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...