Amicus Curiae Brief — Environmental Protection Agency v. Defenders of Wildlife

PSs errs or

IN THE

SUPREME COURT OF THE UNITED STATES

NATIONAL ASSOCIATION OF HOME BUILDERS,

Petitioner,

v.

DEFENDERS OF WILDLIFE, ET AL.

Respondents.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

v.

DEFENDERS OF WILDLIFE, ET AL.

Respondents.

On Wnts Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF AMICI CURIAE THE AMERICAN ROAD

AND TRANSPORTATION BUILDERS ASSOCIATION

AND THE NATIONWIDE PUBLIC PROJECTS

COALITION

IN SUPPORT OF PETITIONERS

NICK GOLDSTEIN o LAWRENCE R. LIEBESMAN*

American Road and RAFE PETERSEN

Transportation Builders STEVEN R. KELTON

Association Holland & Knight LLP

1219 28th Street, NW 2099 Pennsylvania Ave., NW

Washington, DC 20007 Washington, DC 20006

(202) 289-4434 (202) 955-3000

Of counsel *Counsel of Record

LS NTE RE ETSI) TE TE nT Ea E

TABLE OF CONTENTS

TAREE GR AUT BORRE ES occcecesccresccscccsoscosoensonsccrsssssosess ill

INTERESTS OF THE AMICI CURIAE .............cccccecceeees I

SUMMARY OF ARGUMENT .............cccessessesseseeeeseeeeeeees 4

TD tneninnnisnndtnctesjiniianestemninniientatniebiemmsanientinenne 6

I. THE NINTH CIRCUIT'S ADOPTION OF

Il.

THE "BUT FOR" CAUSATION TEST

INTERPRETING PUBLIC CITIZEN WOULD

TRANSFORM THE ESA INTO A "SUPER"

LAND USE CONTROL LAW ..................:c0ccccceeeee eee 6

A. The Ninth Circuit's Decision Distorts Public

FRI Wien oer oe Ce Ra NT TIAN ee eRe DO 6

B. ESA Section 7(a)(2) Does Not Authorize

the Kind of Deviation from the Public Citizen

Ruling Adopted by the Ninth Circuit Here................ 8

IF UPHELD, THE NINTH CIRCUIT'S

RATIONALE WOULD SO EXPAND THE

SCOPE OF EFFECTS THAT MUST BE

ADDRESSED UNDER SECTION 7(A)(2) OF

THE ESA SO AS TO CONFLICT WITH THE

PRINCIPLES OF PROXIMATE CAUSATION

ENDORSED BY THE SUPREME COURT IN

SWEET HOME, PUBLIC CITIZEN, AND

METROPOLITAN EDISON..............00..ssescsessesersesees 15

A. The Tort Principle of “Proximate

Causation" Is Not the Same as Factual

LN ai a, 15

B. Courts Have Adopted Proximate Causation

Principles Under the ESA, Just as They Have

Done Under NEPA and the CWA ...............cceeeees 17

il

C. Proximate Causation Principles Under ESA

and NEPA are Equally Applicable to the -

a I ciccciinsiisincatncetisinmencieniiinnseiiiensimenin 21

Il]. THE NINTH CIRCUIT'S RATIONALE, IF

UPHELD, WILL EXTEND FAR BEYOND

THE CWA ACTION AT ISSUE IN THE

CASE AND WOULD HAVE SIGNIFICANT

ADVERSE EFFECTS ON VITAL PUBLIC

Pe iiiscisinicunhionemincnciinesseceisieimaensnineiniiusssnnininte 23

ST cicesiceiirennniciscsncceniemnicescnininiendennniniteniessivinies 29

ill

TABLE OF AUTHORITIES

CASES:

Adler v. Lewis, 675 F.2d 1085 (9th Cir. 1982)................000. 20

Ariz. Cattle Growers’ Ass'n v. U.S. Fish & Wildlife,

ee ee 18

Babbitt v. Sweet Home Chapter of Cmtys. for a Great

eg Ne SI ID stiniceedcnnntncstiiscrssonantinncaipimpennsiad passim

Ctr. for Biological Diversity v. Fed. Highway

Admin., 290 F. Supp. 2d 1175 (S.D. Cal. 2003)............008 20

City of Shoreacres v. Waterworth, 420 F.3d 440

SURI: INI sical siete dhieaeahdinicninaideigeaid 18, 19

)

Concerned about Trident v. Schlesinger,

SGD F. Sapp. 454 GDC. IGS) 2..200cececocecsvsvsscscercsessscesenes 11

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

ee ee osorsnssennnipasennnsntcuntiasisainennniteniieienmuieniin 8, 29

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

Oe ean renner NOE ESTE NOON RCE nT EEN passim

Envil. Def. Fund, Inc. v. U.S. Army Corps of Eng'rs,

ee IG NU seibitninsciretnncscnicsnatinsinninneneietverst 11

Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of

Eng'rs, 374 F. Supp. 2d 1116 (S.D. Fla. 2005) ..........0..0.. 19

iv

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ........:ccccceeeeeees 19

Metro. Edison Co. y. People Against Nuclear

Energy, 460 U.S. 766 (1983) .........cccssscccessreesesseecesseees passim

Natural Res. Def. Council v. EPA, 822 F.2d 104

ERE ERE a ee enone oe ee Y

Natural Res. Def. Council v. EPA, 859 F.2d 156

es TENE: SUTTE saicticsitipnicieensiatitcundilintnnncidniineesesnencontnenaumnneinen 10

Okla. Wildlife Fed’n v. Army Corps of Eng’rs,

681 F. Supp. 1470 (N.D. Okla. 1988) .........ceeceeeeceseeeeeeeees 19

Palsgraf v. Long Island R.R. Co., 248 N.Y. 339

SEIT icaiiesioeetndetiseaitaiinndiiiaiidiassciieisiieasiaiaidiniiienepmenceianueninees 15, 16

Palila v. Haw. Dep't of Land & Natural Res.,

852 F.2d 1106 (Sth Cir. 1988)................sscccssrsesscesserees 17, 18

Potomac Alliance v. U.S. Nuclear Regulatory

Comm'n, 682 F.2d 1030 (D.C. Cir. 1982) .........cceeceeeeeeeeees 19

Riverside Irrigation District v. Andrews,

Fae ele Be CNG FI Psnceccccenseccccesecsvoneceveccscesoncene 9,13

Sierra Club v. Glickman, 156 F.3d 606 (Sth Cir.

SE cceslaiiccdikanbianibiidaibligdiniiiieaiiiqunidicasnisiinsieiiaunninnvneininbenndseietione 13

Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C.

PP Scsiceusalinicinsaibniibtetaiiadpinliviatninncuiesaieiniasinedeibinoyreeaieinesesanes 19

v

Sierra Club v. Marsh, 976 F.2d 763 (1st Cir. 1992)........... 19

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Dues, S48 UB. DS CABO. cececceccecesscssssenescssstnensesneneenaiens 22

Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) .0...... eee 18

Strycker's Bay Neighborhood Council v. Karlen,

QOS ULB. TES CIGD cxeesesecerssssessosseostntsneenstnngssasannentiunumsie 10

TVA v. Hill, 437 U.S. 153 (1978)......ccccccesseseesseseeeeseeeeees 4,12

Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.

