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

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Nos. 06-340 and 06-54

IN THE

Supreme Court of the United States.

NATIONAL ASSOCIATION OF HOME BUILDERS, ef al.,

Petitioners,

DEFENDERS OF WILDLIFE, ef al.,

Responden!s.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

DEFENDERS OF WILDLIFE, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

CROPLIFE AMERICA

IN SUPPORT OF PETITIONERS

Of Counsel DOUGLAS T. NELSON

STEVEN P. QUARLES Counsel of Record

J. MICHAEL KLISE JOSHUA SALTZMAN

CROWELL & MORING LLP CROPLIFE AMERICA

1001 Pennsylvania Ave., NW 1156 15th Street, NW

Washington, DC 20004-2595 — Suite 400

(202) 624-2500 Washington, DC 20005

(202) 872-3880

QUESTIONS PRESENTED

Amicus will address the following questions:

|. Whether the court of appeals correctly held that the

decision of the Environmental Protection Agency (“EPA”) to

transfer pollution permitting authority to Arizona under the

Clean Water Act, see 33 U.S.C. § 1342(b), was arbitrary and

capricious because it was based on _ inconsistent

interpretations of Section 7(a)(2) of the Endangered Species

Act of 1973 (“ESA”), 16 U.S.C. § 1536(a)(2); and, if so,

whether the court of appeals should have remanded to the

EPA for further proceedings without ruling on the

interpretation of ESA § 7(a)(2)?

2. If the court below should have remanded to obtain

the agencies’ construction of ESA § 7(a)(2) without

imposing the panel's preferred construction, now that the

agencies’ construction has been obtained, should this Court

reach the merits of the ESA § 7(a)(2) interpretive issue

decided by the court below?

3. Whether procedural “consultation” under ESA

§ 7(a)(2) necessarily applies to precisely the same set of

“action[s] authorized, funded, or carried out by such

[federal] agency” as does § 7(a)(2)’s substantive constraints

that such actions be “not likely to jeopardize the continued

existence of any endangered or threatened species or result in

the destruction or adverse modification of” designated

critical habitat?

(1)

TABLE OF CONTENTS

QUESTIONS PREGIIN BEDD q..c.cccccccccosccssccscccssosscssosceseneees

TAREE GP As Tie i receccccsssoveswrsccscsecccenssovscososers ill

INTEREST OF AMICUS CURIAE ............0..-0ccecseesseesesees |

SUMMARY OF ARGUMENT ......0..... 0... ceccceeeeseereeeeeeeees 3

TTT sitciniianiinininnnninnsinemeicinmnimnmiiiniatianmivn 4

1. While The Court Below Erred In Not Stopping

And Remanding Once It Found EPA’s Actions To

Be Arbitrarily Inconsistent, The Agencies’ Final

Interpretation Of ESA § 7(a)(2) [s Before This

Court. This Court Should Provide Much-Needed

Guidance On The Scope Of ESA § 7(a)(2)................. 4

A. The Court Below Erred In Imposing Its View

On The Scope Of ESA § 7(a)(2) Without First

Remanding To Obtain The Agencies’

Construction Of A Statute They Administer........ 5

B. The Agencies’ Interpretation Of ESA § 7(a)(2)

Provides The Information That Would Have

Been Obtained By A Remand. This Court

Should Provide Guidance On The ESA

§ 7(a)(2) Issue Decided Below. ...................0....24. 8

C. EPA Did Not Act In An Arbitrarily

I I iiccrnccntcnnsammnenenancnmenentemanadins 14

Il. ESA § 7(a)(2)’s Elements On “Consultation” And

Jeopardy-Avoidance May Not Apply To Precisely

FS SHR AGTMCY ACIIOGS ..022000000s0cccecserscesssesorveeserss 20

IT ataditcsiniuesincninisensenbenbinidepounmnitnnmmnenatnintnntas 29

(11)

TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............42. 16

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

TE A ciesscreesiedenstcioneinieaniedeinialinbenienaed 3, 15, 16, 19

Auer v. Robbins, 519 U.S. 452 (1997) ....ccececeeeseeeeseneeeees 12

Babbitt v. Sweet Home Chapt. of Communities for

a Great Oregon, 515 U.S. 687 (1995) .00... ce eeeeceeeee 29

Barnhart v. Walton, 535 U.S. 212 (2002).....0...... eee 24

Bennett v. Spear, 520 U.S. 154 (1997) «2.0... -ccceceeeseeees 12,17

Bob Jones Univ. v. United States, 461 U.S. 574

SUED iaiacitciieieaeliasieiiihaebieeshddledabdbenaanideaaiibieaitaiitndaldabisidiibes 24

Bowen vy. Georgetown Univ. Hosp., 488 U.S. 204

RRS ee ae Soe eo aR ne ee 11

Cabinet Mts. Wilderness/Scotchman’s Peak

Grizzly Bears v. Peterson, 685 F.2d 678 (D.C.

ails ATED cocchetninsianpeninceddiiiapdinntdanbibiniiiabiaantinininepaitiueiaiin 12

Citizens to Preserve Overton Park v. Volpe, 401

Be SN TTI shdicciiicisstuidanceliiciinitendedsimntiacineniiebkieliciide 10

Cook Inlet Beluga Whale v. Daley, 156 F. Supp.

Be cs EIEN chink nisdice lnitiiiccnsesiapieddebnaceiniietiaeinadeies 16

Dalton v. Specter, 511 U.S. 462 (1994)... eeee 16

Defenders of Wildlife v. Kempthorne, No. 04-1230

(GK), 2006 WL 2844232 (D.D.C. Sept. 29,

Defenders of Wildlife v. United States Envtl. Prot.

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

denied, 450 F.3d 394 (9th Cir. 2006)....0..000000000000.. passim

(111)

Florida Key Deer v. Brown, 386 ¥. Supp. 2d 1281

(S.D. Fla. 2005), appeal pending, No. 05-

IIT Ti iicisdiicsniicpasningpsicieinenenmnbenieeninnieises 13

Florida Power & Light Co. v. Lorion, 470 U.S.

eI cs nibs iniiniea dd ticidnipernnbinciniagilindbieideutnonnnnnnect tune 3,7, 10

Gonzales v. Thomas, 126 S. Ct. 1613 (2006)................. 3,7

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

ETE FEE SRE RAE Eres aan ne oe ee 11,22

Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Matto. Ins. Co., 46S U.S. ZO CUDGES) ncccesssesevcesecescesscessees 11

National Cable & Telecomm. Ass'n v. Brand X ;

Internet Servs., 545 U.S. 967 (2005) ............ccccecee esses 16

Norton v. Southern Utah Wilderness Alliance, 542

RESET Ee eee eee nT 7

Office of Personnel Mgmt. v. City of Richmond,

ESSERE es Oe ea 16

Santa Fe Pacific R.R. v. United States, 294 F.3d

REFER Pane eo a 16

Schweiker v. Hansen, 450 U.S. 785 (1981).........00. eee 16

SEC v. Chenery Corp., 318 U.S. 80 (1943) ..........00. 4,5, 10

Springfield, inc. v. Buckles, 292 F.3d 813 (D.C.

RRR TREAT Ere SER ay ee PT a 16

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

RISER Gn Aye toot CO er OAC Ahn Ro 28

United States v. Mead Corp., 533 U.S. 218 (2001).......... 11

United States v. Wells, 519 U.S. 482 (1997)... 10

United States v. Western Pac. R.R. Co., 352 US.

