must be undertaken in conformity with any constraints imposed
by other laws.

The court of appeals appeared to recognize that the phrase
“utilize their authorities,” where it appears in the ESA, reflects
Congress’s intent that federal agencies should pursue the ESA’s
objectives only to the extent that they are permitted to do so by
other provisions of law. See App. 34a-35a, 46a. The court
concluded, however, that because Section 7(a)(2) itself does not
contain that phrase or similar limiting language, Section 7(a)(2)’s
no-jeopardy mandate supersedes mandatory directives contained
in other Acts of Congress. See 7bid. That conclusion reflects a
misunderstanding of the ESA’s history.

As originally enacted in 1973, Section 7 of the ESA directed
all federal agencies to

utilize their authorities in furtherance of the purposes of
{the| Act by carrying out programs for the 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 and
threatened species or result in the destruction or modifi-
cation of |critical] habitat of such species.

ESA, Pub. L. No. 93-205, 87 Stat. 892 16 U.S.C. 1536 (1976)). As

its text just quoted makes clear, in Section 7's original form, the

obligations of federal agencies to carry out conservation

~ Accord 50. CFR. 402.02 (defining reasonable and prudent alternatives as
alternatives that. ivfer alia, “ean be implemented consistent with the scope of
the Federal agency's legal authority and jurisdiction”).

15

programs (now contained in Section 7(a)(1)) and to avoid
jeopardy (now contained in Section 7(a)(2)) were both qualified
by the phrase “utilize their authorities.” Consistent with that
limitation, Representative Dingell, the floor manager of the bill
in the House of Representatives, explained that the ESA as
originally enacted “substantially amplified the obligation of
* * * agencies * * * to take steps within their power to carry
out the purposes of this act.” 119 Cong. Rec. 42,913 (1973)
(emphasis added). This Court quoted that very statement by
Representative Dingell in its seminal ESA decision in TVA v.
Hill, 437 U.S. 153, 183 (1978).

Through amendments eriacted in 1978, Section 7 of the ESA
was divided into subsections. See Endangered Species Act
Amendments of 1978, Pub. L. No. 95-632, § 3, 92 Stat. 3752.
Subsection (a) of Section 7, as enacted in those 1978 amend-~
ments, contained in two separate sentences substantially the
same language as is now set forth in current Subsections 7(a)(1)
and (2). As amended in 1978, Section 7(a) provided as follows:

Consultation.—The Secretary shall review other programs
administered by him and utilize such programs in
furtherance of the purposes of [the ESA]. All other Federal
agencies shall, in consultation with and with the assistance of
the Secretary, utilize their authorities in furtherance of the
purposes of this Act by carrying out programs for the
conservation of endangered species and threatened species
listed pursuant to section 4 of this Act. Each Federal agency
shail, in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or
carried out by such agency (hereinafter in this section
referred to as an ‘agency’ action) does not jeopardize the
continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
habitat of such species which is determined by the Secretary,
after consultation as appropriate with the affected States, to

16

be critical, unless such agency has been granted an
exemption for such action by the Committee pursuant to
subsection (h) of this section.

1978 Amendments, § 3, 92 Stat. 3752.

The Conference Report accompanying the 1978 amendments
explained that the new subsection 7(a) “essentially restates
section 7 of existing law.” H.R. Conf. Rep. No. 1804, 95th Cong.,
2d Sess. 18 (1978). Thus, while the no-jeopardy and ancillary
consultation requirements were set forth in a separate sentence
that did not repeat the phrase “utilize their authorities”
contained in the preceding sentence, the 1978 legislative history
indicates that Congress in rewording Section 7 did not seek to
expand the scope of federal agencies’ no-jeopardy and
consultation duties in potentially far-reaching ways, but rather
intended to preserve the substance of the requirements in their
prior form. Indeed, the court of appeals in this case recognized
that “(|t}he 1978 amendment did not change section 7's
substantive provisions,” App. 36a, though the court failed to
appreciate the significance of that fact. The clear import of the
1978 amendments therefore is that the obligation of an agency
not to jeopardize a listed species remained simply a particular
(albeit mandatory) aspect of the more generalized provision in
the preceding sentence for agencies to “utilize their authorities”
in furtherance of the Act’s purposes.

