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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0500%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 1105

## Text

——

A

@) =
Nos. 06-340 and 06-54

IN THE

Supreme Court of the United States.

NATIONAL ASSOCIATION OF HOME BUILDERS, ef al.,
Petitioners,
V.
DEFENDERS OF WILDLIFE, ef al.,

Responden!s.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
V.
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).

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).

3

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

4

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...)

6

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).

7

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).

4

8

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...)

9

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).

10

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.

11

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.

12

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).

-

13

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...)

14

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).

15

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...)

16

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).

17

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...)

18

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.

19

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.

20

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

21

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,

22

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

'© We say “suggested” because the position of the United

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....)

23

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....)

24

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....)

25

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. .

26

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

*© The Government Accountability Office (“GAO”) has

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

28

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.

29

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0500%3A12. Public record. Not legal advice.