United States: 10th Circuit Limits ESA Consultation Obligations To Boundaries Of The Agency Action

This past week, the 10th Circuit held that the Environmental Protection Agency (EPA) had no obligation to engage in consultation pursuant to Section 7 of the Endangered Species Act (ESA) where the potential effects on endangered species are attributed to an agency's failure to act as opposed to actions actually taken by the agency.  In WildEarth Guardians v. EPA, 13-9524 (10th Cir. July 23, 2014) the petitioner challenged the EPA's promulgation of a Federal Implementation Plan to reduce regional haze by regulating emissions of nitrogen oxides and particulate matter from the Four Corners Power Plant on the Navajo Reservation in northwestern New Mexico.  The petitioner claimed that the EPA had discretion to regulate mercury and selenium emissions in the FIP, and the failure to do so triggered a duty to consult with the Fish and Wildlife Service about the effect of the FIP on two species of endangered fish near the Plant.  The court denied the petition for review, finding that the promulgation of the FIP did not create a duty to consult under the ESA because it would have required EPA "to exceed the clearly delineated boundaries of the FIP."  Slip Op. at 3.

The challenged FIP regulated emissions of nitrogen oxides and particulate matter pursuant to EPA's authority under the Clean Air Act to address regional haze by requiring the installation of available retrofit technology or BART to remedy visibility impairments in Federal Class I areas.  See 42 U.S.C. § 7491(a), (b).  Section 7491 does not govern "hazardous air pollutants," however, which are regulated under Section 112 of the Clean Air Act.  See id. § 7412(b)(6) (stating that "[t]he provisions of [the regional-haze program] shall not apply to pollutants listed under this section.").  Both mercury and selenium compounds are listed as hazardous pollutants. See id. § 7412(b)(1).

Petitioners claimed that the EPA had discretionary authority to regulate mercury and selenium emissions as part of the FIP.  Accordingly, they requested the EPA to consider the benefits of any control technologies on mercury and selenium emissions because these emissions have a negative impact on the listed fish species.  "Under the ESA, whenever a federal agency proposes an action in which it has discretion to act for the benefit of an endangered species, it must consult to insure that the action 'is not likely to jeopardize the continued existence of any endangered species or threatened species.'" Slip Op. at 7 (citing 16 U.S.C. § 1536(a)(2)).  Consultation is required for affirmative actions, as "action" as defined in the applicable provision of the ESA does not include a failure to act.  Id. (citing 50 C.F.R. § 402.2).

The EPA disagreed it had authority to regulate mercury and selenium emissions in the FIP, and thus had no obligation to consult under the ESA.  The 10th Circuit found the issue of EPA's regulatory authority over the emissions to be irrelevant to the question before it, holding that "even if the EPA had power to regulate these hazardous air pollutants in a FIP rulemaking, the EPA's 'action' did not encompass the possibility of such direct regulation."  Slip Op. at 22.  Accordingly, the court focused on the scope of the EPA's action, stating that "the subject matter of the duty to consult is limited to the agency's action."  Id. The court identified the challenged action as EPA's decision to regulate nitrogen oxides and particulate matter based on the agency's finding it was "necessary or appropriate to protect air quality" as required by the Tribal Authority Rule—the rule giving EPA the ability to issue a FIP for facilities on the Navajo Reservation. See 40 C.F.R. Part 49.

Based on this characterization, the court rejected the petitioner's claim as an attempt to challenge non-action "by claiming that the nonaction is really part of some broader action."  Slip Op. at 24.  The court stated that "[w]hen an agency action has clearly defined boundaries, we must respect those boundaries and not describe inaction outside those boundaries as merely a component of the agency action."  Id.

This decision represents an important restriction on a federal agency's obligation under the ESA.  As the court noted, an agency's general discretionary authority to regulate does not impose a duty to consult under the ESA where such authority is inapplicable to the action being considered.  See Slip Op. at 26 ("[T]he possibility that the EPA would have discretion–in some other regulatory proceeding–to directly regulate mercury and selenium emissions at the Plant did not impose a duty to consult under the ESA before taking the only action under consideration at the time.").  Though the facts of this case are narrow, the court's reasoning is broad in scope, and can help to prevent additional delay in the federal decision-making process.

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