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Enviros fear Supreme Court ruling creates ESA 'loopholes' |
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Environmentalists say today's Supreme Court ruling on the Endangered
Species Act could open the door for the Bush administration to ignore
species' concerns when implementing other laws.
The high court's 5-4 decision says the Clean Water Act trumps endangered species protection.
At issue in National Association of Home Builders v. Defenders of
Wildlife was whether U.S. EPA broke the law in 2002 when it handed
authority to administer a water-permitting program to Arizona without
reviewing the effect of that decision on the state's 60 threatened and
endangered species. The Supreme Court reversed a previous court ruling
that found ESA had primacy.
Attorneys involved in the case said it could be read narrowly
to apply to the water permits in question in the lawsuit, but it could
have implications for a wide range of other federal actions -- if the
government or other lawsuits try to use it to justify more ESA
exemptions.
"Today's decision creates a rather large loophole in their
duty to protect endangered species," said Bob Irvin of Defenders of
Wildlife.
Permits in question in the Arizona case were those that
developers must obtain for stormwater discharges before they can begin
construction. The Clean Water Act says EPA "must" give states control
of the permitting program if they meet nine criteria, which do not
include species considerations.
Environmentalists argued that federal officials should have
also met ESA's requirement for a full consultation on the potential
effects on plants and wildlife.
In the majority opinion, Justice Samuel Alito wrote that the
consultation requirement in ESA should only be for "discretionary"
actions, and the "must" of the Clean Water Act makes it mandatory.
"It is clearly a defeat for the Endangered Species Act and
will limit it, but it will require several months of study of federal
statutes books to figure out how far it goes," said John Echeverria,
director of Georgetown University's environmental law center.
The question is if the administration or other cases will try
to use the decision to back up any further attempts to ignore the
endangered species law when implementing other laws. Dissenting,
Justice John Paul Stevens noted that a federal electricity law mandates
permits for pipelines when they meet certain requirements but argues
that ESA should also call for them not to harm species.
In the short-term the decision affirms how EPA has been handling its stormwater permits.
The agency had been handing them off to states without federal
wildlife consultation and had not changed its actions to comply with
the previous appellate court ruling, since the case has been in appeals
since then.
Roger Martella, EPA's general counsel, said the
"well-reasoned" decision would allow the agency to continue to enable
states to issue permits.
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