Camel, SS U.S. SED (IG FE) .cccevrcessersscorsenseesstiesosesonssnintns 10

Water Keeper Alliance v. EPA, 399 F.3d 486

CDi, TIN voscccticccccesnseerncicstmnstnicrisamizmataa a 22

STATUTES:

Clean Water Act, 33 U.S.C. § 1251 et seq.

IIIS BIG ccncscnccvccosesensancesuieemscsshainiiiaane 14

National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

GS UBL... § GSR) occrccococcerevesonsessssesnsnresonsnetnonenenssannte 10

GB UIBL. § SIDI) «0. 0cccecsecsorsncnseonsesonsonesoborasensocnenenennn 11

vi

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

ESTEE SE EEO 13

Ee eee a passim

EE GERI Sc CO 22

EE a a 16

REGULATIONS:

Ee OT 13,14

LT KN 9

ADMINISTRATIVE MATERIAL

51 Fed. Reg. 19,926 (June 3, 1986) ......ccccccccssesseesseesseeeseeee 13

OTHER AUTHORITIES:

Am. Ass’n of State Highway & Transp. Officials,

Indirect and Cumulative Impact Analysis (Jan. 2006) ..20, 21

Cambridge Systematics, Inc., Unclogging America's

Arteries, Effective Relief for Highway Bottlenecks (Feb.

aaah daiadildtcenadesddiedesdenetbentteneienemieneteneinaseonesneenentess 27, 28

Dan B. Dobbs, The Law of Torts (2000)...........:.c00cc00000 15, 17

Emil H. Frankel, Statement Before the U.S. Senate Comm.

on Env't and Pub. Works, Hearing on Project Delivery and

Envtl. Stewardship (Sept. 19, 2002)............ccccceecceseeseeeeeeeees 25

Gov't Accounting Office, Testimony Before the

Committee on Environment and Public Works, U.S.

ia cirneunnonenconnnnees 24

*

Vil

Albert C. Lin, Erosive Interpretation of Environmental Law

in the Supreme Court's 2003-2004 Term, Houston L. Rev.

IND SED scncenninsereresecsnsntmnenpenenniiiaimenmmnnninnts 17,22

Robert Meltz, Congressional Research Serv., The

Endangered Species Act and Private Property: A Legal

PN EE iinscenncdedesnsensnenniclimecmnentieisinatsiiniinenminetinuies 22

J.B. Ruhl, State and Local Government Vicarious

Liability Under the ESA, Nat. Res. & Env't 70 (Fall

STITT ciconsincserekcMadecesed lecithin cannicdtaeceeddiaesemdeatahcahiaadaldahadiaaiasa 18

Texas Trans. Inst., 2004 Urban Mobility Report -

Performance Measure Survey for Las Vegas

TransTech Mgmt., Environmental Streamlining: A

Report on Delays Associated with the Categorical

Exclusion & Environmental Assessment Process

Se IEEE shichiicapentrenseneniisanentenstnesneintimenenttanindnanansinies 25, 26

U.S. Envtl. Prot. Agency, State Program Status ................... 8

U.S. Fed. Highway Admin., Public Roads (May/June

U.S. Fed. Highway Admin., Evaluating the

Performance of Environmental Streamlining

Development of a NEPA Baseline for Measuring

I IIIIIIIIOUY scsiccececenintnnesnncestnentinenesenamnanimicansents 24

vill

U.S. Fed. Highway Admin. Report to Congress on

Federal Highway Administration Streamlining

FD CD Fe CD I crrcetccccnncccncscnevenncccencscnmenceonss 25

U.S. Fed. Highway Admin., Press Release

Re ei eemcenncnteepnensnpesnccstanmanniiannecinatentestanmnmnanamen 27

U.S. Fish & Wildlife Serv., Biological Opinion

Ses Ha AUNT tciiidatciideeiehiaiiuiihainiainineansiaistibenenieniiiia 13, 14

The American Road and Transportation Builders

Association and the Nationwide Public Projects Coalition, as

Amici curiae, respectfully submit this brief in support of

Petitioners National Association of Home Builders and U.S.

Environmental Protection Agency ("EPA").'

INTERESTS OF THE AMICI CURIAE

The Amici are private entities, public sector agencies,

associations, and local governments that provide essential

public services covering transportation, flood control, water

supply, and waste water management.

Amici and their member organizations would be hard-

hit if the Ninth Circuit decision is affirmed. The ability of

Amici to timely meet essential public needs could be severely

harmed if public agencies must assess the speculative future

land use effects of potential development on listed species in

order to meet the "insure" mandate under Section 7(a)(2) of

the Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq.

The implications of upholding the Ninth Circuit would

extend far beyond the Clean Water Act ("CWA") National

Pollutant Discharge Elimination System ("NPDES"), 33

U.S.C. § 1342, program transfer to Anzona at issue in this

case, and will impact federal agency actions necessary for

many vital public works projects across the nation.

The Amici consist of the following:

' All parties have consented to the filing of this brief The Amici have

filed letters of consent with the Clerk. Pursuant to this Court's Rule 37.6,

Amici state that no counsel for any party in this case authored this brief in

whole or in part, and no person or entity other than the Amici and their

counsel have made a monetary contribution to the preparation and

submission of this brief.

2

The American Road and Transportation Builders

Association ("ARTBA") is made up of more than 5,000

member organizations in the transportation construction

industry, including construction contractors; professional

engineering firms; federal, state, and local transportation

administrators, heavy equipment manufacturers; and

materials suppliers. These member companies employ more

than 2.5 million people in the transportation construction

industry in the United States. ARTBA’s members are

responsible for construction of vital public infrastructure

projects such as highways, bridges, airports, railroads and

mass transit facilities.

The Nationwide Public Projects Coalition

("NPPC") is a not-for-profit association that is made up of

regional and local government agencies involved in water

supply, flood control, irrigation, wastewater and stormwater

management, street and highway construction and

maintenance, and environmental quality amenities. These

agencies represent over 12 million constituents, extending

from Connecticut to California, and from Alaska to Georgia.

NPPC works on behalf of members of the public to ensure

that vital public infrastructure services are provided in a safe,

timely and environmentally-beneficial fashion. Consisting

of public agencies and firms that provide vital infrastructure

and services, NPPC’s members must ensure that a

responsible balance is achieved between environmental,

health, and safety goals and the protection of human lives

and property. NPPC members often encounter ESA issues in

providing these services. NPPC's members are typified by

the following agencies:

1) The Metropolitan Denver Water Authority

("MDWA") is a political subdivision and public corporation

of the State of Colorado. MDWA is made up of twenty

cities and special distncts that provide municipal water

3

and/or wastewater services for the metropolitan Denver area

and serve more than 1.5 million persons. MDWA's member

agencies serve some of the fastest-growing counties in the

nation.

