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<i>National Association of Home Builders v. Defenders of Wildlife</i> and the Meaning of Agency Indiscretion

January 2008

Citation: ELR 10039

Author: Linus Chen

Editors' Summary: The Supreme Court's decision in National Ass'n of Home Builders v. Defenders of Wildlife left unresolved the question of the meaning of discretion and agency authority. This decision and ensuing litigation over the meaning of discretionary agency action could impact the fate of over 1, endangered and threatened species. In this Article, Linus Chen explains the circuit court split over the conflicting statutory requirements of ESA §7 and CWA §402(b) regarding consultation and agency discretion. He argues that the Court wrongly decided that EPA did not have to consider ESA §7 and the loss of §7 protections before delegating CWA permitting program authority to the states. He cautions that by dismissing the plain language of §7(a)(2) requiring consultations to occur for any action by the federal government, the Court has placed new attention on the issue of discretion, and that the Supreme Court's decision may only increase the trend of using discretion as a defense for agency action or inaction.

Linus Chen is a third-year student at the Emory University School of Law. He wishes to thank Prof. William Buzbee and the seven students in his fall 2006 seminar, and Prof. Larry Sanders for their comments. This Article was a runner-up in the Environmental Law Institute's 2007 Endangered Environmental Laws writing competition prior to issuance of the decision. This revised Article incorporates the Court's recent decision.

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