RTF EES Rs a SE a ea AE ee 7

United States v. Williams. 504 U.S. 36 (1992) ..0.00.000000000... Y

(Iv)

Verizon Communications v. FCC, 535 U.S. 467

Washington Toxics Coal. v. U.S. Dep't of Interior,

457 F. Supp. 2d 1158 (W.D. Wash. 2006),

appeals pending, Nos. 06-35873, 06-35891, 06-

Fe CHD GD scicstcecscsecicesseiememmmmaanmamananans 2,27

Washington Toxics Coal. v. U.S. Envtl. Prot.

Agency, 413 F.3d 1024 (9th Cir. 2005)...00....... eee 13

Statutes

Admin. Procedure Act, 5 U.S.C. § 704............cccccceccee coon 16

Admin. Procedure Act, 5 U.S.C. § 706...............ccccccceee ees 12

Clean Water Act § 402(b), 33 U.S.C. § 1342(b)........ passim

Endangered Species Act § 10(a)(2)(B){iv), 16 - -

CF A.. © CSIR cscncceninsnpicrentennniasidenibasaammmaiae 24

Endangered Species Act § 7(a)(1), 16 U.S.C.

OD CIE 0 Biancsccsscncscniisccdsnoncessiesessngpneimmbasiiiimanaan 15

Endangered Species Act § 7(a)(2), 16 U.S.C. -

BD GERAD nsscncesssccnasinesapmecicesinsendasiamstansasiadaiaanan passim

Endangered Species Act § 7(b), 16 U.S.C.

§ 1S3GQD) ........-rsrrrercrscssecccorsssnsnssenensesnssnnssssssessssensnnses 22

Fed. Insecticide, Fungicide and Rodenticide Act

B BED, 7 ULB. & TID cccacisscsscnccsnsststtibiamnammniann 13

Fed. Insecticide, Fungicide and Rodenticide Act

B Ghep, 7 WGA. © CII visiccccsccccscsesscscnnesmanann 13

Regulations

SO CF TR. Fae GE Ge vvnncsctitinccoccninnstistemunnia 4, 12, 22

FO OP BR. © FP Cr sventenssscseccnentisiatnnaea 9, 17

SOC F BR. © G2 OG CI aac escesexssccsesiciglnenaeeeee

(Vv)

Se ENE BOP UB Piccececcnssvecccscssocsseseoncasecsces 22

50 C.F.R. § 402.04(a)(3) (1979)...........cccesscseceseeeeeeeeeeeees 23

5 ee 26

a te ND CIID ccenccsscccencovencocecapecctccccoseconses 22

ee ils Oe te OD EAI acsnenenccccececccccesesasscccccccess 22, 23

een 22, 23

50 C.F.R. §§ 402.30-402.34 (2006) ....cccsssessssvvvvveveeeeeee 25

50 C.E.R. § 402.33 (2006)....ccccccccecsseccssecssecssseecrsecssvesesees 26

50 C.F.R. §§ 402.40-402.48 (2006)... eeeeeeees 25

50 C.P.R. § 402.45 (2006)....cccccccccssecsseesseeseees et 26

Other Authorities

67 Fed. Reg. 79,629 (Dec. 30, 2002)...................000000 16, 19

68 Fed. Reg. 68,254 (Dec. 8, 2003)....ccccccsuessssessseeeeseeeen 25

69 Fed. Reg. 47,732 (Aug. 5, 2004) ......ccccccccsssesssseessseeen 25

I aaa eerleiegtiariinanmnummenetont 6

H.R. Conf. Rep. No. 95-1804, 1978 U.S.C.C.A.N.

a eneunenenien -.. 24

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

a 5 Te 24

Jan Hasselman, Holes in the Endangered Species

Act Safety Net: The Role of Agency

“Discretion” in Section 7 Consultation, 25

in rn... snssssnsoeneuseenete )

Ce oa 10

S. Rep. ITT ea oe 24

(vi)

U.S. Government Accountability Office,

Endangered Species: More Federal

Management Attention Is Needed to Improve

the Consultation Process (GAQ-04-93 March

Soiree cininnrennnpnenicanetainintiaienbaiinimuneniitinial iininiensatitalab 26

(vil)

INTEREST OF AMICUS CURIAE

Amicus curiae CropLife America’ supports reversal of

the divided Ninth Circuit panel opinion below, which found

that § 7(a)(2) of the Endangered Species Act (“ESA”Y

overrides the Clean Water Act (“CWA”) § 402(b), 33 U.S.C.

§ 1342(b), standards for approving a State program to issue

National Pollutant Discharge Elimination System

(“NPDES”) permits (sometimes called a “transfer” of

jurisdiction). Defenders of Wildlife v. United States Envitl.

Prot. Agency, 420 F.3d 946 (9th Cir. 2005) (Fed. Pet. App.

la-67a), reh'g denied, 450 F.3d 394 (9th Cir. 2006) (Fed.

App. 68a-92a) (“Defenders”). The court below declined to

remand to obtain the interpretation by the agencies charged

with implementing ESA § 7(a)(2),° and imposed its own

misguided interpretation. The agencies have now clearly

stated their construction that, due to EPA’s lack of discretion

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

for a party, and no person or cntity other than CropLife, its members,

and its counse] made a monetary contribution to the preparation and

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

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

the Court consenting to the filing of all amicus curiae briefs in this

matter. The Fedcral Petitioner's written consent to the filing of this

brief has been filed with the clerk.

~ “Bach Federal agency shall, in consultat on with and with

the assistance of the Secretary [who acts through the U.S. Fish.and

Wildlife Service (‘“FWS’) or National Marine Fisheries Service

(‘NMFS’) (collectively, the ‘Services’)]. insure that any action

authorized, fuaded, or carried out by such agency .. . 1s not likely to

jeopardize the continued cxistence of any endangered species or

threatened species [‘listed specics’] or result in the destruction or

adverse modification of” designated critical habitat. 16 U.S.C.

§ 1536(a)(2).

* ‘Those agencies are: (1) the agency proposing the action

(“action agency”). in this instance the Environmental Protection

Agency (“EPA”); and (2) the Services, who have a “consultation”

role under ESA § 7(a\2).

under CWA § 402(b), ESA § 7(a)(2) does not apply to the

transfer. Fed. App. 93a-1 16a.

CropLife America is the nationwide not-for-profit trade

organization representing the major manufacturers,

formulators, and distributors of crop protection and pest

control products. CropLife is headquartered in Washington,

D.C. Its member companies produce, sell, and distribute

virtually all the crop protection, specialty, and biotechnology

products used by American farmers, professional users, and

consumers, including the vast majority of pesticides

registered by EPA under the Federal Insecticide, Fungicide

and Rodenticide Act (“FIFRA”).

CropLife and its members seek to establish an efficient

and effective procedure by which EPA can comply with ESA

§ 7 in conjunction with registering pesticides under FIFRA.

Thus, CropLife has an interest in securing judicial

interpretations of ESA § 7 that will achieve the purposes of

the ESA without imposing additional barners to activities of

the regulated community under organic statutes such as

FIFRA or, as in this case, the CWA. The Ninth Circuit’s

reasoning below threatens to “modify not only EPA’s

obligation under the CWA, but every categorical mandate

applicable to every agency.” Defenders, 450 F.3d at 398-99

and n.4, 401 (Kozinski, J., dissenting) (Fed. App. 69a, 74a-

79a, 82a). Indeed, CropLife is party to pending litigation

under the ESA and FIFRA in which the district court issued

an unfavorable ruling based in part on the Ninth Circuit's

reasoning in the instant case. See Washington Toxics Coal.

v. U.S. Dep't of Interior, 457 F. Supp. 2d 1158, 1177-78

(W.D. Wash. 2006) (quoting Defenders, 420 F.3d at 961),

appeals pending, Nos. 06-35873, 06-35891, 06-35899 (9th

Ci).

SUMMARY OF ARGUMENT

Amicus would answer the question(s) posed by this

Court as follows. First, once the Ninth Circuit found an

inconsistency in EPA’s position, it erred in not remanding to

obtain the EPA’s and FWS’s construction of a statute they

administer. The panel should not have imposed its preferred

construction of ESA § 7(a)(2) on them. Gonzales v. Thomas,

126 S. Ct. 1613, 1614-15 (2006); Florida Power & Light Co.

v. Lorion, 470 U.S. 729, 744 (1985).

Second, the purpose of a remand — obtaining the expert

agencies’ views — has now been achieved by the agencies’

uniform interpretation that ESA § 7(a)(2) does not apply to

or constrain a transfer of jurisdiction under the exclusive

standards in CWA § 402(b). See Fed. App. 93a-11l6a. As a

result, this case is well-positioned for this Court to provide

much-needed guidance on the issue that the court below

decided and that has divided the lower courts. That recurring

and important issue is: Does ESA § 7(a)(2) override the

directives of other statutes, or does § 7(a)(2) operate only

where another statute confers authority on the action agency

to act based on wildlife considerations?

Third, EPA was not arbitrarily inconsistent. EPA, by

initiating consultation and receiving ESA § 7(a)(2) clearance

from FWS, rationally avoided a litigation issue on whether

“consultation” was required. Because the leading opinion of

the era stated the ESA “requires EPA to consult” before

undertaking agency action, EPA did not act arbitrarily in

initially following that guidance. 4m. Forest & Paper Ass'n

v. EPA, 137 F.3d 291, 298-99 (Sth Cir. 1998).

Section | of this bnef develops those thenes. Section I]

alerts the Court to the Ninth Circuit's mistaxen assumption

that the procedural “consultation” and the substantive aspects

of ESA § 7(a)(2) must apply to the precisely same class of

“agency actions.” The current ESA § 7 rules in 50 C.F.R.

Part 402, and the timely provision of federal permits and

services, depend on a different view. Under that view

(ratified by Congress), “consultation” with the Services is

not universally required before any of the thousands of

actions federal agencies take each day can be implemented.

ARGUMENT

I. While The Court Below Erred In Not Stopping And

Remanding Once It Found EPA’s Actions To Be

Arbitrarily Inconsistent, The Agencies’ Final

Interpretation Of ESA §7(a)(2) Is Before This

Court. This Court Should Provide Much-Needed

Guidance On The Scope Of ESA § 7(a)(2).

In granting review on January 5, this Court added the

first Question Presented at page 1. CropLife’s second

Question Presented is the logical follow-up. The Court

posed its question in light of the following fact pattern.

In the Ninth Circuit, the panel majority (Judges Berzon

and Reinhardt) reasoned an agency’s action must be

reviewed on the “grounds . . . upon which the record

discloses that its action was based” (quoting SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943)). Defenders, 420 F.3d at 960

(Fed. App. 25a). EPA allegedly had stated that ESA “section

7 requires consultation regarding the effect of a permitting

transfer on listed species” because its action “*may affect’”

listed species.” /d. at 959-60 (Fed. App. 23a, 25a). But,

FWS “reasoned that there could be no such effect” caused by

any discretionary EPA action, due to the mandatory nature of

a transfer if the CWA § 402(b) standards are met. EPA then

transferred authority based on that biological opinion. /d. at

961 (Fed. App. 26a-27a). The panel felt that “EPA decided

that it had to consult but had no authority to do anything

concerning the matter about which it had to consult” and that

ihis was arbitrarily inconsistent because “[b]joth the

consultation obligation and the obligation to ‘insure’ against

jeopardizing listed species are triggered” by the same set of

agency actions. /d. “Because EPA’s “decisionmaking was

based on contradictory views of the same words in the same

statutory provision,” EPA acted arbitrarily and the “transfer

decision cannot stand.” /d. at 961-62 (Fed. App. 27a-28a).

Though the panel concluded “we must remand to the agency

for a plausible explanation . . . based on a single, coherent

interpretation of the statute” (id. at 962 (Fed. App. 28a)), the

panel then went on to explain and impose its own views on

how ESA § 7(a)(2) should operate. /d. at 962-71 (Fed. App.

28a-48a).

The distinct portions of the Court’s question, and the

logical follow-up, are answered in the subsections below.

A. The Court Below Erred In Imposing Its View

On The Scope Of ESA § 7(a)(2) Without First

Remanding To Obtain The Agencies’

Construction Of A Statute They Administer

1. Before the Ninth Circuit panel, Defenders of

Wildlife did not urge the transfer be set aside on the ground

that federal agencies were interpreting ESA § 7(a){2)

inconsistently as to procedural consultation and substantive

constraints.’ Nor did Defenders cite SEC v. Chenery Corp.,

As illustrated by the “Issue Presented for Review” in its

opening bricf, Defenders of Wildlife pursued dfferent ESA §7

compliance issues: “Whether EPA violated the [ESA]... by relying

on FWS’s BO [biological opinion] in determining that its transfer

action ts not likely to jeopardize the continucd existence of listed

species . . . Where the BO ts not based on the best scientific data

available, fails to adequately analyze all of the cffects on listed

(continued...)

on which the panel relied. Contrary to the case law under

Federal Rule of Appellate Procedure 28(a), the court below

reached out to find that EPA acted arbitrarily on a ground not

asserted in Defenders’ opening appellate brief. Thus, the

Ninth Circuit panel erred by deciding an “inconsistency”

issue the parties had not briefed.

2. As will be shown in Section LC, below, the

reviewable final actions by EPA and FWS were not

arbitrarily inconsistent as to ESA § 7(a)(2)’s scope regarding

procedures (consultation) and substance (avoiding

discretionary federal actions likely to jeopardize a listed

species’ existence). But, the panel found EPA had been

“contradictory.”

This Court has asked whether, once the court of appeals

found EPA’s current position to be arbitrary, the panel

should have remanded to EPA for a coherent legal

interpretation without a panel ruling on the meaning of ESA

§ 7(a)(2). Our answer is “yes.” The panel should have

remanded and stopped there.

The panel understood that it had a duty to remand. “We

must remand to the agency for a plausible explanation of its

decision, based on a single, coherent interpretation of the

statute.” Defenders, 420 F.3d at 962 (Fed. App. 28a).

Inconsistent with a remand to the agency and its embedded

(continued)...

species . . ., fails to meaningfully consider the siatus and

environmental baselines of each affected species and critical habitat,

and ignores cumulative effects.” Petitioners” [Defenders’] Opening

Br. at 2 (9th Cir. Sept. 18, 2003). The panel addressed the issues

presented by Defenders of Wildlife only near the tail end of its

opinion. See Defenders, 420 F.3d at 972-77 (Fed. App. 48a S2a).

concept of primary agency jurisdiction, the panel then

inexplicably went on, at considerable length, to state as

binding precedent its views on how ESA § 7(a)(2) should

operate. /d. at 962-71 (Fed. App. 28a-48a). Judge Kozinski

correctly chastises the panel for concluding an issue should

be “remanded to EPA for further clarification,” but then

“embark[ing] on a 17-page boondoggle, conducting the very

analysis that EPA should have had an opportunity to conduct

for itself.” Defenders, 450 F.3d at 397 (Fed. App. 72a).

Here again, the “Ninth Circuit’s failure to remand is

legally erroneous” ~ the panel erred in determining a matter

“in the first instance” without obtaining EPA’s and FWS’s

views of statutesthey-administer. Gonzales v. Thomas, 126

S. Ct. at 1614-15. “[T]the proper course, except in rare

circumstances, is to remand to the agency for additional”

explanation. “The reviewing court is not generally

empowered to conduct a de novo inquiry into the matter

being reviewed and to reach its own conclusions.” Florida

Power & Light, 470 U.S. at 744.

