National Ass'n of Home Builders v. Defenders of Wildlife

OF HOME BUILDERS NATIONAL ASSOCIATION WILDLIFE et al. DEFENDERS OF et al. April 17, June Argued No. 06-340. 2007 Decided 2007* De Agency v. Protection 06-549, * Together with No. Environmental same court. al., to the et also on certiorari Wildlife fenders of J., Roberts, C. Alito, J., Court, in which delivered opinion Stevens, J., filed dis- Scalia, Kennedy, Thomas, JJ., joined. and and Souter, senting opinion, Ginsburg, Breyer, JJ., which joined, and Breyer, J., post, p. 673. post, p. dissenting filed a opinion, 698. Deputy Solicitor Kneedler General argued cause for in both petitioners on the cases. With him briefs for peti tioner Environmental Solicitor Protection were Agency Acting Attorney Clement, General Assistant General Mc Mergen, Keown, L. Malcolm Stewart, Andrew C. and David Shilton. James, C. Norman D. Duane J. Desiderio, Frye Ward, Thomas J. S. and Russell filed for briefs peti tioners National of Home Builders Association et al. in Terry Goddard, No. 06-340. General of Attorney Arizona, Mary O’Grady, Bickett, Paula General, Solicitor Chief Coun sel, and James T.Skardon, Assistant Attorney General, filed for briefs the State of Arizona as respondent under 12.6, Court's Rul of support petitioners. e R. Eric Glitzenstein argued cause for respondents Meyer A. both cases. With him on Katherine brief were Senatore.† P. Michael and

† Briefs of amici curiae urging reversal in both cases were filed for the C. State of by et Bruning, Jon Attorney Nebraska al. General of Ne Cookson, braska, David D. Attorney General, Donald G. Assistant and Wilmoth, Special Blankenau and R. Thomas Attorneys Assistant Gen Sdnchez-Ramos, Secretary eral, by Roberto J. Rico, of Justice of Puerto Attorneys and by respective General officials for their and other States King Alabama, Troy of Talis Colberg J. John Alaska, follows: W. of Suthers of (Jay) Lawrence Colorado, Wasden W. Idaho, of Jeremiah Nixon Missouri, Nevada, Gary King Catherine Cortez K Masto New Bassett, Stephen R. Farris and Frances C. Mexico, and Attor Assistant neys Wayne Stenehjem Mexico, Dakota, Robert General of New North Jr., E. Cooper, L. Tennessee, Mark Utah, and Patrick J. Shurtleff Crank of Wyoming; by for the American Farm Bureau Federation Ellen Intndquist; Steen R. and Thomas Transporta American Road by tion Lawrence R. Liebesman and Nick Gold- et al. Builders Association stein; Albrecht, Virginia Authority for the Arizona Power S. et al. Brown, Robb; B. Kathy for Karma Association of California Water Walston, Tachiki, E. L. C. Clair- Agencies et al. Roderick Karen John Masouredis, O’Hanlon, day, Christopher Onstott, S. Linus Daniel Daniel Montano; Hentschke, Nichols, Trout, Peggy V. E. Peter D. Robert Nelson, Quarles, P. J. by Douglas Steven and Mi- CropLife T. America Court. opinion delivered Justice Alito These two en- cases between federal interplay concern 402(b) of the Water vironmental Section Clean statutes. Act Environmental Protection Agency requires upon transfer certain to state authorities permitting powers have criteria and a nine application specified showing Act of been met. Section of the Endangered Species must consult with agen- that a federal provides agency In- and the cies Commerce by Secretaries designated authorized, funded, terior in order to “insure that action is carried out such ... by likely jeopardize or threat- continued of any species existence endangered §7(a)(2) whether ened species.” question presented trans- on which the as a tenth criterion effectively operates con- fer must be the first statute under permitting power conclude that not. The transfer ditioned. We it does will exercise to state authorities —who permitting authority to ensure under federal continuing oversight Spe- with relevant mandates of the compliance Endangered Albers; Klise; Daniel P. chael Quality by Coalition the Federal Water Phillips, Stephen M. G. Carter High by Homebuilders Production Nickelsburg, Shumsky; Eric A Hydropower Associa- for the National and Swiger; Washington Legal Sam Kalen and Michael A by tion for the et al. Samp; A Popeo Daniel for the J. Richard by et al. and and Foundation Sharp by Benjamin Guy R. S. Western Urban Coalition Water Martin. amicus Legal Hopper

M. Foundation as Reed filed a brief for the Pacific curiae urging reversal No. 06-340. brief

Roger J. G. Marzulla filed a for the Kern Marzulla and Nancie County urging reversal 06-549. et al. as amici curiae Agency No. Water for the of amici in both cases were filed curiae urging affirmance Briefs Bean; for Jared M. et al. Michael J. Conservancy by American Bird J. Daniel Rohlf. by Diamond et al. Fish- the American of amici curiae were filed Briefs both cases for Goldman, F. Hasselman, John A Patti Jan E. Society by et al.

eries Legal States Kostyack, Randolph Sargent; for the Mountain Mary Pendley; and for the National Association Perry William Foundation Sullivan, II, M. A Sean Agencies William Anderson of Clean Water Prell, D. D. Cameron and Alexandra Dunn. protection Act cies and other federal environmental stat- proper. judgment utes—was We therefore reverse the Appeals of the United States for the Court Ninth Circuit.

I A 1 (CWA), The Clean Water 816, Act 86 as Stat. amended, 33 § seq., U. S. C. 1251 et a National established Dis- Pollution (NPDES) charge System designed pre- Elimination that is discharges vent harmful into Nation’s waters. The En- (EPA Agency Agency) initially vironmental Protection permitting system administers the NPDES for State, each may apply permitting authority but State a transfer of for § 1251(b) § to state U. 1342; officials. See 33 C.S. see also (“It policy Congress implement Stat[e]... is the that the permit title”). progra[m] sectio[n] under 1342 ... of this authority If then transferred, state the fed- officials—not primary responsibility reviewing eral EPA—have the for approving discharge permits, and NPDES albeit with contin- uing oversight.1 EPA § CWA,

Under “the Governor of each State desiring permit program discharges to administer its own for navigable jurisdiction may into waters its within submit to [the EPA] complete description program and foil it proposes to establish and under law or administer State compact,” under an interstate as “that well as certification provide adequate authority the laws of such State . . . 1342(b). carry program.” out the described 33 U. S. C. provides approve The same section that the EPA “shall each program” permitting submitted transfer of issue, The permit proposes State must advise the EPA of each 1342(d)(1), (2); §§ may object permit. to any and the EPA 33 U. C.S. see 123.44(c) (2006). 40 CFR If the State cannot also address EPA’s concerns, authority permit U. S. C. over reverts to the EPA. 33 1342(d)(4). does a State adequate authority “unless determines [it] nine criteria are not exist” satisfied. to ensure that specified relate to whether state Ibid. These all criteria will has the au be requisite responsible under to administer the NPDES thority state law program.2 be met, If the criteria the transfer must are approved. (ESA), Act of 1973 87 Stat. Endangered Species amended, is intended to U. S. et protect C. seq., conserve their threatened species endangered

habitats. Section 4 of the ESA directs Secretaries Commerce and Interior to list and endan- the threatened and to their critical habitats. gered species designate (FWS) §1533. The Wildlife administers Fish and Service the ESA with of the to under the jurisdiction respect species the Marine Fisher- Interior, the while National Secretary (NMFS) ies Service administers the with to ESA respect under the of the of Commerce. species jurisdiction Secretary 402.01(b) (2006). §§17.11, 223.102, See CFR 222.101(a), (1) The State ability: must that it has issue fixed- demonstrate the to permits term that and ensure the CWA’ssubstan apply compliance with (2) cause; requirements tive are to inspect, and which revocable for moni tor, and enter to extent require reports required by facilities and the to (3) CWA; (4) provide public the hearings; notice and public ensure (5) the EPA permit application; receives notice of each to ensure that other any may permit State be the issuance of by whose waters affected may pro submit and written reasons be written recommendations (6) if vided such are to ensure that no accepted; recommendations permit Army is concludes Corps Engineers issued if the that it would waters; substantially impair anchoring navigable and navigation the (7) abate permit program, including through violations of or the permits (8) any civil and penalties; permit discharge criminal to ensure that a publicly from works requiring owned treatment includes conditions type the identification of certain and pollutants; of the volume (9) any ensure that treatment any publicly industrial user of owned will comply provisions. works substantive certain GWA’s 1342(b)(1) (9). §§ — 7 of the

Section ESA steps federal prescribes must take to ensure that their actions do not agencies jeopar- 7(a)(2) dize wildlife and Section flora. endangered provides shall, Federal “[e]ach consultation with agency with the assistance of the Secretary [of Commerce or the Interior], authorized, insure that action funded, or car- (hereinafter ried out such in this by agency section referred action’) to as an is not ‘agency likely contin- jeopardize ued existence of or any endangered threatened species spe- 1536(a)(2). § cies.” U. S. C.

Once the consultation process contemplated by has been is completed, Secretary required give a written agency biological forth the opinion “setting Secre- tary’s opinion, of the information on summary which based, how opinion detailing action affects agency or its critical habitat.” 1536(b)(3)(A); also species see §402.14(h). 50 CFR If the concludes that Secretary action would listed agency place species jeopardy its habitat, critical adversely “the shall modify Secretary those reasonable and alternatives he suggest prudent which 7(a)(2)] believes would not violate and can be taken [§ Federal ... agency action.” implementing U. 1536(b)(3)(A); 402.14(h)(3). S. C. see also 50 CFR Reg- ulations the Secretaries of promulgated Commerce jointly and the that, Interior in as a order to “rea- provide qualify sonable and alternative,” prudent alternative course action must be able to be in a “consistent implemented way with the of the Federal and scope authority agency’s legal §402.02. the of a jurisdiction.” issuance “jeop- Following ardy” opinion, action, must terminate the either alternative, or implement seek an proposed exemption from the Cabinet-level Committee Endangered Species pur- 1536(e). suant to 16 S. C. U. also regulations provide The 7 and that “Section all part requirements apply actions which there is Federal involvement discretionary or CFR control.” 402.03.

