Defenders of Wildlife v. United States Environmental Protection Agency

Volume 1 of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEFENDERS OF WILDLIFE; 

CENTER FOR BIOLOGICAL DIVERSITY;

CRAIG MILLER,

Petitioners, v. No. 03-71439

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

 EPA No. 67-Reg. 79629 Respondent,

NATIONAL ASSOCIATION OF HOME

BUILDERS; STATE OF ARIZONA;

ARIZONA CHAMBER OF COMMERCE,

Intervenors. 

DEFENDERS OF WILDLIFE; 

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiffs-Petitioners, v. No. 03-72894 ROBERT B. FLOWERS, Chief of Engineers and Commander, US Army Corps of Engineers.,  No. CV-02- 01195-CKJ Defendant-Respondent, OPINION

CHRISTINE TODD WHITMAN,

Administrator US Environmental Protection Agency, Defendant-Respondent, 

10983 10984 DEFENDERS OF WILDLIFE v. EPA

GALE NORTON; STEVEN WILLIAMS, 

Defendants-Respondents,

CONTINENTAL RESERVE II, LLC,

Defendant-Intervenor/ Intervenor,

HB LAND DEVELOPMENT COMPANY;

STEPHEN A. OWENS, State of Arizona, ex-rel, Director Arizona Department of Environmental Quality; GROSVENOR HOLDINGS; 

NATIONAL ASSOCIATION OF HOME

BUILDERS; HOME BUILDERS

ASSOCIATION OF CENTRAL…

Under federal law, a state may take over the Clean Water Act pollution permitting program in its state from the federal Environmental Protection Agency (EPA) if it applies to do so and meets the applicable *950 standards. This case concerns Arizona’s application to run the Clean Water Act pollution permitting program in Arizona. When deciding whether to transfer permitting authority, the Fish and Wildlife Service (FWS) issued, and the EPA relied on, a Biological Opinion premised on the proposition that the EPA lacked the authority to take into account the impact of that decision on endangered species and their habitat.

The plaintiffs in this case challenge the EPA’s transfer decision, particularly its reliance on the Biological Opinion’s proposition regarding the EPA’s limited authority. This case thus largely boils down to consideration of one fundamental issue: Does the Endangered Species Act authorize — -indeed, require- — -the EPA to consider the impact on endangered and threatened species and their habitat when it decides whether to transfer water pollution permitting authority to state governments? For the reasons explained below, we hold that the EPA did have the authority…

dissenting:

Because I disagree with the conclusion in Part III of the majority opinion that the EPA had the authority to consider the impact on endangered and threatened species in making its decision to transfer administration of the pollution permitting system to the State of Arizona, I respectfully dissent.

As the majority observes, the requirements of section 7 of the Endangered Species Act “apply to all [agency] actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03 . “Where there is no agency discretion to act, the [Endangered Species Act] does not apply.” Natural Res. Def. Council v. Houston, 146 F.3d 1118 , 1125-26 (9th Cir.1998). We have previously held that an agency lacks the requisite discretion to act when the agency does not have the authority to take action on behalf of endangered or threatened species. Ground Zero Ctr. for Non-Violent Action v. United States Dep’t of the Navy, 383 F.3d 1082 , 1092 (9th Cir.2004) (where agency lacks discretion, to require compliance with section 7 of the Endangered Species Act “would be an exercise in futility”); Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969,…