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

Background

Arizona applied to the Environmental Protection Agency (EPA) to take over the state’s Clean Water Act pollution permitting program (NPDES). EPA consulted the Fish and Wildlife Service (FWS). FWS worried the transfer might indirectly harm upland species; FWS issued a biological opinion finding no jeopardy. Environmental groups sued, the National Association of Home Builders intervened, and the Ninth Circuit vacated EPA’s approval, concluding ESA §7 required review of the transfer decision.

Reasoning

The Supreme Court asked whether ESA §7(a)(2)’s “no‑jeopardy” duty adds a new, tenth condition to the statutory list governing transfers under CWA §402(b). The Court held that reading §7 to override a Congress‑mandated “shall approve” rule would imply repeal of the CWA, so it deferred to the agencies’ regulation, 50 CFR §402.03, which limits §7 to discretionary federal actions. The Court reversed the Ninth Circuit and found EPA’s arbitrary-and-capricious claim unsupported.

Real world impact

The decision lets EPA approve state NPDES transfers once the nine statutory criteria are met, without imposing §7(a)(2) as an extra condition. States seeking permitting authority will face a clearer, faster approval path. At the same time, federal agencies retain their duty to consult and avoid jeopardy when they exercise discretionary actions; EPA oversight, Memoranda of Agreement, and the Endangered Species Committee remain tools for protecting species.

Dissents or concurrances

Three Justices dissented, arguing the Court misread the Endangered Species Act and departed from TVA v. Hill; they would have read §7 broadly to cover transfers or remanded to EPA for clarification. The dissenters stressed that consultation, reasonable alternatives, and the Committee (“God Squad”) provide ways to reconcile competing statutes without narrowing ESA protections.