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National Association of Home Builders, et al. v. Defenders of Wildlife

Docket No.: 06-340
Certiorari Granted: Jan 5 2007
Argued: April 17, 2007
Decided: June 25, 2007
Consolidated with: Environmental Protection Agency v. Defenders of Wildlife, et al., No. 06-549

Topics:

Administrative Procedure, Clean Water Act, Clean Water, endangered species, Endangered Species Act of 1973, EPA, harmless error, Natural Resources, threatened species

PartyNames: National Association of Home Builders, et al. v. Defenders of Wildlife, et al.
Petitioner: National Association of Home Builders, et al.
Respondent: Defenders of Wildlife, et al.

Court Below: United States Court of Appeals for the Ninth Circuit

National Association of Home Builders, et al.
v.
Defenders of Wildlife, et al.
551 U.S. 644 (2007)
Background:

On December 5, 2002, the U.S. Environmental Protection Agency ("EPA") approved the State of Arizona's application to administer the National Pollutant Discharge Elimination System ("NPDES") program under Section 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b). Section 402(b) states that EPA "shall approve each submitted program" unless EPA "determines that adequate authority does not exist" for the state to administer the program in compliance with nine specified criteria. There was no dispute that Arizona's program satisfied those criteria. Instead, environmental groups contended that EPA violated Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), because EPA did not sufficiently analyze the effects of the loss of, nor require a sufficient substitute for, consultation with the U.S. Fish and Wildlife Service. A majority of the Ninth Circuit panel agreed and vacated EPA's approval of Arizona's program. The questions presented for review are:

Question Presented:

1. Can a court append additional criteria to Section 402(b) of the Clean Water Act that require state NPDES programs to include protections for endangered species? 2. Does Section 7(a)(2) of the Endangered Species Act constitute an independent source of authority, requiring federal agencies to take affirmative action to benefit endangered species even when an agency's enabling statutes preclude such action? 3. Did the Ninth Circuit incorrectly apply the holding of Department of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that EPA's approval of Arizona's NPDES permitting program was the legally relevant cause of impacts to endangered species resulting from future private land use activities?

Question:

1) Can a court require that state Clean Water Act pollution permitting programs include protections for endangered species? 2) Does Section 7(a)(2) of the Endangered Species Act constitute an independent source of authority for federal agencies? 3) Is the EPA's approval of a state permitting program the legally relevant cause of impacts to endangered species resulting from future private land use activities? 4) Was the Court of Appeals correct that the EPA's decision to transfer pollution-permitting authority to Arizona under the Clean Water Act was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act? If so, should the Court of Appeals have sent the case back to the EPA for further proceedings without ruling on the interpretation of Section 7(a)(2)?

Note:

THE CASES ARE CONSOLIDATED AND A TOTAL OF ONE HOUR IS ALLOTTED FOR ORAL ARGUMENT. IN ADDITION TO THE

Holding: judgment reversed and remanded
Vote: 5-4
Opinion By:
Read NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL. V. DEFENDERS OF WILDLIFE opinion (PDF)

Other Resources for National Association of Home Builders, et al. v. Defenders of Wildlife:
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