2) The Consolidated Mutual Water Company

("“CMWC") is mutually owned, and serves an estimated

population of 100,000 peopie in Jefferson County, Colorado,

in the western region of Metropolitan Denver. CMWC

acquires its water supply from lakes and streams.

3) Rancho California Water District ("RCWD")

provides water and sewer service over a 150 square mile area

in southwestern Riverside County, California. Thousands of

residents and businesses rely on RCWD for potable water.

The ESA has delayed and driven up costs on numerous

capitol improvement projects undertaken by RCWD.

4) The Cobb County-Marietta Water Authority

("CCMWA") is a political subdivision of the State of

Georgia. CCMWA is a regional water wholesaler that

supplies water to municipalities and counties serving more

than 780,000 people in the rapidly growing Metro-Atlanta

area. Included are all of Cobb County and its municipalities,

all of Paulding County, and portions of Douglas County,

Cherokee County, and Fulton County.

5) The West Valley Water District of Rialto,

California ("WVWD") is an independent special district that

serves water customers living in southwestern San

Bernardino County and northern Riverside County. WVWD

depends on local surface water resources, five groundwater

basins and the California State Water Project to meet the

needs of more than 50,000 persons.

4

SUMMARY OF ARGUMENT

1) The Ninth Circuit's misapplication of Public

Citizen with respect to EPA's duty under Section 7(a)(2) of

the ESA improperly requires that agency to speculate on

future impacts to listed species from development. Because

EPA's NPDES authority is limited to the regulation of

discharges into navigable waters—not !and development—

the CWA may not be interpreted to require the Agency to

address the potential consequences far removed from its

scope of authority in order to meet the "insure" duty under

Section 7(a)(2). In essence, the Ninth Circuit's ruling would

transform the CWA into a "super land use” contro] statute to

achieve the goals of the ESA. Nothing in this Court's 1978

decision in TVA v. Hill allows for such an expansion of an

agency's organic authority to further ESA's goals.

2) The Ninth Circuit's adoption of the "but for" test

distorts the tort principle of "proximate causation.” The

Ninth Circuit's rationale would so expand the scope of

effects that must be considered under Section 7(a)(2) as to

require federal agencies to speculate regarding the

unforeseeable consequences of agency actions on local

development activities. The effect of the decision would be

to undermine the principles of proximate causation endorsed

by this Court in Sweet Home, Public Citizen, and

Metropolitan Edison with respect to the ESA and NEPA.

3) The Ninth Circuit's rationale, if upheld, will

extend far beyond EPA's CWA transfer action at issue in this

case. [f ESA considerations are found by the Court to

expand federal agencies duties beyond the limits of their

discretionary authorities, those agencies will be required to

speculate as to the impact of future development on the

siting of important public projects. The result will be a

Significant increase in costs and delays for vital projects,

5

such as much needed highway improvements, that could

compromise essential safety and environmental needs.

6

ARGUMENT

I. THE NINTH CIRCUIT'S ADOPTION OF THE

"BUT FOR" CAUSATION TEST

INTERPRETING PUBLIC CITIZEN WOULD

TRANSFORM THE ESA INTO A "SUPER"

LAND USE CONTROL LAW.”

The Ninth Circuit misapplied Department of

Transportation v. Public Citizen, 541 U.S. 752, (2004), in

concluding that the requirement of Section 7(a)(2) of the

ESA for agencies to "insure" that actions do not result in

"jeopardy" or “adverse modification of [critical] habitat"

makes private land use activity an "effect" of EPA's action to

approve Arnzona's assumption of the NPDES permit

program. This adoption of a "but for" test distorts the Public

Citizen ruling and elevates the ESA into a "super" land use

control statute.

A. The Ninth Circuit's Decision Distorts Public

Citizen.

This Court in Public Citizen squarely and

unanimously rejected the “but for" causation test in

construing the scope of effects that must be considered under

the National Environmental Policy Act ("NEPA"), 42 U.S.C.

§ 4321 et seq. Examining whether NEPA required the

Federal Motor Carrier Safety Administration ("FMCSA") to

consider the effects of a rule imposing registration and safety

* While the Court certified four questions, and requested all parties to

brief a fifth question, this bricf addresses only the following question:

Did the Ninth Circuit incorrectly apply the holding of Department of

Transportation v. Public Citizen, 541 U.S. 752 (2004), in concluding that

EPA's approval of Arizona's NPDES permitting program was the legally

relevant cause of impacts to endangered species resulting from future *

private land use activities?

7

requirements on Mexican domiciled motor carriers operating

in the United States, the Court held 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."

Public Citizen, 541 U.S. at 770. There, FMCSA did an

Environmental Assessment under NEPA focusing on those

effects that were “likely to arise from the increase in the

number of roadside inspections of Mexican trucks and

buses," id. at 761, but "did not consider the environmental

impact that might be caused by the increased presence of

Mexican trucks in the United States." /d. at 752. FMCSA

concluded that it lacked the discretion to prevent the entry of

Mexican trucks into the United States since the decision to

allow entry flowed from the President's Executive Order to

lift a long-standing moratorium and that of Congress in

granting the President such authority while simultaneously

limiting FMCSA's discretion. /d. at 766. In upholding

FMCSA's decision, the Court adopted the "familiar doctrine

of proximate cause from tort law" in holding that a "but for"

causal relationship is insufficient to make an agency

responsible for a particular effect under NEPA and the

relevant regulations. Jd. at 767. See also, Metro. Edison Co.

v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983)

(NEPA requires "a reasonably close causal relationship"

between the environmental effect and the alleged cause).

Here, while the Ninth Circuit correctly recognized

the Public Citizen principle of “legally sufficient" causation,

the court then proceeded to completely misapply that

principle in holding that Section 7(a)(2)'s “insure” language

imposed a duty on EPA to conduct a far reaching analysis of

the impact of development projects on ESA-listed species

that may be dependent on state issuance of NPDES permits.

"Neither the [U.S. Fish and Wildlife Service, ("FWS")] nor

the EPA makes any argument that justifies the Biological

8

Opinion's failure to analyze, in detail, the likely effect of

such future development projects fostered by pollution

permits on specific species." Defenders of Wildlife v. EPA,

420 F.3d 946, 973 (9th Cir. 2005). By imposing such a

requirement, the court essentially mandated EPA to require

detailed consideration of how a state's assumption of the 402

NPDES program would become the "catalyst" of a series of

land use impacts far removed in time and space from

issuance of NPDES permits by the State. EPA would be

forced to "crystal ball" land use impacts that may occur in

the future such as assessing local development plans for

upland projects that have little if any relationship to

discharges of pollutants into navigable waters. As we

discuss below, this misapplication would especially affect

many public works projects such as federally funded

highway construction that may facilitate development at

some point in the future.

B. ESA Section 7(a)(2) Does Not Authorize the Kind

of Deviation from the Public Citizen Ruling

Adopted by the Ninth Circuit Here.

