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National Ass'n of Home Builders v. Defenders of Wildlife

ELR Citation: 37 ELR 20153
Nos. Nos. 06-340, -549, (U.S., 06/25/2007)

The Court held that the U.S. Environmental Protection Agency (EPA) did not violate Endangered Species Act (ESA) §7(a)(2) when it transferred national pollutant discharge elimination system (NPDES) permitting authority to Arizona under Clean Water Act (CWA) §402(b) without first reviewing the effect of that decision on the state's 60 threatened and endangered species. Because §7(a)(2)'s no-jeopardy duty covers only discretionary agency actions, it does not attach to actions—like the NPDES permitting transfer authorization—that an agency is required by statute to undertake once certain specified triggering events have occurred. CWA §402(b)'s "shall approve" language is mandatory and its list exclusive; if the nine specified criteria are satisfied, EPA does not have the discretion to deny a transfer application. Hence, ESA §7(a)(2) does not effectively operate as a 10th criterion on which EPA's transfer of certain permitting powers to state authorities under CWA §402(b) must be conditioned. In addition, because an agency cannot simultaneously obey the differing mandates of ESA §7(a)(2) and CWA §402(b), the statutory language does not itself provide clear guidance as to which command must give way. Thus, it is appropriate to look to the implementing agency's expert interpretation, which harmonizes the statutes by applying ESA §7(a)(2) to guide agencies' existing discretionary authority but not reading it to override express statutory mandates. EPA's interpretation, therefore, is reasonable in light of the statute's text and the overall statutory scheme and is therefore entitled to Chevron deference. The case has particular significance for other states, such as Alaska, that are seeking NPDES permitting authority from EPA. Alito, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion.