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

i 15 FILED

Nos. 06-340 & 06-549

FER 19 2007

Jn The OFFICE OF THE CLERK

a ae Ce 27 US.

Supreme Court of the Anited States’ -

-¢

NATIONAL ASSOCIATION

OF HOME BUILDERS, et ai.,

Petitioners,

V.

- DEFENDERS OF WILDLIFE, et al.,

Respondents.

e

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

v.

DEFENDERS OF WILDLIFE, et ai.,

Respondents.

—¢

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

+

BRIEF AMICUS CURIAE OF THE

STATES OF NEBRASKA, ALABAMA, ALASKA,

COLORADO. IDAHO, MISSOURI, NEVADA,

NEW MEXICO, NORTH DAKOTA, TENNESSEE,

UTAH, AND WYOMING; AND THE COMMONWEALTH

OF PUERTO RICO IN SUPPORT OF PETITIONERS

+

JON C. BRUNING DONALD G. BLANKENAU

Nebraska Attorney General THOMAS R. WILMOTH

DAVID D. COOKSON* Special Assistant

Assistant Attorney General Attorneys General

2115 State Capitol BLACKWELL SANDERS PEPER

Lincoln, NE 68509 MARTIN LLP

(402) 471-2682 206 South 15th Street

Counsel of Record for Suite 1400

Amict States Lincoln, NE 68508

(402) 458-1500

| Additional Counsel Listed On Inside Cover!

om KI P LAW TIPPER PeINTIN leon) Soe

TROY KING

Alabama Attorney General

Office of the Attorney

General

11 South Union Street

Montgomery, AL 36130

(334) 353-3915

TALIS J. COLBERG

Alaska Attorney General

P.O. Box 110300

Juneau, AK 99811

(907) 465-2133

JOHN W. SUTHERS

Colorado Attorney General

1525 Sherman St., 7th Floor

Denver, CO 80203

(303) 866-4500

LAWRENCE WASDIN

Idaho Attorney General

P.O. Box 83720

Boise, ID 83720-0010

(208) 334-4118

JAY NIXON

Missouri Attorney General

207 W. High St.

P.O. Box 899

Jefferson City, MO 65102

(573) 751-0774

CATHERINE CORTEZ MASTO

Nevada Attorney General

OFFICE OF THE

ATTORNEY GENERAL

100 North Carson St.

Carson City, NV 89701

(775) 684-1112

GARY K. KING

New Mexico

Attorney General

STEPHEN R. FARRIS

FRANCES C. BASSETT

Assistant Attorneys General

P.O. Drawer 1508

Santa Fe, NM 87504

(505) 827-6939

WAYNE STENEHJEM

Attorney General of

North Dakota

State Capitol

600 E. Boulevard Ave.

Bismarck, ND 58501

(701) 328-2210

ROBERT E.. COOPER, JR.

Tennessee Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 532-2582

MARK L. SHURTLEFF

Utah Attorney General

Utah State Capitol Complex

East Office Bldg., Suite 320

Salt Lake City, UT 84114

(801) 538-9600

PATRICK J. CRANK

Wyoming Attorney General

123 State Capitol

Cheyenne, WY 82002

(307) 777-7841

ROBERTO J. SANCHEZ-RAMOS

Secretary of Justice

COMMONWEALTH OF

PUERTO RICO

P.O. Box 9020192

San Juan, PR 00902

(787) 763-1985

TABLE OF CONTENTS

Page

ee eID aiesiiininincsinninsseninaipectiniinipesisenaiiins i

Re GO FF EE BD icicscenssssesconssnsnsscosesescssososenes iil

INTEREST OF AMICI CURIAE STATES ..............:0008 1

SUMMARY OF THE ARGUMENT ......0........eeeeeeeeeees 2

TEE: wiihteciniticeiiidsscieiieieciiicandiatinlatiitdaiaiacesinibaiinsai 5

I. ENGAGING IN ESA § 7(a\(2) CONSULTATION,

EVEN IF UNNECESSARY, DID NOT RENDER

ARBITRARY EPA'S POSITION CONCERNING

ITS LACK OF DISCRETION TO SUPPLE-

MENT CWA § 402(b)’S CRITERIA, AND

REMAND WOULD SERVE NO PURPOSE

SINCE THE AGENCIES RESOLVED THE

DISPOSITIVE LEGAL ISSUE ...................0008 5

Il. ESA §7(a(2) DOES NOT REQUIRE

CONSULTATION ON THE TRANSFER OF

NPDES PERMITTING AUTHORITY TO

THE STATES OR VEST EPA WITH POWER

TO CONDITION TRANSFER ON TERMS

OTHER THAN THOSE IN CWA § 402(b)....... 11

A. CWA §402(b) Requires Transfer upon

Satisfaction of Its Exclusive Criteria.......... ll

B. The ESA Does Not Impliedly Repeal or

I See Ce iiiccitiiiast seccitrscnditeciniane 15

1. Ordinary implied repeal standards are

a internets ianiniihananinnnnine 16

2. Nothing in the language or history

behind ESA § 7(a)(2) supports the panel

majority’s conclusion that the law expands

existing agency authority ...................... 18

ii

TABLE OF CONTENTS - Continued

Page

3. The Service, charged with admini-

stering ESA § 7(a)(2), has concluded

the statute does not expand existing

I I iiiccctccstniecitctiineiieninianns 22

C. Crediting the majority's construction would

have dramatic consequences on the States

— even those with approved NPDES

I scccnccnsasceustniabiscnssivnensissiasenmesnion 26

CONCLUSION .................eeeeee likelieistienoneaenidbahibiiiiiaibictiian 29

il

TABLE OF AUTHORITIES

Page

CASES

Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291 (5th

BI Se crccstcnnseciiiniinnicn pecssnndeoesanesoosonenmessiipanioness 15, 24, 26

Armstrong Paint & Varnish Works v. Nu-Enamel

Corp., 305 U.S. 315, 59 S.Ct. 196 (1938) oe 17

California v. United States, 488 U.S. 645, 98 S.Ct.

IED cicenninsiciiasioniiscntenctusivianniesmmiiniaetpentiinniniia 27

Chemehuevi Tribe of Indians v. F-P.C., 420 U.S. 395,

Se ee Se aa Pi ancivsscnciccitnarsaieonsactiieinniniail liapiaddiaitauatiaiiban 24

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778

ive ee viccsinnesiscnsinccsticnsinaisiiaiainiaiaciasiniibaeideldipebaisdeasdaliaiiutiuaniides 5, 22, 23

Citizens for a Better Enu't v. EPA, 596 F.2d 720 (7th

SEE FP UEED cccnsiscnsccnuenuittiisininanmintisiansiesidiensiaasuadiiniabiinaniindidilih 15

Cohen v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed.

SD CTD iccsncvccnsiiiiieicisiiiiiesinisiniiiasdiieadataniiaibammanidaieiliamicaieisiis 17

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

SUE. TED nnasccrsessetedesccisiuinsenteininicnemedsensdesinmabainiiiniohed passim

Defenders of Wildlife v. E.P.A., 420 F.3d 946 (9th

SR TOUT cen ccvvisnnccastisnsniuiinindninnniiniiiuiispsiniianaelaaaniitaiin passim

EPA v. California, 426 U.S. 200, 96 S.Ct. 2022

Paar brccinccncsinienhcdnissenduebinaeiindatensdinmiahinbilenmidiisibiadaditaiiinamtindts 15

Forest Guardians v. Johanns, 450 F.3d 455 (9th Cir.

STD scovintiinbiiesioninndaiepiidnidtiniateaiddiaeeicateameanbeiidadammaiebbasiuntets 27

Gonzales v. Thomas, __ U.S. __, 126 S.Ct. 1613

re SI icscccsscscvinsansscinnncinsianiiatiaieicinsesnsomens 9

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

Ef EERE neereneeenice TLD m er 14

lv

TABLE OF AUTHORITIES — Continued

7 Page-

In re Operation of the Missouri River System

Litigation, 421 F.3d 618 (8th Cir. 2005).............00008 24, 25

INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353 (2002)

GG CR ircsccmccsscsesssoneneiniuinipsnnmmaindinimadindiaanal 9,10

King v. St. Vincent Hospital, 502 U.S. 215, 112 S.Ct.

