ACSBlog: The Blog of the American Constitution Society

In National Association of Home Builders v. Defenders of Wildlife, the Court on Monday held 5-4 in an opinion by Justice Alito that a federal agency required by law to take a certain action need not also satisfy Section 7 of the Endangered Species Act (ESA), which requires an agency to ensure that its action will not threaten endangered and threatened species.  In this case, the Clean Water Act obligated the EPA to transfer to the administration of local water pollution permits to the State of Arizona in the wake of the State's completion of nine statutory criteria.  While the application of the ESA provision at issue to discretionary agency actions remains non-controversial, the ruling held that statutory mandates are not subject to limitation by the ESA. 

Justice Stevens' argued in dissent that the ESA applies to all agency actions, whether imposed by statute or delegated to its authority, relying on the decision in TVA v. Hill that Section 7 of the ESA "admits of no exception."  Justice Breyer dissented separately, also citing TVA v. Hill for the proposition that "the Endangered Species Act changed the regulatory landscape, 'indicat[ing] beyond doubt that Congress intended endangered species to be afforded the highest of priorities.' "