Absent “special circumstances,” the “ordinary” remedy

is “vacat[ing] the judgment of the Court of Appeals” and

remanding so the agency can “decid[{e] whether the facts as

found fall within a statutory term.” Gonzales, 126 S. Ct. at |

1615. Thus, the court below committed reversible error in

opining on how ESA § 7(a)(2) should operate.

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

55, 65-67 (2004) (“protect agencies from undue judicial interference

with their lawful discretion”), Florida Power & Light, 470 U.S. at

744, United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-65

(1956).

B. The Agencies’ Interpretation Of ESA § 7(a)(2)

Provides The Information That Would Have

Been Obtained By A Remand. This Court

Should Provide Guidance On The ESA § 7(a)(2)

Issue Decided Below.

1. This Court should not simply vacate most of the

opinion below and remand to either the agency or the Ninth

Circuit. Unlixe in Gonzales v. Thomas, “special

circumstances” exist here.

The purpose of the remand the Ninth Circuit should

have ordered is, of course, to obtain the agencies’

construction of statutes and rules they administer. Federal!

Petitioner has provided the information that would have been

provided after a remand. At Fed. App. 96a-102a, 106a-10a,

EPA and FWS provide their considered opinion that no part

of ESA § 7(a)(2) (neither procedural “consultation” nor

substantive avoidance of jeopardy) applies to CWA § 402(b)

transfers. That supplies the “single, coherent interpretation

of the statute” demanded by the court below. Defenders, 420

F.3d at 962 (Fed. App. 28a). Accordingly, the option of

remanding to the agencies now is moot as a practical matter.

Nor would it be appropriate to vacate and remand to the

Ninth Circuit. The opinion below and the denial of rehearing

below make clear that the Ninth Circuit would reject, and has

rejected, the agencies’ current construction that ESA

§ 7(ay(2) does not apply to a CWA § 402(b) transfer.”

* See Defenders, 420 F.3d at 962-71 (Fed. App. 31a-47a);

Defenders, 450 F.3d 394 (Fed. App. 68a). Significantly, in

explaining why the majority opinion should not be reheard on the

remand-to-the-agencies: basis. asserted by Judge Kozinski, Judg»

Berzon states: “EPA did decide that a transfer was appropriate and

that it did not have the authority to consider the impact on endangered

and threatened species of the transfer decision. We disagree with

(continued...)

Accordingly, vacating and remanding to the court below also

would serve no purpose.

2. For many reasons, this Court should decide the

recurring question regarding the scope of ESA § 7(a)(2).

There is an active controversy on that question vis a vis

CWA §402(b) as applied to Arizona and to Alaska.

Moreover, the precedent created below places at risk

numerous other federalism-related transfers of jurisdiction to

States, as well as federal licensing, registration, and

permitting programs, under sundry environmental laws.

More generally, “[q]uestions as to the proper meaning

and interpretation of [50 C.F.R.] § 402.03 [and ESA

§ 7(a)(2)] arise regularly in the courts.” Jan Hasselman,

Holes in the Endangered Species Act Safety Net: The Role of

Agency “Discretion” in Section 7 Consultation, 25 STAN.

ENVTL. L.J. 125, 179 (2006). Over 20 lower court opinions

have addressed that question in varying ways, leading to

“discordant case law.” /d. at 151-94. The Court’s exercise

of its supervisory authority would provide much-needed

guidance to the lower courts and to regulated parties.

There is no bar to the Court’s resolution of whether ESA

§ 7(a)(2) serves as a font of new, overnding authority. The

court below clearly decided that question. This Court can

review a question decided by the court below, even if it had

not been raised by the parties in their briefs. F.g., Verizon

Communications v. FCC, 535 U.S. 467, 530 (2002): United

States v. Williams, 504 U.S. 36, 41-45 (1992). Moreover, as

the key arguments on Petitioners’ side of that question were

(continued)...

both conclusions” and the agency should not have additional

“chances to consider a factual or legal question before appellate

review.” Defenders, 450 F.3d at 403 n.1 (Fed. App. 85a).

preserved in the Petitions for certiorari (and earlier),’ Rule

14 prerequisites to reaching an issue have been satisfied.

Further, an alleged “inconsistency” in a party’s prior

position is “just one of several considerations” bearing on

“whether to decide a question on which [the Court] granted

certiorari.” United States v. Wells, 519 U.S. 482, 487-89

(1997). Just as the Court concluded in Wells “it seems

sensible to reach the question presented” (id.), it is sensible

for the Court to decide the central ESA § 7(a)(2) interpretive

issue on which certiorari was granted.

3. The Court should reject any argument that the

agencies’ interpretation of ESA § 7(a)(2) in Fed. App. 93a-

116a can be ignored because it 1s post hoc and not allowed

by SEC v. Chenery Corp., 318 U.S. 80 (1943). The

necessary consequence of any remand for an agency’s

additional explanation is the production of material that is

“post hoc” in some sense. Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 420 (1971). This is permissible, as

the agency’s explanation on a matter over which the

Executive Branch agency has primary authority remains

crucial for judicial review. See id. at 419-21; Florida Power

& Light, 470 U.S. at 744. Hence, the supplemental

information obtained by a remand to an agency, an agency

declaration, or (here) formal agency letters trump the “basis”

concerns in SEC v. Chenery.

The Petitioners’ briefs to the panel below did not address

whether ESA § 7(a)(2) consultation was required, as that was not an

issue raised in Defenders of Wildlife’s opening brict. See note 4,

above. But, once the split panel opinion forced that issue front and

center, EPA and FWS did provide their interpretation that ESA

$ 7(aX2) did not apply — in a rehearing petition (at 6 n.1), the Federal

Petition here, and the material in Fed. App. 93a-1 16a.

Further, while Chenery is sometimes perceived as

limiting an agency to its contemporaneously-stated basis, the

opinion does not prohibit later agency clarifications. For

part of SEC’s order (approving a reorganization plan for a

public utility), SEC said it was applying the “broad equitable

principles” in certain case law. This Court reviewed only the

grounds “upon which the record discloses that its action was

based.” 318 U.S. at 87. But the Court also recognized it

should not remand where an agency reached the right result

but “upon a wrong ground or gave a wrong reason.” /d. at

88. The Court found that principle inapplicable there

because Chenery involved a “determination of policy and

judgment which the agency alone is authorized to make and

which it had not made.” /d.

In contrast, the instant case stands in this Court with the

agencies’ “determination” — their legal interpretation that

ESA § 7(a)(2) does not apply to CWA § 402(b) transfers.”

The principle against considering a post hoc rationalization

by counsel applies only “where the agency itself has

articulated no position.” Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 212 (1988). Here, the Court has the duly-

considered interpretation by the agencies implementing ESA

§ 7(ay(2) and CWA § 402(b) that deserves deference. See

United States v. Mead Corp., 533 U.S. 218, 227-31 (2001).

In comparable circumstances, this Court has given credit

to such arguably “post hoc” legal interpretations. In Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992), the United

This Court also mentioned Chenery in Motor Vehicle Mfrs.

Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). The

Court found the agency’s explanation was arbitrarily inadequate.

While there was no subsequent agency explanation in State Farm and

Chenery, there ts one here.

States’ legal interpretation on another ESA §7 issue —

whether the Services’ rules in 50 C.F.R. Part 402 are binding

on other agencies — was not settled until briefing before this

Court. The four Justices reaching the issue credited and

addressed the Solicitor General’s interpretation that those

rules do not bind other agencies. 504 U.S. at 568-71. In

another decision, though an agency’s final legal

interpretation came before the Court “in the form of a legal

brief,” the Court considered that interpretation and rejected

complaints it was a “post hoc rationalization.” Auer v.