Be CaP ccccesesesnrsnessenseninenisnntianssosenneiiiiiiiedumiuanaialadd 22

Martin v. Occupational Safety & Health Review

Comm'n, 499 U.S. 144, 111 S.Ct. 1171 (1991) .........0.... 23

Morton v. Mancari, 417 U.S. 535, 945 S.Ct. 2474

Cie a nsvcecendinndcssesestnssionsssasineiitiomieimamehiaaaeiaea 16, 17

Motor Vehicle Mfrs. Ass’n of United States, Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103

Fe, SR GN cccsccsscaconsensnstiseissassesmntiauniinetiinaeaemlls 8

N. Alaska Env’l Ctr. v. Kempthorne, 457 F.3d 969

CEE GIG: GEIB nscccccsctnescvssénesscniensectediansinieidineaea 27

N.L.R.B. v. Bell Aerospace Co. Division of Textron

Inc., 416 U.S. 267, 94 S.Ct. 47 (1974)... eeeeeeees 24, 26

National Cable & Telecommunications Ass’n v.,

Brand X Internet Services, 545 U.S. 967, 125

AGE. SR GR cncccscsvsccenscssusessstocssstsetiiaiéiaianmaaa wee OO

Natl Wildlife Fed’n v. Burlington N.R.R., 23 F.3d

SOD CT GR Bren sciccctccvecccnsettitucsvcidcsminminmemeaaia 18

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

CHAS. Gir TBD ccconssoscnscssnssonssoscninsesninnmniitimammaaanania 15

Pittsburgh & Lake Erie R. Co. v. Railway Labor

Executives’ Ass’n, 491 U.S. 490, 109 S.Ct. 2584

(FIP oscccccscsssonnsosasesecsesennnsvanstosasesessnianienadiaaaiaaian 16, 17

Platte River Whooping Crane Critical Habitat Maint.

Trust v. FERC, 962 F.2d 27 (D.C. Cir. 1992)............ 18, 24

TABLE OF AUTHORITIES - Continued

Radzanower v. Touche Ross & Co., 426 U.S. 148, 96

S.Ct. 1989 (1976)......... acsnaitiiantidennsiiieineinessdianedebienésessannuane 17

Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109

(2003), vacated as moot, 355 F.3d 1215 (10th Cir.

EST ee 27

Riverside Irr. Dist. v. Andrews, 758 F.2d 508 (10th

aaa allieh nlnaitnrnnn ne rreatteniciinn 24

Save the Bay, Inc. v. Adm’r, EPA, 556 F.2d 1282 (5th

EEE EE eee ee aE 15

SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454

ESE SES ee nO ee )

Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987)....... 28

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct.

IIIa ddosienchientiaesnpennenaneennetsocenanseeaeneveneenensessesensseesecs 28

Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372

ST lich ielialiaidtiite chet dinrerrertacindiemntnatnedenenesdnesetncennenntenceneeen 16

TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279 (1978)....16, 18, 20

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS, AND RULES

Administrative Procedure Act

ET 8

Federal Insecticide, Fungicide, and Rodenticide

i: 7) a, Oe SE TT... scnassunssnbeeneesseeusnsseceoase 2

Endangered Species Act,

nnn, Oe Ue Es cascnsononoconccoooces l

TE cdi tittneneneconesisedwedaneceesénonscnscscocent 22

vi

TABLE OF AUTHORITIES - Continued

Page

EERSTE e LOST eee me 22

5” EERE Ene eee meme re 18

a ees Oe ED sctinrntiecnsentemsecenersieeneneesiil passim

es I ictititehicinintinintinciitinniniiiinnaninnesinpiaaniigianeiii 22

Endangered Species Act of 1973,

Pub. L. No. 93-205, § 7, 87 Stat. 884 (1973) ................. 19

Clean Water Act,

BD ie Se ee CO cicecsereccnenccedcscnsnenccsseesnadien 1

I Oi I inicetlacinteriicrerhiiaenincriirecitainatisinineneiiial 11,12

Sy ee Oe GIN Pircticntitendtnnninincnemennnniisianieuinendiianianiils 12

A Sa seadaleaieiitepinnhiiamsiaaaiia 12

EE ener noe ay

FE EIIEL Ut TIE iaciicretnrsimenssbnnentinaniieninninenneineneiniadaineniei 1

LE ESE ESS eee eT passim

I i acca attain terial 14

ee ee Ce itercicnettnntensintneeinineniinnninints 12

LR ESTES eee ne rE 12

Safe Drinking-Water Act,

sO I icccnicscrnnsisciatitintrnnnamatenmeniidsdamiennsil 2

Resource Conservation and Recovery Act,

, A” Seon ee nee —

Clean Air Act,

I elaine lial 2

Water Pollution Control Act of 1948,

> eh, SPR fF BL) enone 1l

Water Pollution Control Act Amendments of 1956,

® YER 0 EO ll 11

-_

vii

TABLE OF AUTHORITIES -— Continued

Page

Water Quality Act of 1965,

Pub. L. No. 89-234, § 5, 79 Stat. 903,

ee raninnctncarenisndsnininnmennsenpnctnnunemimenenenl 12

Clean Water Restoration Act of 1966,

Pub. L. 89-753, §§ 101, 201, 80 Stat. 1246 (1966) ........ 12

Reclamation Act, ch. 1093, § 8, 30 Stat. 388 (1902).............. 27

ee ED crrentecrennintnentanntnnininesintinnimnenmensiilion 14

ee Oe tiirsieiseitcrccitnitpeviinninacniunianiitiiininiasuatnseiiiinn 14

I i aie es was. 6, 23

ERE ee ME ee Cerone NOT passim

ee Oe I ccccstnrensscansnesnceeietcnnitntimmnninnienseaiines 23

ey OE ctidcaritectnnntncicunsictnginenientiienniniianinnainen 5, 27

MISCELLANEOUS

UBT Come. Bec. SEBEE (1G71) ....cccccccccosccccssvcccccsssccvessestooees’ 12

SUR, GND, TI CID cccnecercccserecsnsnenscccsseesersuontenenes 13

118 Cong. Rec. 33747 (1972) ...........c.ceccscocescececcesesosseseceeese 12

ey, SER, CeIn UNI tcrtsinstntnisinscrnninteieiidseicimetinneandanineen 13

BER. GREP. SUD. G-GRE (ODT) nccncevcecessscecoseseccsscscecccovensnssoots 14

H.R. REP. No. 92-1465 (1972) (Conf. Rep.).........0:.::0+00000+: 13

See GP. BED. GIEEE CECI ccoccccerencccccsscescssrescscssecessossssecs 20

H.R. Rep. No. 95-1625 (1978) reprinted in 1978

Nanas Ute ei iciciicssireshtinsiinitsnicissectininistaniianiddaainiimcnnanenmese 21

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

Se re as St rtccnsicitcttntinnannecncnicniescunsinneneien 21

vill

TABLE OF AUTHORITIES — Continued

Page

H.R. REP. No. 96-167 (1979) reprinted in 1979

IE el incecnacrencnsncnerecnnennsnntiiidgeeseeiemneniannin 21

H.R. Rep. No. 97-567 (1982) reprinted in 1982

eS CD cceccntnennntnnsesesssanintnenteccenmntmenmiennn 22

S. Rep. No. 92-414 (1971)........ nilhiceattapeiuideiinaudnasuneiauaiiand 12,14

a BE, BU, Ge Ca rc ceemnnscennssccscesssssvecssscsnsecscnncscsensns 21

Interagency Cooperation - Endangered Species Act

of 1973, as Amended; Final Rule, 51 Fed. Reg.