B applied au- February for EPA In Arizona officials program.3 that State’s NPDES thorization to administer with the determine The EPA FWS initiated consultation authority permitting ad- would whether transfer versely any species. affect listed regional of au- transfer

The officeconcluded FWS quality impact thority water direct on would not cause App. adversely species. to Pet. affect listed that would Cert, p. office was However, FWS 06-340, 564. No. in the issuance concerned that transfer could result develop- discharge permits, to more which lead more would effect have an ment, indirect adverse which turn could species, upland such the cactus on the habitat of certain pineapple cactus. ferruginous pygmy-owl the Pima 7(a)(2)’s Specifically, consul- that, because FWS feared apply requirement does decisions tation not empower authorities,4 state the transfer of would permits without consider- Arizona officialsto issue individual spe- ing upland mitigating impact their on these indirect regional Id., cies. at office therefore 565-566. The FWS permit- urged proposed considering that, in process ting authority, in the consultation those involved impacts potential into account. should take indirect these maintaining approval action, disagreed, “its EPA [would authority, which transfer of is an administrative impacts en- non-discharge-related be] on cause of future per- dangered species requiring NPDES projects State from the EPA believed matter, As Id., mits.” 564. a factual already had transferred At EPA applied, the time when Arizona several other in 44 States permitting authority to local authorities United States Territories. §7(a)(2)’s only to “ac terms, applies By requirement its consultation authorized, funded, agencies].” “Federal out” tion[s] carried that the link between the transfer of permitting authority and the harm that from potential could result de- increased Ibid. was too velopment attenuated. And as mat- legal ter, the EPA concluded that the nature mandatory of CWA 402(b) directs the “shall EPA approve” —which transfer if that nine request section’s are statutory criteria it of stripped disapprove based met — on Id., other at considerations. 564-565. Pursuant set procedures forth a memorandum of un- between the derstanding the was agencies, dispute referred the national offices for resolution. In agencies’ December 2002, the FWS issued its which biological concluded opinion, the transfer would not requested cause jeopardy listed species. reasoned that opinion “the loss of sec- tion 7-related conservation benefits is not an ... indirect id., effect of the action,” authorization at 117, because of any “loss conservation benefit is not caused EPA’s decision to the State of approve Arizona’s program. Rather, the the absence of section 7 process exists with respect Federal NPDES reflects Con- permits gress’ decision to grant States the right administer these programs under state law provided State’s 402(b) meets program requirements [section] Id., Water Clean Act.” at 114. In addition, the FWS the EPA’s opined continuing oversight Arizona’s permitting program, along other statutory protections, would adequately listed protect spe- Id., cies and their habitats following transfer. 101-107.

The EPA Arizona concluded that had met each of nine statutory criteria and approved listed the transfer In the notice permitting authority. announcing ap- EPA noted that proval transfer, issuance consulta- FWS’ had biological opinion “conclude[d] 7(a)(2) and tion ESA section reflects process required by approval [FWS’] agreement EPA that the with the of State program requirements substantive of the ESA.” meets the Id., at 78. April petition respondents United

On filed a in the 2,2003, seeking Appeals review States Court for the Ninth Circuit of 1369(b)(1)(D), pursuant which of the to 33 U. S. C. private parties de- the EPA’s allows seek direct review of to permitting programs in the regarding terminations state petitioner granted appeals. Na- federal courts of The court to intervene as tional Association of Home Builders leave respondent Respondent of Wildlife Defenders that case. separate District also filed a action in the States United among alleging, Arizona, other Court for the District of sup- biological opinion things, that the issued FWS comply port proposed with ESA’s transfer did that and trans- standards. The District Court severed claim Appeals Circuit, which ferred it to the Court of for the Ninth challenging the EPA consolidated the case the suit (2005). transfer. See F. 3d 946 panel EPA’s A that the divided of the Ninth held Circuit approval arbitrary capricious be- was the transfer proceedings during cause the EPA “relied the administrative contradictory positions regarding legally its section obli- on gations.” EPA that the 959. The court concluded Id., at 7(a)(2) “fail[ed] section own under its understand species id., at habitat,” and their act on behalf of listed propositions EPA’s underlie the because “the two (1) concerning [ESA], action—that consult must, under the (2) per- authority, it is not but transfers of CWA impact account mitted, into law, as a matter to take species making transfer decision—cannot on listed concluded therefore id., The court both be at 961. true,” plausible required was that it “remand single, inter- explanation coherent decision, of its on a based pretation at 962. Id., of the statute.”

The panel did not follow this majority, however, course Rather, action. went on review the panel EPA's sub- stantive construction of issue and held statutes granted the ESA the EPA both the and the power duty determine whether its transfer decision would jeopardize threatened or did species. panel not dis- endangered pute Arizona nine criteria had met set forth in CWA, but nevertheless panel concluded ESA “affirmative provided grant listed species,” id., attend to protection [the] at 965, in effect a tenth criterion those adding specified 402(b). § The the panel dismissed that the argument EPA’s the transfer was approval not application subject 7(a)(2) § because it not was a “discretionary action” within the §402.03 § of 50 meaning 7(a)(2) CFR (interpreting only to “in apply agency actions which there is discretionary control”). Federal involvement or 420 3d, F. at 967-969. It viewed the merely FWS’ as with “coterminous” regulation the express all ac- statutory language encompassing “ ” tions that are ‘authorized, funded, or carried out’ the Id., 1536(a)(2)). at agency. § 969 16 U. S. On (quoting C. these the grounds, court the granted and vacated petition the EPA’s transfer decision.

In dissent, the Judge Thompson explained that decision was not a action” “discretionary under 50 CFR §402.03 because Clean Water its Act, by terms, “[t]he very permits EPA to consider the nine factors. only specified If a state’s proposed meets enumer- permitting program ated reasoned, he EPA requirements,” “the administrator 1342(b). ‘shall approve’ program. S. C. This U. directive does not [congressional permit the EPA to impose 3d, additional F. at conditions.” 980. en Ninth Circuit denied banc. rehearing rehearing (2006).

450 F. for the 3d six who dis- Writing judges sented rehearing banc, from the denial of en Kozinski Judge with disagreed analysis conclusion the EPA’s panel’s as and capri- to be arbitrary was so inconsistent internally on that, was correct He if the panel further noted cious. to remand have been would resolution point, proper Id., at 396-398. On EPA for further explanation. Thomp- Kozinski echoed Judge the statutory question, Judge forth criteria set conclusion once the nine son’s is mandatory a transfer satisfied, CWA are Id., He rejected at 397-399. and nondiscretionary. 7(a)(2), conclud- broad of ESA construction panel majority’s con- were as majority ESA ing powerful “[i]f under tends, it would the EPA’s modify only obligation every every mandate CWA, categorical applicable but Id., n. 399, federal 4. agency.” is at odds

The Ninth construction of Circuit’s 3d 946 420 F. Courts of other Appeals. Compare Whooping Critical Crane with Platte River (case below) FERC, Habitat Maintenance Trust 27, v. 962 F. 2d 33-34 EPA, Paper & Assn. 1992), and American Forest (CADC (CA5 1998). certiorari 3d 298-299 We F. granted conflict, (2007), and we now to resolve this 549 U. S. reverse.

II Before this interpreta- addressing question statutory however, we first consider whether the Court of tion, Ap- in that the EPA’s transfer decision was erred peals holding because, court’s the words, arbitrary capricious on “relied... contra- involved in the decision agencies legally 7 section obligations.” dictory positions [their] regarding Cert, at 23. 06-340, to Pet. for in No. App. if EPA’s action was an note that matter,

As initial we held, Ninth Circuit arbitrary as the capricious, for to the course would to remand Agency have been proper Thomas, See Gonzales 547 its clarification of reasons. curiam). (per (2006) the court below ex- Indeed, 183 U. S. “remand it to this recognized finding required pressly decision, of its for a to the Agency plausible explanation based on a single, coherent interpretation statute.” Cert, for Pet. App. 06-340, in No. at 28. But the Ninth Circuit did not take course; instead, it jumped ahead to resolve the merits of the In dispute. so it doing, erroneously deprived of its Agency usual administrative avenue explaining and reconciling arguably ration- contradictory ales that sometimes appear course of lengthy and com- plex administrative decisions. We need not examine this further, question however, because we conclude that Ninth Circuit’s determination that the EPA’s action was arbi- trary is not capricious fairly supported record. Review under the arbitrary and capricious standard is def- erential; we will not vacate an decision agency’s unless it

“has relied on factors which had Congress intended it to consider, failed consider entirely an important aspect problem, offered its deci explanation sion that runs counter to the evidence before the agency, or is so could not implausible be ascribed difference in view or the product agency expertise.” Motor Vehicle Assn. States, United Inc. v. State Mfrs. Farm Mut. Co., Automobile Ins. (1983). 29, U. S. ‘We will, however, ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’” Ibid. Transp., Freight (quoting Bowman Inc. v. Arkansas-Best System, Inc., (1974)). U. S.

The Court of Appeals concluded EPA’s decision was “internally because, inconsistent” in its view, Agency stated —both of Arizona’s during preliminary review application and the Federal notice me- Register its final morializing action —“that consul- section requires tation effect of transfer on listed regarding Cert, species.” 06-340, Pet. for App. in No. 23. With to the the in- regard by various statements made volved regional early stages offices agencies’ during consideration, can only “inconsistency” point respondents changed agencies their minds—some- to is the fact that the thing long procedures proper that, followed, were as as the they ordinarily fully were The federal entitled to do. courts agency’s empowered only action, are see review final preliminary 704, U. S. the fact that a determination C. agency representative a is later overruled at local higher agency render decision- level within the does not process capricious. making arbitrary and Respondents Register point also to the final Federal notice memorializing approval ap- transfer Arizona’s EPA’s plication. FWS’ of its This notice that the issuance stated biological opinion process “concludefd] had the consultation Cert, 7(a)(2).” required by App. to ESA section Pet. Respondents 06-340, No. contend that this statement 73. posi- previously expressed EPA’s inconsistent with the throughout litigation position tion—and this their —that §7(a)(2)’s triggered by requirement is not consultation application 402 of the CWA. under persuaded We this constitutes are not statement type requires By the Fed- of error time the remand. already Register had issued, eral the EPA statement was application, the Arizona consulted the FWS about required, question been had whether that consultation Agency, opposed sim- voluntarily was undertaken ply germane agency transfer decision. final Register dictum, and had statement, short, was Federal respondents bearing agency chal- action that no on final reviewing lenge. Congress’ that in admonition Mindful prej- rule of taken “due account shall be action, we not believe 706, udicial do error,” U. S. C.

