Appellate ESA Decisions May Prompt More Emphasis on Economic Considerations

Last month’s 168-page, split decision by a panel of the U.S. Court of Appeals for the Ninth Circuit in San Luis & Delta-Mendota Water Authority v. Jewell, 2014 BL 70239, 78 ERC 1045 (9th Cir. Mar. 13, 2014) (San Luis), marked yet another chapter in the “continuing war over protection of the delta smelt,” a three-inch fish listed as threatened under the Endangered Species Act (ESA) (50 DEN A-1, 3/14/14).  On May 12, the plaintiffs in the case, the San Luis & Delta Mendota Water Authority, which supplies water to domestic and agricultural users in central California, moved to obtain review en banc.

Whether the next review is provided by a larger panel of the Ninth Circuit or by the U.S. Supreme Court, this case could prove to be a watershed in ESA jurisprudence:  a refutation or refinement of Supreme Court Chief Justice Warren Burger’s characterization of the ESA, in the seminal 1978 Tennessee Valley Authority v. Hill decision, that the “plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost” and “to give endangered species priority over the ‘primary missions’ of federal agencies.”

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(Reproduced with permission from Daily Environment Report, 14 DEN 100, 05/23/2014. Copyright © 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.)