DE, FED cccccsenssennsennprcsninmnnnstsemepenenen 24

Congressional Research Service, LE&GISLATIVE

HISTORY OF THE ENDANGERED SPECIES ACT OF

1973 AS AMENDED IN 1976, 1977, 1978, 1979 AND

James C. Kilbourne, THE ENDANGERED SPECIES ACT

UNDER A MICROSCOPE: A CLOSEUP LOOK FROM A

LITIGATOR’S PERSPECTIVE, 21 Envt’l L. 499 (1991)........ 25

U.S. Environmental Protection Agency, National

Pollutant Discharge Elimination System, State

Program Status, (April 14, 2003) http://cfpub.epa.

RII AI cc cstsecencsstecsnstecssswinseennsesnenanenesoons l

BRIEF AMICUS CURIAE

The Amici Curiae States of Nebraska et al. (the “Amici

States”), through their respective Attorneys General,

respectfully submit this brief pursuant to Sup. Ct. R. 37.4

in support of the petitioners.

¢

INTEREST OF AMICI CURIAE STATES

The Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387

(1972), represents a highly successful example of coopera-

tive federalism in environmental protection. A core, indeed

animating, element of the CWA’s regulatory scheme is the

National Pollutant Discharge Elimination System

(“NPDES”) which controls point source discharges of

pollutants into navigable waters of the United States.

Under CWA § 402, 33 U.S.C. § 1342, the NPDES program

is administered by the Environmental Protection Agency

(“EPA”), but the statute mandates that EPA approve a

State’s application to assume responsibility of the NPDES

program if nine exclusive criteria are satisfied. Jd. at

(b)(1)-(9). Over the almost 35 years since the CWA’s pas-

sage, all but five States have assumed that responsibility.

U.S. Environmental Protection Agency, National Pollutant

Discharge Elimination System, State Program Status,

(April 14, 2003) http://cfpub.epa.gov/npdes/statestats.cfm.

The principal question presented here is whether the

Endangered Species Act (“ESA”) 16 U.S.C. §§ 1531-1544

(1973), impliedly amended or otherwise superseded the

CWA by imposing a tenth condition precedent — compli-

ance with the substantive requirements in ESA § 7(a)(2),

16 U.S.C. § 1536(a)(2) — to EPA’s transfer of NPDES

permitting authority to an applicant State.

2

The answer to that question is important to the Amici

States for two fundamental reasons. First, they have a

strong interest in securing and maintaining responsibility

for the NPDES program on the terms Congress prescribed

in the CWA. That 90 percent of the States have under-

taken the statutory, administrative and fiscal burdens

necessary to satisfy CWA § 402(b)’s requirements and

implement the program reflects the States’ strong com-

mitment to protecting their individual interests, and the

Nation’s interest, in our rivers, streams and lakes. The

majority panel’s conclusion that EPA may withhold

NPDES permitting authority from an otherwise qualified

applicant based solely on the outcome of ESA § 7(a)(2)

consultation threatens to preclude future transfers and

undo prior transfers properly made pursuant to CWA

§ 402(b). Second, as explained in the Amici States’ brief in

support of EPA’s petition for certiorari, the CWA is one of

several federal environmental statutes that embody a

comparable structure of cooperative federalism. See, e.g.,

Federal Insecticide, Fungicide, and Rodenticide Act, 7

U.S.C. § 136(w)(1a); Safe Drinking Water Act, 42 U.S.C.

§ 300(g\2)a); Resource Conservation and Recovery Act, 42

U.S.C. §6947(a); Clean Air Act, 42 U.S.C. § 7410(k\(3).

The majority’s reasoning leads inexorably to the conclu-

sion that ESA § 7(a)(2) impliedly amended or otherwise

superseded those laws.

@

SUMMARY OF THE ARGUMENT

1. The biological opinion issued by the U.S. Fish and

Wildlife Service (“Service” or “FWS”) and adopted by EPA

when approving Arizona’s NPDES transfer application did

not employ “inconsistent” reasoning. As the panel majority

3

itself recognized, a key rationale for the no-jeopardy

finding was the agencies’ conclusion that, inter alia, loss of

possible benefits from ESA consultation upon transfer was

not an “effect of the action” because that loss derived from

the mandatory nature of the transfer obligation under

CWA § 402(b). Although that legal conclusion could have

also provided grounds for avoiding ESA § 7(a)(2) consulta-

tion in the first instance, the administrative record estab-

lishes that the agencies assumed a duty to consult and

focused their legal analysis (and interagency debate) on

whether EPA possessed any discretion to deny the Arizona

application once CWA § 402(b)’s transfer criteria were

satisfied. The agencies cannot be faulted for failing to

consider whether consultation was required, when that

became at most an academic concern upon issuance of a

“no-jeopardy” biological opinion. The critical issue here is

instead whether the basis, as articulated in the biological

opinion, for its findings comports with the involved stat-

utes.

Even were the “inconsistency” posited by the panel

majority present, remand for purposes of resolving it is

unnecessary. The majority devoted most of its opinion to

rejecting the agencies’ legal conclusion that EPA lacked

authority to deny the transfer application once it found the

CWA § 402(b) criteria met. Its analysis subsumed any

question to which remand might be directed. This matter

thus differs markedly from cases where a reviewing court

improperly supplemented the record by deciding for the

first time an issue never addressed by the agency below.

The Service and EPA resolved in the negative the question

whether the ESA expanded the latter’s authority when

making NPDES transfer determinations.

4

Il. The majority panel’s opinion “transformed the

ESA into an overriding mandate that trumps an agency’s

obligations under its own governing statute.” Defenders of

Wildlife v. E.P.A., 450 F.3d 394, 398 (9th Cir. 2006) (Kozin-

ski, J., dissenting) (“Defenders II”). The majority failed to

respect Congress’ clear intent that the States occupy the

primary role of regulating water pollution and that the

States’ administration of the NPDES program supplant

that of EPA when nine exclusive criteria set forth in CWA

§ 402(b) are satisfied. That statute’s text, whether viewed

in isolation or in context with the more general congres-

sional development of federal water quality policy and

CWA legislative history, “leaves no room for conditions ten,

eleven, or whatever else [courts] may think Congress

should have added.” Defenders II, 450 F.3d at 402 (Klein-

feld, J., dissenting).

The central question here is whether the ESA impli-

edly altered CWA § 402(b). Under settled principles of

statutory construction, it did not. Repeals by implication

are strongly disfavored and can be found only through a

clear and manifest expression of congressional intent.

Nothing remotely suggesting such intent can be discerned

from the ESA’s original or current text. In particular, the

panel majority’s reliance on a 1978 amendment dividing

subsection (a) of ESA §7 into separate paragraphs was

unfounded. Neither the amendment’s text nor history

provides grounds to view Congress’ action as expanding

the substantive reach of the original provision and grant-

ing federal agencies unqualified power to protect listed

species in deragation of a competing congressional man-

date. Even were there ambiguity on this point, the Ser-

vice’s construction of ESA § 7(a)(2)’s applicability in 50

C.F.LR. $402.03 would control under Chevron deference

standards. See Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984).

The court of appeals’ understanding of ESA § 7(a)(2), if

accepted, will have dramatic consequences for the State of

Alaska, which is currently seeking NPDES program

authority,’ and for states like Idaho, which have not yet

sought such authority. For these States, CWA § 402(b)

would no longer set an exclusive standard for NPDES

program approval. For the forty-five other States that

already possess NPDES authority, the specter of consulta-

tion reinitiation under 50 C.F.R. § 402.16 would arise. In

either instance, the long-standing and carefully-wrought

statutory scheme embodied in the CWA would be materi-

ally disrupted and otherwise compliant state regulatory

processes (and related investment) would be placed at

risk.

+

* ARGUMENT

I. ENGAGING IN ESA § 7(a)(2) CONSULTATION,

EVEN IF UNNECESSARY, DID NOT RENDER

ARBITRARY EPA’S POSITION CONCERNING

ITS LACK OF DISCRETION TO SUPPLEMENT

CWA § 402(b)’s CRITERIA, AND REMAND WOULD

SERVE NO PURPOSE SINCE THE AGENCIES

RESOLVED THE DISPOSITIVE LEGAL ISSUE.

