Marc Morano 202-224-5762
Matt Dempsey 202-224-9797


WASHINGTON, DC – Sen. James Inhofe (R-Okla.), Ranking Member of the Environment and Public Works Committee, today lauded the Supreme Court’s ruling on the “National Association of Home Builders et al. V. Defenders of Wildlife et al."  The Court’s 5-4 ruling overturned the Ninth Circuit decision that would have allowed the Endangered Species Act (ESA) to override other federal environmental laws by forbidding the Environmental Protection Agency from delegating water pollution control authority to the state of Arizona based on possible indirect effects to threatened and endangered species. 

“Today’s Supreme Court ruling limiting the scope of the Endangered Species Act is a huge victory for states’ rights and property owners in America. The Court took a strong stand against judicial activism in overturning a Ninth Circuit Court decision that would have essentially voided a section of the Clean Water Act,” Senator Inhofe said. 

“While Defenders of Wildlife and others may want the Endangered Species Act to trump all other environmental laws, the Supreme Court has once again reaffirmed that it is the Constitutional duty of Congress to write the nation’s laws; not for the courts to reinterpret statutes to add requirements that are clearly not there.”


Under section 402(b) of the Clean Water Act, EPA is required to transfer permitting authority to a state if that state meets nine statutory requirements.  In the case, Defenders of Wildlife argued that compliance with section 7(a)(2) of the Endangered Species Act, effectively adds a 10th statutory requirement, thus preventing the state of Arizona from having the authority to manage of its own water pollution control program.  Section 7(a)(2) requires federal agencies to consult the Department of Commerce or the Department of Interior to assure that a proposed agency action is unlikely to jeopardize an endangered or threatened species.  

The Court held that this requirement applies only to discretionary actions by the agencies and because “the transfer of National Pollutant Discharge Elimination System (NPDES) permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in section 402(b) of the Clean Water Act, it follows that a transfer of NPDES permitting authority does not trigger section 7(a)(2)’s consultation and no-jeopardy requirements.” 

The Justices went on to note that, “[r]ead broadly, the Ninth Circuit’s construction would also partially override every federal statute mandating agency action by subjecting such action to the further condition that it not jeopardize listed species.” 

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