WASHINGTON (AP) -- The Supreme Court sided with developers and the Bush administration Monday in a dispute with environmentalists over protecting endangered species. (source)
The Clean Water Act (CWA) gives the Environmental Protection Agency (EPA) the authority both to regulate pollution and to delegate authority for issuing discharge permits to states, provided that the state has met certain criteria. The Endangered Species Act (ESA) requires federal agencies to consult with agencies designated by the Secretaries of Commerce and Interior to ensure that agency actions do not imperil species listed as threatened or endangered.1
In 2002 the EPA delegated authority for issuing discharge permits to the State of Arizona without reviewing the effect of this change in authority on endangered and threatened species in the state. The regional office of the U.S. Fish & Wildlife (USFWS) argued that such impacts should be considered. The regional office of EPA disagreed, and the dispute was passed up the chain to Washington. There the objections of the regionals USFWS office were overruled.
Defenders of Wildlife and other groups filed suit, arguing that EPA's actions violated the ESA. The 9th Circuit Court of Appeals agreed.
I have not read the opinions yet. I'll do that over the next couple of days and post some comments. In the meantime, think about this. Who would have been in charge of approving the final biological opinion from USFWS on whether the transfer of permitting authority to Arizona could imperil threatened or endangered species? You guessed it. Julie McDonald was not yet deputy assistant secretary for fish and wildlife and parks, but she was “serving as senior advisor to Assistant Secretary Craig Manson” (source). She joined the Department of Interior in July, 2002 and USFWS issued its biological opinion in December, 2002. McDonald is not famous for her respect of the scientific method. It won't be surprising to learn that in addition to changing the nesting range of the Southwestern willow flycatcher and combining three populations of the California tiger salamander into one (source) McDonald made the decision to overrule the USFWS regional office determination “without even a semblance of agency reasoning” (source).
Text of the Supreme Court decision
Statement from Rodger Schlickeisen, president of Defenders of Wildlife
Press release from the National Association of Home Builders
Text of the 9th Circuit decision
1The U.S. Fish & Wildlife Service and the National Marine Fisheries Service administer the ESA.
All too often, speculation seems to trump facts in the scorched-earth approach to policy commentary concerning natural resources. This piece doesn't even pretend to have any factual basis as to Julie MacDonald's alleged involvement in the biological opinion on EPA's CWA delegation to the State of Arizona. The fact is she did not touch that document. Additionally, it is a mischaracterization to say that the regional office was "overruled." The regional director favored the outcome that was eventually reached. Furthermore, the biological opinion never in any form found jeopardy to the continued existence of any species. Instead, the biological opinion at one point urged that there might be indirect adverse effects unless EPA and FWS consulted on future permits issued by Arizona officials.