In its Order granting the petitions, this Court re-

quested the parties brief the following question:

' See generally Brief of Amicus Curiae State of Alaska in Support of

Petitions for Writ of Certiorari.

6

Whether the court of appeals correctly held that

{EPA's} decision to transfer pollution permitting

authority to Arizona under the Clean Water Act,

see 33 U.S.C. § 1342(b), was arbitrary and capri-

cious because it was based on inconsistent inter-

pretations of Section 7(a)(2) of the Endangered

Species Act of 1973, 16 U.S.C. § 1536(a)(2); and,

if so, whether the court of appeals should have

remanded to [EPA] for further proceedings with-

out ruling on the interpretation of Section

7(ay(2).

The Amici States submit that the panel majority erred in

holding that perceived “inconsistencies” rendered EPA's

decision arbitrary and capricious, but that, in any event,

remand was not required and would have been fruitless.

The majority below correctly recognized that the

biological opinion forming the basis of the challenge by

petitioners below set out several reasons why EPA’s CWA

§ 402(b) transfer determination did not carry any impacts

properly characterized as “effects of the action” defined in

50 C.F.R. § 402.02. Defenders of Wildlife v. E.P.A., 420 F.3d

946, 960-61 (9th Cir. 2005) (“Defenders I”). Principal

among those reasons was the legal conclusion that “EPA

hald] no authority to disapprove transfer applications

because of an impact on listed species, section 7(a)(2) of

the Endangered Species Act notwithstanding.” Jd. at 961.

The majority devoted much of the remaining portion of the

decision below to rejecting this conclusion on its merits. /d.

at 962-71.

The panel majority, however, prefaced its discussion

of ESA § 7(a)(2)’s scope with the holding that EPA's trans-

fer determination was predicated on the mutually exclu-

sive “propositions” that, while obligated to consult under

the ESA over the determination, the agency was “not

permitted, as a matter of law, to take into account the

impact on listed species in making the transfer decision.”

Defenders I, 420 F.3d at 961. It drew this inconsistency

from its view that ESA § 7(a)(2)’s procedural and substan-

tive duties are coterminous and that, as a consequence,

once a particular agency activity is deemed an “action” for

consultation purposes, any impacts from it must be

deemed “effects of the action.” Jd.

The inconsistency perceived by the majority did not

constitute a basis for invalidating the transfer determina-

tion. That, in retrospect, EPA could have refused to consult

with the Service at all — since the transfer did not embody

the exercise of agency discretion once Arizona satisfied the

CWA § 402(b) criteria — made no difference to the ultimate

result: the issuance of a biological opinion containing a no-

jeopardy finding. The majority simply introduced an

“inconsistency” of its “own making” into the case — as

Judge Kozinski observed in his dissent from denial of the

request for rehearing en banc. Defenders II, 450 F.3d at

396. The acuity of Judge Kozinksi’s observation can be

seen in the internal debate at lower EPA and Service

echelons recorded in the “elevation” memorandum. NAHB

Pet. App. at 562-82. Their debate centered on the problem

of whether the EPA had ESA-based authority to condition

approval of Arizona’s program on terms accommodating

the Service’s concern over a loss of the “federal nexus”

needed to trigger the ESA § 7 consultation process. NAHB

Pet. App. at 563-64. The Service eventually acceded in the

biological opinion to EPA’s position — an accession that

rendered academic the arguably antecedent question

8

whether consultation had been required in the first in-

stance.”

The two agencies thus can hardly be faulted for not

considering a particular issue of statutory construction

whose resolution made no difference to them under the

circumstances. Although this decision-making approach

failed to answer a question that the majority deemed

essential, the deferential review standard under 5 U.S.C.

§ 706(2)(a) empowers the courts only to measure the

reasonableness of the agencies’ action against the reason

given and not to superimpose its decision-making prefer-

ences. Motor Vehicle Mfrs. Ass’n of United States, Inc. v.

* The immateriality of the “inconsistency” perceived by the panel

majority is underscored by a more detailed review of the interagency

debate. First, formal consultation had been commenced in accordance

with then-existing practice. Defenders /, 420 F.3d at 952 n.3. It was

thus unsurprising that the agencies began the § 7(a)(2) process without

independently analyzing its necessity. Second, the Service contended in

the interagency elevation document that “EPA Region 9 retains Federal

oversight for the [state NPDES] program and thus there is a lingering

Federal nexus from which EPA Region 9 can address effects to the

listed species.” NAHB Pet. App. at 567. The corollary to this contention

was the existence of agency action for ESA § 7(a)(2) purposes. See

Defenders 1, 420 F.3d at 962 (discussing the need for “nexus” between

the agency action and impact on listed species). EPA disagreed with the

Service’s position concerning the presence of continuing oversight

authority (NAHB Pet. App. at 564), and the agencies’ differences were

resolved in the EPA's favor only in the biological opinion itself. It made

no sense to conclude that the biological opinion —- and hence EPA's

reliance on it - was somehow deficient in not disposing of an issue only

of theoretical significance given the fact that consultation Aad taken

place and produced a no-jeopardy opinion. The court of appeals

therefore would have been confronted with the same substantive

question even had the agencies found the transfer determination

outside the reach of ESA § 7(a)(2): whether any impacts associated with

that determination — most particularly loss of ESA consultation — were

the result of congressionaily mandated, and not agency, action.

9

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct.

2856, 2867 (1983). Any other conclusion effectively allows

the reviewing court to substitute its judgment of the

proper decision-making template for that of the agency — a

result which runs counter to the settled principle that a

“judicial judgment cannot be made to do service for an

administrative judgment,” SEC v. Chenery Corp., 318 U.S.

80, 88, 63 S.Ct. 454, 459 (1943), and in which the Ninth

Circuit recently was counseled. See Gonzales v. Thomas,

__ U.S. ___, 126 S.Ct. 1613, 1615 (2006) (per curiam); INS

v. Ventura, 537 U.S. 12, 123 S.Ct. 353 (2002) (per curiam).

Finally, even had the majority below been correct on

the “inconsistency” issue, remand for clarification would

be inappropriate in light of the ensuing analysis in Part

III.C. of the decision. The majority rejected there the

position advanced by EPA in the elevation document — and

ultimately adopted in the biological opinion — that EPA

lacked power to impose ESA-related conditions as part of

the Arizona program approval and, in so rejecting, re-

solved the “action” issue. See, e.g., Defenders I, 420 F.3d at

967 (construing ESA § 7(a)(2) as independently conferring

agency power “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”). Because the court directed the

discussion in Part III.C to one of the substantive predi-

cates for the biological opinion’s determination, it articu-

lated a ground for granting the petition for review

independent of the “inconsistency” ruling. The court’s

holding in Part III.C thereby resolved the question nomi-

nally left open for remand in Part IIIB.

10

In sum, there is no basis for remand to EPA. The

agencies’ staff-level deliberations did not affect the ulti-

mate outcome of the administrative process. Neither EPA,

nor the Service for that matter, acted inconsistently with

respect to the final action on review, which, as Judge

Kozinski later pointed out, was the only reviewable action.

