SUPREME COURT: Justices side with developers over protecting      
                                    endangered species (06/25/2007)


Allison Winter, Greenwire reporter

The Clean Water Act trumps endangered species protections, a divided Supreme Court ruled today in a decision that favored developers and the Bush administration in a dispute with environmental groups.

The justices' 5-4 decision in National Association of Home Builders v. Defenders of Wildlife found U.S. EPA did not break the law in 2002 when it handed a water-permitting program to Arizona without reviewing the effect of that decision on the state's 60 threatened and endangered species.

The decision reverses a previous appellate court ruling that had given primacy to the Endangered Species Act.

At issue were permits that developers must obtain for stormwater discharges before they can begin construction.

The Clean Water Act says EPA "must" give states control of the permitting program if they meet nine criteria, which do not include species considerations.

But environmentalists argued that federal officials should have also met ESA's requirement for a full consultation with federal biologists on the potential effects on plants and wildlife of handing off the permit program. The federal government has more strict rules than states for species protection.

In the majority opinion, Justice Samuel Alito wrote that the "must" in the Clean Water Act overrides ESA. The consultation requirement in ESA should only be for "discretionary" actions, he wrote.

Dissenting, Justice John Paul Stevens wrote that limiting ESA to discretionary actions is inconsistent with the text and history of the law. The case, he wrote for the minority, presented a "problem of conflicting 'shalls,'" and the court should have found a way to require federal officials to comply with both laws.

The ruling was the first substantive case on the Endangered Species Act in the past decade, attorneys involved in the case said.

"This recognizes that ESA is not an uber-statute that trumps other environmental laws," said Duane Desiderio of the National Association of Home Builders.

The ruling will allow development to go forward and preserve EPA's "status quo" on the permits, Desiderio said, since the agency has been handing permits off to the states without considering species.

Environmentalists argue Arizona is allowing rampant development that could harm habitat for the Southwestern willow flycatcher, minnows, pupfish and other imperiled plants and animals along the San Pedro River Basin. Homebuilders said forcing ESA compliance could have been crippling for new growth since the consultation process can take months to years.

Click here for the Supreme Court opinions.