Wednesday, June 27, 2007

On National Association of Home Builders v. Defenders of Wildlife

This case is awfully confusing, so I'll do my best to explain it, although I can't truthfully say that I understand it all. So here goes!

This case, National Association of Home Builders v. Defenders of Wildlife, tries to determine what should be done when two statutes seem to conflict. Should one win out? Should they be interpretted in such a way as to allow enforcement of both statutes? Logic tells me that the latter should be the case, but the Court held otherwise.

Perhaps I should simply quote Justice Alito here:

These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to “insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species.” The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. We conclude that it does not. The transfer of permitting authority to state authorities—who will exercise that authority undercontinuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes—was proper.

So, basically, the original statute (the CWA) laid out nine criteria for the EPA to transfer authority to a state. A later statute (the ESA) stated that all federal agencies (e.g. the EPA) must consult with pre-determined agencies to determine whether or not their actions will harm any endangered species or its habitat. This determination is not one of the nine criteria of the CWA. So, does the existence of the ESA create a tenth criterion that the EPA must meet before it can transfer authority?

Apparently not.

This confuses me, because the rather clear purpose of the ESA is to make sure that agency actions do not harm endangered species, and it seems that the CWA and the ESA can pretty easily co-exist, by creating this tenth criterion. But the Court reads the CWA's nine criteria as a strict limit, suggesting that those nine cannot later be amended by congressional statutes.

This is simply absurd. If Congress says "Here is a set of criteria," it should later be able to add on to that list. I suppose the argument is that the addition of the tenth criterion fundamentally changes the nature of the CWA, which explicitly listed nine criteria. Thus, adding a tenth would require the Court to significantly alter the CWA, which it does not want to do. But, the dissent has the better case here, I think. When two seemingly conflicting statutes can be read so as to co-exist, they should be read that way. So, since the addition of the tenth criteria does not radically change the CWA (after all, the nine criteria still need to be met before authority can be transferred), we should add it. That way, both the CWA and the ESA can be enforced.

Administrative law can be very boring, so I hope this made some sense and didn't bore you readers to death. Essentially, the idea is this: if Congress passes a law that seems to conflict with (but does not actually abandon) a previous law, the laws should be read in such a way as would allow both to be enforced (if possible, of course). Clearly here the intent of Congress was for both the CWA and the ESA to be enforceable. So, I think the dissent is clearly right to suggest that both should be enforced.

Plus, doing so might save some endangered species in the process, so let's do that.

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