On April 17, 2007, the Court will hear oral arguments in the consolidated cases of National Association of Home Builders v. Defenders of Wildlife and EPA v. Defenders of Wildlife.

The Clean Water Act requires the EPA to approve state programs designed coordinate with the National Pollutatant Discharge Ellimination System that adhere to nine criterea. Arizona’s system was approved, and Defenders of Wildlife filed suit against the EPA for failing to consider elements of the Endangered Species Act that require them to strike down any program which jepordizes currently endangered species.

The Court’s official documents list these as the questions presented for Home Builders:

1. Can a court append additional criteria to Section 402(b) of the Clean Water Act that require state NPDES programs to include protections for endangered species?

2. Does Section 7(a)(2) of the Endangered Species Act constitute an independent source of authority, requiring federal agencies to take affirmative action to benefit endangered species even when an agency’s enabling statutes preclude such action?

3. Did the Ninth Circuit incorrectly apply the holding of Department of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that EPA’s approval of Arizona’s NPDES permitting program was the legally relevant cause of impacts to endangered species resulting from future private land use activities?”

The questions presented for EPA include:

1. Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a) (2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency’s discretion by other Acts of Congress.

In granting review, the Court specifically asked both parties to answer the following question:

Whether the court of appeals correctly held that the Environmental Protection Agency’s decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U.S.C. §1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. §1536(a)(2); and, if so, whether the court of appeals should have remanded to the Environmental Protection Agency for further proceedings without ruling on the interpretation of section 7(a)(2).

It is worth noting that the Environtmental PROTECTION Agency is now arguing against the DEFENDERS of Wildlife. Litigation really does bring out the worst in us.

The next case to be argued: Sole v. Wyner on April 17, 2007


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