Defenders II, 450 F.3d at 396. Whether or not consultation

was initially required, “[w]hen deciding whether to trans-

fer permitting authority, the [Service] issued, and the EPA

relied on, a Biological Opinion premised on the proposition

that the EPA lacked authority to take into account the

impact of that decision on endangered species and their

habitats.” Defenders I, 420 F.3d at 950. This case, there-

fore, is not like Thomas or Ventura, where the court of

appeals improperly augmented the administrative pro-

ceedings by deciding a factual issue not previously consid-

ered by the agency. Thomas, 126 S.Ct. at 1614 (whether

family members constituted “a particular social group”

within the scope of 8 U.S.C. § 1101(a)(42)(A)); Ventura, 537

U.S. at 13-14, 123 S.Ct. at 354 (whether changed circum-

stances disqualified individual seeking political asylum

regardless of his past persecution). Rather, because the

agencies had, in fact, consulted, produced a biological

opinion and adhered to its contents, the court of appeals

was required to review that process. See Defenders Il, 450

F.3d at 394, n.1 (Berzon, J., concurring). The issues pre-

sented — whether EPA had to consult in the first instance,

or whether EPA had authority to condition its decision for

the benefit of threatened and endangered species — were

then, and continue to be, questions of federal law and

should be resolved now by this Court. Remand for clarifi-

- cation of the consulting agencies’ views on the law would

be useless, since the Service and EPA have answered the

1]

dispositive question already by authoring and adopting

the biological opinion itself.’

II. ESA § 7(a)(2) DOES NOT REQUIRE CONSUL-

TATION ON THE TRANSFER OF NPDES

PERMITTING AUTHORITY TO THE STATES

OR VEST EPA WITH POWER TO CONDITION

TRANSFER ON TERMS OTHER THAN THOSE

IN CWA § 402(b).

A. CWA § 402(b) Requires Transfer upon Satis-

faction of Its Exclusive Criteria.

The CWA could not be plainer about the centrality of

the States’ role in its administration. “It is the policy of

Congress to recognize, preserve, and protect the primary

responsibilities of States to prevent, reduce, and eliminate

pollution, to plan the development and use .. . of land and

water resources.” 33 U.S.C. § 1251(b). “It is the policy of

Congress that the States ... implement the permit pro-

grams under Sections 1342 |NPDES] and 1344 of this

title.” Jd. As explained in the Amici States’ brief support-

ing EPA’s petition for certiorari, moreover, the evolution of

federal clean water regulation illustrates Congress’ intent

to respect and promote the role of the States to prevent

water pollution. Water Pollution Control Act of 1948, Ch.

758, § 1, 62 Stat. 1155 (1948); Water Pollution Control Act

Amendments of 1956, ch. 518, § 1, 70 Stat. 498 (1956);

* The panel majority's comment that “the Biological Opinion’s flaws

are /egal in nature” and that “|djiscerning them requires no technical or

scientific expertise” is telling in this regard. Defenders 1, 420 F.3d at

976. What exists here is simply a difference of opinion between the

agencies and the court of appeals over how to construe two statutes = a

disagreement predicated on both decisionmakers actually having

addressed the same “legal” issue. .

12

Water Quality Act of 1965, Pub. L. No. 89-234, § 5, 79 Stat.

903, 907-08 (1965); Clean Water Restoration Act of 1966,

Pub. L. 89-753, §$°101, 201, 80 Stat. 1246, 1247 (1966); S.

Rep. No. 92-414, at 1 (1971) (“For more than two decades,

Federal legislation in the field of water pollution control has

been keyed primarily to an important principle of public

policy: The States shall lead the national effort to prevent,

control and abate water pollution.”). The 1972 amendments

continued this policy. See, 33 U.S.C. § 1251(b); 33 U.S.C.

§ 1251(g) (States’ authority to allocate water supply not

abrogated by the CWA); 33 U.S.C. § 1288 (States’ authority

and role in waste treatment management); 33 U.S.C.

§ 1344(g)-(j) (States’ authority to administer their own

programs for discharge of dredged and fill material); 33

U.S.C. § 1370 (States’ authority to control pollution, unless

a State’s standard is less stringent than that in the CWA).

The clearest proclamation of the congressional prefer-

ence for state control is found in CWA § 402 which creates

the NPDES Program. Under CWA § 402(b), EPA has this

responsibility only until it is assumed by a State, and only

thereafter if the State fails to fulfill it. Senator Edmund

Muskie, the Senate floor leader for the 1972 amendments,

recognized this fundamental policy during congressional

debate:

What {the CWA] does is continue the Federal Gov-

ernment’s authority with respect to major polluters

... until such time as the States can develop per-

manent authority of their own. At that time it is the

expectation of this bill and of this administration to

have the States assume that permanent authority

and to administer the law directly.

117 Cong. Rec. 38845 (1971) (emphasis supplied); see also

118 Cong. Rec. 33747, 33750 (1972) (statement of Rep.

13

Jones) (“ ... it is intended that the State shall have

primary responsibility for determining whether a dis-

charge complies with the [CWA § 402] guidelines”).

The respective versions of the 1972 amendments in

the Senate and House differed significantly on this issue

prior to resolution by the joint committee. The Senate bill,

S. 2770, provided that “{u]nder section 402, the Adminis-

trator can delegate permit authority to a State if the State

program is adequate.” H.R. Rep. No. 92-1465, at 138 (1972)

(Conf. Rep.) (emphasis supplied). The House amendment

provided for “a State to administer its own permit program

in lieu of the Administrator’s program, and the Adminis-

trator is required to approve a submitted State program

unless he finds that there is not adequate authority to

issue the permits in accordance with the requirements of

[the CWA].” Jd. at 139 (emphasis supplied). In resolving

this conflict, the conference adopted the House amend-

ment, providing that the Administrator “shall approve” the

State program if he finds adequate authority exists to

administer the NPDES program. /d.; 33 U.S.C. § 1342(b).

Congress further recognized that once NPDES author-

ity was transferred to a state, a permit issued by the State

would be a state, not a federal, permit. See, e.g., 118 Cong.

Rec. 33761 (1972) (statement of Rep. Wright) (“These

would be State, not Federal, actions, and thus ... such

permits would not require environmental impact state-

ments.”); 118 Cong. Rec. 10201, 10207 (1972) (statement

of Rep. Jones) (describing the goal of § 402 as “State

14

administration of State programs”).‘ Similarly, EPA must

suspend the issuance of federal permits not later than 90

days after the date on which the State has submitted a

program. 33 U.S.C. § 1342(c). See also S. Rep. No. 92-414,

at 71 (“after a State submits a program which meets the

criteria established by the Administrator pursuant to

regulations, the Administrator shall suspend his activity

in such State under the Federal permit program.”). All

permits issued thereafter are state permits pursuant to

the State program.

CWA § 402(b) provides EPA “shall approve each ...

submitted program unless” the agency “determines that

adequate authority does not exist” to administer the

program in compliance with nine specific criteria. 33

U.S.C. § 1342(b)(1)-(9) (emphasis supplied). See also 40

C.F.R. §§ 123.1(c), 123.61(b). The plain language of CWA

§ 402(b) is clear. Congress intended the States would be

entitled to administer the NPDES Program, provided the

State could meet these stated requirements. As is often the

case, the foregoing review of the CWA’s legislative history

“merely confirms that Congress intended the statute to

mean exactly what its plain language says.” Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 574, 102 S.Ct.

3245, 3251-252 (1982). Numerous courts, accordingly, have

* Congress also recognized CWA § 401, 33 U.S.C. § 1341 does not

apply to permits issued by a State under CWA § 402(b) because

“permits granted by States under section 402 are not Federal permits -

but State permits.” H.R. REP. No. 92-911, at 127 (1972) (‘emphasis

supplied). Congress thus included a provision in CWA § 402(b) that

requires any permit program administered by a State to insure that

any other State whose waters may be affected by the issuance of a

permit have an opportunity to submit written recommendations with

respect to the permit application. /d-

15

found EPA lacks discretion to deny approval if a state’s

program meets the nine exclusive criteria. See EPA uv.

California, 426 U.S. 200, 208, 96 S.Ct. 2022, 2026 (1976);

Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 297 (Sth

Cir. 1998); Save the Bay, Inc. v. Adm’r, EPA, 556 F.2d 1282,

1285 (5th Cir. 1977); Natural Res. Def. Council, Inc. v.

EPA, 859 F.2d 156, 173-74 (D.C. Cir. 1988); Citizens for a

Better Env't v. EPA, 596 F.2d 720, 722 (7th Cir. 1979).

