Is the Endangered Species Act in Danger?

An environmental battle royal before the high court

By Bret Schulte

4/15/07

For eight days in 2005, the San Pedro River went bone dry for the first time on record. Home to such endangered species as the southwestern willow flycatcher, the Arizona river is vital habitat. But environmentalists argue that housing developments in southeast Arizona are sucking dry the aquifer that feeds the river, imperiling plants and animals and violating the Endangered Species Act.

The Southwest willow flycatcher is on the endangered species list.

Arizona 's growing pains come before the Supreme Court this week in consolidated cases that pit against each other two of the country's most powerful environmental protections: the Clean Water Act and the Endangered Species Act. If the Bush administration has its way, states will have more control over how they manage their natural resources, but that will come at some expense to federal safeguards for jeopardized wildlife. Critics charge that the White House is actually trying to undercut the wide-ranging Endangered Species Act. For its part, the White House says the act is inconsistently applied and in need of reform-reform that could be brought about by a victory before the high court.

Green light. The crux of the cases-National Association of Homebuilders v. Defenders of Wildlife and Defenders of Wildlife v. Environmental Protection Agency-goes back to 2002, when the federal government gave Arizona the right to issue its own water discharge permits for housing developments under the Clean Water Act-as it has done in many other states. But before handing over that power, the EPA, according to Section 7 of the Endangered Species Act, consulted with another agency-in this case, the Fish and Wildlife Service-on whether the action would threaten listed species. The service raised alarms but, in an unusual move, approved the transfer anyway, arguing that Arizona was entitled to the permitting power because it met all the requirements of the Clean Water Act. The final call was made by the EPA, which gave Arizona the green light on water permits, environmentalists claim, without regard to their impact on wildlife as directed by the Endangered Species Act.

To some, the whole thing smelled fishy. In other instances, environmentalists say, the EPA and other agencies had worked to minimize damage to habitat while still giving states permitting power. "This time, they drew hard lines," says Patrick Parenteau, an environmental law professor at Vermont Law School . He believes "something happened behind closed doors" to limit the federal role in state and local development. Defenders of Wildlife sued. In court, the EPA argued that simply by consulting with the Fish and Wildlife Service, it had met its legal requirements under the Endangered Species Act. But the Court of Appeals for the Ninth Circuit disagreed, arguing the EPA had shirked its duty to wildlife.

Hostage. The EPA is expected to argue before the Supreme Court that Section 7 shouldn't apply at all. The EPA and the National Association of Homebuilders, a party to the suit, argue that states must be granted permitting rights under the Clean Water Act if they meet all the requirements, none of which involves measuring impacts on endangered species. Duane Desiderio, a lawyer for the association, says it's wrong to hold every federal statute hostage to the Endangered Species Act. The EPA declined to comment, but in its legal petition argues "there is no dispute" Arizona met the criteria for the Clean Water Act and therefore should get its permits.

Desiderio says that by denying the permits based on the Endangered Species Act, any federal law could be revoked on the same grounds, even something as unrelated as Medicaid payments. Environmentalists, of course, dismiss the notion. But they do point to the Endangered Species Act's broad sweep, which directs any federal agency to ensure that its actions are not likely to jeopardize listed species. They point to a landmark Supreme Court decision that upheld the act almost 30 years ago.

"The administration has been looking for any excuse to limit the protections" of the Endangered Species Act, says Andrew Wetzler of the Natural Resources Defense Council. He points to recently revealed documents from the Department of Interior that propose administrative changes to the act that would bypass Congress. "Nonsense," says an Interior spokesman, who dismissed the documents as dated attempts at brainstorming.

Whether or not the Supreme Court will have the final word on the Endangered Species Act remains to be seen. The government is pursuing a grand overhaul, but Defenders of Wildlife will argue it's improper for the EPA to change positions during litigation and that it only wants the case sent back to EPA to be readdressed. With Chief Justice John Roberts presiding, a narrow reading of the technical aspects of the case is possible, experts say. Which means the fight over the act could go on for a while yet.

This story appears in the April 23, 2007 print edition of U.S. News & World Report.

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