stray effect on the un- no statement, which have had could challenged, requires derlying agency we being action delay to Arizona further the transfer of by remanding Agency PDK also for clarification. See Drug Admin., 362 Labs. Inc. United States Enforcement (CADC 2004) (“In inas law, administrative 3d F. 660

federal civil criminal there is litigation, harmless rule”).5 error

We further that, disagree respondents’ suggestion its while the allegedly altering legal Arizona trans- position fer and its decision associated was litigation pending, “EPA is effectively nullifying respondents’ rights to partici- in administrative pate proceedings concerning Arizona’s ap- plication, particularly under EPA’s respondents’ rights own to on comment regulations NPDES transfer applica- tions.” for Brief 40 Respondents 123.61(b); CFR (citing deleted). Consistent emphasis with EPA regulations, “a made available Agency comment of not less than 45 period which interested members of the days during public [could] their views on the 123.61(a)(1). State express program.” do not Respondents were suggest they deprived their to comment right during period.6 5We also that the agencies note involved any have resolved ambiguity in their positions going forward. Following the panel’s issuance of the below, opinion the EPA —in connection with the State Alaska’s pending application transfer of NPDES permitting authority requested con — from firmation and the position FWS NMFS EPA’s “the 7(a)(2) no-jeopardy and consultation duties of ESA Section do apply not to approval application a State’s to administer the NPDES program,” in the apparent hope that obtaining agencies’ “in those views advance of processing Alaska’s application may a repetition avoid of” the confusion that Cert, during process. occurred Arizona permitting App. to Pet. for 06-549, pp. 96a, No. response, 95a. In both the FWS NMFS their understanding confirmed is no that “there need to conduct Section consultations on proposed approve pro actions to State NPDES grams impact because such actions are on any spe not the cause of listed cies and do discretionary constitute actions federal to which (NMFS Id., id., applies.” 107a; Section see at 116a also “concur[s] with EPA’s conclusion that EPA required engage is not to in section 7 consultation on applications approve programs State in situations under CWA”). Section 6Nor is any there independent right public regard comment with consultations conducted under process consultation that we —a conclude, case, any required was not Reg. here. See Fed. (1986) (“Nothing requires section 7 authorizes or the Service to provide if remanded the case were also contend Respondents raise additional EPA, challenges would they —includ- fi- the EPA’s provision ing, example, challenge its for the administration of nancial assistance Arizona such below, However, as explained NPDES program. of the independent agency’s action is agency separate to of permitting decision authorize transfer no 402(b). We 11, opin- §to express See n. pursuant infra. or legal ion of a administrative viability separate to such actions. challenge

III A raised We turn now to the substantive statutory question a a that mediate us to question petitions, requires irrecon clash of at first glance, seemingly categorical and,— the CWA commands. Section of legislative cilable — that the EPA “shall without provides, approve” qualification, it determines that the State transfer unless application lacks the nine functions speci adequate authority perform 1342(b). terms, fied in the section. 33 C. its U. S. By is if the exclusive; and the statutory list language mandatory have nine EPA does not satisfied, criteria are specified v. Lopez discretion deny transfer Cf. application. Davis, 230, (2001) U. “use S. 241 (noting Congress’ discretionless obligations”); ‘shall’ ... mandatory impose Lerach, & Bershad Hynes Lexecon Inc. Weiss v. Milberg (1998) (“[T]he 26, ‘shall’ . . normally U. S. . mandatory discretion”); As to judicial creates obligation impervious FLRA, 1150, 1153 sociation Civil 22 F. 3d Technicians (CADC (“The com 1994) indicates a word ‘shall’ generally of the on the part person mand admits no discretion directive”); Law Diction instructed to Black’s out the carry (6th 1990) (“As is this word ed. in statutes ... used ary (other ‘inter- in the applicant) of the public involvement than process”). agency’ consultation Neither

generally imperative mandatory”). respondents nor the Ninth Circuit has ever satis- Arizona disputed 3d, fied each of these nine 963, 11; 420 F. at criteria. See n. Brief 19, n. 8. Respondents of the similarly ESA language impera- shall,

tive: It provides that Federal consul- agency “[e]ach tation with and with insure Secretary, assistance aetion or carried out authorized, funded, such ... is not or threat- agency likely jeopardize” endangered 1536(a)(2). ened or their S. habitats. U. C. This species mandate is to be carried out consultation and through may an alternative course of require action. adopt As the author of the below recognized, panel opinion apply- “ad[dJ would one ing language literally re- [additional] to the quirement list considerations under the Clean Water Act 3d, 450 F. n. 2 provision.” (Berzon, banc) (em- J., denial en concurring rehearing is, That phasis original). would effectively repeal and exclusive of criteria mandatory 402(b), list set forth and new, it with a list replace expanded includes §7(a)(2)’s no-jeopardy requirement.

B (such While a later enacted statute as the some- ESA),can times to amend or even an earlier operate repeal statutory (such as provision CWA), are not “repeals by implication favored” and be will not presumed unless the “intention v. Watt clear and legislature repeal [is] manifest.” Alaska, (1981) (internal 259, 451 S. 267 U. marks quotation omitted). will not infer a statutory We “unless repeal later statute ‘“expressly contradices] act”’ or original unless such a ‘“is construction ... absolutely necessary order that the later [of words [the] shall have any statute] ’” Traynor Turnage, at v. 535, all.” meaning 485 U. S. Radzanower Co., (1988) Touche Ross & U. S. (quoting Interpreta (1976), Sedgwick, quoting T. 148, 158 in turn Statutory Law Constitutional and tion and Construction (2d 1874)); Smith, 254, 273 538 U. S. ed. Branch v. 98 (2003) (“An see also provi only repeal found

implied be where will where ‘irreconcilable two are in sions statutes conflict/ subject and of the earlier one Act whole the latter covers the substitute’”); clearly v. National Posadas ‘is intended as a (“[T]he (1936) City Bank, intention U. S. manifest”). legislature repeal Outside be clear must dealing a nar “a circumstances, limited statute these subject submerged a later specific precise, is not row, spectrum.” covering generalized enacted a more statute supra, Radzanower, at 153. reading Appeals did would

Here, as the Court §402(b)’sstatutory by engrafting effectively repeal mandate 402(b) . a CWA tenth criterion onto the CWA.7 Section permit the EPA “shall” whenever commands that issue statutory prerequisites Thus, all nine are met. exclusive just requirements for does forth minimum set affirmatively authority; man- the transfer of approved specified dates that be if “shall” ceiling operates provision are as well criteria met. The By adding criterion, Cir- as a floor. Ninth an additional dissent) (hereinafter attempts Justice Stevens’ dissenting opinion agencies the EPA and the paper by suggesting over this conflict the commands Secretary could reconcile designated by of the Interior of action alternative course by “generating] the CWA the ESA . . way . but in such whereby place the transfer could still take 7(a)(2).” Post, For mandatory would honor the 687. requirements of it condition transfers suggests EPA could example, by continuing oversight on additional acceptance State’s already contemplated by beyond oversight EPA (presumably Post, such a statutory language). at 688-690. But take-it-or- CWA’s of a transfer approach, rejection leave-it than a straightforward no less beyond those application, on an NPDES transfer impose would conditions §402(b), statutory command. set forth and thus alter the CWA’s 664 7(a)(2)

cuit’s construction of raises that floor and alters §402(b)’sstatutory command.8 7(a)(2) reading

The only Ninth Circuit’s would not ab- §402(b)’s rogate statutory mandate, but also result in the implicit repeal many categorical additional otherwise stat- 7(a)(2) utory applies commands. Section its terms “any by” action authorized, funded, or carried out a federal agency covering, anything effect, almost that an — might broadly Reading provision do. par- would thus tially every mandating agency override federal statute ac- by subjecting tion such action further condition that pose jeopardy endangered species. g., no See, e. Platte Whooping River Crane Critical Habitat Maintenance Trust 7(a)(2) (considering FERC, v. 2d, 962 F. at 33-34 whether prohibition amending overrides Federal Power Act’s on licenses). power language annual While the does (or explicitly repeal any provision not of the CWA other statute), reading might it for all that it be runs worth four- square presumption against repeals. implied into our

C 1 agencies charged implementing the ESA have attempted through regulations imple- to resolve this tension

8It does matter whether this alteration is characterized as an repeal. or partial amendment Every amendment of a statute effects a partial repeal statutory displaces extent new command earlier, commands, inconsistent repeatedly recognized and we have implied g., e. See, amendments are no more implied than favored repeals. Regional Cases, (1974) (‘“A Reorganization Rail Act 102, S. 134 U. new statute will wholly partially prior not be read as amending even one “positive unless there exists a repugnancy” provisions between the ” the new and In re (quoting those of the old be that cannot reconciled’ Transp. Co., Penn Central 895, 943 1974))); Supp. (Sp. Ct. R. R. R. A. F. Welden, (1964) (“Amendments United States v. 95, 103, n. U. S. Madigan, implication favored”); United States ... are not U. S. (1937) (“[T]he by implication modification settled construction favored”). of an earlier and different section is not

665 7(a)(2). acting jointly meriting FWS, and the The NMFS Interior on Commerce the behalf the Secretaries rulemaking procedures, following notice-and-comment stating promulgated regulation have that “Section requirements part apply which to all actions of this discretionary is involvement control.” there Federal added). §402.03 regula- (emphasis Pursuant CFR impliedly repealing non- tion, not be read would discretionary they might statutory mandates, even when re- requirements agency sult in Rather, some action. the ESA’s only play from the would come when an action results into interpretation agency harmo- This exercise discretion. no-jeopardy by giving effect to the ESA’s nizes the statutes agency so, not discretion do but mandate whenever an has considering prohibited extra- such when the from is statutory factors. gives recognized “[t]he latitude the ESA

We have degree Secretary together enforcing statute, with the regulatory expertise necessary enforcement, estab- its degree the Secre- of deference to lishes we owe some statutory tary’s interpretation” scheme. reasonable Chapter, Great Babbitt v. Sweet Home Communities (1995). appro- Ore., such deference is 687, 515 U. S. But directly priate only “Congress has addressed where statutory through precise question text. Chev- at issue” Council, Inc., Resources ron U. A. Inc. v. Natural S. Defense (1984). U. S. Congress the end clear, that is is “If the intent of agency, as the must court, as well matter; give unambiguously expressed intent of effect to Congress. or am- silent [However,] if the statute ... specific question respect biguous issue, the agency’s based answer is for the court is whether the Id., at permissible statute.” on a construction 842-843. Chevron,

In threshold under determination making “a court should itself to not confine reviewing examining in isolation.” FDA v. particular statutory provision Brown & Williamson Tobacco 529 U. S. Corp., (2000). Rather, “[t]he certain meaning ambiguity —or —of or words become evident when in phrases may only placed is context.... It a ‘fundamental canon of construc statutory tion that the of a words statute must be read in their context and with view to their in the overall place statutory ” Id., scheme.’ 182-133 Davis at Michigan Dept. (quoting (1989)). Treasury, 803, 809 489 U. S. 7(a)(2) We must therefore read of the ESA against statutory backdrop many mandatory directives agency whose it would or if it operation implicitly abrogate repeal were construed as the Ninth broadly Circuit did below. 7(a)(2) §When is read this we are left with way, fundamen- tal that is not ambiguity resolved text. An by statutory cannot agency simultaneously mandates obey differing 7(a)(2) set forth in of the ESA and CWA, consequently statutory language light —read canon against not itself implied clear repeals provide —does as to which guidance command must way. give this In it is situation, look appropriate implement- ing §7(a)(2)’s agency’s expert interpretation, which cabins application “actions which there is Fed- discretionary eral §402.03. involvement or control.” 50 CFR This read- 7(a)(2) harmonizes ing statutes by applying guide agencies’ but not it existing discretionary authority, reading to override mandates. express statutory

