Unadulterating the Executive Power—The Roberts & Alito Factor

On Monday, the Court announced a decision that, for endangered species advocates in particular, put some very chilling handwriting on the wall. In National Association of Home Builders v. Defenders of Wildlife, the Court held that the Endangered Species Act requirement that all federal agencies “insure” their “actions” do not jeopardize the continued existence of a listed species operates where those actions are not governed by other laws having any mandatory “shalls” in them. Before you run screaming from this post, though, hear me out on why this is important even for those who wouldn’t cross the street to step on a snail darter.

At issue was EPA’s decision to approve Arizona’s Clean Water Act permitting program under CWA § 402(b), a provision listing nine factors EPA must scrutinize in its decision. (Approving states in this context relegates the federal presence in that state to the margins and the water permitting in Arizona that hung in the balance will have real consequences for that several of that state’s endangered species.) These “authorization” decisions have long attracted attention because of the high stakes. Section 402(b), which says that EPA “shall” approve a state with favorables on the nine factors, does not mention endangered species.

ESA § 7 says agency “actions” trigger its requirements, though. While I have argued that the ESA has many flaws, where it should apply is quite apart from how it operates. TVA v. Hill famously held that the ESA is a mandatory overlay on federal agencies and that they “shall” reevaluate their choices in light of imperiled species’ needs. The agencies that administer Section 7 (which help other, “action” agencies comply by consulting with them) made a rule in 1986 stating that Section 7 applies to “all actions in which there is discretionary Federal involvement or control.” And that rule was the issue in the case.

When the Ninth Circuit confronted the issue, it understood that ESA § 7 might be read to add a tenth factor to CWA § 402(b). But, the court held, so be it: the ESA is cross-cutting by nature. Its force and breadth is exactly why Congress amended it after TVA v. Hill to provide for a special cabinet-level “God Squad” authorized to permit exceptions. The rule’s reference to discretion was probably meant to differentiate those “actions” that the agency takes as opposed to those forced upon it. The Ninth Circuit also looked to agency practice regarding the rule and used that as a guide as well. The agencies had traditionally construed Section 7 broadly, understanding it to apply to any thing involving discretionary federal control. Until recently.

At the field office level, both EPA and the Fish and Wildlife Service interpreted the law—the two statutes, the agency rule, and agency practice—to mean EPA should not approve Arizona if it would further jeopardize any listed species. And that is where executive “Power” came in. The gargantuan lobby NAHB apparently liked its chances in Washington much better, pushing for the matter’s elevation to HQ. When that happened, “letters” were written into the record from the agency heads and the litigating position became: Section 7 does not even apply because EPA has no “discretion” to deny Arizona its approval on the grounds that doing so will better insure protection for listed species. To afford Chevron deference to an interpretation of law that emerged from the process in this case, though, is to clothe raw political self-dealing with the force of law. And it dramatically scales back the scope of the ESA.

How many federal statutes close a discretionary decisional process with the word “shall” as the operator for the subject agency action? It is hard to say, but there are many. Each of them is now off the Section 7 hook thanks to five votes (an interesting question is whether they are permanently off the hook, but that is for another day). It is striking how often Justice Alito and Chief Justice Roberts have already been willing to defer to the official whose duty it is to take “Care” that the “Laws” be faithfully executed—especially when it means a law conservatives don’t like will not be executed.