Last modified on 13 July 2016, at 10:26

Nat'l Ass'n of Home Builders v. Defenders of Wildlife

In Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007), the U.S. Supreme Court considered the interplay between two federal environmental statutes:

  • Section 402(b) of the Clean Water Act, which requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met.
  • Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."

The Court ruled against environmentalists and held that § 7(a)(2) does not add a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. Instead, the Court held that the transfer of permitting authority to state authorities—who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes—was proper.

This 5-4 decision, written by Justice Sam Alito and joined by Justice Anthony Kennedy, reversed the judgment of the U.S. Court of Appeals for the Ninth Circuit. The liberal wing of the Court dissented.