We conclude is that reasonable in interpretation light of the statute’s text and the scheme, overall statutory it is therefore entitled to deference under Chevron. Section “insure” that the ac- requires an agency it out are not likely tions or carries authorizes, funds, jeop- To “insure” some- ardize their habitats. listed species “ '[t]o make the court thing recognized below —as —means etc.).’” certain, (some event, to secure, thing, to guarantee 3d, F. 7 Oxford English Dictionary 963 (quoting (2d 1989)). ed. on “discretionary” focus ac- The regulation’s that, conclusion when tions accords with the commonsense required statute, is do something simply lacks action will power to such jeopar- “insure” dize endangered species. Department

This our decision reasoning supported Transportation Citizen, (2004). v. Public S. 752 U. That case were promul- concerned safety regulations Carrier Safety the Federal Motor Administration gated by (FMCSA) of a and had effect Presidential di- the triggering on their rective trucks to trade United Mexican ply allowing States held the National Environ- roads. The Court that (NEPA) mental to as- did the agency Act not require Policy trucks sess environmental effects of allowing entry of the because “the relevant Mexi- entry cause legally is not can trucks the actions of but instead action, FMCSA’s and those Con- President in the moratorium lifting while simulta- gress President granting authority Id., at 769 neously discretion.” (emphasis FMCSA’s limiting an that “where Court concluded original). agency no effect to its has a due limited certain ability prevent actions, the relevant statutory over agency cannot be relevant effect.” ‘cause’ considered legally Id., at 770. that Public Citizen

We do controls the out- not suggest here; § come substantive 7(a)(2), NEPA, unlike imposes (and not and these just a procedural) statutory requirement, cases related environ- directly involve action more agency regulations. mental truck safety concerns than the FMCSA’s in Public Citizen —that But basic announced principle cannot be considered agency “cause” an action legal it has no statutory discretion not supports take — reasonableness of the FWS’ interpretation as reaching only actions. See also discretionary agency States, v. United (1978) 645, 668, 438 U. S. n. 21 California (holding that a statutory federal requirement operating conform to agencies state rules water usage applied only to the extent not was “inconsistent with other directives”). congressional

The court below §402.03’s simply disregarded interpreta tion reach, of the ESA’s “the regulation’s refer dismissing ” ence to ‘discretionary ... involvement’ as merely “congru ent with the statutory reference to actions ‘authorized, funded, or carried out’ 3d, F. 968. agency.” But this cannot reading be discretion right. Agency pre sumes that an can exercise agency connection “judgment” with a See Citizens to Preserve Overton action. particular Park, Inc. Volpe, (1971); U. S. 415-416 see also (un Random House Dictionary English Language (“discretion” 1967) abridged ed. defined as “the or power to decide or act to one’s own right free according judgment; choice”). dom of judgment As the mandatory language §of illustrates, itself action every authorized, funded, or out carried a federal product exercise of agency’s discretion. §402.03 dissent’s of is interpretation similarly implau- sible. The dissent would read the regulation as clari- simply that fying are actions included within discretionary agency scope 7(a)(2), but confining not statute’s reach to such actions. But this post, See would reading 679-682. render in superfluous. regulation entirely Nothing either or the other regulations agency interpreting see that section, 402.02, that actions discretionary suggests are excluded from the is ESA, and there thus scope

669 no need them within regulation bring separate §402.03’s refer- statute’s scope. reading, the dissent’s On ence to is mere federal involvement surplus- “discretionary” way and we text in a age, against reading have cautioned g., e. TRW v. An- Inc. See, makes that part of it redundant.

drews, (2001). 534 U. S. 31

This history reading of the also supports regulation out, the which we defer As the itself points dissent today. §402.03 stated that “Section proposed initially version to all actions Part requirements apply control,” which there is Federal involvement or Reg. Fed. (1983) added); the Interior the Secretary (emphasis (as final modified this language provide adopted issue) rule now at that the statuory requirements apply discretionary “all involve- actions which there is Federal added). (1986) ment or control,” (emphasis 51 Fed. Reg. The dissent’s rob “discretionary” would the word reading effect, earlier, substitute the version proposed adopted. the text that was regulation actually that short, In what it says: §402.03 we read to mean 7(a)(2)’s agency covers duty discretionary no-jeopardy only (like the NPDES per- actions does not attach to actions required authorization) is mitting events statute to once certain triggering undertake specified reasonable, inas- have This reading only occurred. com- but also much as it to the gives provision, effect ESA’s stays because it implied with the canon ports repeals against §7(a)(2)’s override other- effectively mandate where would wise duties. mandatory statutory

D Hill, in TVA our Respondents argue opinion In their (1978), contrary position. S. supports U. Valley we the Tennessee case, held the ESA prohibited the Tellico (TVA) into operation from Authority putting the fact that despite the had already spent Dam — over million on $100 project nearly completed —because so would have doing threatened critical habitat snail on which darter. In endangered language respondents the Court that “the rely, ordinary concluded meaning” §7 of the ESA contained “no and reflected exemptions” “a conscious decision give Congress endangered species over the of federal missions’ priority ‘primary agencies.” Id., 173, 185, 188. at Hill,

TVA v. however, had no occasion answer the ques- tion in these That case presented cases. was decided almost a decade before the in 1986 of the con- adoption regulations tained in 50 event, CFR 402.03. And in construc- Hill, TVA tion at issue project while was expensive, also The TVA that discretionary. argued continuing make lump-sum TVA, to the appropriations some of which were informally earmarked for the Tellico Dam Con- project, had §7’s gress implicitly repealed no-jeopardy requirement itas to that S., See 437 U. at applied project. 189-193. The Court rejected argument, that concluding “[t]he Appro- Acts did not priations themselves identify projects which the sums had been and that appropriated” reports by congressional committees allegedly the TVA to directing Id., complete lacked the force project of law. at n. 35. Central was Court’s decision the conclusion mandate did not Congress the TVA the dam put into no there was operation; to that ef- command statutory fect; and there was therefore no basis for contending the ESA’s applying no-jeopardy would requirement implic- another itly affirmative repeal directive.9 congressional 9The dissent in suggesting incorrect “if Secretary Interior had not declared snail darter an endangered species . .. surely TVA obligated spend would have been the additional funds that Post, Congress appropriated complete project.” To the 676. in TVA v. Hill found that contrary, the Court there clear repug- was no expressed in position, supports the TVA thus v. Hill applies to no-jeopardy mandate the §402.03, that ESA’s regardless ex- of the every discretionary agency action— impose. that case might But application pense or burden its 7(a)(2) § applies to speak question whether not the did The issue here. the one at wow-discretionary actions, like ques- §402.03 that regulation addressed set in 50 forth CFR interpretation. its reasonable tion, and we defer to IV argue if even Finally, respondents that, their amici 7(a)(2) “discretionary” agency § ac- only apply read to is authority permitting the NPDES tions, decision to transfer They represented of discretion. an exercise to Arizona such transfer is a authorize contend that the EPA’s decision to exercise of entirely some mechanical; not that it involves set the criteria judgment has met as to whether State 402(b); incorporate refer- criteria forth in and that these bring that consideration conservation ences to wildlife §7(a)(2)’s properly Agen- no-jeopardy within the mandate cy’s discretion. may unavailing. exer- argument the EPA is While determining dem- judgment has

cise whether State some §4Q2(b)’s carry out that it has the onstrated clearly statutory statute does not criteria, the enumerated entirely pre- separate grant another to add it the discretion 402(b) Nothing requisite text of au- to that list. protection of threatened thorizes the EPA to consider evaluating endangered species an end in itself when application. the extent some of the And to that transfer may to ma- result in environmental benefits criteria the TVA nancy appropriating between the ESA and the Acts funds any of the require agency latter to use simply because the did project. Tellico Dam generally appropriated complete fluids S., at 189-193. U.

rine there is no Arizona has satisfied species,10 dispute each those criteria. statutory has been

Respondents’ disclaimed not argument only by EPA, NMFS, but also FWS two agen cies primarily charged administering drafters regulations section. Each implementing issued a formal letter agency recently concluding authorization of NPDES is not the kind of action discretionary covered Cert, § 402.03. to Pet. See No. at 103a- App. 06-549, An 116a. itsof own agency’s interpretation meaning is entitled to deference “unless erroneous regulations plainly Robbins, or inconsistent the Auer v. regulation,” (1997) (internal 452, 461 U. S. marks quotation omitted), and that deferential standard is met here.11 plainly 402(b) § For example, requires the EPA consider to whether the State authority has legal applicable the to quality enforce water standards— which, turn, of some are “judgment” informed the of the EPA’s Ad 1342(b)(1)(A); also, § § ministrator. 33 S. C. g., U. see e. 1312. But the permit transfer does itself process require scrutiny not of the underlying standards or of their effect on only marine or of state appli wildlife— cant’s “authority... issue permits apply, compli [t]o which... insure with,” 1342(b)(1)(A) added). § ance the applicable standards. (emphasis event, any that, In respondents dispute do not as both EPA and the determined, authority FWS the transfer permitting to Arizona officials would have no any adverse water related quality impact species. on listed 06-340, 562-563, See to App. Pet. for Cert. No. 615-617. 11Respondents taken, take, also contend the EPA has or will other discretionary apart actions from the transfer implicate authorization that example, ESA. For they that the argue alleged EPA’s provision funding to Arizona for administration of its clean programs water is 7(a)(2). § the kind of discretionary agency action subject that is How ever, true, assuming this is is a funding separate agency such decision action that is scope Respondents outside also point lawsuit. that, fact following of permitting authority, the transfer the EPA will retain oversight authority process, permitting including over state the power object proposed permits. may But the fact that the EPA 7(a)(2)’s § exercise discretionary authority may oversight trigger —which * * * Chevron, we reasonable defer Agency’s

Applying “actions in applying only of ESA interpretation or control.” which there is Federal involvement discretionary NPDES CFR 402.03. Since is not but rather is mandated once a discretionary, 402(b) CWA, State has met the criteria forth in set it follows that a transfer of NPDES permitting authority §7(a)(2)’s does not consultation and trigger no-jeopardy of the Court requirements. Accordingly, judgment reversed, for the Ninth and these cases Appeals Circuit are remanded with this for further consistent proceedings opinion.

It is so ordered. Stevens, Souter, Justice with whom Justice Justice Breyer Ginsburg, Justice join, dissenting.

