Supreme Court Hates Endangered Species (Well, 5 Justices Do at Least)

The opinion in National Association of Home Builders v. Defenders of Wildlife came down from on high last week, and it was not really good news. The basic holding is something like EPA cannot deny Clean Water Act 402 state certification if the nine requirements in the statute are met, even if such approval may violate the Endangered Species Act's section 7 "no jeopardy" requirement. Put another way: section 7 consultation is not required for 402 certification, nor, in fact, for any mandatory federal action. You can read the full opinion for yourself here.

It is not a good ruling. And if you believe Steven dissent (which I do), it's pretty flawed reasoning. Alito framed the issue in a skewed way as whether section 7 imposes a 10th criterion for 402 certification, and it goes downhill from there, resting mostly on tired textualist drivel like the presumption against implied repeals. As Stevens points out, there's also a crazy reading of the regulations implementing section 7. The regulations state that section 7 consultation applies to discretionary federal actions, but Alito casually slipped an only before discretionary, and that was pretty much the end of it. Read the dissent for a better description of how wrong this is.

My favorite part, though, is Ali's disapproving statement (after noting "[s]ection 7(a)(2) by its terms applies to 'any action authorized, funded, or carried out by' a federal agency") that, "[r]eading [section 7(a)(2) broadly would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species." Hmm...YEAH! That's the point!!!

I just don't see how they could hate something as cute as the cactus ferruginous pygmy owl.