Center for Biological Diversity v. Lee Zeldin
Split Score
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Case Summary
Disposition
Affirmed
Environmental groups challenged EPA’s 2020 decision to transfer Clean Water Act § 404 dredge-and-fill permitting authority to Florida, along with the Fish and Wildlife Service’s (FWS) programmatic Biological Opinion (BiOp) and Incidental Take Statement (ITS) issued under § 7 of the Endangered Species Act (ESA). The 12th Circuit (sitting en banc) held that the BiOp and ITS violated ESA regulations, that EPA unlawfully relied on them and failed to consult the National Marine Fisheries Service, and therefore affirmed the district court’s vacatur of EPA’s transfer approval.
Circuit Split Identified
Legal Issue
Whether the ESA allows a ‘programmatic’ § 7 consultation in which FWS approves an entire state CWA permitting program by (a) grouping listed species into ecological guilds instead of providing species-specific analysis, and (b) deferring quantification of incidental take to a later technical-assistance process, while still issuing a no-jeopardy determination and a blanket ITS.
Circuit Positions
Programmatic consultation may defer species-specific effects analysis and quantify incidental take later through technical-assistance; no-jeopardy/ITS valid.
ESA requires species-specific effects analysis and take limits during formal § 7 consultation; programmatic BiOp/ITS that defers these steps is invalid.
Conflict Summary
The Second Circuit (Cooling Water Intake Structure Coalition v. EPA, 905 F.3d 49 (2018)) upheld a programmatic BiOp/ITS that deferred detailed species-specific analysis and take limits to future permit-level technical assistance, whereas the 12th Circuit in this opinion rejects that approach as contrary to ESA § 7 and its regulations. Ninth Circuit decisions (e.g., Forest Serv. Emps. for Env’t Ethics v. Forest Serv., 726 F. Supp. 2d 1195 (D. Mont. 2010), and related Ninth Circuit precedent) have also expressed skepticism toward deferring analysis, aligning with the 12th Circuit’s view.