Justice Alito delivered the opinion of the Court, with Justices Kennedy, Roberts, Scalia, and Thomas concurring.
Section 402(b) of the Clean Water Act (CWA) sets forth nine criteria under which the Environmental Protection Agency can transfer authority to issue discharge permits under the act to state authorities. Under Section 7(a)(2) of the Endangered Species Act federal agencies are required to consult with agencies designated by the Secretaries of Commerce and Interior1 to ensure that agency actions do not imperil endangered or threatened species.
Alito argues that EPA acted appropriately in transferring CWA authority to Arizona officials even though regional officials of the U.S. Fish & Wildlife Service (FWS) “feared that...the transfer of authority would empower Arizona officials to issue individual permits without considering and mitigating their indirect impact....” State officials are not required to consult with FWS under Section 7 of the ESA. Alito agrees with the assessment of Washington FWS officials2 that by leaving states out of the Section 7 consultation process, Congress implicitly decided that satisfaction of requirements in other legislation satisfies the requirement for Section 7 consultation. He argues that the Section 7 requirement for consultation effectively adds a tenth requirement to CWA and is therefore impermissible.
I'll summarize the dissenting opinions later. And I'll provide a more detailed assessment of the arguments after that. For now I can say that my impression of the majority opinion is that it is the sort of opinion that gives lawyers a bad name – narrow, legalistic, pedantic, bloodless, cold, a tithe of dill and cumin.
1The National Marine Fisheries Service and the U.S. Fish & Wildlife Service.
2Was Julie McDonald involved in this decision?
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