The foregoing history is particularly significant in light of the
events that precipitated passage of the 1978 amendments. Those
amendments were enacted only a few months after this Court's
decision in TVA v. Hill, supra, which construed the ESA to
preclude operation of the Tellico Dam in Tennessee. See 437
U.S. at 156-158, 193-195. Inter alia, the 1978 amendments
softened the practical effect of the decision in H7// by creating
the Endangered Species Committee, which is authorized to grant
exemptions from Section 7(a)(2)'s no-jeopardy mandate, see 1978
Amendments, § 3, 92 Stat. 3753-3760, and by directing the

17

Committee promptly to determine whether the Tellico Dam and
Reservoir Project should be granted an exemption, see id. § 5, 92
Stat. 3761. Given that sequence of events, it is most unlikely that
Congress chose simultaneously to expand the reach of Section 7’s
no-jeopardy requirement to require an agency to ignore a
mandate in another Act of Congress. And it is altogether
implausible to suppose that Congress intended to accomplish
that result obliquely, by putting the phrase “utilize their
authorities” in a separate sentence from Section 7(a)’s no-jeop-
ardy and consultation requirements, without mentioning the
change in the legislative history. Cf. Cook County v. United
States ex rel. Chandler, 538 U.S. 119, 132-134 (2003) (declining to
construe 1986 amendments to the False Claims Act as impliedly
removing municipal corporations from the Act’s coverage when
such a change would have been contrary to the primary thrust of
the 1986 legislation).”

c. The federal agencies charged with primary responsibility
for the administration of the ESA have addressed the application
of Section 7(a)(2)’s no-jeopardy and consultation requirements to
agency conduct, like EPA’s approval of Arizona’s transfer
application in this case, that is affirmatively mandated by some
other provision of law. First, as noted above, a regulatory
provision jointly adopted by FWS and NMFS provides that the
relevant effects on listed species under Section 7(a)(2) are those
“caused” by the agency's own action. 50 C.F.R. 402.02 (defining
“effects of the action”). The effects of a statutory mandate are
caused by Congress, not by the agency.

" In 1979, Section 7(a) was further divided into subsections (1), (2), and (3).
See Act of Dec. 28, 1974, Pub. L. No. 96-159, § 4, 98 Stat. 1226. Once again,
however, that further subdi> sion made no substantive change. Accordingly,
an agency's duty to “insure” that its actions will not jeopardize a listed species
(and to engage in consultation to that end) continues to be limited to measures
the agency might take to “utilize |its] authorities” under existing law. The
1979 amendments also added the final sentence of what is now Section Tiay(2).
See ibid.

18

Second, another regulatory provision adopted jointly by
F'WS and NMFS states that “Section 7 and the requirements of
[50 C.F.R. Pt. 402] apply to all actions in which there is
discretionary Federal involvement or control.” 50 C.F.R. 402.03
(emphasis added). That rule reflects the longstanding view of
FWS and NMFS that Section 7 channels federal agencies’
exercise of existing authority and discretion, but does not
supersede other legal constraints on agency conduct.

The construction of Section 7 of the ESA that is reflected in
50 C.F.R. 402.02 and 402.03 is reasonable and is entitled to
deference under the principles announced in Chevron U.S.A. Ine.
v. NRDC, 467 U.S. 837 (1984). See Babbitt v. Sweet Home
Chapter of Communities, 515 U.S. 687, 703 (1995) (Sweet Home)
(“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
interpretation.”). The court of appeals in this case quoted 50
C.F.R. 402.02 and recognized its parallel to the causation
standard under NEPA as explained in Public Citizen, see App.
30a, but then reached a conclusion flatly contrary to this Court’s
analysis in Public Citizen. As for 50 C.F.R. 402.03, the court of
appeals construed its reference to “actions in which there is
discretionary Federal involvement or control” to encompass
EPA’s approval of Arizona’s transfer application, on the ground
that “EPA had exclusive decisionmaking authority over
Arizona’s pollution permitting transfer application,” App. 44a,
even though EPA did not have discretion under the CWA to
deny the transfer but was instead compelled to grant Arizona's
application once the CWA criteria were satisfied. FWS and
NMFS have since confirmed, however, that agency conduct
mandated by another Act of Congress is not subject to
“discretionary Federal involvement or control” within the
meaning of Section 402.08. See pp. 25-26, infra; App. 103a-1 16a.