Because Arizona’s application met all nine requirements of

CWA § 402(b), EPA was obligated to transfer NPDES

permitting authority to the State.

As discussed next, the consultation process conducted

by EPA and the Service was unnecessary from the outset.

Nevertheless, once conducted, the agencies properly

concluded that EPA could not impose additional conditions

precedent to the CWA § 402(b) transfer for the benefit of

species. Thus, the biological opinion, while superfluous,

reached the correct result with regard to the “effects of the

action” component of the jeopardy analysis.

B. The ESA Does Not Impliedly Repeal or

Amend CWA § 402(b).

The plain language and legislative history of CWA

§ 402(b) demonstrate EPA’s categorical mandate to trans-

fer permitting authority to a State when the latter’s

proposal meets t’ > nine statutory criteria. The fundamen-

tal question in this case is whether EPA’s obligations to

transfer were superseded or amended when Congress

enacted ESA §7(a)(2). The panel mayjority’s implicit

conclusion in the affirmative is contrary to this Court's

holdings concerning the implied repeal or amendment of

statutes, as well as the plain language and legislative

16

history of the ESA itself. Moreover, it ignores the Service’s

properly promulgated regulatory interpretation of the

statute.

1. Ordinary implied repeal standards are

not satisfied here.

An implied amendment or repeal is an act which

purports to be independent, but which alters, modifies, or

adds to a prior act. The “cardinal rule” in this arena of

statutory construction is “that repeals by implication are

not favored.” Morton v. Mancari, 417 U.S. 535, 549-550,

945 S.Ct. 2474, 2482 (1974). “(T]he intention of the legisla-

ture to repeal must be clear and manifest.” TVA v. Hill,

437 U.S. 153, 189, 98 S.Ct. 2279, 2299 (1978). Another

“basic principle of statutory construction [is] that a statute

dealing with a narrow, precise, and specific subject is not

subsumed by a later enacted statute covering a more

generalized spectrum ... unless the later statute ex-

pressly contradicts the original act or unless such a

construction is absolutely necessary in order that the

words of the later statute shall have any meaning at all.”

Traynor v. Turnage, 485 U.S. 535, 547-48, 108 S.Ct. 1372,

1381-382 (1988) (internal citations and quotations omit-

ted; emphasis added). The cardinal rule controls here.

There is no expression anywhere in the ESA of Congress’

intent to repeal prior existing mandates, and it is not

“absolutely necessary” to find an implied amendment

because EPA's statutory obligation under CWA § 402(b)

can be read in pari materia with ESA § 7(a)(2).

When possible, the courts must strive to reconcile

apparently competing mandates. In Pittsburgh & Lake Erie

R. Co. v. Railway Labor Executives’ Ass’n, for example, this

17

Court reconciled apparently conflicting provisions of the

Railway Labor Act and Interstate Commerce Act explain-

ing that its effort:

... responds to our obligation to avoid conflicts

between two statutory regimes, namely, the RLA

and ICA, that in some respects overlap. As the

Court has said, we “are not at liberty to pick and

choose among congressional enactments, and

when two statutes are capable of co-existence, it

is the duty of the courts, absent a clearly ex-

pressed congressional intention to the contrary,

to regard each as effective.” Morton v. Mancari,

417 U.S. 535, 551 (1974). We should read federal

statutes “to give effect to each if we can do so

while preserving their sense and purpose.” Watt

v. Alaska, 451 U.S. 259, 267 (1981); see also

United States v. Fausto, 484 U.S. 439, 453 (1988).

491 U.S. 490, 510, 109 S.Ct. 2584, 2596 (1989); see also

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96

S.Ct. 1989, 1993 (1976) (“[W]hen two statutes are capable

of coexistence, it is the duty of the courts ... to regard

each as effective.”); see also Armstrong Paint & Varnish

Works v. Nu-Enamel Corp., 305 U.S. 315, 332-33, 59 S.Ct.

196, 200 (1938) (“Where, as here, the language is suscepti-

ble of a construction which preserves the usefulness of the

section, the judicial duty rests upon this Court to give

expression to the intendment of the law.”); cf. Cohen v.

Virginia, 19 U.S. (6 Wheat.) 264, 393, 5 L.Ed. 281, 288

(1821) (Court’s duty is “to construe the Cunstitution as to

give effect to both provisions, as far as it is possible to

reconcile them, and not to permit their seeming repug-

nancy to destroy each other. We must endeavor so to

construe them as to preserve the true intent and meaning

of the instrument.”). As explained next, nothing in the

18

ESA or its legislative history suggests that the require-

ments of ESA § 7(a)(2) override CWA § 402(b).

2. Nothing in the language or history be-

hind ESA § 7(a)(2) supports the panel

majority’s conclusion that the law ex-

pands existing agency authority.

To support its interpretation, the panel majority relied

principally on ESA § 7(a)(2)’s “insure” language as dis-

cussed by this Court in Hill. Defenders I, 420 F.3d at 964-

967. This Court there enjoined completion of Tellico Dam

because the dam’s operation would “either eradicate the

known population of snail darters or destroy their critical

habitat.” Hill, 437 U.S. at 171, 98 S.Ct. at 2290. However,

Hill “did not ... consider whether Section 7 allows agen-

cies to go beyond their statutory authority to carry out the

purposes of the ESA.” See Platte River Whooping Crane

Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 34

(D.C. Cir. 1992); Accord Nat'l Wildlife Fed’n v. Burlington

N.R.R., 23 F.3d 1508, 1512 (9th Cir. 1994). Therefore, Hill,

on its face lends no support whatsoever to the conclusion

that ESA § 7(a)(2) superimposes a tenth criterion on CWA

§$ 402(b) or, to put the proposition negatively, independ-

ently empowers EPA to ignore the clear direction of CWA

§ 402(b).

The majority also relied on its perceived distinction

between ESA 8§ 7(a)(1), 16 U.S.C. § 1536(a)(1), and 7(a)(2).

Defenders I, 420 F.3d at 965. ESA § 7(a)(1) directs agencies

to “utilize their authorities in furtherance of the purposes of

this chapter by carrying out programs for the conservation

of species.” Because ESA § 7{a)\1) refers to agencies’ “au-

thorities” while ESA § 7(a)2) does not, the majority con-

cluded, by negative inference, that Congress intended to

19

grant additional authority to federal agencies in ESA § 7(a)(2).

Id. That inference is belied by the evolution of ESA § 7.

As the panel majority noted, ESA §§7(a)(1) and

7(a)(2) originated as a single provision. It read:

The Secretary shall review other programs ad-

ministered by him and utilize such programs in

furtherance of the purposes of this Act. All other

Federal departments and agencies shall, in con-

sultation with and with the assistance of the

Secretary, utilize their authorities in furtherance

of the purposes of this Act by carrying out pro-

grams for the conservation of endangered species

and threatened species listed pursuant to section

4 of this Act and by taking such action necessary

to insure that actions authorized funded or carried

out by them do not jeopardize the continued exis-

tence of such endangered species and threatened

species or result in the destruction or modification

of habitat of such species which is determined by

the Secretary, after consultation as appropriate

with the affected States, to be critical.

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

87 Stat. 884, 892 (1973) (emphasis supplied).’ Thus, in the

* In 1982, the Congressional Research Service (“CRS”) prepared for

the Senate Committee on Environment and Public Works a summary of

the legislative history of the ESA “[iJn order to preserve the context in

which the Act was developed, to aid interpretation of provisions finally

adopted, and to assist the Congress in the reauthorization process.”