The Ninth Circuit latches on to the “insure” language

of Section 7(a)(2) as creating a substantive duty that required

EPA and FWS consultation to consider far-reaching

development projects that are “interrelated or

interdependent" with the discharge permitted by the permit.

Defenders, 420 F.3d at 951, 972-973. However, the fact that

Congress created a duty on agencies to “insure” against such

harm to listed species does not expand the underlying

authority of a federal action agency to engage in such

analysis. Private land use activities are not "caused" by the

> The states still without NPDES authorization include’ Alaska, Idaho,

Massachusetts, New Hampshire, and New Mexico. U.S. Envtl. Prot.

Agency, State Program Status, available at

http://cfpub.epa. gov/npdes/statestats.cfm.

9

EPA decision to transfer the NPDES program to Anzona and

therefore cannot be an "effect" of that decision. Moreover, —

the "substantive/procedural" distinction that the lower court

adopts between the ESA and NEPA does not somehow

expand the “effects” analysis that EPA may consider in

making a transfer decision. When EPA and FWS consult

under Section 7 regarding issuance of an NPDES permit, that

consultation is limited to effects within the “action area”

limited by the water body receiving the discharge and

downsiream areas—not some unrelated land use activity.

See 50 C.F.R. § 402.02 ("Action area means all areas to be

affected directly or indirectly by the Federal action and not

merely the immediate area involved in the action"). See

also, Riverside Irrigation Dist. v. Andrews, 758 F.2d 508,

512 (10th Cir. 1985)(Corps considered how decreased water

flow would hurt the endangered whooping cranes because

the agency “is required, under both the Clean Water Act and

the Endangered Species Act, to consider the environmental

impact of the discharge that it is authonzing").

The principles set forth by the D.C. Circuit regarding

EPA's NPDES permitting authority and NEPA are equally

applicable to the CWA/ESA interface. The D.C. Circuit

squarely held that NEPA does not expand EPA's

administration of the NPDES permit program to require

regulation of the underlying activity as opposed to the effects

of the discharge itself. The court overturned an EPA

regulation that would ban the construction of a new

industnal source pending issuance of a discharge permit.

Natural Res. Def. Council v. EPA, 822 F.2d. 104, 128 (D.C.

Cir. 1987)("Until the private owner applies for a discharge

permit, then, EPA lacks authority to regulate the owner's

activities under NEPA and the Clean Water Act. EPA's

construction ban thus seems directly contrary to Congress’

clear intent, as elucidated by the expressly limited statutory

definition of ‘major Federal action”). In a follow-up

10

decision, the court concluded that "neither the Clean Water

Act nor NEPA authorizes EPA's imposition of non-water

quality permit conditions." Natural Res. Def. Council v.

EPA, 859 F.2d. 156 (D.C. Cir. 1988). The court admonished

EPA to not use NEPA to "“transmogrify its obligation to

regulate discharges into a mandate to regulate the plants or

facilities themselves. To do so would unjustifiably expand

the agency's authority beyond its proper perimeters.” /d. at

170. The court then noted that "the CWA does not empower

the agency to regulate point sources themselves; rather,

EPA's jurisdiction under the operative statute is limited to

regulating the discharge of pollutants. Thus, just as EPA

lacks authority to ban construction of new sources pending

permit issuance, so the agency is powerless to impose permit

conditions unrelated to the discharge itself." Id.

The Ninth Circuit's decision ignores these principles.

The court's attempt to distinguish the ESA from NEPA does

not provide a basis to expand the factors EPA must consider

under CWA Section 402(b) to encompass far-reaching land

use impacts of activities permitted under the NPDES permit

program. While courts have held that NEPA is essentially a

procedural statute’, Congress did direct federal agencies to

strive to achieve certain substantive goals. Section 101 of

NEPA requires the federal government to use “all practicable

means and measures" to protect environmental values. Sec.

101(a), 42 U.S.C. § 4331(a).°

* See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435

U.S. 519, 558 (1978) and Strycker's Bay Neighborhood Council v.

Karlen, 444 U.S. 223, 227 (1980) (NEPA's mandate to the agencies is

“essentially procedural”).

> The other main goal of Section 101 calls for the Federal Government

"to use all practicable means, consistent with other essential

considerations of national policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end that the Nation may

(1) fulfill the responsibilities of each generation as trustee of the

Lt

Courts have recognized NEPA's goals. See

Concerned about Trident v. Schlesinger, 400 F. Supp. 454,

480 (D.D.C. 1975) ("Section 101, in effect, sets out specific

environmental goals to serve as a set of policies to guide

agency action affecting the environment and declares

NEPA's_ basic substantive policies")(internal citations

omitted). See also, Envtl. Def. Fund, Inc. v. U.S. Army

Corps of Eng'rs, 470 F.2d 289, 297 (8th Cir. 1972)("The

language of NEPA, as well as its legislative history, make it

clear that the Act is more than an environmental full-

disclosure law. NEPA was intended to effect substantive

changes in decision-making"). These obligations to integrate

environmental factors into the decision-making process are

no less significant than those imposed by ESA with respect

to the responsibilities of federal agencies. Yet, as Public

Citizen and other cases have recognized, those

responsibilities can only be exercised within the limits of an

agency's discretion set forth by Congress; any effects

analysis must be directly related to an agency's enabling

authority.

environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and

aesthetically and culturally pleasing surroundings,

(3) attain the widest range of beneficial uses of the environment

without degradation, risk to health or safety, of other

undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of

our national heritage, and maintain, wherever possible, an

environment which supports diversity and variety of individual

choice;

(5) achieve a balance between population and resource use

which will permit high standards of living and a wide sharing of

life's amenities, and

(6) enhance the quality of renewable resources and approach the

maximum attainable recycling of depletable resources.”

Sec. 101(b), 42 U.S.C. § 4331(b).

12

Under the Ninth Circuit's interpretation of Public

Citizen, the reach of an agency's duty to assess indirect

effects would become unlimited. The Ninth Circuit's

reliance on TVA v. Hill, 437 U.S. 153 (1978), to justify such

a result is completely misplaced. The effects analysis in Hill

resulting in the Court's sweeping language that the Section 7

"msure" command "admits of no exceptions" does not in any

way justify expanding the express factors in Section 402(b)

of the CWA to reach the kind of land use impacts discussed

by the court below. Hill dealt with the direct effects of the

Congressionally authorized Tellico Dam project on the

aquatic habitat of the snail darter where the undisputed

evidence showed that the completion of that dam would

result in jeopardy to that species. The Court recognized the

close causal relationship between the construction of the dam

on the Tennessee River and the habitat of the snail darter

within the river.°

The legislative history of the ESA analyzed by the

Court at length in Hill reveals a key principle: while the

Section 7 duties were intended by Congress to be imposed

on each federal agency, that duty was not unlimited;

agencies would have to exercise that duty within the confines

of their underlying authority. As the Hill Court noted in

quoting from Representative Dingell's comments on the

Conference Report, "[Section 7] substantially amplifies the

obligation of (federal agencies] to take steps within their

power to carry out the purposes of this act." Hill, 437 U.S.

at 183 (emphasis added). That qualifier is essential to

understanding the limits of the reach of “effects” that the

ESA obligates EPA (and for that matter, any other federal

® “(T]he snail darter apparently lives only in that portion of the Little

Tennessee River which would be completely inundated by the reservoir

created as a consequence of the Tellico Dam's completion.” Hill, 437

US. at 161.

