Endangered Species:

NAHB attorney Desiderio discusses oral arguments in Supreme Court ESA case

For the first time in over a decade, the Supreme Court will hear an Endangered Species Act case this week. At issue in National Association of Homebuilders v. Defenders of Wildlife and U.S. EPA v. Defenders of Wildlife is whether the Endangered Species Act can be overridden by other federal laws. During today's OnPoint, Duane Desiderio, an attorney for the National Association of Homebuilders, discusses the details of the case and talks about what he expects from the court when the case is argued. Desiderio outlines the possible rulings that the court could hand down and explains why he believes the environmentalists' argument is not valid.

Transcript

Monica Trauzzi: Welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Duane Desiderio, an attorney for the National Association of Home Builders. Duane, thanks for coming back on the show.

Duane Desiderio: Thanks for having me Monica.

Monica Trauzzi: The Supreme Court is hearing arguments in EPA v. Defenders of Wildlife and National Association of Home Builders v. Defenders of Wildlife this week. Explain for our viewers what is at issue in these two cases.

Duane Desiderio: Monica, the issue in the case really boils down to a court that decided to rewrite a statute, a statute where Congress specified nine exclusive criteria to be satisfied. But the 9th Circuit Court of Appeals decided that it wanted to add a tenth. And the statute that we're talking about is Section 402(b) of the Clean Water Act. This is the provision of the act that has been quite successful down the years where EPA has transferred permitting authority to states. At this point 45 states have received authority from the federal EPA to issue pollutant discharge permits. And Arizona became the 45th state. In the case everyone agrees, all sides agree, the government, the environmental groups and the industry interveners, that the state of Arizona met all of the nine criteria to assume the program. But the 9th Circuit Court of Appeals, as I mentioned, added a tenth. They wanted endangered species protections to be added to the nine exclusive list of criteria. And the 9th Circuit effectively agreed. It said that the Endangered Species Act is an uber-statute. It trumps the Clean Water Act. So no matter what Congress would have intended in transferring permit programs to states, the Endangered Species Act would trump all that.

Monica Trauzzi: And what is NAHB's role in all of this?

Duane Desiderio: NAHB's role is as an industry intervener. We were involved in the case when the environmental groups had filed the suit against the Environmental Protection Agency for allegedly illegally transferring the program to Arizona. The NAHB and other industry groups intervened. NAHB intervened because the permit program at issue under the Clean Water Act is one of the most common permits that our members need to obtain for storm water discharges. Any construction site in the country that is one acre or larger, or even if you're building on a smaller site within a subdivision that's one acre or larger, has to get a storm water discharge permit. And the ramifications of this case could be that any construction site in this country, no matter where it's built, if it has to get a storm water permit would need to engage in some kind of endangered species consultation, even though species have nothing to do with the project.

Monica Trauzzi: So environmentalists would say that in Arizona, the state of contention, there are many at-risk species. Is that a valid complaint and is building in these areas just?

Duane Desiderio: It is not a valid complaint for several reasons. First, what we are talking about is the Clean Water Act. And one of the requirements that my members and as well as the state of Arizona needed to satisfy to ensure that it got the program was that water quality related species, species that live in the water, near the water, would be fully protected. So anytime anyone has to get a storm water discharge permit they have to insure that there are mechanisms in place to protect species that live on or near the water. That's what the Clean Water Act is designed to do, to protect water and the biological integrity of the water. But the Clean Water Act is not the dry land regulation act. And what we've been seeing is that the environmental groups have tried to extrapolate these Clean Water Act permits to sweep in desert related species, pygmy owls, for example that are no longer even listed under the Endangered Species Act, but that do not live on or near the water, to have that swept into the scope of review for the Clean Water Act permits at issue. They're totally divorced from each other. And the Endangered Species Act needs to protect those species, not the Clean Water Act.

Monica Trauzzi: Why not just come up with a mitigation plan for the endangered species? Wouldn't that be a simpler way of approaching this?

Duane Desiderio: Well, there are mitigation plans that are already in place for endangered species. If there are dry land species that need to be protected there are habitat conservation plan mechanisms under the Endangered Species Act that need to be triggered to be put in place. If a wetland is at issue and a builder or a developer would need a permit from the Army Corps of Engineers, well, then that wetland permit would trigger a consultation that would impose mitigation in place to protect any related endangered species. But that's the point of what we're talking about, is that we have the Endangered Species to protect endangered species. We have a wetlands permitting program to protect wetlands and endangered species that may live in wetlands. But we have the Clean Water Act, which is designed to protect and preserve the integrity of water quality.

Monica Trauzzi: How significant is it that the Supreme Court is hearing an Endangered Species Act case?

Duane Desiderio: Very significant.

Monica Trauzzi: It's been a few years since they last heard one.

Duane Desiderio: It has been. Very significant. There have only been four occasions, to my knowledge, where the court has addressed Endangered Species Act cases and only two of those have gone to the merits of the case. The last time that they've addressed a case on its merits, outside of the standing context, was back in 1995. So this will only be, to my knowledge, the third point in the Supreme Court since the Endangered Species Act was passed where the Supreme Court will address the merits of an endangered species claim.

Monica Trauzzi: What are the potential rulings that the Supreme Court could come down with? And how would these reshape the way that the Endangered Species Act is applied?

Duane Desiderio: It's looking into a crystal ball. There are several ways that the court could go. One of the ways that the court could go that the homebuilders are helping for is that the 9th Circuit's decision is vacated and reversed, that the Supreme Court does issue a ruling that says the nine criteria in the Clean Water Act that a state must satisfy, are what Congress said, nine criteria. Arizona should get the program and proceed down the successful path that 44 other states have followed. That would be one scenario. Another scenario could be that the court could uphold the Ninth Circuit's decision. If the Court upholds the 9th Circuit's decision that would mean that a Clean Water Act program would transfer back to the federal Environmental Protection Agency to issue permits. That could be an outcome. Another outcome could be a remand back to the Environmental Protection Agency to better explain the reasons for why it took in this case. So the court could dodge the issue, but could give the Environmental Protection Agency an opportunity to explain itself in record better.

Monica Trauzzi: Which justices are you going to be looking out for in the case? Who would you consider a friend of NAHB? Who would you consider someone who might be against what you guys are saying?

Duane Desiderio: Well, the conventional wisdom is it's all going to come down to Justice Kennedy. He seems to appear to be the swing vote in many of these environmental cases. In the climate change case that came down several weeks ago in Massachusetts v. EPA it was Justice Kennedy's vote that was crucial. You need to get five justices one way or the other, and Justice Kennedy will probably prove to be the fulcrum.

Monica Trauzzi: What questions are you expecting from the justices?

Duane Desiderio: We are expecting questions from the justices that ask about the strict interpretation of the statute. What exactly does the statute, the Clean Water Act, state? And how, if at all, Section 7 of the Endangered Species Act interplays with the Clean Water Act. We'd be expecting the justices to ask about what are, in fact, the environmental harms that are concerned in this case? And we hope that what comes out of the argument tomorrow, if they do ask those questions, is that the two main species of concern in the administrative record for the transfer to Arizona have been pygmy owls, which are no longer listed as a protected species under the Endangered Species Act. And the Pima pineapple cactus, a desert species that does not live in or near the water.

Monica Trauzzi: OK. We're going to end it right there. It will be interesting to watch.

Duane Desiderio: It will.

Monica Trauzzi: Thanks for coming on the show.

Duane Desiderio: Thank you Monica.

Monica Trauzzi: This is OnPoint. I'm Monica Trauzzi. Thanks for watching.

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