These eases “shalls.” On present problem conflicting (CWA) hand, the one of the Clean Water Act pro- (EPA) vides Environmental Protection Agency “shall” a State’s a National to administer approve application (NPDES) Pollution Elimination Discharge System permit- unless it that nine criteria are determines ting program 1342(b). § hand, satisfied. C. On other U. S. the shortly 7(a)(2) § CWA, after the the enacted of passage Congress which commands (ESA), Act of 1973 Species Endangered not that federal “shall” that their actions do ensure agencies 1536(a)(2). 16 U. S. C. jeopardize endangered species. mandates, When faced with it is our statutory competing g., e. See, full effect if at all give to both duty possible. Mancari, (“[W]hen Morton (1974) two U. S. co-existence, statutes are duty capable does no-jeopardy obligations —after consultation and the transfer discretionary. mean that is itself decision authorizing clearly expressed congressional courts, absent a intention to effective”). contrary, regard each as Court fails opinion at unsuccessfully this task. Its tries to reconcile the CWA and the relying regulation, ESA on a federal (2006), limiting CFR 4Ó2.03 which it reads reach only discretionary actions, ante, federal see only 664-666. reading Not is this inconsistent with the text history fundamentally of §402.03, but it is inconsistent with the ESA itself.

In the celebrated “snail darter” A case, Hill, TV v. 437 U. S. (1978), we held that the ESA “reveals a conscious deci- by Congress give endangered sion species priority over ‘primary agencies,” missions’ of id., federal at 185. Con- Burger’s sistent with exceptionally intent, Chief Justice thorough opinion §7 explained and admirable “admits exception.” Creating no precisely Id., at 173. an such exception by exempting nondiscretionary federal actions coverage, away from the ESA’s the Court whittles at Con- gress’ comprehensive protect endangered species effort to give from the risk of extinction and fails to the ESA its in- giving tended effect. After first Hill the attention it de- serves, I will comment further on the irrelevance of 402.03 ways to these give cases and offer other available effect Having to both the CWA and the ESA. I so, done conclude by explaining why these cases should be remanded to EPA proceedings. for further

I presented separate In Hill, questions: we were with two (1) required enjoin operation whether the ESA a court nearly completed Project of the Tellieo Dam and Reservoir Secretary because the of the Interior had determined that operation endangered its would eradicate small fish known (2) post-1973 congressional as a snail darter; and whether appropriations completion Tellieo Dam consti- implied repeal ESA, tuted at least as it insofar

675 applied pages at Id., to the dam. 156. More than our 30 of opinion explain question, our affirmative first answer pages just id., see 156-188, at but over four to ex- sufficed plain negative our id., see second, answer at 189-193. ruling question While it is our relevant on the first the cases us, before refusal to hold is our that the ESA impliedly repealed majority itself had been strangely significant. deems at ante, most See 670. answering question,

In Hill's first we did not discuss im- plied repeals. contrary, opinion portion On the of the interpretation contained our definitive ESA, in which language, history, we concluded that “the of structure [ESA] beyond Congress indicates doubt that intended endangered species highest priorities.” be afforded the (“ 437 S., id., U. at 174; see also at 177 ‘The dominant theme pervading Congressional proposed all discussion [ESA] overriding was the need to devote whatever effort necessary resources were of na- avoid further diminution ” (quoting Coggins, tional and worldwide wildlife resources' Conserving Wildlife Resources: An of the Endan- Overview gered Species (1975); Act of 1973, 51 D. 315, N. L. Rev. Hill)). emphasis respect particular, added in With to 7 in opinion plainly our could not have been clearer. We (em- exception.” held that it S., “admits of no at 173 U. added).1 phasis §7 opinion length imposed explained why

Our in Hill obligations agencies” on “all federal to ensure “actions jeopardize funded, out authorized, or carried them do endangered species.” S., continued existence of U. Ore., Chapter, Babbitt Great also Sweet Home Communities for See (1995) (“Section agencies 515 U. S. to ensure requires federal activities, that none their per including granting licenses mits, species will ‘or jeopardize endangered continued existence species result the destruction or habitat of such adverse modification (emphasis which is . : to Secretary determined . be critical”’ added)). omitted). (emphasis at quotation deleted; marks internal § opinion suggested obliga- Not a word in the or that stated agency inapplicable mandatory tions are to actions that endangered species. would threaten the of an eradication opinion Valley Nor did the the Tennessee describe Author- (TVA) ity’s attempted completion of the Tellico Dam as a discretionary Secretary all, if act. After How could it? of the Interior had declared snail darter an not endan- gered species destroyed by whose be critical habitat would operation surely of the Dam, Tellico the TVA would have obligated spend Congress been to the additional funds that appropriated complete project.2 to Unconcerned with mandatory agency discretionary, whether an action was simply we that of held the ESA explicit congressional “reveals require decision agencies priority to afford to the declared national first policy saving endangered species. pointed of The omis- type qualifying language sion of the previously of in- endangered species legislation cluded in reveals a con- by Congress give scious endangered species decision priority ‘primary over the agen- missions’ of federal added).3 (emphasis Id., cies.” at 185 and, The Court misreads this in so doing, sentence overreads our deci sion in Hill. The Court maintains that Hill that held appropri “[a]cts require ating funds to the TVA ... did not the agency any use Ante, generally appropriated to complete funds the Tellico Dam project.” at 9.n. But Hill said no such thing. only That case held that subsequent of appropriation Project funds the Tellico Dam not could mandatory overcome the requirements ESA; 7 of the it did not hold that the TVA been required would have spend appro all Hill, priated funds if been passed. S., the ESA had never See 437 U. 189-190. If the ESA had never been enacted and did not stand in Dam, way of the completion the Tellico there no TVA doubt that Congress would have project finished the had funded. 3The road not taken Hill also helps clarify our interpretation discretionary agency 7 was not limited to action. Throughout the course §7 litigation, the TVA insisted that did not refer “all the actions Valley that an ever Tennessee can take.” Brief Petitioner that the fact that we also concluded post-1973 congres- sional did the ESA not impliedly pro- appropriations repeal vides no for the contention that the obli- majority’s support be limited to gations imposed by discretionary may Hill belie A acts. few relevant from the parts passages After suggestion. oddity holding noting interest aof small num- the survival protecting relatively ber 3-inch fish “would of a require permanent halting dam has virtually for which completed Congress expended more than we “that million,” $100 found the explicit provi- Id., sions of the 172, at result.” require [ESA] precisely 173. We then continued:

“One would be hard find a pressed statutory pro- vision §7 whose were those in terms than any plainer of the Its words [ESA]. command very affirmatively ‘to insure that actions authorized all federal agencies funded, carried out or them do not jeopardize by or ‘result continued existence’ of an endangered species in the destruction or modification of habitat of such Id., species § ....’” at 173 S. C. 16 U. 1536 (quoting (1976 Hill). ed.); added in emphasis We also reviewed a ESA’s history identify variety that had included in exceptions been earlier legislation unenacted but were omitted from the final version proposals of the 1973 statute. We that earlier explained endangered species federal legislation “qualified obligation agen- cies,” but the 1973 Act omitted “all purposefully phrases which have an might qualified agency’s responsibilities.” S., 181, U. Moreover, 182. after observing Hill, Authority 76-1701, Instead, T. p. O. No. 26. TVA sought only to restrict 7 to those actions “which for has reasonable Ibid. decision-making rejected alternatives before it.” We that narrow interpretation, stating only way to sustain position the TVA’s Hill, meaning be to “ignore ordinary plain would language.” S.,U. at 173. only “hardship exemp-

ESA creates limited number of apply see 16 tions,” U. S. C. of which would 1539—none agencies expressio applied federal the maxim est unius —we exemptions exclusio alterius to that “there are no conclude [ESA] agencies,” S., in the at 188. federal U. Today, exemp- however, such the Court countenances erroneously tion. It that the concludes ESA contains an un- exception nondiscretionary agency mentioned action enjoin completion that the statute’s command of the depended Tellico Dam on the unmentioned fact the TVA attempting perform discretionary was act. But both opinion compel the text of the ESA and our in Hill the con- trary Congress determination that intended the ESA apply agencies” to “all federal and to all “actions authorized, (emphasis funded, or carried Id., out them.” at 173 deleted). permitting authority

A transfer NPDES under undoubtedly CWA one of “actions” those that is agency. or “authorized” “carried out” federal See § 1536(b); (defining U. S. C. 402.02 CFR “action” as “all programs activities authorized, or kind funded, car- by part, agencies out, ried in whole or in Federal in the upon high Examples United States or seas. include, but directly indirectly are not causing limited to . . . actions or air”). water, modifications It land, or follows from 7(a)(2) § applies Hill that to such NPDES transfers— they mandatory discretionary. whether are

II unequivocal holding Given our in Hill that the ESA has priority” “first over all S., other federal 437 U. action, 185, at yield, if statute should it should be the CWA. But no yield truly incapable statute must unless it is of coexistence. g., See, Morton, e. assuming S., at Therefore,' U. 551. § mandatory that of the CWA contains its own com- try provision mand, we first to harmonize should that § mandatory requirements of the ESA. rely The §402.03, Court’s solution is to on 50 which CFR part requirements states that 7 and this “Section apply discretionary to all Federal actions in which there is regu- explains involvement or control.” Court by giving lation “harmonizes the statutes the ESA’s effect no-jeopardy mandate whenever an has discretion agency prohib- lifting so, do but that mandate when the is considering extrastatutory ited from Ante, such factors.” harmony, certainly at 665. is This is not it not effect. § giving genuine 7(a)(2), per- Rather than effect to the Court mits a wholesale limitation on of the Its the reach ESA. §402.03 interpretation history conflicts with the text and regulation, interpretation our of 7 in the well as “snail darter” case. §402.03 begin plain language

To with, not state does coverage discretionary that its is limited to Quite actions. opposite, reading the most natural it the text is that opin- confirms the broad construction of 7 our endorsed only way ion in Hill. Indeed, the to read 402.03 accord- holding ance with the facts of the our case and “ad- exception[s],” ofmits no S.,U. is that it eliminates any possible argument that the ESA does not to situ- extend discretionary ations in which the federal involvement is only marginal. simply says

The Court is mistaken when it it reads §7(a)(2)’s §402.03 says: no-jeopardy “to mean what duty only discretionary agency covers Ante, actions ....” added). §402.03 (emphasis at 669 not, fact, That is what “says.” “only” text, The word Court’s addition to Agency’s. surely go not the that text not on Moreover, does (as does) say duty the Court that the “does attach (like authorization) actions NPDES agency required by that an is once cer- statute undertake 680 Ibid. occurred.” If

tain events have triggering specified had intended a far- the drafters of such regulation the law, would have said surely they change reaching similar to that which so the Court uses by using language today. led of

Nothing proceedings promulgation reason for regulation suggests any limiting pre of the of 7’s EPA existing understanding scope coverage. §402.03 codified the current version of in 1986 as of a part ESA In of the 1983 Notice general redrafting regulations. §402.03 Rulemaking, version Proposed proposed that “§ 7 and the stated of this Part requirements apply all actions which there Federal involvement or control.” (1983). 48 Fed. 29999 Without Reg. explanation, final rule inserted the word before “Federal “discretionary” involvement (1986).4 control.” 51 Fed. 19958 Reg. if the of the Interior meant Clearly, Secretary to limit the pre-existing understanding scope coverage intent promulgating would regulation, have been mentioned somewhere in the text of the regula about them. See Na tions or in comment contemporaneous tional Cable & Telecommunications Assn. X v. Brand In Services, ternet (2005) 967, U. S. that an (holding is free within “the agency limits of reasoned interpretation if course” it change only justifies the “adequately change”); Motor Vehicle Assn. Inc. States, United v. State Mfrs. Farm Mut. Co., Automobile Ins. (“We (1983) 29, 48 463 U. S. have reiterated that an frequently must ex cogently plain why manner”). has exercised its discretion in a given Yet, the final rule said about the reach nothing limiting Kilbourne, See also Species The Endangered Act Under the Micro scope: A Closeup From A Litigator’s 499, Look Perspective, Env. L. (1991) (noting Agency explain did not the addition of the word “discretionary”); Weller, Limiting Scope of the Endangered Species Act: Discretionary 402.03, Federal Involvement or Control Under Section Env, Hastings 1999) (same). W.-Nw. L. & Pol’y 309, J. 334 (Spring our decision in Hill. Nor did it mention the change or §7 from the notice of I proposed assume, can rulemaking. only then, mean does what regulation both notice of proposed Section says: rulemaking applies only to discretionary action, federal but not to discretion- ary action.