13

agency) to address. That limitation has been consistently

followed by the FWS in developing regulations governing

the Section 7(a)(2) duties of federal agencies. See, ¢.g.,

Interagency Cooperation--Endangered Species Act of 1973,

as Amended; Final Rule, 51 Fed. Reg. 19,926, 19,937 (June

3, 1986) (codified at 50 C.F.R. Part 402)("These counterpart

regulations would allow individual Federal agencies to ‘fine

tune’ the general consultation framework to reflect their

particular program responsibilities and obligations"). Other

Circuit Courts have recognized these limits. See Sierra Club

v. Glickman, 156 F.3d. 606, 616 n.5 (Sth Cir. 1998)(the

“duty to consult [under Section 7(a)(2)] and the duty to

conserve [under Section 7(a)(1)} is tempered by the

authorities of each agency"); Riverside Irrigation Dist., 758

F.2d. at 512 (the ESA "does not, by its terms, enlarge the

junsdiction of the Corps of Engineers under the Clean Water

Act”).

In fact, the record below reflects FWS and EPA's

joint understanding that the “effects” analysis for EPA's

transfer action under Section 402(b) does not reach the

private development activities that may impact upland

habitat of listed species within Arizona such as the pygmy

owl. The FWS Biological Opinion clearly states that the loss

of the Section 7 consultation following Arizona's assumption

of the NPDES program will not be the legally sufficient

cause of increased development:

Developments are driven by any number of

factors, including but not limited to demand,

supply economics, political decisions, zoning

regulations and financial market stability.

Based upon the best available information,

development in the action area will not be

caused by EPA's proposed approval . . . We

believe that the assumption of the program by

14

the State of Arizona will not cause

development, and concur that EPA's CWA-

mandated approval of the program has only an

attenuated causal link to the reduction in

Federal ESA conservation responsibilities.

U.S. Fish and Wildlife Service Biological Opinion 21-23

(Dec. 3, 2002), available at http://www.fws.gov/southwest

/es/anizona/Documents/Biol_Opin/020268_EPA_approval_o

f_AZ_AZPDES.pdf. This interpretation was further clarified

in an exchange of letters between EPA and FWS in October,

2006.’ FWS's historic interpretation along with its specific

application in consulting over the EPA's Section 402(b)

actions undermines the Ninth Circuit's rationale that such

indirect land use effects must be considered by the agency.

Finally, not only would imposing such a duty exceed

the CWA and ESA obligations, it would undermine the

“cooperative federalism” inherent in the CWA. The CWA

specifically limits the authority of federal agencies to intrude

into state and local matters. CWA Section 101(b)("It is the

policy of the Congress to recognize, preserve, and protect the

primary responsibilities and mghts of States to prevent,

reduce, and eliminate pollution, to plan the development and

use .. . of land and water resources"). The Ninth Circuit's

reasoning would undermine these federalism principles.

EPA would be forced to speculate on the future land use

impacts on the habitat of an ESA-listed species from

virtually any development that may at some point in the

future require a State NPDES permit. This would

necessarily require EPA to assess and perhaps override local

zoning and planning decisions that may be enabled by such

” The agencies involved with the ESA have now clearly determined that

ESA Section 7(a)(2) does not apply to CWA Section 402(b). See EPA

Pet. App. 93a-!02a (App. C), 103a -110a (App. D), Lila — 116a (App.

E).

15

permit decisions. In effect, EPA would become the “land

use czar" for any development that may impact a listed

species within a state seeking to assume the NPDES

program. That result is clearly not what Congress intended

when it enacted both the CWA and the ESA.

Il. IF UPHELD, THE NINTH CIRCUIT'S

RATIONALE WOULD SO EXPAND THE

SCOPE OF EFFECTS THAT MUST BE

ADDRESSED UNDER SECTION 7(A)(2) OF

THE ESA SO AS TO CONFLICT WITH THE

PRINCIPLE OF PROXIMATE CAUSATION

ENDORSED BY THE SUPREME COURT IN

SWEET HOME, PUBLIC CITIZEN, AND

METROPOLITAN EDISON.

A. The Tort Principle of Proximate Causation Is Not

the Same as Factual Causation.

The Ninth Circuit's adoption of the “but for” test

undermines the long standing common law principle of

"proximate causation" that has been repeatedly adopted by

this Court in construing the scope of effects that must be

considered under various federal environmental statutes.

"Proximate cause" is the not the same as "but for" factual

cause. It is "not about causation at all but about the

appropriate scope of responsibility." Dan B. Dobbs, The

Law of Torts 443 (2000). The lessons from the classic

Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928),

illustrate the importance of this legal principle. Every

student who has taken Torts 101 knows the Palsgraf story:

A passenger boarding a train slips; a railroad employee tres

to help but causes the passenger to drop a package, the

package contained fireworks which exploded with enough

force to knock the scales at the other end of the platform

. down on the unlucky Mrs. Helen Palsgraf. Though she won

16

her claim for negligent damages in the jury trial, she lost

upon appeal: the railroad employee was not liable because

his actions were too remote from the final effect. Palsgraf

epitomizes how one is liable only for the harm or injury that

is foreseeable—"the orbit of the danger as disclosed to the

eye of reasonable vigilance." Jd. at 343.

The Ninth Circuit's rationale would stand Palsgraf on

its head. All federal agencies conducting ESA consultations

with the FWS (not just EPA under CWA Section 402(b)),

would be responsible for the unforeseeable, undefined future

results of their actions on listed species or face liability under

the ESA. In effect, an undefined chain of events could

increase the scope of the ESA liability for years to come.*

Public sector agencies represented by your Amici and that are

responsible for building the nation's infrastructure and

transportation systems would find it very difficult to obtain

ESA clearance because of the endless, infinite harms that

could occur in the distant future, even where those agencies

have no control over the decisions that may result in such

impacts. Rather, as it has done in the past, this Court should

use proximate cause as the controlling limitation on liability.

As Judge Andrews said in his well known Palsgraf dissent:

"What we do mean by the word ‘proximate’ is that, because

of convenience, of public policy, of a rough sense of justice, ~

the law arbitrarily declines to trace a series of events beyond

a certain point. This is not logic. It is practical politics.”

Palsgraf at 352 (Andrews, dissenting).’

* Section 7 incidental take statements protect federal agencies from

Section 9 liability: “any taking that is in compliance with the terms and

conditions specified in a written statement provided under subsection

(b)(4)(iv) of this section shall not be considered to be a prohibited taking

of the species concerned.” ESA Section 7(0)(2).

