Endangering the Endangered Species Act: National Association of Home Builders V. Defenders of Wildlife and Its Threat to the Survival of Endangered Species Protection

I. INTRODUCTION Congress enacted the Endangered Species Act of 1973 (ESA) (1) combat further species extinction and implement programs for the protection of endangered species. (2) Specifically, Congress sought prevent animal and plant species endangerment and extinction caused by man's influence on ecosystems, and return the species the point where they are viable components of their ecosystems. (3) To effectuate these goals, section 7 of the ESA (4) (section 7) imposes a no jeopardy obligation on federal agencies, requiring them insure that their actions will not jeopardize any species listed as endangered or threatened. (5) However, the United States Supreme Court decision in National Association of Home Builders v. Defenders of Wildlife (6) (NAHB), handed down in June of 2007, created a loophole in the ESA and an exception section 7's mandate. (7) The issue faced by the Court involved the relationship between the ESA and the Clean Water Act (CWA).s The CWA was enacted by Congress in 1972 to restore and maintain the chemical, physical, and biological integrity of the Nation's and to recognize, preserve, and protect the primary responsibilities and rights of States prevent, reduce, and eliminate pollution. (9) Section 402 of the CWA establishes the National Pollutant Discharge Elimination System. (10) Under this program, the United States Environmental Protection Agency (EPA) has authority issue permits for the discharge of pollutants into navigable waters. (11) A state may submit the EPA an application take over this authority and issue permits for discharges into waters within its jurisdiction. (12) Pursuant subsection (b), the Administrator of the EPA shall the state's permitting program if it satisfies nine enumerated criteria. (13) In NAHB, the State of Arizona applied the EPA for a transfer of permitting authority. (14) Defenders of Wildlife strongly opposed the transfer due its potential impact on several endangered species in the state. (15) In its 5-4 decision, the Court found that the criteria set forth in section 402(b) of the CWA (section 402(b)) created a statutory mandate directing the Administrator approve the transfer unless one of the nine requirements was not met. (16) Because none of these criteria involved the protection of endangered species, the Court held that the EPA did not have the authority consider any impact the transfer might have on endangered species. (17) The Court in effect created an exception section 7, excusing agencies from their no-jeopardy duty where their actions are governed by an express statutory mandate. (18) In removing this important shield for endangered species, the Court relied on 50 C.F.R. [section] 402.03, which states that [s]ection 7 ... appl[ies] all actions in which there is discretionary Federal involvement or control. (19) Although courts must give substantial deference an agency's interpretation of a statute, (20) the EPA's interpretation of section 7 is inconsistent with the policy and purpose behind the ESA as well as the clear language of the statute. (21) Therefore, the regulation is not a reasonable interpretation of the ESA and should have been declared invalid under the Chevron doctrine. (22) Nonetheless, the Court upheld [section] 402.03 as a reasonable interpretation of section 7. (23) As such, Congress must now step in and revise section 7 so as clearly express its intent and ensure the survival of the most valuable form of endangered species protection. This Note examines the Court's reasoning behind the NAHB decision and focuses specifically on [section] 402.03's interpretation of section 7. Part II discusses the fundamentals of, and the history behind, the ESA and the section 7 consultation process. Part III examines the circuit split regarding the scope of section 7 and the Supreme Court's resolution of the issue. …