The only explanation §402.03 was Agency provided the following:

“This section, which explains the of section applicability covers Federal implicitly within the activities territo- rial of the United jurisdiction States and upon high seas as a result of the definition ‘action’ in 402.02. for the explanation of the term ‘action’ scope is pro- vided in the §402.01 discussion under above.” 51 Fed. 19937. Reg.

This statement directs us to two sources: the definition of §402.02 “action” in and the for the “explanation scope term ‘action’” in §402.01. 51 Fed. 19937. Both con- Reg. firm that there was no intent to draw a distinction between discretionary actions. nondiscretionary Section 402.02 provides relevant part: any

“Action all kind means activities or programs authorized, funded, or carried in whole out, or in part, by Federal in the United or agencies States upon high include, seas. but are limited to: Examples

“(a) actions species intended conserve listed or their habitat;

“(b) (Second . . . .” promulgation regulations added.) and third emphases

Actions in either of the some- described are subcategories Likewise, times as mandatory discretionary. sometimes the italicized “action” indicate, the term portions expressly kind,” refers “all” activities or “of programs mandatory. of whether are regardless discretionary they limitation on “ac- reading term By “discretionary” tion,” the Court creates contradiction EPA’s own regulation.5

As for the final rule’s explanation scope of the term “action” in §402.01, that too is consistent with fully inter- my pretation §402.03. That explanation states that plainly “all Federal actions ‘conservations including are programs’ to the consultation subject 7(a)(2) of section requirements if they ‘may affect’ listed or their critical species 51 habitats.” added). Fed. Reg. 19929 (emphasis The regulation does not all say actions, federal nor “discretionary” does it evince an intent 7(a)(2) to limit the of in scope any way. Rather, it restates that just ESA to “all” applies federal actions, just the notice of proposed did. This rulemaking explana- of tion of the scope word “action” is therefore a strong indication that the Court’s reading is con- “discretionary” to its trary intended meaning.

An even indication is stronger the fact at no that in point the administrative in these cases EPA proceedings did even mention it.6 As an matter, initial it is worth emphasizing

5 (NAHB) Petitioner National Association of Home points Builders the following language from the §7 final rule as only an indication that applies discretionary action: agency’s responsibility “‘[A]Federal under 7(a)(2)permeates section full range discretionary authority held ” agency.’ that Brief for (quoting Reg. Petitioners NAHB et al. 32 51 Fed. 19937). However, language found in different section of the final rule —the describing section prudent the definition of “‘[r]easonable and §402.02. alternatives’” under 50 put context, CFR in proper When its the cited language simply indicates that prudent “reasonable and al may ternative” involve the agency “maximum exercise of Federal author ity when to necessary, Service, do so is opinion to avoid jeopardy.” Fed. Reg. 51 enough, quoted 19937. If that is not text supports §402.03 my reading reading. By even on NAHB’s indicating agency’s that an responsibility “permeates range” the full of its discretionary authority, EPA confirmedthat the ESA all covers discretion ary actions. Ibid. 6 rely §402.03 EPA also did not 420 Appeals. on the Court See (CA9 2005) (“EPA 946, F. 3d argument no its makes ‘discretionary’ meaning decision not a was one of 50 CFR within if even EPA on 402.03, had relied its interpretation the ESA would not be entitled deference under Chevron S. A. Inc., U. Inc. v. Council, Natural Resources Defense U. S. 837 it (1984), because is not with charged administering (“We statute, id., at 844 have that con long recognized siderable weight should be accorded to an executive depart ment’s construction of a scheme it statutory is entrusted administer” added)); Treasury (emphasis Department of FLRA, (CADC 1988) (“[W]hen 1163, F. 2d a statute other than that which has been interprets administer, entrusted to its is not entitled to interpretation deference”). The and Com Departments the Interior merce, EPA, are ESA. charged administering See Babbitt v. Sweet Home Communities Great Chapter, Ore., (1995). 515 U. S. 703-704 And EPA has conceded that the of the Interior’s “did Department biological opinion not discuss C. F. 402.03, R. and it not address the did whether the question consultation that produced [biolog ical opinion] was the ESA.” Pet. for Cert. required by (never 06-549, No. see 24; 77-124 p. App. mentioning 402.03). § Left record, with this unfavorable administrative EPA can lean on fact only the Department the Interior has its “clarified” recently position regarding §402.03 in a Pet. administrative See proceeding. different (“The for 06-549, 24-25; id., Cert. in No. at recent F[ish at 26 (FWS)] Fisheries Wildlife Service Marine N[ational trans communications Alaska’s pending Service] regarding fer considered interpreta reflect those application agencies’ Pet. for 402.03”); ... Cert. §] CFR App. [50 tions 06-340, 660, have 103-116; ante, No. see n. 5. We pp. also held, affirm an however, agency not long may courts agency action on other grounds adopted by than those §402.03. grounds may ... decision on We not affirm the EPA’s transfer regard evidently not upon by agency.... relied does As the EPA interpret excluding decision, §402.03 should not so the transfer we regulations”).

the administrative See SEC proceedings. Chenery Corp., (1943). 318 U. S. ignores hoary majority of administrative law and substitutes hoc in- post principle 7(a)(2) §402.03 that of the relevant terpretation For that cases alone, reason these should be re- agency. manded to the other I And for the reasons have Agency. §402.03 cannot be used to harmonize the given, CWA and the ESA.

Ill are There at least two the CWA which ways and the ESA be full can effect without one given privileging statute over the other.

A 7(a)(2) The text of itself the first provides possible way with reconciling provision CWA. The subsection reads:

“Each Federal shall, in consultation with and agency with the assistance insure that ac- Secretary, funded, tion authorized, or carried out such by agency (hereinafter in this section referred as an ac- ‘agency tion’) is not likely continued jeopardize existence of any or threatened endangered or species species re- sult in the destruction adverse modification of habitat of such determined species which.is Secretary, after consultation as appropriate affected States, to be critical, unless such has been granted exemption such action Committee pursuant (h) subsection this section.” 16 U. S. C. added). (emphasis

The Court correct the use of the word certainly 7(a)(2) § “shall” in imposes mandatory on the requirement federal ante, It is agencies. See at 662. also correct that the ESA’s “mandate is to be carried out consultation through an may require alternative course of adopt agency action.” conclude, Ibid. The Court is however, too quick irreconcilable creates an requirement this consultation It CWA. § conflict between provision of a basic conceptual because flawed rushes to this judgment as the first para- early as revealed error —an error to find a way than attempting Rather of its opinion. graph §7(a)(2)’s requirement, consultation effect give as “whether frames presented Court the question the trans- on which a tenth criterion effectively operates be con- must first statute under fer of power permitting ” in this. Ante, at 649. alone is not The Court ditioned. stated also below the Ninth Circuit opinion The author of the ESA “adds list of considera- to the one requirement transfer provi- Water Act tions under the Clean (2006) J., (Berzon, concurring 394,404, 3d n. sion.” 450 F. But banc) in original). in en (emphasis denial rehearing “eon- the relevant does mandate that agencies while the ESA proc- that consultation Interior Department, with the sul[t]” effect give ess also way agencies provides both statutes. tois consultation process first the statutory step be affected will whether any endangered species

identify action, an An particular action. agency proposing agency ask the transfer, Secretary will such as an NPDES typically listed be present the Interior whether any species may action will whether that area of the action and proposed 1536(c). It is en- 16 U. S. C. “affect” those See species. affected, will be that no listed species tirely possible statute and another the ESA conflict between anticipated however, If, will at this threshold stage. have been avoided affect action that a may determines proposed Secretary must habitat, the agency or its critical endangered species cul- This consultation consult with the Secretary. formally “de- which opinion,” minates the issuance of a “biological or its critical how the action affects species tail[s] 402.14(h). 50 CFR 1536(b)(3)(A); see also habitat.” consultation formal at this it is still stage, Even possible will reveal that the will not jeopardize any action agency e.g., (1998) See, species. that (noting Fed. Reg. “ ” FWS rendered ‘no with to the finding respect jeopardy’ Texas). transfer of authority to permitting If the the biological concludes opinion action agency would however, listed put species jeopardy, the ESA contains a the process demands of resolving competing action and The ESA agency species protection. provides that “the those shall reasonable Secretary suggest and pru- dent alternatives which he believes would not violate sub- (a)(2) section and can taken the Federal be or agency applicant action.” 16 U. S. C. implementing 402.14(h)(3). § 1536(b)(3)(A); § see also 50 CFR EPA’s regu- lations define and prudent alternatives” “Reasonable

“alternative actions identified formal consulta- during tion that can be implemented a manner consistent intended of the that can be purpose action, consistent with the implemented scope of Federal agency’s legal and authority jurisdiction, is econom- and ically feasible, technologically and that Director [of believes would avoid likelihood FWS] of jeopard- izing continued existence of listed or result- species in the ing destruction adverse modification of critical habitat.” 402.02.

