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Supreme Court refuses to broaden Endangered Species Act

A closely divided Supreme Court rejected an effort June 25 to expand the scope of Section 7 of the Endangered Species Act.

The case, National Association of Home Builders v. Defenders of Wildlife, concerned whether ESA Section 7(a)(2) required the Environmental Protection Agency to obtain a �no jeopardy� opinion before it could transfer Clean Water Act (CWA) National Pollution Discharge Elimination System permitting authority to the state of Arizona. Under the CWA, such a transfer was mandatory because Arizona had met all CWA statutory criteria.

The 9th U.S. Circuit Court of Appeals found Section 7(a)(2) imposed an independent obligation on EPA that essentially trumped its duties under the Clean Water Act. The hydroelectric industry supported appellants in the case, saying the 9th Circuit's holding created the potential for irreconcilable conflicts between ESA and other statutes, such as the Federal Power Act.

In a 5-4 decision, the Supreme Court held the ESA section does not add additional requirements to statutory mandates or alter constraints placed on a federal agency's discretion by other acts of Congress. The court reversed the 9th Circuit and affirmed a U.S. Fish and Wildlife Service and National Marine Fisheries Service joint regulatory interpretation.

The opinion, written by Justice Samuel Alito Jr., reaffirms the Section 7(a)(2) duty covers only discretionary agency actions, and does not attach to actions an agency is required by statute to undertake.

Adverse ruling could have disrupted FERC hydro licensing

While the case did not directly involve a hydroelectric project, the hydro industry followed the case with much interest. Had the Supreme Court affirmed the 9th Circuit decision, it would have significantly affected the operation of non-federal hydroelectric projects, the �hydroelectric group� argued in a friend of the court brief filed in February.

Left standing, the 9th Circuit's decision would have disrupted Federal Energy Regulatory Commission relicensing programs, and required FERC, USFWS, NMFS, licensees, and third parties to expend significant resources, the industry added.

In the brief, the hydroelectric group argued the 9th Circuit decision created the potential for unnecessary and irreconcilable conflicts between the ESA and other statutes, such as the Federal Power Act. It said conflicts could disrupt or interfere with the nation's electrical energy supply.

Attorney Mike Swiger of Van Ness Feldman, who helped prepare the friend of the court brief, noted the Supreme Court also cited with favor a 1992 opinion by the D.C. Circuit Court of Appeals, Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC. That opinion held the ESA could not be a basis for reopening an annual license otherwise mandated by the FPA.

Members of the hydroelectric group participating in the brief included the National Hydropower Association; American Public Power Association; Northwest Hydroelectric Association; city of Tacoma; Chelan County, Douglas County, and Grant County Public Utility districts; PacifiCorp; and the United Water Conservation District.

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