Pittston Co. v. Endangered Species Comm.
Citation: 10 ELR 20248
No. Nos. 79-1779, -1851, 14 ERC 1257/(D.D.C., 03/21/1980)
In a case of first impression, the court rules that the Pittston Company's application for an exemption from § 7 of the Endangered Species Act (ESA) to enable it to build an oil refinery in Maine is not ripe for review. The Environmental Protection Agency (EPA) had preliminarily indicated that it would deny Pittston's application for a national pollutant discharge elimination system (NPDES) permit based on consultation with and biological opinions of the Department of the Interior and the Department of Commerce indicating threats to endangered bald eagle and humpback whale populations. Pittston requested reconsideration of this decision and applied for an exemption from the ESA within 90 days after completion of the consultation process. The court concludes that the Endangered Species Review Board, the first step in the exemption process established by the 1978 amendments to the ESA, does not have jurisdiction to consider Pittston's application because there has been no final decision by EPA on the NPDES permit. Because the statute is ambiguous as to when an application is ripe for consideration by the Board, the court turns to the legislative history and finds clear indications that the exemption process is available only after an application for a permit has finally been denied on § 7 grounds.
Counsel for Plaintiff Pittston Co.
Jonathan B. Hill, John R. Feore
Dow, Lohnes & Albertson
1225 Connecticut Ave. NW, Suite 500, Washington DC 20036
Counsel for Plaintiffs National Wildlife Federation et al.
Patrick A. Parenteau
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
Michael J. Bean
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
Counsel for Defendants
Kenneth Berlin, Chief, Wildlife Section
Land and Natural Resources Division
Department of Justice, Washington DC 20530