Robbins, 519 U.S. 452, 462 (1997).

It is also relevant that Chenery was decided before

adoption of the Administrative Procedure Act (“APA”). The

APA now governs judicial review of ESA claims against

federal agencies.” The APA, by providing that “due account

shall be taken of the rule of prejudicial error,” also reflects

the concept of harmless error. 5 U.S.C. § 706. An alleged

error is harmless if it did not prejudice the outcome or if the

matter is clarified by the time it reaches the court. F.g.,

Nevada v. Dep't of Energy, 457 F.3d 78, 90 (D.C. Cir.

2006); City of Sausalito v. O'Neill, 386 F.3d 1186, 120-21

(9th Cir. 2004).

Here, the alleged error is the agencies’ failure to state, at

the time of transfer of NPDES authority to Arizona, that

since ESA § 7(a)(2) does not bar the transfer, § 7(a)(2)

consultation also does not apply. But that omission is not

error — no ESA or APA principle required a statement

regarding “consultation” at the time. At most, it 1s harmless

error, inasmuch as it did not prejudice the outcome (the

Bennett v. Spear, 520 U.S. 154, 173-79 (1997), see Cabinet

Mts. Wilderness Scotchman’s Peak Grizzly Bears v. Peterson, 685

F.2d 678, 685 (D.C. Cir. 1982).

transfer). The alleged error or inconsistency did not affect

the agencies’ primary conclusion that ESA § 7(a)(2) does not

override CWA § 402(b). The later, secondary clarification

regarding no “consultation” duty is consistent with the

primary conclusion. Further, at this poimt any error is

harmless, because the agencies have now provided a more

complete analysis.

Thus, this Court should decide the central substantive

issue in this case: Does ESA § 7(a)(2) override directives

and limitations Congress has prescribed in other statutes?

That is a recurring issue of broad significance. The opinion

below threatens to alter “every categorical mandate to every

federal agency.” Defenders, 450 F.3d at 399 n.4 (Kozinski,

J., dissenting) (Fed. Pet. 78a). It is an issue on which there is

a mature split in the circuits, and to which 20 lower courts

have provided irreconcilable answers. ’°

'” Merely vacating the panel opinion woulc not eliminate the

conflicts. While the opinion below is in the minority, it is not the sole

outlier. See, e.g., Florida Key Deer v. Brown, 386 F. Supp. 2d 1281,

1289-93 (S.D. Fla. 2005), appeal pending, No. 05-16374-I1 (11th

Cir.) (ESA § 7(a)(2) limits FEMA’s flood insurance program).

Most pertinent to Amicus CropLife, the Nimh Circuit at lcast

implicitly found that ESA § 7(a)(2) overrides other laws in

Washington Toxics Coal. v. U.S. Envtl. Prot. Agency, 413 F.3d 1024

(9th Cir. 2005). That opinion concerned the remedy when ESA

§ 7(aX(2) consultation was required on pesticides that FPA had earlicr

registered under FIFRA. FIFRA provisions specify the conditions

for, and limitations on, temporarily suspending a pesticide use duc to

impacts on listed species. 7 U.S.C. §§ 136(/) (definition of

“imminent” hazard” as an “unreasonable hazard to the survival of” an

ESA-listed species), 136d(c) (EPA may suspend a pesticide use only

if “necessary to prevent an imminent hazard”). The panel rejected the

arguments of EPA and intervenor CropLitfe that the specific FIFRA

previsions constrained the authority of agencies and courts to enjoin

or suspend a pesticide use in certain arcas. The panel found “an

ageney cannot escape its obligation to comply with the ESA merely

(continued...)

C. EPA Did Not Act In An Arbitrarily Inconsistent

Manner

The other portion of the question posed by this Court is

whether the court below correctly held that EPA’s decision

to transfer NPDES permitting authority to Arizona was

arbitrary because it was based on inconsistent interpretations

of ESA § 7(a)(2). The material below explains why the

answer is “no.”

1. It is true that EPA and FWS agency staff at various

levels were feeling their way through difficult issues as they

considered whether and how ESA § 7(a)(2) applied to a

CWA § 402(b) transfer with respect to Arizona. Local and

regional staff of EPA and FWS — without definitive legal

advice - offered different views as the issue was “elevated”

from local to regional to national levels. See Defenders, 420

F.3d at 952-54 (Fed. App. 6a-12a).

The details about what EPA said at what earlier time

should be irrelevant or harmless error at this point. See.

Section [.B, above.

2. With respect to EPA’s alleged arbitrariness, it is

highly significant that, in a similar CWA § 402(b) transfer

setting, the Fifth Circuit stated “Section 7 of the ESA merely

requires EPA to consult with FWS or NMFS before

undertaking agency action,” but neither the ESA nor CWA

§ 402(b) allows EPA to withhold or condition a transfer

(continued) . . . ,

because it is bound to comply with another statute” — the “FIFRA

remedies [do not] trump those Congress expressly made available

under ESA.” 413 F.3d at 1032, 1034; see id at 1034-35 (“the

appropriate remedy for [procedural] violations of the ESA

consultation requirements is a [substantive] injunction,” even if the

injunction countermands the FIFRA suspension provisions).

based on impacts to listed species. AF&PA v. EPA, 137 F.3d

at 297-99 (ESA § 7(a)(2) “confers no substantive powers”;

“EPA cannot invoke the ESA as a means of creating and

imposing requirements that are not authorized by the

CWA”). Agency staff can scarcely be found arbitrary for

following the leading circuit court opinion of the era that

EPA is required “to consult.”

3. Another réason why EPA was not arbitrary is that

nothing in the ESA bars an agency from being careful by

voluntarily initiating consultation on any action. ESA § 7

states that each “Federal agency shall, in consultation with”

the Services, “insure that any action authorized, funded, or

carried out” by an agency is not likely to jeopardize a listed

species with extinction. 16 U.S.C. § 1536(a)(2). An agency

like EPA can responsibly decide to “insure” by consulting

even if consultation may end up not being legally required.

Moreover, such a “consultation” furthers the “conservation”

objective of FSA § 7(a)(1), 16 U.S.C. § 1536(a)(1), even if

consultation is not technically required by § 1536(a)(2).

Consulting in such a grey area eliminates a litigation

issue over whether “consultation” is legally required where

the ultimate conclusion, as here, is that the agency action

substantively satisfies ESA § 7(a)(2). Successfully

completing an arguably optional process is rational, not

arbitrary, because it e/iminates (not creates) litigation

issues.'' And again, EPA staff did not act arbitrarily by

i ‘ . ‘

For example, agencies often prepare an environmental

impact statement (“EIS”) to remove an issue from litigation, where

there is a concer that some court would find that an EIS is required

by the National Environmental Policy Act (“NEPA”). Where an EIS

has been prepared, courts normally do not consider the issue of

whether the agency acted arbitrarily in choosing to prepare an FIS.

This is particularly true where the FIS is found to have satisfied

(continued...)

consulting in light of a Fifth Circuit opinion that the ESA

“requires EPA to consult.” AF&PA v. EPA, 137 F.3d at 298.

EPA’s approach was careful, not arbitrary.

4. Assuming arguendo that the details of EPA’s final

action — its transfer of NPDES authority to Arizona at 67

Fed. Reg. 79,629 (Dec. 30, 2002) — are pertinent, they do not

demonstrate any clearly inconsistent EPA positions.

To begin with, Judge Kozinski undoubtedly is correct

that the disagreements among lower-level staff are

meaningless. The “agency’s final action . . . is the only one

we are entitled to review. See 5 U.S.C. § 704.” Defenders,

450 F.3d at 396 (Fed. App. 7la). A preliminary ruling by a

“subordinate official” is not reviewable final agency action.

