Supreme Court of the United States
National Association of Home Builders v. Defenders of Wildlife
June 25, 2007551 U.S. 644
Summary
The Supreme Court reversed the Ninth Circuit's vacatur of the EPA's approval of Arizona's application to administer the Clean Water Act's NPDES permitting program under § 402(b). The Court held the approval was not arbitrary and capricious, and that under Chevron it must defer to the FWS/NMFS joint regulation, 50 CFR § 402.03, reading ESA § 7(a)(2) to reach only actions involving discretionary federal involvement or control; because the transfer is statutorily mandated once the section's nine exclusive criteria are met, it is not discretionary and triggers no consultation or no-jeopardy duty. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, arguing that § 7(a)(2) admits of no exception, that the regulation cannot bear the majority's reading, and that the Court wrongly relied on a rationale the agencies never adopted below. Justice Breyer wrote separately to add that even exclusive statutory criteria lists leave implicit room for species-preservation considerations after the ESA's enactment.
Holding
- Whether the EPA's approval of the Arizona NPDES transfer was arbitrary and capricious.. No. Changed preliminary views of regional offices do not render the process arbitrary, and the Federal Register statement that the biological opinion 'conclude[d] the consultation process required by ESA section 7(a)(2)' was dictum with no bearing on the final action; under the rule of prejudicial error and harmless-error principles no remand was required.
- Whether ESA § 7(a)(2) supplies a tenth criterion conditioning transfer under CWA § 402(b), or applies only to discretionary agency actions.. Under Chevron, the Court defers to the FWS/NMFS joint regulation, 50 CFR § 402.03, reading § 7(a)(2) to apply only to 'actions in which there is discretionary Federal involvement or control'; because § 402(b) mandatorily requires approval once its nine exclusive criteria are met, the transfer is not such an action and § 7(a)(2)'s consultation and no-jeopardy duties are not triggered.
- Whether the transfer of NPDES permitting authority under § 402(b) is itself a discretionary agency action.. No. Whatever judgment EPA exercises in evaluating the nine criteria, § 402(b) does not grant it discretion to add a separate species-protection prerequisite; the administering agencies' formal letters confirming that a transfer approval is not covered by § 402.03 receive Auer deference.
Docket 06-340
Cited authorities
- 50 C.F.R. § 222.101(a)
- 50 C.F.R. § 223.102
- 50 C.F.R. § 402.01(b)
- 33 U.S.C. §§ 1342
- 16 U.S.C. §§ 1536
- 86 Stat. 816
- 33 U.S.C. § 1251
- 33 U.S.C. § 1342
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