* In addition to being practical, proximate cause supports justice. As one

legal scholar noted:

The separation of proximately caused consequences

17

B. Courts Have Adopted Proximate Causation

Principles Under the ESA, Just as They Have

Done Under NEPA and the CWA.

This Court has recognized that the ESA does not alter

or modify proximate causation principles. In Babbitt v.

Sweet Home Chapter of Communities for a Great Oregon,

515 U.S. 687, 708 (1995), the Court specifically addressed

proximate causation in a facial challenge to the validity of

the FWS "harm" regulation, to the extent that it prohibited

habitat modification as a taking under Section 9.'° Justice

O'Connor gave two reasons for concurring with the Court's

upholding of the FWS's definition of "harm": (1) because it

"1s limited to significant habitat modification that causes

actual, as opposed to hypothetical or speculative, death or

injury to identifiable protected animals,” id. at 708-709; and

(2) the regulation's application "is limited by ordinary

principles of proximate causation, which introduce notions

of foreseeability.". Jd. at 709. Importantly, she saw "no .

indication that Congress . . . intended to dispense with

ordinary principles of proximate causation. Strict liability . .

. does not normally mean liability for every consequence,

from the broader universe of actually-caused

consequences is a policy-driven process that asks

whether the resultant harms are so clearly outside the

risks [a defendant} created that it would be unjust or at

least impractical to impose liability.

Albert C. Lin, Erosive Interpretation of Environmental Law in the

Supreme Court's 2003-2004 Term (Houston L. Rev., Summer 2005).

Using proximate cause thus facilitates or expresses "a value judgment

about the appropriate scope of liability ... .". Dobbs, supra, at 447.

© The question in Sweet Home was whether the FWS's definition of

“harm"—including the phrase, “significant habitat modification or

degradation where it actually kills or injures wilcllife,” was facially

invalid. Sweet Home, 515 U.S. at 687.

18

however remote, of one's conduct.” Jd. at 712."'

Subsequent ESA cases have built on Sweet Home's

adoption of proximate causation as a limiting factor.'* In

Arizona Cattle Growers’ Ass'n v. U.S. Fish and Wildlife, 273

F.3d 1229 (9th Cir. 2001), the court found that "it would be

unreasonable for the Fish and Wildlife Service to impose

conditions on otherwise lawful land use if a take were not

reasonably certain to occur as a result of that activity.” Id. at

1243. See also, Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir.

1997)("when interpreting a term in a statute [like the ESA]

which is, like ‘cause’ here, well-known to the common law,

the court is to presume that Congress intended the meaning

to be interpreted as in the common law").

Proximate causation has long been an accepted part

of NEPA case law in assessing the scope of indirect effects

that must be considered by federal agencies. When the

Public Citizen Court noted that "NEPA requires ‘a

reasonably close causal relationship’ akin to proximate cause

in tort law," Public Citizen, 541 U.S. at 767, it relied heavily

on this Court's previous analysis in Metropolitan Edison Co.,

460 U.S. at 775 (the potential of mental anxiety from

restarting a nuclear plant "lengthens the causal chain beyond

'' Justice O'Connor analyzed Palila v. Hawaii Department of Land and

Natural Resources, 852 F.2d 1106 (9th Cir. 1988), in terms of proximate

Causation to determine that it is not a take under ESA to permit mouflon

sheep to eat mamane-naio seedlings that, when full grown, might have

fed and sheltered endangered palila birds. “Destruction of the seedlings

did not proximately cause actual death or injury to identifiable birds, it

merely prevented the regeneration of forest land not currently inhabited

by actual birds.” Sweet Home, 515 U.S. at 713-714.

' Legal commentators also used proximate cause-like analysis to point

out that permitting is not the cause of development, and that land use

authorizing agencies are not vicariously liable for Section 9 take. See

J.B. Ruhl, State and Local Government Vicarious Liability Under the

ESA, 16 Nat. Res. & Env't 70 (Fall 2001).

-

19

the reach of NEPA"). These principles have been adopted by

numerous courts over the years. See e.g., City of Shoreacres

v. Waterworth, 420 F.3d 440, 452 (Sth Cir. 2005)("a plaintiff

mounting a NEPA challenge must establish that an alleged

effect will ensue as a ‘proximate cause,’ in the sense meant

by tort law, of the proposed agency action").

These NEPA decisions have applied such principles

in articulating a “rule of reason" standard in assessing the

extent of effects that must be considered under that statute.

As the D.C. Circuit has stated, "The starting point in any

analysis of an agency's compliance with . . . NEPA is the

‘rule of reason,’ under which a federal agency proposing a

major action must consider only the reasonably foreseeable

environmental effects of the action." Potomac Alliance v.

U.S. Nuclear Regulatory Comm'n, 682 F.2d 1030, 1035

(D.C. Cir. 1982).

Courts have particularly applied the principles of

proximate causation in limiting the scope of speculative

future effects that must be considered under NEPA.'° For

See Kleppe v. Sierra Club, 427 U.S. 390 (1976)(the mere

contemplation of future action was not sufficient to require preparation of

an environmental impact statement); Sierra Club v. Marsh, 976 F.2d 763,

768 (1st Cir. 1992)("Agencies must consider only those indirect effects

that are ‘reasonably foreseeable.’ They need not consider potential effects

that are highly speculative or indefinite"), Sierra Club v. Mainella, 459 F.

Supp. 2d 76, 81 (D.D.C. 2006)("The [NEPA process] must include,

among other things, a detailed statement descr bing the reasonably

foreseeable environmental impact{s}")(internal quotations omitted), Okla.

Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 681 F. Supp. 1470, 1489

(N.D. Okla. 1988)("If, however, the effects cannot be readily ascertained

and if the alternatives are deemed remote and only speculative

possibilities, detailed discussion of environmental effects is not

contemplated under NEPA"); Fla. Keys Citizens Coalition, Inc. v. US.

Army Corps of Eng'rs, 374 F. Supp. 2d 1116, 1151 (S.D. Fla.,

2005)\("Any attempt to assess the cumulative impacts from such future

projects would be pure speculation and is not required”).

20

example, courts have held that NEPA review of federal aid

highway projects need not always analyze the environmental

effects of future segments that may be connected to the

project under review. Adler v. Lewis, 675 F.2d 1085, 1096-

1097 (9th Cir. 1982)(segmentation is suitable when four

factors are met: "(1) the section must be as long as

practicable to permit consideration of environmental matters

on a broad scope, (2) the section must have independent

utility, (3) the length of the highway selected must assure an

adequate opportunity for the consideration of alternatives,

and (4) the segment should fulfill important state and local

needs").'

The official highway community, itself, operates with

the understanding that it is not responsible for future effects:

A transportation agency has no_ legal

responsibility or authority to approve or direct

the course of development, and usually other

local or regulatory entities must take

intervening actions before such development

could occur. Therefore even when a “but for”

relationship exists between a transportation

project and development trends, a

transportation project may not necessarily be

the proximate cause of land use changes, pace

or location of development and resultant

environmental impacts. For a transportation

project that has economic development as part

of the project purpose, the causal relationship

is made closer as a matter of policy, and land

'* See also, Ctr. for Biological Diversity v. Fed. Highway Admin., .30 F.

