The NAHB's first venture before the U.S. Supreme Court as a named party resulted in a great victory for members earlier this summer. In a 5-4 decision, the court ruled in favor of our position that the EPA did not need to consider listed endangered species when handing Clean Water Act permitting authority over to the state of Arizona.
Over the course of its 65-year history, the NAHB has filed dozens—most likely hundreds—of amicus curiae, or “friend of the court,” briefs on cases before the Supreme Court where the outcome could affect our members. In many of those cases, the court heeded our arguments and ruled in favor of our position.
But National Association of Home Builders v. Defenders of Wildlife was the first time that we ever appeared before the court in our own case. The odds that the nation's highest court would even consider the case make this accomplishment all the more impressive, as the court accepts less than 1 percent of the petitions it receives.
MAINTAINING BALANCE NAHB v. Defenders of Wildlife started in 2003 when the NAHB intervened in a case brought by that group in their effort to stop the EPA from delegating Clean Water Act permitting to the state of Arizona. Delegating a federal permit program to a state is not new; it streamlines the permitting process and avoids lengthy delays while ensuring that both state and federal environmental protections are taken into account.(see page 78)
In this instance, the Defenders of Wildlife argued that the EPA could not delegate permitting programs without undergoing endangered species consultation with the Fish and Wildlife Service. The environmentalists won in the Ninth Circuit Court of Appeals, and that court effectively required an endangered species consultation for every instance where an Arizona builder needed a stormwater discharge permit. The decision had the potential of putting NAHB members through months of unnecessary consultations and red tape with a dollar cost that would have been astronomical. As a result, the NAHB, along with the HBAs of Central and Southern Arizona, asked the Supreme Court to review the case.
Fortunately, the Supreme Court has ruled in favor of regulatory balance and environmental stewardship by reversing and remanding the lower court's decision. This new decision recognizes that we must always maintain a balance when we look at environmental regulations. We can't say that the Endangered Species Act is an “über-statute” that should slow down regulatory decisions under the Clean Water Act, but we recognize that both laws concern issues that are vital to preserving this Earth for the next generation.
PRESERVING AFFORDABILITY This decision also tells us that the Supreme Court is helping to preserve housing affordability by striking down efforts at unnecessary, duplicative regulation. Congress created the Clean Water Act to prevent, reduce, and eliminate pollution. But it's the Clean Water Act, not the Arid Desert Act. There is no logic to twisting a program designed to protect the waters of the United States to give special considerations to species that have no relation to those waters.
The Clean Water Act also calls for the states, not the federal government, to manage permitting programs when the EPA determines that nine specific criteria have been met. None of those criteria require consultations regarding species protected under the Endangered Species Act. Moreover, forcing the EPA to issue discharge permits in Arizona—which an unfavorable decision would have required—would have cost builders more time and money, making homes less affordable in affected areas.
I think it's very obvious that we all share an important responsibility to protect our endangered and threatened species, and the NAHB is working hard with Congress and the administration to reform the Endangered Species Act with appropriate protections in mind. However, there is no need to tack on additional requirements to the ones that Arizona has already met. The Endangered Species Act does not trump all other important environmental considerations. The Supreme Court has agreed, and we applaud its decision. NAHB v. Defenders of Wildlife is a great victory for our association, for our members, and—most importantly—for housing affordability.
Brian C. Catalde
PRESIDENT, NAHB WASHINGTON, D.C.