Loose Canons: The Supreme Court Guns for the Endangered Species Act in National Association of Home Builders v. Defenders of Wildlife

Karpa, Doug
August 2008
Ecology Law Quarterly;2008, Vol. 35 Issue 3, p291
Academic Journal
Section 7 of the Endangered Species Act requires federal agencies to avoid jeopardizing endangered species. Although the plain text of the statute asserts that the consultation duty applies to "any action," the United States Supreme Court reread the statute and its implementing regulations to limit that duty to only discretionary actions in National Association of Home Builders v. Defenders of Wildlife. In considering the conflict between this consultation duty and a mandatory duty to transfer administration of the National Pollution Discharge Elimination System (NPDES) to Arizona, the majority determined that section 7 consultation does not apply to mandatory actions. This holding rests on a poorly crafted Chevron analysis in which the majority began by misapplying the canon against implied repeals in an overbroad and inconsistent way. The canon against implied repeals has typically operated to push judges to reconcile statutes where possible, reading an implied repeal only where no such reconciliation is possible. However, the court used it here to manufacture ambiguity in otherwise straightforward language, eventually working a repeal of the later-enacted section 7. Building on the shaky ground of its Chevron analysis, the majority then erected a contrived interpretation of the federal regulation governing section 7 consultation that is wholly inconsistent with the history and structure of the regulation. Given the logical and legal inconsistency underlying the holding, the decision looks less like a careful analysis of the legal issues surrounding section 7 consultation and more like a policy determination to limit environmental protections. At a minimum, this holding returns United States biodiversity policy to the incoherent and ineffective state Congress expressly rejected in passing the Endangered Species Act in 1973. At worst, this holding may in fact render section 7 almost entirely without legal effect.


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