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The Clean Water Act (CWA) requires the Environmental Protection Agency (EPA) to transfer pollution-permitting authority to a State if nine specified criteria are satisfied. The Endangered Species Act (ESA) requires the EPA to ensure that its actions do not jeopardize the continued existence of any endangered or threatened species. The State of Arizona sought permitting authority from the EPA. Although the EPA’s regional office determined that the transfer could have indirect effects on ESA species, it approved the transfer because Arizona had satisfied the nine CWA criteria.
Environmental groups filed a petition for review of the EPA’s decision in the United States Court of Appeals for the Ninth Circuit, which on August 22, 2005, held that: (1) the EPA’s approval of Arizona’s transfer application was arbitrary and capricious because the EPA concluded that it could not deny a transfer on the basis of any harm to endangered species, and (2) the ESA required the EPA to take endangered species into account when making the transfer decision, even though such consideration went above and beyond the nine specified criteria in the CWA. The Ninth Circuit acknowledged that its decision was in conflict with decisions of two other courts of appeals. On January 5, 2007, the Supreme Court granted certiorari.
On February 20, 2007, MSLF filed its friend of the court brief in support of the EPA and NAHB. Oral argument was held on April 17, 2007.
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