19

2. As the court of appeals acknowledged (see App. 44a-45a,
46a-47a; see also App. 79a-8la (Kozinski, J., dissenting from
denial of rehearing en banc)), the court’s decision in this case
conflicts with decisions of two other circuits, which have correctly
held that the no-jeopardy requirement of Section 7(a)(2) of the
ESA does not apply to agency conduct that is mandated by
another federal statute.

a. In Platte River Whooping Crane Habitat Maintenance
Trust v. FERC, 962 F.2d 27 (1992) (Platte River), the District of
Columbia Circuit held that Section 7 of the ESA did not
supersede limitations imposed by the Federal Power Act on the
authority of the Federal Energy Regulatory Commission to
amend existing licenses. See id. at 34. The court explained that
the ESA “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.” /bid. The court
specifically rejected the contention that 7VA v. Hill supported
a more expansive construction of Section 7, noting that this
Court’s decision in Hill “did not even consider whether section
7 allows agencies to go beyond their statutory authority to carry
out the purposes of the ESA.” /bid.; compare App. 32a (court of
appeals in this case states that the decision in Hill “confirms (the
court’s| textual interpretation” of Section 7(a)(2)).

b. In American Forest & Paper Ass'n v. EPA, 137 F.3d 291
(1998) (American Forest), the Fifth Cireuit relied in part on
Platte River in rejecting the argument that the ESA trumps the
mandatory character of the CWA state-transfer provisions or
supplants the CWA's criteria ior approving transfers of
authority. The court in American Forest considered the question
whether EPA could condition a transfer of NPDES permitting
authority to Louisiana on that State’s agreement to consult with
FWS and/or NMFS regarding impacts or endangered and —
threatened species before issuing permits under the CWA. See
id. at 293-294, 297, 298-299. In holding that EPA could not

20

impose such a condition, the Fifth Circuit stated that “[t]he
language of {33 U.S.C. 1342(b)] is firm: It provides that EPA
‘shall’ approve submitted programs unless they fail to meet one
of the nine listed requirements.” /d. at 297. With respect to
-Section 7(a)(2) of the ESA, the court stated:

EPA argues that ESA § 7(a)(2) * * * compels EPA to
do everything reasonably within its power to protect
endangered species. The flaw in this argument is that if
EPA lacks the power to add additional criteria to [33 U.S.C.
1342(b)|, nothing in the ESA grants the agency the authority
to do so. Section 7 of the ESA merely requires EPA to
consult with FWS or NMFS before undertaking agency
action; it confers no substantive powers.

Id. at 298. The court concluded that “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. The upshot is that EPA cannot invoke the
ESA as a means of creating and imposing requirements that are
not authorized by the CWA.” /d. at 299.’

‘ The Ninth Circuit's reliance (App. 45a-46a) on Conservation Law
Foundation of New England, lnc. v. Andrus, 623 F.2d 712 (1st Cir. 1979), and
Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294 (8th Cir. 1989), is
misplaced. In Conservation Law Foundation, the court upheld the denial of
a preliminary injunction against a lease sale under the Outer Continental Sheif
Lands Act (OCSLA). See 623 F.2d at 714-715, 719-720. The court observed
that the ESA would apply to future exploration and production stages of the
project, see id. at 715, but it did not address the proper resolution of any
hypothetical future dispute in which Section 7(a)(2) of the ESA might be
claimed to prohibit conduct that the OCSLA required. The court in Defenders
of Wildlife held that the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) “does not exempt the EPA from complying with ESA requirements
when the EPA registers pesticides,” 882 F.2d at 1299, and it concluded that
particular EPA registrations of strychnine violated Section 9 of the ESA, see
id. at 1300-1301. The court did not find a violation of Section 7(a)(2), however,
nor did it suggest that the FIFRA required EPA to register the pertinent
strychnine products. The court therefore had no vecasion to address the

