In a 5-4 ruling, the Supreme Court said June 25 that the Endangered Species Act does not override the Clean Water Act and that states have the authority to issue clean water permits even if doing so could potentially violate the Endangered Species Act. The decision is a victory for the Environmental Protection Agency and the construction industry, and a defeat for environmental groups.
The court's decision concerns two consolidated cases, National Association of Home Builders v. Defenders of Wildlife, and EPA v. Defenders of Wildlife, which focused on whether states must consider the Endangered Species Act when issuing water pollution permits. The Clean Water Act, signed into law in 1972, allows states to issue permits if nine specific criteria are met, but the Endangered Species Act requires federal agencies to consider whether their actions would jeopardize endangered species.
Writing for the court's majority, Associate Justice Samuel Alito said, "While the EPA may exercise some judgment in determining whether a state has demonstrated it has the authority to carry out [the Clean Water Act's Section 402 (b)] enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list." He added, "Nothing in the text of [that section] authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application."
Alito was joined by Chief Justice John Roberts and Associate Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Associate Justice John Paul Stevens wrote the dissent and was joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.
NAHB President Brian Catalde said, "This decision recognizes that we must always maintain a balance when we look at environmental regulations." He added, "We can't say that the Endangered Species Act is an �uber-statute' that should slow down regulatory decisions under the Clean Water Act even as we recognize that both laws concern issues that are vital to preserving this earth for the next generation."
Catalde said that if the court had sided with the Defenders of Wildlife, the authority to issue water pollution permits in Arizona would have gone back from the state to the EPA, a change that would have had cost and time implications for home builders.
Rodger Schlickeisen, president of Defenders of Wildlife, expressed disappointment, stating that the majority's interpretation of the Endangered Species Act ignored congressional intent in passing that statute. "The [Endangered Species] Act was intended by Congress as a clear, independent mandate for all federal agencies to ensure that their actions do not jeopardize endangered species or destroy their critical habitat."