Thus, in the face of conflict between the ESA and an- statute, other federal and its ESA regula- implementing tions federal work out a encourage agencies to reasonable let alternative that would action move forward proposed “consistent with intended purpose” [its] agency’s “legal while also authority,” violation of avoiding any 7(a)(2). to the NPDES transfer

When the “rea- applied program, sonable and alternatives” process would enable EPA prudent of the Interior substitute Department develop allow a transfer would would not differ- endangered species. Stated jeopardize an alternative would generate process the consultation ently, still could take place— of action whereby course in such a way of the CWA—but as required by the mandatory requirements would honor it has EPA, as no to as surprise This should come ESA. in the six times least in consultations engaged pretransfer so from barred doing and it is not has stated past the CWA.7 and pru- no the in which “reasonable for rare case

Finally, found, yet has provided dent can be Congress alternative” between another conflicts mechanism for resolving after In shortly ESA and action. agency proposed Hill, to create in amended ESA our decision Congress Committee,” it authorized which “Endangered Species 1536(e). 7(a)(2). Be- from 16 U. C. grant S. exemptions it of an cause has the the extinction approve is Committee species, Species endangered Endangered as “God or “God Commit- described colloquially Squad” tee.” In care- this light weighty responsibility, Congress laid mem- out the God Committee’s fully requirements consider and the factors it must bership,8 procedures,9 an whether deciding grant exemption.10 7 g., (1998) e. See, Texas’ Reg. (approving application 68 Fed. stating and administer after consultation with program NPDES FWS action); 61 “EPA to EPA’s apply” believes that 7 does Fed. section (1996) application NPDES consul Reg. (approving after Oklahoma’s stating approval tation with FWS of the State and “EPA’s Water is a action program under section 402 of the Clear Act federal Tr. Arg. 5 requirement”); consultation] see also of Oral subject [§7’s (conceding past). in the pretransfer that EPA conducted six consultations composed high-ranking of six Endangered Species Committee appointed federal officials and a from each State representative affected 1536(e)(3). the President. See 16 U. S. C. See §§1536(e)(l). 1536(h)(1) Section provides: requirements “The Committee shall from the grant exemption (a)(2) if, by a vote subsection this section for an action voting than five of its members in person— less final As the arbiter situations which ESA conflicts action, with a the God Committee embodies proposed agency primacy ESA’s mandate serves as the final that Act other mechanism federal stat- harmonizing Committee, utes. By creating Congress recognized conflicts some with the ESA be may not of reso- capable lution without to forever some sacrifice having endangered At time, the same the creation of this species. last line of defense reflects view that the ESA Congress’ should not to another federal action yield a final resort except when authorized officials exeept by high-level after serious In short, consideration. when all else has failed two federal statutes are resolution, incapable left Congress choice Court; Committee —not to this did not limit. the ESA in the does way majority today.

B EPA’s offer a second regulations to harmonize the way CWA with the After ESA. EPA has transferred NPDES permitting authority State, the continues Agency “(A) record, it determines on the report based on the of the Secretary, the hearing record the held under (g)(4) subsection and on such other testimony receive, it may evidence as that— “(i) there are no and prudent reasonable alternatives to agency the action;

“(ii) the benefits of clearly such action outweigh the benefits of alterna- tive of action courses consistent with conserving species the or its critical habitat, interest; such public and action is “(iii) the action is of regional or significance; national and “(iv) neither Federal agency exemption concerned nor the applicant made irreversible or irretrievable prohibited commitment resources (d) by section; subsection of this and “(B) it establishes such mitigation reasonable and enhancement meas- ures, to, including, but transplantation, not limited live and propagation, acquisition habitat improvement, necessary and appropriate are and minimize the adverse upon effects of the action endangered species, species, threatened or critical habitat concerned.” Arkansas See program. the State’s oversee for (1992) Oklahoma, 91, 105 preserved (“Congress U. S. state permit oversee broad authority the Administrator and “outside the guidelines is If a state permit programs”). it and CWA, EPA object may requirements” § Fed. 1342(d)(2); Reg. 33 U. S. block its issuance. See C. EPA (2001). these responsibilities, Given ongoing into to enter that State has. enacted requires regulation (MOA) sets forth Agreement a Memorandum of 40 CFR duties. See oversight particulars Agency’s 123.24(a) (2006). detailed several MOAs contains regulation governing that an instance, For states requirements. regulation classes and cate- MOA must contain “[provisions specifying and draft gories permit applications, permits proposed will Ad- the State send to Regional [EPA] permits review, ob- and, ministrator comment where applicable, 123.24(b)(2); jection,” specifying frequency “[provisions and information content of documents other reports, EPA,” which the submit to the State required 1123.24(b)(3); coordination of compli- “[provisions EPA,” ance activities State monitoring 123.24(b)(4)(i). More the regulation provides generally, conditions, terms, or agree- include other “may MOA and en- to the administration ments” are “relevant 123.24(a). of the State’s regulatory forcement program.” will not furthermore, EPA ap- Under the MOA regulation, oversight respon- MOA that restricts its statutory prove any Ibid. sibility. 7(a)(2) above, §

Like the described consultation process §to effect for MOAs a mechanism provide potential giving of the also the transfer permitting ESA while allowing that EPA a to to It is remember authority State. important prior to the transfer au- must an MOA NPDES approve has As in fact used —the such, EPA can use —and thority. in a way to structure its oversight MOA later process protect endangered species allow it will to in accordance 7(a)(2) § might negotiate of the provision ESA. EPA require in the MOA that would to State abide the ESA requirements issuing pollution when permits. See Brief for (“In Society American Fisheries et al. Amici Curiae 28 example, MOA, the Maine agree EPA and the state permits protect species by ensuring state would ESA-listed standards”). compliance quality with state water Alterna- tively, require provide “EPA copies could to the state permits discharges particularly draft sensitive habitats species such as discharges those ESA-listed or for pollutant contain a that threatens Id., ESA-listed wildlife.” might way 10. theOr MOA be drafted in a that would object permits allow the to jeop- to state that would (ex- any endangered species. ardize and all id., See at 28 plaining provision allowing Maine MOA includes a “object permit EPA to to state that risks harm ato species by threatening quality”). listed water These are just many possibilities. three of identify I need not other ways process EPA use comply could the MOA with the enough ESA; is provide straight- observe that MOAs way give forward its ESA full effect without restrict- 7(a)(2) § ing way in the the Court does.

IV As incorrectly above, discussed I believe that the Court restricts discretionary reach of federal supra. actions. See Part II, Even if such a limitation permissible, were however, it is clear that EPA’s author- ity 402(b) authority to transfer under discretionary.11 approve

The EPA per- Administrator’s state 402(b) programs pursuant mit of the CWA does not even fit description within category the Court’s of manda- Because quite it is lengthy, I the ftill text indude in an appendix to this dissent. the ESA. are covered holds the Court actions that

tory “that actions includes words, category In Court’s once certain to undertake statute is required Ante, at 669. occurred.” have events specified triggering fil- is EPA’s simply approval The event” “triggering pro- State’s proposed of a satisfactory description ing 1342(b). then com- The statute See 33 U. S. C. gram. “shall approve” Administrator mands the EPA law does determines that state he submitted unless program are conditions Those nine conditions. not specified satisfy to the are events”; objections they potential “triggering Administrator’s authority. exercise of the our is a more, example why What perfect uses because statute should not end simply analysis its must look more Instead, closely word “shall.” we allow for discre- to determine whether they listed criteria all, After as then-Justice tion, the use of “shall.” despite darter” ex- in the “snail case Rehnquist’s dissenting opinion “shall” will some- federal statute the word plains, using Hill, 211- S., at times allow See 437 U. room discretion. discretion cases, these there is room for 212.12 In significant §402(b)’s first nine EPA’s evaluation of conditions. the EPA Administrator criterion, for example, requires the State and ensure that examine five other statutes C. each. 33 S. U. has comply adequate ex- 1342(b)(1)(A). statutes, turn, of those five One his to exercise “judgment.” directs the Administrator pressly exer- that EPA must § 1312. Even the acknowledges Court Lamagno, 515 U. S. 432-433, See Gutierrez de Martinez n. 9 (1995) ‘must,’ sometimes legal writers (“Though ‘shall’ means generally ‘may.’ D. Mellin misuse, ‘will,’ See use, ‘should,’ or even ‘shall’ to mean (1992) 402-403 koff, Usage Dictionary Legal American Mellinkoff’s (‘shall’ meaning their synonyms’ and ‘may’ ‘frequently are treated Usage 939 context); Legal Modern Garner, Dictionary of depends on B. 1995) (‘Courts (2d jurisdiction have every English-speaking in virtually ed. contexts, and vice may in some by necessity shall means held — —that versa’)”).

cise “some whether judgment State has determining 402(b)’s it demonstrated that has the to out authority carry Ante, enumerated However, at 671. criteria.” statutory the same breath, the that the very Court states dispositive fact is that “the statute not it does grant discre- clearly tion to add another to separate prerequisite that entirely Ibid. This list.” the Court’s flouts own reasoning logic. 7(a)(2) §402.03, § Under the Court’s of to dis- reading applies federal actions The of cretionary any kind. Court plainly that EPA acknowledges exercises discretion when deciding to whether transfer to a If State. we any are to take Court’s once dis- seriously, approach 7(a)(2) cretion has been identified —as it has must here — apply.13 13The Court also claims that Depart principle the “basic announced in” Citizen, Transportation ment (2004) v. Public 541 U. S. 752 an —“that agency cannot legal be considered an ‘cause’ of action- it that has no Ante, discretion not to statutory §402.03. supports its on reliance take” — all, at 667-668. recognizes First the Court itself that it must distance case, ante, because Public Citizen

itself from that at dealt a procedural requirement under the National Policy Environmental Act (NEPA), a requirement not substantive imposed by like that Hill, TVA ESA, 153, 188, (1978) see 437 U. S. n. 34 (holding that context). NEPA cases are “completely inapposite” to the ESA What however, Court does not recognize, is what it views the “basic principle” of Public Citizen is too broadly stated and therefore inapplica Ante, ble these cases. 667-668. Public Citizen turned decision in on what