21

3. The court of appeals’ decision raises issues of govern-
ment-wide significance. Section 7(a)(2) applies to every “Federal
agency,” 16 U.S.C. 1536(a)(2), and the ESA defines that term to
mean “any department, agency, or instrumentality of the United
States.” 16 U.S.C. 1532(7). As the court of appeals judges who
dissented from denial of rehearing en banc observed, “{ilf the
ESA were as powerful as the majority contends, it would modify
not only EF PA’s obligation under the CWA, but every categorical
mandate applicable to every federal agency.” App. 78a n.4. The
substantial practical implications of the court of appeals’ decision
reinforce the need for review by this Court.

4. The court of appeals also held that “EPA’s approval of
Arizona’s transfer application cannot survive arbitrary and
capricious review because the EPA relied during the
administrative proceedings on legally contradictory positions
regarding its section 7 obligations.” App. 23a. The court stated
that a principal basis for FWS’s finding that the transfer of
permitting authority would not jeopardize listed species—?.e.,
F'WS’s conclusion that the transfer decision was not the legal
cause of any harm to the species because the transfer was
mandated by Section 402(b) of the CWA—was inconsistent with
EPA’s antecedent determination that consultation was required

interpretive issue presented in this case. In asubsequent decision involving the
ESA, moreover, the Eighth Circuit observed that “|cjase law supports the
contention that environmental- and wildlife-protection statutes do not apply
where they would render an ageney unable to fulfill a non-diserectionary
statutory purpose or require it to exceed its statutory authority.” Jn re
Operation of the Mo. River Sys. Litig., 421 F.3d 618, 630 (2005) (citing, inter
alia, Platte River).

Both Conservation Law Foundation and Defenders of Wildlife are thus fully
consistent with the holding in American Forest that Section 7(a2) requires
federal agencies “to channel their e.r/stivg authority in a particular direction”
but does net supersede contrary statutory commands. 137 F.5d at 299. But
even if the court of appeals’ understanding of Conservation Law Foundation
and Defenders of Wildlife were correct, the conflict with the decisions in Platte
River and American Forest would still warrant this Court's review.

22

by Section 7(a)(2) of the ESA. See App. 25a-26a. The court
stated that, “[b]y relying on [the FWS BiOp’s] line of reasoning
after determining that it did have a consultation obligation, the
EPA decided aawteren consult but had no authority to do
anything concerning the matter about which it had to consult.”
App. 25a. The court explained that such a position would be
contrary to the text of Section 7(a)(2) of the ESA, which “makes
no legal distinction between the trigger for its requirement that
agencies consult with FWS and the trigger for its requirement
that agencies shape their actions so as not te jeopardize
endangered species.” App. 26a. ——

The court of appeals was correct in stating that the no-
jeopardy and consultation requirements of Section 7(a)(2) go
hand in hand, but ef. American Forest, 137 F.3d at 298 n.6
(suggesting possible distinction between consulting obligations
and substantive powers), and that Section 7(a)(2) does not
require federal agencies to consult about conduct to which the
no-jeopardy mandate does not apply. The court was also correct
that the course of agency proceedings in this case reflected a
degree of confusion regarding the ESA’s application to the
NPDES transfer decision. EPA’s prior uncertainty, however,
does net cast doubt on the lawfulness of its ultimate decision to
grant Arizona’s transfer application, and the relevant federal
agencies have since clarified their understanding of the legal
principles that govern in this setting.

a. Section 7(a)(2) of the ESA states that “leJach Federal
agency shall, in consultation with and with the assistance of the
Secretary, insure that any [agency action] is not likely to jeo-
pardize the continued existence of any endangered species or
threatened species.” 16 U.S.C. 1536(a)(2). That phrasing makes
clear that “consultation” with FWS or NMFS is not an end in
itself, but a means of ensuring compliance with Section 7(a)(2)'s
substantive no-jeopardy mandate. Once it is confirmed that an
agency is compelled by another federal law to engage in

