National Association of Home Builders v. Defenders of Wildlife and the Meaning of Agency 'Discretion'

摘要

The Supreme Court's decision in National Ass'n of Home Builders v. Defenders of Wildlife left unresolved the question of the meaning of discretion and agency authority. This decision and ensuing litigation over the meaning of discretionary agency action could impact the fate of over 1,300 endangered and threatened species. In this Article, Linus Chen explains the circuit court split over the conflicting statutory requirements of ESA §7 and CWA §402(b) regarding consultation and agency discretion. He argues that the Court wrongly decided that EPA did not have to consider ESA §7 and the loss of §7 protections before delegating CWA permitting program authority to the states. He cautions that by dismissing the plain language of §7(a)(2) requiring consultations to occur for any action by the federal government, the Court has placed new attention on the issue of discretion, and that the Supreme Court s decision may only increase the trend of using discretion as a defense for agency action or inaction.