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Defenders Magazine
Defenders in Action: Supreme Battle for Endangered Species
Defenders' lawyers are headed to the Supreme Court this spring to argue a case that may end up shaping the scope of the Endangered Species Act.
Defenders sued in 2003 to block a decision by the U.S. Environmental Protection Agency (EPA) that transferred the power to grant federal water pollution permits to the state of Arizona. Previously, the U.S. Fish and Wildlife Service had determined that state control could push several species, including the desert tortoise and the cactus ferruginous pygmy owl, further toward extinction. The service later reversed its position and the transfer was granted.
Defenders won the 2005 court challenge that followed, arguing that the Endangered Species Act requires that all federal agencies ensure that their actions do not harm a federally protected species. The Bush administration petitioned for a rehearing, saying that the EPA shouldn't have to comply with endangered species requirements when dealing with Clean Water Act matters.
"The responsibility of federal agencies to conserve protected species is at the heart of the Endangered Species Act. It requires them to ‘look before they leap,'" says Mike Senatore, Defenders' senior director of conservation litigation. The loss of this requirement in Arizona has eliminated vital protections for approximately 60 federally listed species. But it could also have a ripple effect that could absolve other federal agencies from complying with the act.
"EPA had previously acknowledged and complied with its responsibility to consult with the Fish and Wildlife Service and ensure that its actions do not jeopardize listed species," says Senatore. "The Bush administration's new litigating position is directly contrary to the Endangered Species Act, Supreme Court precedent and nearly 30 years of administrative practice."