23

particular conduct, without regard to the effect of that conduct
on endangered or threatened species, Section 7(a)(2) of the ESA
does not require the agency to engage in consultation concerning
species-related impacts that it has no authority to prevent. Cf.
Public Citizen, 541 U.S. at 767-769 (holding that, under the “rule
_of reason” implicit in NEPA, a federal agency is not required to
prepare an EIS assessing the environmental impacts of an action
that it is legally obligated to perform).

b. In and of itself, EPA’s decision to initiate consultation
with FWS concerning Arizona’s transfer application was not
inconsistent with FWS’s ultimate determination that any harm
to listed species that the transfer might entail was legally
attributable to Congress rather than to EPA. Neither the ESA
nor the CWA prohibits a federal agency from seeking the views
of FWS or NMFS concerning the effects on listed species of
conduct that the CWA requires, even though consultation in
those circumstances would not serve its usual purpose of faci-
litating compliance with Section 7(a)(2)’s no-jeopardy require-
ment. And when an agency is uncertain whether the ESA’s no-
jeopardy mandate applies to particular conduct, consultation
with FWS or NMFS is an appropriate means of resolving that
question. See App. 73a (Kozinski, J., dissenting from denial of
rehearing en banc).”

At both the beginning and the end of its consideration of
Arizona’s transfer application, however, EPA expressed the view
that consultation concerning that application was required by the
ESA. Thus, in soliciting comments on the transfer application,
EPA described the no-jeopardy mandate of Section 7(a)(2) of the
ESA and stated that “|t}he approval of the State permitting
program under section 402 of the Clean Water Act is a federal
action subject to this requirement.” 67 Fed. Reg. at 49,919. And

~ In some cases, moreover, it may require significant analysis to determine
whether a potential effect flows from a mandatory action or a related
diseretionary judgment.

24

in the Federal Register notice that announced EPA’s approval of
the State’s application, the agency stated that “[i]ssuance of the
biological opinion * * * concludes the consultation process
required by ESA section 7(a)(2).” 67 Fed. Reg. at 79,630."

The FWS BiOp did not discuss 50 C.F.R. 402.03, and it did
not address the question whether the consultation that produced
the BiOp was required by the ESA. The BiOp’s no-jeopardy
finding, however, was grounded in substantial part on FWS’s
conclusion that, even if Arizona’s administration of the NPDES
program proved to be less protective of listed species than the
prior EPA regime, that disparity would not be “caused” by
EPA’s approval of the transfer, but instead would be attributable
to “Congress’ decision to grant States the right to administer
these programs under state law provided the State’s program
meets the requirements of 402(b) of the Clean Water Act.” C.A.
App. 224. Because Section 7(a)(2)’s consultation requirement is
intended to facilitate compliance with the no-jeopardy mandate
and therefore applies only to conduct that is properly attri-
butable to the agency itself, FWS’s causation analysis logically
implies that consultation regarding Arizona’s transfer application
was not compelled by the ESA. EPA’s failure at that time to
recognize the full implications of FWS’s causation analysis,
however, does not cast doubt on the legality of the challenged
transfer decision. FWS’s analysis reflects a correct under-
standing of the causation principles that govern in this area, and
it provides a fully sufficient basis for concluding that approval of

* EPA had made similar statements in considering some prior state
applications for transfer of NPDES permitting authority. See 64 Fed. Reg.
73,552, 73,554-73,555 (1999) (requesting comment on Maine application); 66
Fed. Reg. 12,791, 12,793-12,791 (2001) (approving the same? 63 Fed. Reg,
33,657-35,658 (199S) (requesting comment and approving public hearing on
Texas application); 61 Fed. Reg. 65,047, 65,053 (1996) (approving Oklahoma
application); id. at 47,932, 47.934-47.935 (requesting comment on Louisiana
application). See also App. 7a-Sa 1.3.