Supp. 2d 1175, 1190 (S.D. Cal. 200° three private development projects

that were conditioned on a propos . federal project are not subject to

federal NEPA requirements).

21

use changes or future development may be

considered as indirect impacts of the project.

Am. Ass’n of State Highway and Transp. Officials, Indirect

and Cumulative Impact Analysis 19-20 (Jan. 2006), available

at http://www.trb.org/NotesDocs/25-25(11)_FR.pdf. This

same report reflects on the "tenuous" causal relationship

between a transportation project and any resulting land use

changes or increased development: "A complex interplay of

intervening public and private actions must occur before

development takes place; variables other than transportation,

such as market demand, site suitability, capital availability,

market feasibility, and regulatory controls, play a significant

role in making development decisions." /d. at 20."°

c. Proximate Causation Principles Under ESA and

NEPA are Equally Applicable to the ESA/CWA

Interface.

The body of ESA and NEPA law adopting proximate

causation principles is equally applicable to the ESA/CWA

interface at issue in this case. There is no rational basis to

justify the Ninth's Circuit's reliance on Section 7(a)(2)’s

“insure” language to justify deviating from these principles

when the Sweet Home Court clearly found that “proximate

causation” provided a limitation in assessing Section 9 "take"

liability under the FWS's "harm" definition regarding habitat

modification. Section 7(a)(2)'s direction that the agency

action should "insure" not to cause "jeopardy" or “adverse

modification” of critical habitat, is no less important than

Section 9's direction that agency action not cause a take of a

'S Indeed, connecting NEPA to the future effects of our nation’s

infrastructure is ultimately a policy decision. Public Citizen, 541 U.S. at

767 ("proximate cause analysis turns on policy considerations and

considerations of the ‘legal responsibility’ of actors”).

22

listed species. In fact, in the 1982 amendments, Congress

expressly linked the two sections by creating an "incidental

take” exception following Section 7 consultations and the

development of "reasonable and prudent alternatives" in a

FWS Biological Opinion. See ESA Section 7(b)(4)(iv).'°

Indeed, just as there is no basis for deviating from

these principles under the ESA, there is similarly no basis

under the CWA. Courts have found that "limiting effects

analysis" is consonant with its statutory language. In

addition to the two National Resources Defense Council

cases cited earlier, recent case law holds that the CWA

“gives the EPA jurisdiction to regulate and control only

actual discharges—not potential discharges, and certainly

not point sources themselves." Water Keeper Alliance v.

EPA, 399 F.3d. 486, 505 (2d Cir. 2005).'’ Water Keeper

Alliance supports Amici’s reading that Congress did not

intend Section 402 of the CWA to expand a permit agency's

authority to make the issuance of NPDES permits by the

state the "proximate cause” of private land use activity.

Because EPA's NPDES program is primarily concerned with

discharge permits—not future road building or land

development—the CWA does no require the agency to

‘6 "Provision for incidental take permits exempting landowners from

Section 9 was added to the ESA in order to give landowners not

requiring federal permits the same opportunity to develop their property

as those proceeding under Section 7." Robert Meltz, Congressional

Research Service, The Endangered Species Act and Private Property: A

Legal Primer, n.19 (Mar. 7, 1993), quoting House Conf. Rep. No. 304,

97th Cong., 2d Sess., reprinted ia [1982] U.S. Code Cong. & Ad. News

2860, 2870.

"’ Professor Lin, supra note 9, also commented that this Court, in a case

regarding pollution of the Florida Everglades, “hinted at a role for tort

causation” in allowing two arguments for consideration on remand (the

Government's “unitary waters" argument, and the water district's

“indistinguishable parts of the same water body” theory). Albert Lin at

614-15, citing S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,

$41 U.S. 95 (2004).

23

address potential consequences far removed from its scope

of authority.

Clearly, the required cause-and-effect relationship

between NPDES program approval, endangered species, and

future development is simply lacking. For this Court to

uphold the Ninth Circuit's decision based solely on some

vision of what might happen in the future—something

unrelated to EPA's 402(b) authority—would violate the

Sweet Home, Public Citizen, and Metropolitan Edison

principles. Since EPA cannot regulate land use activities

including public works projects of your Amici—

fundamentally state and local issues—the Ninth Circuit's

decision expands the CWA without Congressional approval.

Whatever tenuous link the 9th Circuit found between

NPDES program approval and Section 7(a)(2) jeopardy, if

any, is beyond the CWA and should therefore be rejected.

il. THE NINTH CIRCUIT'S RATIONALE, IF

UPHELD, WILL EXTEND FAR BEYOND THE

CWA ACTION AT ISSUE IN THE CASE AND

WOULD HAVE SIGNIFICANT ADVERSE

EFFECTS ON VITAL PUBLIC PROJECTS.

The ramifications of the Ninth Circu:t's imierpretation

of the scope of Section 7(a)(2) consultation are significant.

The Ninth Circuit's decision could severely impact the

process of decision-making for many vital projects

sponsored by your Amici by elevating ESA considerations

above other factors that must be considered in the review of

public works projects. The transportation planning process

in which ARTBA and NPPC members must participate

typifies these consequences. Regulatory and administrative

efforts required by ESA regulations account for a significant

part of the delays faced by transportation projects.

24

_ For example, ARTBA member projects in California

have recently been delayed more than two years due to ESA

concerns over the San Bernardino Kangaroo Rat. If the

Ninth Circuit’s reasoning is allowed to stand, the scope of

the ESA will be greatly broadened. The statute will, in

effect, become a “trump card” in relation to other

environmental requirements of the transportation planning

process. ESA considerations will have to be not only

examined in terms of transportation construction projects,

but also any future development that may be linked in the

future to those projects. This type of prediction would be

impossible to measure. As a result, transportation projects

could face a substantial increase in ESA-related delays

because planners would not be able to forecast indirect

impacts to species caused by their projects.

According to a recent report by the U.S. Government

Accountability Office ("GAO")'®, as many as 200 major

steps are already involved in developing a transportation

project. According to the same report, it typically takes

between nine and 19 years to plan, gain approval of, and

construct a new major federally funded highway project.'”

This process involves dozens of overlapping state and

federal laws, including ESA implementation, NEPA, state

NEPA equivalents, wetland permits, clean air conformity,

etc. Often times these procedures mask disparate agendas or,

at a minimum, demonstrate an institutional lack of

interagency coordination that results in a seemingly endless

string of delays.

A recent study by the U.S. Federal Highway

Administration ("FHWA") found the time required to

process environmental documents for large projects has

'§ GAO Testimony Before the Committee on Environment and Public

Works, U.S. Senate, GAQ-02-1067T (Sept. 19, 2002)

Id.