Our we “a called critical fea- ture of the case”: Safety Federal Motor Carrier Administration (FMCSA) “no ability had to countermand” the President’s lifting a morato- prohibited rium that certain motor carriers from obtaining authority to S., within 541 U. operate States. at 766. United Once the President moratorium, decided lift that and once relevant had vehicles entered States, required by the United was statute register FMCSA the vehi- (“Under Ibid. if entirely cles certain conditions were met. FMCSA’s rea- provision, it must reading certify any sonable of this motor carrier willing can it is to comply show that and able with the various substantive safety responsibility and financial requirements contained in Depart- III-B, described in Part also supra, The MOA regulation demonstrates as ministerial that an NPDES a task as the retains suggest. Agency sig- Court would §123.24 nificant discretion over content under be transfer. MOA, which of prior course must approved to file on a instance, For EPA require reports State may a State may require basis or basis. It weekly monthly submit only permit applica- certain and categories classes condi- And terms and tions. additional include may NPDES enforcement tions are relevant of these room for all program. There is ample judgment in the areas, past and EPA has such judgment exercised e. g., Ap- when from States. many See, MOAs approving NPDES Maine to Administer proval Application by 66 Reg. (2001); Fed. Program, Approval Application Texas, 63 Fed. Reg. Administer NPDES Program; (1998). fact, in to this an a similar question In earlier case raising EPA, see American Forest & Assn. one, 137 F. 3d Paper (CA5 EPA 40 CFR 298-299 how 1998), itself explained of a 123.24 it over state pollu- discretion gives approval control for EPA in 96-60874 tion see Brief No. program, (CA5). “[ijndicia of involvement Arguing discretionary listed Agency or control abound in regulations,” [its] Transportation only prevented the moratorium regulations; ment of deleted)). (emphasis 2001” doing from so for Mexican motor carriers before by Therefore, any generated another deci- potential concerns were NEPA sionmaker, Here, contrast, President, EPA is not FMCSA. or made ministerially person agency has required not act once another its own Instead, consider- judgment when a decision. EPA must exercise State; has its own author- authority to it also ing the transfer of a NPDES be endangered will species ity deny Any effect on such transfer. caused, Agency’s even if decision indirectly, own 402.02(d) will ESA (providing that authority. NPDES Cf. CFR indirectly all modifica- apply “directly caus[e] activities added)). land, water, (emphasis to the tions or air” regulation example.14 Again, prime its MOA aas because approval application EPA’s a state administer program significant abounding— NPDES entails indeed, — discretion, I applies would find that ESA even theory under the Court's own flawed these cases. V judges always Mindful that must remain faithful to the legislature, Burger opin- intent of the Chief Justice closed his ion “[o]nce “snail darter” case with reminder that meaning of an enactment is discerned and its constitu- tionality judicial process determined, the comes to an end.” Hill, S., U. 194. This Court offered a definitive inter- pretation nearly years ago very of the ESA in that case. Today the Court turns its back on our decision in Hill places great endangered species jeopardy, number in- cluding ferruginous pygmy-owl pine- the cactus and Pima apple plagiarizing cactus at issue here. At the risk of Chief Burger’s opinion, appropriate Justice fine I think it is to end my opinion just quotation as he did—with a attributed to Sir today Thomas More that has much relevance as it did ago. quotation three only decades This illustrates fundamental character of the rule of law embodied 7 of pernicious consequences the ESA but also the of officialdis- Repetition literary obedience of such a rule. of that allusion especially appropriate today: is Roper, legal, law,

“The the law. I know what’s right. legal.. what’s And I’ll stick what’s .. I’m not right wrong, God. The currents and eddies of and regulations EPA also give discussed several other it discretion. 123.61(b), example, For required under 40 CFR is public EPA to solicit on application, “approve comments disap State’s and it must prove “taking program” after into all consideration comments re brief, simply As explained ceived.” EPA its Circuit if “were Fifth acting fashion, weighing public in a com ministerial such of the merits of (CA5). unnecessary.” ments would be Brief EPA in No. 96-60874 navigate, plain-sailing, you I I’m can’t which such find voyager. I’m law, there no in the thickets oh But great you road do? Cut a forester. . . What would . through get And when Devil? . . . after the law round on Devil turned law and the down, the last was being Roper, you you the laws all hide, would —where planted country's with laws from thick flat? . . This . you if cut laws, coast to not God’s—and coast—Man’s up- you really d’you could stand them down . think . . right I’d Yes, . . . in the would blow then? winds that safety’s my give sake.” own law, the Devil benefit of (Three p. 147 Seasons, I, Bolt, R. A for All Act Man 1967) Plays, (quoted Hill, S., U. ed. Heinemann 195). at

Although time, both the its reasons have shifted over in- courts, EPA has and in the federal administrative level requirements do not of the ESA that the sisted apply under to its decision to transfer 402(b) App. for Petitioner 114; Brief of the CWA. See explained above, As that conclusion EPA 42. I have §7(a)(2), contrary Hill, in TVA to the decision text our regulation Agency relied and the has since on which Accordingly, upon today. I would relies which Court capricious arbitrary under hold EPA’s decision was 706(2)(A), S. C. Act, see U. the Administrative Procedure Agency proceedings for further remand to the would opinion. with this consistent respectfully

I dissent.

APPENDIX U.S.C.§

“(b) permit programs State guidelines re- promulgation of the after the “At time (i)(2) title, quired of this subsection of section permit desiring its own each to administer Governor State program discharges navigable ju- for into waters within its may submit risdiction to the a Administrator full and com- plete description program proposes to establish and compact. administer under State law or an under interstate In addition, such shall a State submit statement from the (or attorney general attorney pollu- for those State water agencies counsel), independent legal tion control which have legal or from the chief officer in the case an interstate agency, State, that the laws of such or the interstate com- pact, may provide adequate authority as carry be, the case program. out the ap- described The Administrator shall prove program each submitted he unless determines that ad- equate authority does not exist:

“(1) permits To issue which— “(A) apply, compliance any applicable and insure with, re- quirements of sections 1311, 1316, 1317, and 1343 of title; this

“(B) years; exceeding for are fixed terms not five and “(C) including, can be terminated or modified for cause but following: to, limited “(i) any permit; violation condition of the “(ii) obtaining permit misrepresentation, or failure to fully disclose all relevant facts;

“(iii) change any requires tempo- condition that either rary permanent or permit- reduction or elimination discharge; ted

“(D) pollutants disposal control the wells; into “(2)(A) permits apply, compli- To issue which and insure applicable requirements all with, ance section 1318of this title;

“(B) inspect, require reports monitor, enter, To to at required least same extent section 1318of title; “(3) public, To insure that the other State the wa- may applica- ters which affected, be receive notice of each permit provide opportunity tion public hearing ruling application; before a on each such notice of receives “(4) Administrator To insure that thereof) a permit; copy application (including each (other “(5) than the permitting To State insure that any of the issuance State), by be affected whose waters may to per- recommendations submit written permit may Administrator) to (and with any respect mitting State recom- of such written and, if part any permit application State, permitting mendations are accepted (and the State affected State will such notify permitting so rec- Administrator) such of its failure accept writing its for so with reasons doing; ommendations together “(6) in the if, will be issued judg- that no To insure permit the Chief ment of of Army acting through Secretary of of with Secretary after consultation Engineers, anchor- in which the Coast operating, Guard department and would be of waters age navigable any navigation substantially impaired thereby;

“(7) or abate violations of the the permit pro- To permit other civil and and ways criminal gram, including penalties enforcement; and means of

“(8) from To for a insure any permit discharge pub- conditions owned treatment works includes licly require of and the identification character volume of pollut- terms ants of source significant any introducing pollutants subject under of this title standards section pretreatment to assure with into compliance such works and a program in addition source, such each such standards by pretreatment (A) new intro- notice to the adequate ductions from which into such works of source pollutants any would of this be a new defined in section 1316 title source as (B) if introduc- such were new source discharging pollutants, source which such from a tions into works pollutants were dis- if it of this title would be section subject (C) in vol- change a substantial such or charging pollutants, into such or character introduced ume being pollutants works at works a source into such pollutants introducing the time of issuance notice Such shall include permit. information on the effluent be in- quality quantity troduced into any such im- treatment works anticipated of such pact in the change effluent to be quality quantity discharged from such treatment works; owned publicly

“(9) To insure that user of industrial any publicly 1284(b), owned treatment works sections will comply 1317, and of this title.”

Justice Breyer, dissenting.

I join Justice dissent, while judg- Stevens’ reserving ment as to 7(a)(2) § whether of the Endangered Act Species of 1973, 16 1536(a)(2), U. S. C. § covers really every possible action of even unrelated totally agencies as, —such a say, determination the Internal Revenue discretionary Service whether to or settle a prosecute tax liabil- particular §7121. see 26 C. ity, U.S.

At the time same I add one additional consideration sup- own) (and of his port my dissenting views. Court em- that phasizes terms, its the “[b]y statutory language [of 402(b) § § the Water Act, 1342(b),] Clean 33 U. S. C. is man- exclusive; list the and if the nine criteria datory are specified satisfied, the EPA not does to have discretion a deny Ante, added). at 661 application.” (emphasis My own understanding agency action me leads to believe that cannot be majority possibly correct that concluding structure precludes application ante, EPA's discretionary action. (Ste- See 690-692 J., is That because grants of discre- dissenting). vens, some tionary authority always come limits implicit Jaffe, attached. See L. Judicial Control of Administrative (discretion (1965) Action 359 is “a to make a choice” power actions”). class of And there are “permissible likely from which, to, after, but not the en- prior instances numerous 7(a)(2), §of the statute have might actment placed implicitly outside limits. those “species preservation” once the statute that To consider take one example, (FPC) au- Power Commission the old Federal granted convenience public a “certificate thority grant natural company operate gas necessity” permit 717f(c)(l)(A). It says new 15 U. S. C. See pipeline. applicant “a certificate be issued any qualified shall will- is able and therefor if it applicant ... is found the service acts and perform to do the ing properly or ... will service . and that proposed . . proposed convenience future be required public present 717f(e). necessity.” 1973, ofAct of the Endangered Species

Before enactment the FPC could uncertain whether least 884, Stat. is at a natural gas pipe- because simply have withheld a certificate animal, for given an endangered line threaten might does history, species preservation Act’s language held But we have fall its terms. within naturally landscape, Act changed regulatory Endangered Species endan- intended doubt beyond Congress “indicating] TVA afforded the to be highest priorities.” gered species added). (1978) Indeed, Hill, 437 U. S. (emphasis conscious deci- “a Act demonstrated the Endangered Species over priority sion by endangered species Congress give Id., 185. of federal agencies.” missions’ ‘primary habitat effect And upon a new potential given pipeline’s believe, once Congress it seems reasonable landscape, (the Federal En- successor law, the FPC’s enacted the new Commission) within its would act ergy Regulatory account. into effects species-endangering taking Administra- Food Drug take another To example, criteria list of (FDA) “exclusive” has, statute, tion of a new for approval in reviewing consider applications . . finds . (“If 355(d) the Secretary See U. S. C. drug. tests adequate do not include ... g.,] investigations [e. not whether or to show all methods reasonably applicable an order refusing ... he shall issue is safe such drug approve Preservation of application”). endangered spe- cies is on list of “exclusive” criteria. Yet I imagine the FDA now should take account, when it or grants denies drug effect manufacture approval, and mar- of a new keting drug upon preservation destruction of an endangered species. difference between the only meaningful now provision §us,

before of the Clean Water Act, and the energy- statutes I drug-related have mentioned is that of the former is to very purpose preserve state of our natural environment —a purpose Endangered Spe- cies Act That shares. shared shows that purpose must to the Clean Water Act a apply fortiori.

Case Details

Case Name: National Ass'n of Home Builders v. Defenders of Wildlife

Court Name: Supreme Court of the United States

Date Published: Jun 25, 2007

Citation: 551 U.S. 644

Docket Number: 06-340

Court Abbreviation: SCOTUS