Congressional Research Service, A LEGISLATIVE HISTORY OF THE

ENDANGERED SPECIES ACT OF 1973 AS AMENDED IN 1976, 1977, 1978,

1973 aND 1980 (“ESA Leg. Hist.”) at v. This authority is relied on

extensively in the majority opinion below. See, eg., Defenders I, 420

F.3d at 965-66. In describing the original obligations of federal agencies

like EPA under ESA § 7, the CRS explained:

All other Federal departments and agencies are to consult

with the Secretary of Commerce or the Secretary of the

‘(Continued on following page)

20

original version of § 7 (applied in Hill), the obligations of

federal agencies to carry out conservation programs (now

contained in § 7(aX1)) and to avoid jeopardy (now con-

tained in § 7(aX2)) were both qualified by the phrase

“utilize their authorities.” Jd.°

Interior, as appropriate, and with the assistance of those

Secretaries to use their authorities to carry out endangered

and threatened species conservation programs, to see that

actions authorized, funded or carried out by them do not

have adverse effects on the survival of such species includ-

ing destruction of habitat deemed critical to their survival

as determined by the appropriate Secretary.

Id. at 6. (Emphasis supplied). This summary reflects the intent

expressed clearly in the House Report accompanying HR 37:

The basic purpose of the Act is clearly stated in the legisla-

tion; to provide a means whereby the ecosystems upon

which endangered species and threatened species depend

may be conserved, protected, or restored. In furtherance of

this purpose, the bill declares a policy that Federal agencies

are to use the authorities that are available to them in carry-

ing out the objectives of the bill.

Id. at 145 (H.R. Rep. No. 93-412 (1973)) (emphasis supplied).

* In support of its contrary view, the majority panel drew too much

from Rep. Dingell’s discussion on the House floor of the import of ESA § 7.

Defenders I, 420 F.3d at 965 (quoting Rep. Dingell). The majority failed to

apprehend that the entirety of Rep. Dingell’s discussion at that point in

the congressional record is prefaced with the following statement:

Another important step which we have taken in this bill -

and in this regard the two bills are virtually identical — is

that we have substantially amplified the obligation of both

[wildlife] agencies and other agencies of the Government as

well, to take steps within their power to carry out the pur-

poses of this act.

ESA Leg. Hist. at 481. That agencies “can” and “must”, Defenders I, 420

F.3d at 965, exercise that power at appropriate times to comply with the

law is hardly remarkable. There is no indication, however, that Rep.

Dingell (or anyone else on the House floor) believed that Congress was

vesting agencies with authonty to disregard congressional directives by

virtue of ESA § 7.

21

When Congress separated ESA § 7 into subsections in

1978, the drafters explained that this editorial revision did

not modify existing law:

The conferees adopted Senate language creating

a new Section 7(a), which essentially restates sec-

tion 7 of existing law, and outlines the responsi-

bilities of the Secretary and other Federal

agencies for protecting endangered species... .

The conferees felt that the Senate provision by

retaining existing law, was preferable.

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

in 1978 U.S.C.C.A.N. 9484, 9486 (emphasis supplied).

Congress’ intent to retain within ESA § 7(a)(2) the tem-

perance expressed in the original version of ESA § 7 could

not have been more explicit.

As the panel majority noted, Congress significantly

amended the ESA in 1978, 1979 and 1982 after Hill was

decided. Nowhere, however, did the amendments purport

to convey new authority to action agencies like EPA. Even

were there ambiguity on this score, the legislative history

in connection with those amendments (including those

enacting ESA §§ 7(g) and 7(h) relied on by the majority)

does not suggest that ESA § 7(a)(2) confers additional

authority on action agencies not possessed under their

existing authorities. See, e.g., H.R. REP. No. 95-1625

(1978) reprinted in 1978 U.S.C.C.A.N. 9453, 9461-62

(discussing “Section 7 and the consultation process”); H.R.

REP. No. 95-1804 (1978) (Conf. Rep.), reprinted in 1978

U.'S.C.C.A.N. 9484, 9485-86 (discussing “Interagency

Cooperation”); S. Rep. No. 96-151 (1979); H.R. Rep. No. 96-

167 (1979) reprinted in 1979 U.S.C.C.A.N. 2557, 2561-62

(discussing “Section 7 and the Consultation Process”); H.R.

22

REP. No. 97-567 (1982) reprinted in 1982 U.S.C.C.A.N.

2807, 2824-29 (discussing “Interagency Cooperation and

Committee Exemptions”).

Finally, the panel majority failed to put ESA § 7(a)(2)

in context with the remainder of the law. The ESA’s other

key substantive provision is prohibitory in nature, see, e.g.,

ESA § 9 (Prohibited Acts), 16 U.S.C. § 1538, and Congress’

overall policy directs federal agencies to “utilize their

authorities in furtherance of the purposes of this chapter.”

ESA § 2(c)(1), 16 U.S.C. § 1531(c\1) (emphasis supplied).

When Congress wanted to confer authority not otherwise

possessed, it did so expressly. See ESA § 5, 16 U.S.C. § 1534,

(requiring and empowering the Secretary of Agriculture to

implement conservation programs in the National Forest

System). As this Court explained in King v. St. Vincent

Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 579 (1991), “a

statute is to be read as a whole” because, of course, “the

meaning of statutory language, plain or not, depends on

context.” The context in which ESA § 7(a)(2) resides makes

clear Congress’ intent to respect limitations placed on

agencies’ discretion by other legislative commands.

3. The Service, charged with administer-

ing ESA §7(a)(2), has concluded the

statute does not expand existing agency

authority.

In light of the foregoing, it is clear that ESA § 7(a)(2)

does not expand agencies’ existing authorities in the

manner stated by the panel majority. Nevertheless, even

had the majority made a plausible case for some ambiguity

as to this issue, the court ignored its duty under Chevron

to defer to the Service’s reasonable interpretation of ESA

23

§ 7(a)(2)’s application as embodied in 50 C.F.R. § 402.03,

which states unequivocally:

Section 7 and the requirements of this Part apply .

to all actions in which there is discretionary Fed-

eral involvement or control.

Compare 50 C.F.R. §§ 402.02, 402.14(g\(8) (requiring

reasonable and prudent alternatives “consistent with the

scope of the Federal agency’s legal authority and jurisdic-

tion.”); id. § 402.16 (requiring reinitiation of formal consul-

tation “where discretionary Federal involvement or control

over the action has been retained”).

In National Cable & Telecommunications Ass’n uv.

Brand X Internet Services, this Court summarized the

analysis the majority should have performed in light of 50

C.F.R. § 402.03:

In Chevron this Court held that ambiguities in

statutes within an agency’s jurisdiction to admin-

ister are delegations of authority to the agency to

fill the statutory gap in reasonable fashion. Fill-

ing these gaps, the Court explained, involves dif-

ficult policy choices that agencies are better

equipped to make than courts. 467 U.S., at 865-

866, 104 S.Ct. 2778. If a statute is ambiguous,

and if the implementing agency’s construction is

reasonable, Chevron requires a federal court to

accept the agency’s construction of the statute,

even if the agency’s reading differs from what the

court believes is the best statutory interpretation.

Id., at 843-844, and n.11, 104 S.Ct. 2778.

545 U.S. 967, 125 S.Ct. 2688, 2699 (2005) (emphasis

supplied). See also Martin v. Occupational Safety & Health

Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 1175

(1991) (agency's regulatory interpretation entitled to

24

“substantial deference”). Compare Defenders II, 450 F.3d

at 397 (Kozinski, J.) (“The majority forgets that FWS is

the agency charged with administering the ESA, and that

its interpretation of the ESA is thus entitled to Chevron

deference.”).

Even greater deference is due the Service’s interpreta-

tion, considering it has been in effect for over 20 years and

is consistent with multiple lower court interpretations. See

Interagency Cooperation — Endangered Species Act of 1973,

as Amended; Final Rule, 51 Fed. Reg. 19,926 (June 3,

1986) (promulgating 50 C.F.R. § 402.03); In re Operation of

the Missouri River System Litigation, 421 F.3d 618, 630

(8th Cir. 2005); American Forest, 137 F.3d at 291; Platte

River, 962 F.2d at 33; Riverside Irr. Dist. v. Andrews, 758

F.2d 508, 511 (10th Cir. 1985) (“The [ESA] does not, by its

terms, enlarge the Corps’ jurisdiction under the [CWA].”).