25

doubled over the past two decades.”” In the 1970s, the

average time for completion of an environmental impact

statement ("EIS") was 2.2 years. Forrner U.S. DOT

Assistant Secretary for Policy Emil Frankel recently reported

that from 1999- 2001 the median time for completing an EIS

was 4.4 years.’' However, delays in the transportation

project environmental review and approval process are not

only limited to large projects. According to FHWA, three

percent «f federally funded transportation improvement

projects isquire an EIS; the remaining 97 percent require an

environmental assessment ("EA")(6.5 percent) or a

categorical exclusion ("CE")(90.6 percent). A recent report

conducted by the National Cooperative Highway Research

Program stated:

[DJelays in completing [EA and CE} reviews

are encountered frequently despite the

minimal environmental impacts associated

with such projects. Even if such project-level

delays are individually small, their cumulative

impact may be significant because most

transportation projects are processed as CEs or

EAs.”

*” U.S. Fed. Highway Admin.. Evaluating the Performance of

Environmental Streamlining Development of a NEPA Baseline for

Measuring Continuous Performance, available at

http://www.environment.fhwa.dot.gov/strming/baseline/section2.asp.

*! Emil H. Frankel, Asst. Sec’y for Transp. Policy, U.S. Dep't of

Transp., Statement Before the U.S. Senate Comm. on Env't and Pub.

Works, Hearing on Project Delivery and Envtl. Stewardship (Sept. 19,

2002).

2 U.S. Fed. Highway Admin. Report to Congress on Federal Highway

Administration Streamlining Activities in 2003 (June 2004), available at

http://www.environment.fhwa.dot.gov/strming/ric060¢rpt asp.

* Environmental Streamlining: A Report on Delays Associated with the

Categorical Exclusion & Environmental Assessment Process, Prepared

for the AASHTO Standing Committee on Highways by TransTech

Management under NCHRP contract number HR 20-7( 129) (Oct. 2000).

26

According to the above report, 63 percent of all state

DOTs responding to the survey reported environmental

_ process delays with preparation of CEs, and 81 percent

reported similar delays involving EAs.”* These delays triple

average environmental review times for CEs—from about

eight months to just under two years—and have more than

doubled review times for EAs, from under 1.5 years to about

3.5 years.”

A prime example of the hurdles caused by complex

regulation can be found in the case of U.S. 95 in Las Vegas,

Nevada. This project involved widening an interstate

highway from six to ten lanes. The project had already

satisfied all of the necessary NEPA requirements and was

under construction. However, a supplemental NEPA

document was allowed to be introduced (a single air quality

monitoring study modeled in Los Angeles, not Las Vegas)

two years after the Record of Decision had been issued. This

resulted in a nearly year-long work stoppage. Indeed,

although these delays were caused by NEPA, had an ESA-

listed species been impacted, the Ninth Circuit's reasoning

that Section 7(a)(2)'s "insure" language elevated the ESA

above other requirements would have most certainly led to

even greater delays by requiring consideration of future

speculative land use effects on listed species.

These potential consequences are best understood in

light of the safety and environmental needs to be met by the

U.S. 95 project. In the year 2002 alone, traffic congestion

cost Las Vegas area residents and businesses $364 million

and resulted in the additional consumption of 33 million

gallons of motor fuel.*° The segment of U.S. 95 at issue in

** Id.

> Id

26

Texas Transportation Institute, 2004 Urban Mobility Report,

27

this case serviced and accessed some of the fastest growing

neighborhoods in Las Vegas. An estimated 190,000 vehicles

traveled through the portion of U.S. 95 to be widened each

day, with peak hour traffic reaching as high as 11,900

vehicles.”’ Traffic congestion slowed commuters to one-half

of the 55 mile-per-hour speed limit on the corridor.” Also,

between 2000 and 2002 there were 3,535 motor vehicle

crashes on one section of U.S. 95.” In its present state, the

U.S. 95/1-95 interchange in Las Vegas has been rated as one

of the 25 "worst bottlenecks” in the United States.” The

improvements that make up the U.S. 95 widening project are

needed in order to keep pace with the rapid population

growth currently being experienced in the Las Vegas area

and prevent the effects of traffic congestion from worsening.

The widening of U.S. 95, once completed, will lead

to enormous environmental, public health and safety

benefits. Once finished, the improvement of U.S. 95 will

result in a significant reduction in so-called “greenhouse

gasses." Specifically, there will be a 58.8 ton reduction in

carbon monoxide emissions, a 54.3 ton reduction in volatile

organic compounds, and an 87.8 ton reduction in carbon

dioxide emissions between now and the year 2025.”

Further, it is estimated that within that time span there will

be an 87.8% reduction in motor fuel usage by U.S. 95

commuters, which translates to 231,654,731 gallons of motor

fuel saved (or 68.9 gallons per commuter over the life of the

project).*?_ Also, the time Las Vegas commuters spend stuck

Performance Measure Survey for Las Vegas, 2 (Sept. 2004).

~ U.S. Fed. Highway Admin., Press Release, Sept. 30, 2004.

Id.

? Id.

- Cambndge Systematics, Inc.. Unclogging America's Arteries.

Effective Relief for Highway Bottlenecks - study conducted for American

Highway Users Alliance, 3 (Feb. 2004).

* Id. at 63.

* Id.

28

in traffic will decrease by an average of 86.5%, which for

commuters who use U.S. 95 twice per day, would mean 30

minutes of time saved daily while driving through the area to

be improved.’ Finally, the U.S. 95 improvements are

projected to result in 3,524 fewer total motor vehicle crashes,

14 fewer fatalities, and 1,730 fewer injuries to commuters

through 2025.**

These examples demonstrate the types of problems

caused by delaying transportation and other public works

projects. These problems will only be exacerbated if the

Ninth Circuit’s reasoning is allowed to stand and the ESA's

"insure" language transforms the already extensive and time

consuming review process into a requirement to treat ESA

goals above all other considerations. Planners will be forced

to account for effects on species that they have no feasible

way of being able to project. The ESA will become the

driving force behind a review process driven more by

speculation over future land use impacts on species habitat

than scientific certainty governed by reason.

* Id.

** Id. at 62. Delays in the environmental review and approval process

for transportation improvement projects can have tragic consequences.

According to the U.S. DOT, more than 42,000 people are killed each

year on the nation’s highways. U.S. Fed. Highway Admin., Public Roads

(May/June 2003), available at

http://www.tfhre.gov/pubrds/0 Jmay/02.htm.

29

CONCLUSION

The Amici ARTBA and NPPC respectfully request

this Court to reverse the Ninth Circuit's ruling in Defenders

of Wildlife.

Respectfully submitted,

LAWRENCE R. LIEBESMAN*

RAFE PETERSEN

STEVEN R. KELTON

Holland & Knight LLP

2099 Pennsylvania Ave, NW

Washington, DC 20006

(202) 955-3000

*Counsel of Record

NICK GOLDSTEIN

American Road and Transportation Builders Association

1219 28th Street, NW

Washington, DC 20007

(202) 289-4434

Of Counsel