E.g., Dalton v. Specter, 511 U.S. 462, 469-70 (1994); Abbott

Labs. v. Gardner, 387 U.S. 136, 151 (1967). And, as

equitable estoppel does not apply against the government,

the agencies’ views can evolve and change over time. Office

of Personnel Mgmt. v. City of Richmond, 496 U.S. 414, 419-

23 (1990).'"

(continucd).. .

NEPA. Similarly here, if this Court finds that the agencies satisfied

ESA § 7(a)(2), the issue of whether EPA acted arbitrarily in initiating

consultation falls by the wayside.

"See Schweiker v. Hansen, 450 U.S. 785, 788-90 (1981). An

agency's final view may differ from the view of some staff, and the

agency's current view obtains judicial deference. National Cable &

Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980-86

(2005); Santa Fe Pacific R.R. v. United States, 294 F.3d 1336, 1343

(Fed. Cir. 2002); Springfield, Inc. v. Buckles, 292 F.3d 813, 819-20

(D.C. Cir. 2002). The existence of disagreements within the agencies

significs the questions were “difficult.” not that the ageney acted

arbitrarily. Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 22

(D.D.C. 2001).

Accordingly, if the Court disregards the later

clarification of the agencies’ position found in Fed. App.

93a-116a, the reviewable final agency actions are FWS’s

reasoning in its biological opinion, and EPA’s final action in

approving the transfer based on that opinion. Bennett v.

Spear, 520 U.S. at 177-79. Those actions do not show that

EPA was arbitrarily inconsistent.

a. FWS’s reasoning in the final biological opinion

was that EPA’s transfer of NPDES permitting authority was

compelled by CWA § 402(b), and was not the “cause” of any

impacts to listed species that are within the purview of ESA

§ 7(a)(2)."°

This is very close to the position EPA had earlier

summarized in the “elevation” document.'*

'S See NAHB Pet. App. 80, 111-17. The “transfer of the

permit authority will not cause the continued real estate development”

— the potential imipacts to listed species that might occur from private

development are not “indirect cffects of the approval action.” /d. 80,

114. The “absence of the section 7 process” for State-granted

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. 114. “EPA Region 9 has determined that it does not have the legal

authority to regulate the non-water-quality-related impacts associated

with State NPDES-permitted projects that are of concern to

PWe..... We defer to EPA in regard to its interpretation of the

CWA.” /d. Thus, FWS at least implicitly found that, where a statute

(like CWA § 402(b)) docs not confer the authority to act based on

wildlife impacts, the federal agency is not taking a “discretionary”

action within the meaning of 50 C.F.R. § 402.03 which is subject to

ESA § 7(a\(2).

‘* “EPA Region 9 also believes that its approval action, which

is an administrative transfer of authority, is not the cause of future

non-watcr-quality-related impacts on endangered specics from

projects requiring State NPDES permits. ... EPA Region 9 notes. . .

that section 402(b) of the CWA states that EPA ‘shall’ approve the

(continued...)

Accordingly, the contemporaneous final view of both

EPA and FWS was that EPA is not the “cause” of impacts

which the agency lacks discretionary authority to control

under CWA § 402(b). In other words, ESA § 7(a)(2)’s

substantive constraints operate only where the agency has

the discretionary authority to make a decision based on

wildlife concerns under its organic law. This aspect of the

agencies’ contemporaneous position does not differ

materially from.Federal Petitioner's current position.

As there has been no change in that interpretation, there

is no arbitrary inconsistency that might affect the desirability

of rendering a decision on the merits. Hence, the Court

should provide guidance on whether ESA § 7(a)(2) is an

overriding substantive constraint, or instead operates only

where the agency has the discretionary authority to make a

decision based on wildlife concerns under its organic law.

b. EPA and FWS did not take the further step of

contemporaneously considering that, as a_ potential

consequence of their final position, not even the procedural

“consultation” aspect of ESA § 7 would apply to a transfer

compelled by CWA § 402(b). Since the agencies have

proffered a consistent interpretation of ESA § 7(a)(2) now,

this seems to render moot the question regarding whether

EPA had earlier been arbitrarily inconsistent. See Section

(continued)...

state program if it meets certain specified criteria pertaining to

protection of water quality, permitting procedures, and enforcement.

Based on this language, the U.S. Court of Appeals for the Fifth

Circuit has held that EPA lacks authority to condition its approval of

a State’s NPDES program on requirements (specifically requirements

related to protection of listed species) that are mot specifically

enumerated in section 402(b) of the CWA.” NAHB App. 564-65.

I.B, above. If that question is inconsequential now, EPA was

not arbitrarily inconsistent for several reasons.

First, EPA’s final action does not definitively state a

legal interpretation that ESA §7 consultation applies

procedurally, but that § 7(a)(2)’s substantive constraints do

not apply. See 67 Fed. Reg. 79,629 (Dec. 30, 2002).

Second, EPA’s explanation upon approving Arizona’s

program can be comfortably read to mean that EPA has

successfully completed whatever “consultation process [is]

required by ESA section 7(a)(2),” without purporting to

resolve whether consultation is legally required. /d. EPA

could then make the transfer without dwelling on the then-

unimportant question of whether “consultation” was legally

required. Judge Kozinski is correct that this “perfectly

logical sequence of events” is not “‘nonsensical’ and

impermissible.” Defenders, 450 F.3d at 397 (Fed. App. 73a).

The panel’s surmise confuses the preliminary views of EPA

staff’ with EPA’s final action. Agencies should not be

found arbitrary based on such speculation.

Third, the Fifth Circuit’s opinion that the ESA “requires

EPA to consult” (AF &PA v. EPA, 137 F.3d at 298) still may

have exerted a strong influence at the time of the Arizona

program approval. EPA did not act arbitrarily simply

because it did not question, and perhaps followed, that

appellate ruling.

Looking at the record in a manrer favorable to

Respondents, the view of lerry Oda, the Manager of the CWA

Standards & Permits Office in EPA Region LX, and the staff who

prepared the biological evaluation for that Office, was that EPA must

initiate formal FSA consultation. NAHB App. 583-88. But the views

of agency staff do not bind the agency. See note 12, above. For this

reason as well, there is no meaningful arbitrariness in EPA’s final

position.

EPA and FWS have now eliminated any arguable

inconsistency by explaining why ESA § 7(a)(2) consultation

does not apply to CWA § 402(b) transfers. Fed. App. 96a-

102a, 104a-110a. After the panel opinion made this an issue,

EPA and FWS stated consistent positions in their rehearing

petition, in an exchange of high-level agency letters, and in

the petition for certiorari. As a result, the Court should reach

the issue of whether ESA § 7(a)(2) consultation applies to

transfers compelled by CWA § 402(b).

Il. ESA § 7(a)(2)’s Elements On “Consultation” And

Jeopardy-Avoidance May Not Apply To Precisely

The Same Agency Actions

In this Section, Amicus provides an alternative basis for

finding that EPA was not arbitrarily inconsistent. There is

substantial authority that the types of “agency actions” to

‘which procedural ESA § 7 “consultation” duties attach are

not identical to the “agency actions” to which ESA § 7’s

substantive constraints apply. Accordingly, any earlier EPA

recognition of that difference is not arbitrary.

Further, it bears emphasizing that, under ESA § 7 rules

(including rules ratified by Congress), only a limited class of

agency actions require “consultation” with the Services. The

Court’s recognition of those uncontested rules would avoid

an inadvertent ruling that a duty to “consult” with the

Services attaches to each and every federal agency action

where the federal agency has discretion under its organic

statutes to act based on impacts to wildlife. The delays

associated with such a broad “consultation” duty on the

thousands of actions agencies take each day would create

gridlock.