In N.L.R.B. v. Bell Aerospace Co. Division of Textron Inc.,

416 U.S. 267, 274, 275, 94 S.Ct. 47, 1761-62 (1974), this

Court explained under such circumstances, “a court may

accord great weight to the longstanding interpretation

placed on a statute by an agency charged with its admini-

stration.” See also Chemehuevi Tribe of Indians v. F-P.C.,

420 U.S. 395, 408-410, 95 S.Ct. 1066, 1074-1075 (1975)

(affording deference to “longstanding administrative

construction” of the Federal Power Commission regarding

its jurisdiction to license thermal power plants).

Instead, the panel majority refused even to acknowl-

edge the import of the Service's regulation, which spoke

directly to the issue before it. See Defenders I, 420 F.3d at

967 (“Section 7(a)(2) applies to all agency actions ‘author-

ized, funded or carried out’ by the agency in question. ...

Our determination as to whether the transfer decision is

covered thus depends on the meaning of those terms.”)

25

(Emphasis supplied); see also id. at 969 n.19 (“The dissent

argues that we should nonetheless affirm the EPA’s action

based on § 402.03 because the question is one of statutory

interpretation. But that is simply not so; § 402.03 is a

regulation, not a statute.); Defenders II, 450 F.3d at 397-98

(“Having decided to conduct — on its own — the very analy-

sis that FWS already conducted, the majority comes out

the other way, getting it flatly wrong.”) (Kozinski, J.,

dissenting). Unable to reconcile its own view of ESA

§ 7(a\(2) with the Service’s, the majority marginalized the

agency’s regulatory interpretation as a mere “gloss” on the

statute, Defenders I, 420 F.3d at 967, and “simply [found]

that the word ‘discretionary’ in the regulation is meaning-

less.” Defenders II, 450 F.3d at 398 (Kozinski, J., dissent-

ing).

In this case, based on 50 C.F.R. § 402.03, EPA and,

more importantly, the Service rightly “determined — after

careful study at the local and national levels — that the

ESA was inapplicable to, EPA’s decision, and it issued a

BiOp relaying its conclusions to the EPA.” Defenders I],

450 F.3d at 397 (Kozinski, J., dissenting); see also id. at

396 (“under FWS’s interpretation, the ESA was inapplica-

ble: EPA’s decision to grant the transfer could not ‘cause’

any impact on endangered species because the decision

was non-discretionary”). Compare Missouri River, 421 F.3d

at 630 (“Case law supports the contention that environ-

mental — and wildlife-protection statutes do not apply

when they would render an agency unable to fulfill a non-

discretionary statutory purpose or require it to exceed

its statutory authority.”). See also James C. Kilbourne,

THE ENDANGERED SPECIES ACT UNDER A MICROSCOPE: A

CLOSEUP LOOK FROM A LITIGATOR’S PERSPECTIVE, 21 Envt'l

L. 499, 528 (1991) (Explaining that 50 C.F.R. § 402.03

26

represents an exception to the “sweeping definition of

‘action,’ which render|s} section 7’s substantive and proce-

dural obligations inapplicable.”). While the panel majority

might not have preferred the agency’s conclusion, it could

not “overturn FWS’s statutory interpretation simply

because it disagree[d} with it.” Jd. Rather, the majority

was required to defer to the Service’s reasonable interpre-

tation of 50 C.F.R. § 402.03. Had it done so, the biological

opinion would have been upheld, and the fabricated

conflict between ESA § 7(a)(2) and CWA § 402(b) would

have been eliminated.

In the end, the plain intent and legislative history of

the statute, the Service’s longstanding construction of its

application, and the treatment by the courts of appeal all

show that ESA § 7(a)(2) is not a “font of new authority.”

American Forest, 137 F.3d at 299. Compare Bell Aerospace,

416 U.S. at 289, 94 S.Ct. at 1769 (“In sum, the Board’s

early decisions, the purpose and legislative history of the

Taft-Hartley Act of 1947, the Board’s subsequent and

consistent construction of the Act for more than two

decades, and the decisions of the courts of appeals all point

unmistakably to the conclusion that ‘managerial employ-

ees’ are not covered by the Act.”).

C. Crediting the Majority’s Construction Would

Have Dramatic Consequences on the States

- Even Those With Approved NPDES Pro-

grams.

Perhaps the greatest problem with the majority

panel's interpretation is that it not only erects new hurdles

for the five states that have not yet achieved NPDES

27

primacy, but also casts doubt on the continuing vitality of

NPDES programs currently administered by forty-five

States that already possess such authority.”

Under the Service’s consultation regulations, a federal

agency like EPA is obligated to reinitiate ESA § 7(a)(2)

consultation on prior actions under four separate circum-

stances. 50 C.F.R. § 402.16 (authorized “take” excedance

(§ 402.16(a)); new information revealing new effects

(§ 402.16(b)); modification of the action, which causes a

new effect (§ 402.16(c)); or new protected species or habitat

identified in the action area (§ 402.16(d)). N. Alaska Env

Ctr. v. Kempthorne, 457 F.3d 969 (9th Cir. 2006); Forest

* The requirement of ESA consultation on a program approval

could, in practice, prove difficult to implement, since neither state nor

federal agencies can know at that stage what kinds of projects the

approved state might ultimately permit. See Brief of Amicus Curiae

State of Alaska in Support of Petitions for Writ of Certiorari at 3-5.

* While this case arises in the context of a single program under the

CWA, the potential impact of the court of appeals’ holding could implicate

all federal programs. The court of appeals expanded significantly action

agencies’ ability to exceed limits otherwise constraining their authority and

of wildlife agencies to formulate reasonable and prudent alternatives that,

if implemented, could entail action contrary to action agencies’ other

statutory duties. See Defenders ll, 450 F.3d at 399, n4 (Kozinski, J.,

dissenting). That interpretation threatens to disrupt other largely settled

relationships with the Federal Government, such as, for example, the

requirement that the U.S. Bureau of Reclamation comply with State water

law. See Reclamation Act, ch. 1093, § 8, 30 Stat. 388, 390 (1902) ‘codified at

43 U.S.C. §$§ 372, 383) and California v. United States, 438 US. 645, 665.

667, 98 S.Ct. 2985, 2996, 2997 (1978). Compare Rio Grande Silvery

Minnow v. Keys, 333 F.3d 1109, 1158 (2003), vacated as moot, 355 F.3d

1215 (10th Cir. 2004) (Kelley, J., dissenting) (critiazing the majority for

ignoring § 8 and transforming the ESA into a “Frankenstein” that, “despite

the good intentions of its creators, has become a monster” by allowing “the

federal government to overturn this established [Reclamation Act)

precedent.”).

28

Guardians v. Johanns, 450 F.3d 455 (9th Cir. 2006); Sierra

Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987).

The duty to reinitiate consultation is tempered by

language nearly identical to that appearing in 50 C.FR.

§ 402.03, which the panel majority deemed “coterminous”

with the language of ESA § 7(a)(2). Defenders I, 420 F.3d at

969. To the extent the majority’s analysis of ESA § 7(a)(2)

stands, it is virtually certain that EPA will voluntarily (or

involuntarily) revisit decisions made long ago to transfer

authority under CWA § 402(b). The States’ investment in

their NPDES programs could be lost entirely as a result of

forced ESA compliance. A determination that the Amici

States must forfeit their programs would run contrary to

this Court’s recognition of States’ dominant role in regulat-

ing their waters. See Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174, 121

S.Ct. 675, 684 (2001) (acknowledging “the States’ tradi-

tional and primary power over land and water use”).

*

29

CONCLUSION

For the reasons set forth herein, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

JON C. BRUNING

Nebraska Attorney General

Davip D. COOKSON

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509

DONALD G. BLANKENAU

THOMAS R. WILMOTH

Special Assistant

Attorneys General

BLACKWELL SANDERS

PEPER MARTIN LLP

Suite 1400

206 South 13th Street

Lincoln, NE 58508