25

Arizona’s transfer application would not jeopardize any listed
species. See pp. 11-13, supra."

ce. The relevant federal agencies recently clarified their
positions concerning the applicability of Section 7(a)(2) of the
ESA to EPA’s NPDES transfer decisions under the CWA after
the State of Alaska submitted an application for transfer of
NPDES permitting authority. In connection with that
application, EPA requested confirmation of its current view that,
because Section 402(b) of the CWA requires that the State’s
application be granted if the CWA criteria are satisfied, the
decision whether to approve the transfer is not subject to the no-
jeopardy and consultation requirements of Section 7(a)(2) of the
ESA. See App. 93a-102a. FWS and NMFS have confirmed that
they share that understanding of the relevant statutory pro-
visions. See App. 103-116a. FWS and NMFS have further con-
firmed that, because the CWA requires that transfer applications
must be granted under specified circumstances, EPA lacks
“discretionary Federal involvement or control,” within the
meaning of 50 C.F.R. 402.03, over the transfer decision once the

’ Moreover, despite the government's reluctance to urge the court of
appeals to rest its decision on the view that Section 7(a)(2) is altogether
inapplicable to the mandatory transfer decision (and despite the Ninth Circuit's
failure to accede to the government's request for further briefing on the subject
if the Ninth Circuit reached the issue), there is no obstacle to this Court's
review. Both the State of Arizona and private intervenors squarely raised the
issue, and the Ninth Circuit squarely resolved it, so the issue was both pressed
and passed on below. Of course, the Ninth Circuit need not have reached tnis
issue at all and could have rested its decision on the inconsistency it found in
the government’s analysis of the consultation and jeopardy issues. This Court
should at a minunum vacate the Ninth Circuit's judgment insofar as it goes
bevond ordering a remand to the agency to resolve the inconsistency the panel
discussed in Part L1.B of its opinion, App. 23a-28a. But because the govern-
ment has now resolved any such inconsistency and made clear that Section
Tian2) does not apply to the mandatory action at issue in this case for either
consultation or no-jeopardy purposes (see pp. 25-26, «fra; App. 93a-116a), the
better course is for the Court to resolve that question.

26

CWA criteria are met, and EPA’s approval is not the legal
“cause,” within the meaning of 50 C.F.R. 402.02, of any impacts
on listed species that may result from a state-issued NPDES
permit. See App. 105a-106a, 109a-110a, 114a-115a.

This Court has recognized that the Secretaries of the Interior
and of Commerce are charged with primary responsibility for
administering the ESA, and that their construction of ambiguous
ESA provisions is entitled to judicial deference. See Sweet
Home, 515 U.S. at 703-704; p. 18, supra. The recent FWS and
NMFS communications regarding Alaska’s pending transfer
application reflect those agencies’ considered interpretations of
16 U.S.C. 1536(a)(2), and of 50 C.F.R. 402.02 and 402.03,
published regulations promulgated jointly by the two agencies in
1986 after notice-and-comment rulemaking. Because the respon-
sible agencies have clearly stated their position that neither the
consultation requirement nor the no-jeopardy mandate of
Section 7(a)(2) of the ESA applies to EPA’s consideration of state
NPDES transfer applications, and because EPA’s prior mistaken
view that it was required to consult about Arizona’s application
does not cast doubt on the legality of the transfer decision
challenged in this case, EPA’s earlier misunderstanding on that
point poses no obstacle to this Court’s review of the Ninth
Circuit’s erroneous ruling. In light of the acknowledged circuit
conflict and the broad significance of that ruling, review by this
Court is warranted.

27

CONCLUSION
The petition for a writ of certiorari should be granted.

Respectfully submitted.
PAUL D. CLEMENT

Solicitor General
SUE ELLEN WOOLDRIDGE
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ROGER R. MARTELLA, JR. MALCOLM L. STEWART
Acting General Counsel Assistant to the Solicitor
MICHAEL G. LEE General
Attorney ANDREW C. MERGEN
Environmental Protection DAVID wl SHILTON
Agency Attorneys

OCTOBER 2006

ier,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0500%3A02. Public record. Not legal advice.