The court below assumed, and then held, that “[/Jot/ the

consultation obligation and the obligation to ‘insure’ against

jeopardizing listed species are triggered by ‘any action

authorized, funded, or carried out by’ a federal agency.”

Defenders, 420 F.3d at 961 (Fed. App. 26a). Later, the court

below interpreted ESA § 7(a)(2) to create overriding duties

that apply to each and every federal agency action. ESA

§ 7(a)(2) “confers authority and responsibility in agencies to

protect listed species when the agency engages in an

affirmative action that is both within its decisionmaking

authority and unconstrained by earlier agency

commitments.” Defenders, 420 F.3d at 967 (Fed. App. 38a-

39a).

Yet, the “agency actions” on which _ procedural

“consultation” with the Services are conducted need not be

the same as the “agency actions” to which ESA § 7(a)(2)’s

substantive constraints apply.

1. In some circumstances, “consultation” could cover

a broader range of actions. Nothing in the ESA bars an

agency from voluntarily initiating consultation on any action,

even if consultation is not clearly mandatory. That is what

happened here. EPA did not act arbitrarily by being

conservative and careful. See Section 1.B and C.

2. Conversely, there is substantial authority that

“consultation” with the Services is required only for a

narrower subset of actions that are within the set of

“action[s] authorized, funded, or carried out” by federal

agencies. That is, action-specific “consultation” applies to a

narrower class of actions than do ESA _ § 7(a)(2)’s

substantive constraints.

The four Justices who reached one aspect of standing

seemed to reason that, under the structure of ESA § 7(a)(2),

the action agency has the.“responsibility “or determining

statutory necessity” for “consultation.” Lujan v. Defenders,

504 U.S. at 568-69. Their reasoning strongly implies that

agencies such as EPA have some discretion over the types of

actions on which they will consult.

Further, under uncontested ESA §7 rules, action-

specific “consultation” with the Services is required or

suggested'® only for a subset of the thousands of “agency

actions” that federal agencies do take — and need to take —

each day.

a. The standard or default ESA §7 rules do not

require action-by-action consultation with the Service as a

prerequisite to taking any and every “agency action.” Those

rules create three levels of §7 procedures.'’ This triage

States, and the apparent view of the four Justices reaching the issuc, is

that the Services’ 50 C.F.R. Part 402 rules do not bind other agencics.

Lujan v. Defenders, 504 U.S. at 568-71.

'’ The first level in the triage system allows actions to go

forward with no consultation with the Services unless the action

agency concludes the action “may affect listed species or critical

habitat.” 50 C.F.R. § 402.14(a) (2006); see 50 C.F.R. § 402.04(a)(2)

(1979) (the similar predecessor ESA § 7 rules, adopted in 1978). This

avoids delaying the myriad actions federal agencies take cach day that

plainly do not affect listed species.

A second level of ESA § 7 procedures is provided for federal

actions that are “not likely to adversely affect listed species or critical

habitat” (“NLAA actions”). For the NLAA category of actions, the

default rules require only “informal consultation” with the Service.

50 C.F.R. §§ 402.13(a), 402.14(b). Informal consultation ends the

ESA § 7 procedures if “it is determined by the Federal agency, with

the written concurrence of the Service, that the action is not likely to

adversely affect listed species or critical habitat.” /d. As informal

consultation does not produce the Service's written biological opinion

or the incidental take statement described in ESA § 7(b), 16 U.S.C.

§ 1536(b), it arguably is not “consultation” in some ESA § 7 senses.

The third level is “formal consultation.” 50 C.F.R. § 402.14.

Only formal consultation contains all the “consultation” Pmt

(continued....)

system helps deploy limited ESA resources effectively and -

efficiently. It also avoids unwarranted delays in federal

actions that do not present significant issues regarding

substantive compliance with ESA § 7(a)(2).

As a district court recently held in the context of

affirming some special ESA §7 rules on consultation,

Congress ratified the concept that ESA §7 consultation is

not required on every agency action. “{[B]jecause Congress

reviewed the [nearly identical] default consultation

procedures in 1978, and passed ESA amendments codifying

them, the Court must conclude that Congress” ratified 1978

rules that do nof require “consulting the Services if [the

action agency] concluded that [the action] had ‘no effect’ on

listed species and their critical habitat.” Defenders of

Wildlife v. Kempthorne, No. 04-1230 (GK), 2006 WL

2844232 at *19 (D.D.C. Sept. 29, 2006). That is, the 1978-

adopted ESA §7 rules, like the current rules (adopted in

1986), require no “consultation” at all on proposed federal!

actions the action agency finds would not affect listed

species. SO C.F.R. § 402.04(a)(3) (1979); 50 C.F.R.

§ 402.14(a) (2006).

The district court correctly found that, in the /978 ESA

Amendments, Congress acquiesced in those rules.'* Further,

(continued)...

described in ESA § 7(b), such as the Service’s preparation of a

written biological opinion. The default rules only require formal

consultation on an individual action that is “likely to adversely affect

listed species or critical habitat.” 50 C.F.R. § 402.14(b).

'* The legislative history of the 1978 ESA Amendments

demonstrates that Congress was aware of, and acquiesced in, the 1978

FSA § 7 rules:

The basic premise of §.2899 is that the integrity of the

interagency consultation process designated under section 7 of

(continued....)

in 1979, Congress amended the ESA to conform to the

Services’ ESA § 7 regulations and other law:

The amendment, which would require all Federal

agencies to ensure that their actions are not likely to

jeopardize endangered or threatened species or result in

the advérse modification of critical habitat, brings the

language of the statute into conformity with existing

agency practice.

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

2576. Finally, in the 1/982 ESA Amendments, Congress

adopted portions of the ESA §7 rules as_ statutory

standards.”

(continued) . . .

the act be preserved .... The Conferces felt that the Senate

provision, by retaining existing law, was preferable since

regulations governing section 7 are now familiar to most Federal

agencics and have received substantial judicial interpretation.

H.R. Conf. Rep. No. 95-1804 at 18, 1978 U.S.C.C.A.N. 9484, 9486.

The Senate Report quotes approvingly that, “[u]nder the current

section 7 regulations, Federal agencics have the responsibility to

identify activities or programs which they undertake that may affect

listed species or their critical habit and to requcst consultation with

the Services concerning those activities or programs.” S. Rep. No.

95-874, at 6 (1978). Where Congress is aware of regulations and

amends the statute in other respects, Congress presumptively has

acquiesced in the regulatory interpretation. E.g., Barnhart v. Walton,

535 U.S. 212, 220 (2002); Bob Jones Univ. v. United States, 461 U.S.

574, 601-02 (1983). Thus, Congress acquiesced in the regulatory

vicw that consultation with the Services is not required on cvery

federal agency action.

" ESA § 10(a)(2) allows the Services to issue incidental take

permits on certain conditions. One condition is that the incidental

“taking will not appreciably reduce the likelihood of the survival and

recovery of the species in the wild.” 16 U.S.C. § 1539(a)(2)BYiv).

The Conference Report describes that language as adopting the

regulatory standard for substantive compliance with FSA § 7(a)(2):

(continued....)

