Defenders of Wildlife Center for Biological Diversity v. United States Environmental Protection Agency

with whom Judges O’SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN and BEA join, dissenting from denial of rehearing en banc:

Less than two years ago, the Supreme Court unanimously reversed our interpretation of the National Environmental Policy Act (NEPA). See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 , 124 S.Ct. 2204 , 159 L.Ed.2d 60 (2004). Tone-deaf to the Supreme Court’s message, the panel majority in this case interprets the Endangered Species Act (ESA) in precisely the same incorrect way we interpreted NEPA, dramatically expanding agencies’ obligations under the law. Along the way, the majority tramples all over the Fish and Wildlife Service’s (FWS) reasonable interpretation of the ESA, deliberately creates a square inter-circuit conflict with the Fifth and D.C. Circuits, and ignores at least six prior opinions of our own court. Finally, the decision is one of considerable importance to the federal government and the states of our circuit. This is precisely the kind of case we should take en banc to set our own house in order.

Background

The Clean Water Act (CWA) instructs that the Environmental Protection Agency (EPA) “shall” transfer pollution permitting authority to a…

concurring in the order denying the petition for rehearing en banc:

I.

I begin by explaining why I am writing this concurrence: A practice has developed in this court of writing dissents from denial of rehearing en bane consideration as a matter of routine. Those dissents sometimes read more like petitions for writ of certiorari than judicial opinions of any stripe. They pose a dilemma for those who believe the original opinion correct, as they may raise issues not addressed by that opinion because not articulated by the parties before the petition for rehearing stage- — or ever.

The result, absent some response, is a distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority — often a decisive majority — of the active members of the court either perceived no error or thought the case not one of much consequence. At the same time, answering the newly raised contentions by amending the panel opinion is usually not feasible. The court has voted not to rehear en banc the original opinion and ought not to have to accept a new version without a second opportunity to determine whether the opinion…

ORDER

The panel has voted to deny the petition for panel rehearing. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc. Fed. R. App. P. 35. The request for panel rehearing and rehearing en banc is DENIED. Judge Kozinski’s and Judge Kleinfeld’s dissents from denial of en banc rehearing, and Judge Berzon’s concurrence in denial of en banc rehearing, are filed concurrently herewith.

dissenting from denial of rehearing en banc:

I join in Judge Kozinski’s thorough dissent, but write separately to show just how simple this case should have been. As Judge Thompson pointed out in his dissent from the panel’s decision, the statute is mandatory. Congress commands that the agency “shall approve” state programs “unless” one or more of nine conditions are not met. The “shall/unless” formula makes the nine condition list exclusive, and *402 courts cannot add conditions to the .list. 1 The language has the look of a careful legislative compromise necessary to get the votes for passage. 2 The statute leaves no room for conditions ten, eleven, or whatever else we may think Congress should have added. 3

. See, e.g., Department of Transp. v. Public Citizen, 541 U.S. 752, 767 , 124 S.Ct. 2204 , 159 L.Ed.2d 60 (2005).

. Cf. Weyer v. Twentieth Centwy Fox Film Corp., 198 F.3d 1104 , 1113 (9th Cir.2000) (“Legislation often results from a delicate compromise among competing interests and concerns. If we were to 'fully effectuate' what we take to be the underlying policy of the legislation, without careful attention to the qualifying words in the statute, then we would be…

Background

The Clean Water Act (CWA) instructs that the Environ- mental Protection Agency (EPA) “shall” transfer pollution permitting authority to a state if the state’s proposal meets nine criteria. See 33 U.S.C. § 1342(b). None of the criteria involves consideration of endangered species. Arizona applied to take over the CWA permitting process within its borders—the forty-fifth state to do so. There is no dispute that its proposal met all nine criteria listed in the CWA.

The EPA regional office in San Francisco, however, was worried that the transfer might affect endangered species. See 16 U.S.C. § 1536(a)(2) (section 7(a)(2) of the ESA) (requiring federal agencies to “insure” that their actions do not jeopar- dize endangered species). It thus initiated consultation with FWS pursuant to ESA section 7. The regional office also stated publicly that section 7 required EPA to take endangered species into account when making a transfer decision. FWS’s local office in Arizona similarly expressed concerns about the transfer.

Next, the matter was “elevated,” meaning the national offices of EPA and FWS took over. After national-level dis- cussions, FWS reversed course, recommending…