Circuit Court Blocks Bush Administration End Run Around Endangered Species Act

EPA Now Responsible for Construction and Development Permits

(08/23/2005) - Washington, DC - A circuit court ruled Monday that the Bush administration and the Environmental Protection Agency violated the Endangered Species Act in 2002 when they granted the State of Arizona the right to issue pollutant discharge permits under the Clean Water Act without first ensuring that its action would not harm endangered animals. In doing so, the court handed permitting responsibilities back to EPA, which has run the program in the past. 

In its decision, the court ruled that the Administration’s decision to hand over permitting authority not only violated the plain language of the Endangered Species Act, but was contrary to long-standing policy requiring the Environmental Protection Agency to comply fully with the Endangered Species Act in making such decisions. In fact, the Court noted that at least since 1993 the Environmental Protection Agency has apparently followed the requirements of the Endangered Species Act in every other situation where it has transferred this authority to a state. The court also noted that the Administration’s decision ignored scientific advice of local Fish and Wildlife Service biologists that its action would jeopardize plants and animals facing extinction. 

"The Bush administration continues to do everything it can to get around the Endangered Species Act," said Jamie Rappaport Clark, Executive Vice President of Defenders of Wildlife, lead plaintiff in the suit that spurred today’s decision. "They continue to turn their back on solid science and ignore the advice of local biologists, all the while pushing many plants and animals to the brink of extinction." 

Today’s decision is not retroactive and therefore does not appear to affect existing permits issued under the program. Indeed, the Court specifically noted that it "cannot reverse . . . issuance of those permits." It simply means that the program now reverts back to EPA which has handled the permitting process in the past. 

"EPA should now resume its responsibility for handling the permit process while also protecting endangered animals," said Clark. "We know from past experience that there is a balance that can be maintained here. Economic activities should now be able to proceed while taking into account the needs of humans and animals like." 

Prior to EPA’s decision, any pollutant discharge permit that had the potential to impact endangered or threatened species was required to undergo Endangered Species Act consultation with the U.S. Fish and Wildlife Service (FWS). These consultations had been instrumental in allowing development to proceed while also ensuring that steps were taken to protect wildlife. After EPA transferred permitting authority to the state it no longer consulted with the FWS, which meant that development projects could proceed without the important safeguards of the Endangered Species Act. 

"Arizona should have the authority to administer this program, but EPA and the FWS must first ensure that endangered or threatened species will not be harmed," Clark said. "The Bush administration once again abdicated its responsibility to protect endangered species."

# # #

Defenders of Wildlife is a leading non-profit conservation organization recognized as one of the nation’s most progressive advocates for wildlife and its habitat. With more than 475,000 members and supporters, Defenders of Wildlife is an effective leader on endangered species issues. To stay current on hot topics in wildlife conservation, please visit www.defenders.org.

###

Contact(s):

William Lutz, (202) 772-0269
Mike Senatore, (202) 772-3123