All of this illustrates a legislative policy of acquiescence

and deference to the Services’ view of the flexibility in ESA

§ 7. In sum, Congress and the Services have clarified that

“consultation” with the Services is not a legal prerequisite to

each and every “action authorized, funded, or carried out” by

a federal agency.

b. Of further relevance, the Services have adopted

two alternative sets of ESA § 7 compliance procedures for

time-sensitive projects. They are called “joint counterpart

rules” and they “supersede[ ]” the ESA § 7 default rules. 50

C.F.R. § 402.04. One set of rules concerns EPA pesticide

registration actions under FIFRA. 50 C.F.R. §§ 402.40-

402.48 (2006), 69 Fed. Reg. 47,732 (Aug. 5, 2004). The

other set of ESA counterpart rules concerns approval of

projects implementing the National Fire Plan. 50 C.F.R.

§§ 402.30-402.34 (2006), 68 Fed. Reg. 68,254 (Dec. 8,

2003).

Both scts of counterpart rules draw on, and extend, the

flexibility in § 7 procedures found in the default rules. The

primary innovation in both sets of counterpart rules is

eliminating the need to obtain the Service’s sign-off in

(continued)...

The Secretary would base his determination as to whether or not

iv grant the permit, in part, by using the same standard as found

in section 7(a)(2) of the Act, as defined by Interior Department

regulations, that is, whether the taking will appreciably reduce

the likelihood of the survival and recovery of the species in the

wild.... [This Act uses] regulatory language adopted by the

Secretary of the Interior to implement section 7(a)(2).

H.R. Conf. Rep. No. 97-835, at 29 (1982), 1982 U S.C.C.A.N. 2860,

2870; see SO C.F.R. § 402.02 (definitions of “jeopardize the

continued existence” and “destruction or adverse modification’).

Congress deferred to the Services’ rules on standards for ESA § 7

compliance. .

informal consultation (see 50 C.F.R. § 402.13) on an action

that the action agency concludes “may affect” but is “not

likely to adversely affect” listed species. 50 C.F.R.

§§ 402.33, 402.45. No action-specific “consultation” with

the Services is conducted on those NLAA actions. The

alternative procedures adopted by the Services and Service

oversight provide a level of programmatic “consultation”

satisfactory to the Services.

The Services explained their reasons for adopting these

innovations in the preambles to the counterpart rules. One

reason is to create a more efficient process. Since informal

consultation still requires the review and concurrence of the

Services’ overworked biologists, significant delays have

been common.” There is a reasonable position that these

delays are unnecessary. A proposed action that is not likely

to adversely affect even one member of a listed species

clearly would be approved under § 7(a)(2), which only

prohibits a federal action likely to jeopardize the continued

described that, for the reviewed Service offices in the Pacific

Northwest, “nearly 40 percent of the 1,548 consultations completed

by the Services excceded established timeframes,” and the “Services

missed established timeframes, most often for informal consultation.”

Endangered Species: More Federal Management Attention 1s

Needed to Improve the Consultation Process at 14 (GAOQ-04-93

March 2004). The principal reasons for delays included: (1) “the

Services told us that they still do not have enough resources to handie

their consultation workloads”; (2) “[s]taffing level problems are

exacerbated by high turnover of biologists at the Services”;

(3) “action agency officials thought the documentation needed for the

consultation process was similarly getting out of control”; and

(4) “biologists at the Services are sometimes unfamiliar with action

agency programs and activities,” which “can lengthen the

consultation process.” /d. at 40, 42, 50,53. The GAO Report (at 19-

39, 60) looks favorably on efforts to improve the § 7 consultation

process, including greater use of programmatic consultations.

. 27

existence of the entire listed species. Thus, the innovation

allows limited ESA §7 “consultation” resources to be

devoted to the subset of agency actions that may pose

legitimate questions on substantive compliance with

§ 7(a)(2)’s standards.

Both sets of ESA counterpart rules were challenged by

environmental groups. Those rules have received different

receptions in two district courts.

The rules for National Fire Plan projects were sustained

under an analysis that ESA § 7 provides flexibility on which

actions require consultation with the Services. Defenders of

Wildlife v. Kempthorne, 2006 WL 2844232 at *13-19. “The

ESA language at issue requires ‘consultation’ on projects

that might affect a listed species, but leaves room for the

Secretary to determine how, precisely, that consultation

should occur.... [T]he Court cannot find that the Counterpart

Rules are inconsistent with the ESA’s ‘consultation’

requirement.” /d. at *19. District Judge Kessler noted that,

if Plaintiffs were correct that ESA §7_ requires

“consultation” before any federal action can be taken, the

longstanding ESA §7 default rules “would be invalid

because [they do] not mandate consultation on each and

every federal action.” Jd.

Another district court set aside, for several perceived

errors, portions of the ESA § 7 counterpart rules for FPA’s

pesticide registration program under FIFRA. Washington

Toxics Coal. v. U.S. Dep't of Interior, 457 F. Supp. 2d 1158

(W.D. Wash. 2006), appeals pending, Nos. 06-35873, 06-

358¢'1, 06-35899 (9th Cir.). One basis was the panel’s ruling

in the case at bar: Defenders creates a binding Ninth Circuit

precedent that “Both the consultation obligation and the

obligation to “insure against jeopardizing listed species are

triggered by ‘any action authorized. funded, or carried out by

such agency,’ and both apply if such an ‘action’ is under

consideration.” Jd. at 1177-78 (quoting Defenders, 420 F.3d

at 961). Thus, under the logic of Washington Toxics and the

panel opinion in Defenders, both the ESA § 7 default rules

and counterpart rules are unlawful, as they do not require

“consultation” on every and “any action authorized, funded,

or carried out by such agency.”

c. In view of the information presented above,

CropLife urges the Court to avoid incidental statements

about the scope of ESA § 7(a)(2) “consultation” that might

undercut the legality of the ESA § 7 rules.

d. The history and context provided above on

“consultation” illustrate two broader, concluding points.

First, it is not entirely accurate to say that one “would be

hard pressed to find a statutory provision whose terms were

any plainer than those in §7 of the Endangered Species

Act.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 173

(1978). As shown above, ESA § 7 is ambiguous as to when

“consultation” is required. Legislative intent and

longstanding § 7 rules refute what might be one of several

alleged plain meanings of the statutory text.

Similarly, CropLife trusts that Petitioners and other

amici will show that the “utilize their authorities” language

in 16 U.S.C. § 1531(c)(1) and in the original ESA § 7 (87

Stat. 892 (1973)) allows the agencies to construe ESA § 7 as

only directing federal agencies to “take steps within their

power” under their organic statutes to protect listed species,

where non-ESA law allows the agency to make decisions

based on wildlife concerns. TVA v. Hill, 437 U.S. at 183

(quoting the House manager's description of the Conference

bill). The scope and meaning of ESA § 7 are not that plain

after all.

Second, as ESA § 7 is ambiguous, courts should defer to

the agencies’ reasonable construction. “When it enacted the

ESA, Congress delegated broad administrative and

interpretive power to the Secretary.” Babbitt v. Sweet Home

Chapt. of Communities for a Great Oregon, 515 U.S. 687,

708 (1995) (sustaining FWS’s regulation defining the

“harm” form of ESA §9 “take” of listed wildlife).

“Fashioning appropriate standards” involves a “complex

policy choice” which is primarily for the expert agencies. /d.

If “Congress did not unambiguously manifest its intent to

adopt respondents’ view,” the agencies’ “reasonable

[interpretation] suffice[s} to decide this case.” /d. at 703.

Those guideposts apply equally to ESA § 7.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

Of Counsel DOUGLAS T. NELSON

STEVEN P. QUARLES Counsel of Record

J. MICHAEL KLISE JOSHUA SALTZMAN

CROWELL & MORING LLP CROPLIFE AMERICA

1001 Pennsylvania Ave., NW 1156 15th Street, NW

Washington, DC 20004-2595 Suite 400

(202) 624-2500 Washington, DC 20005

(202) 872-3880

Attorneys for Amicus Curiae CropLife America

FEBRUARY 2007

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.