KOLD TV-13 NEWS: Mon., June 25, 2007
Developers Beat Environmentalists Again
By Bud Foster
The Supreme Court sided with developers and the Bush administration Monday in a dispute with environmentalists over protecting endangered species. The court ruled 5-4 for home builders and the Environmental Protection Agency in a case that involved the intersection of two environmental laws, the Clean Water Act and the Endangered Species Act.
This is the first decision by the U.S. Supreme Court on the endangered species act in 12 years.
A battle between people who want to do this… Build habitat for people.. And the people on the other side who want to preserve habitat for animals and vegetation.
“This will be used as case law for the rest of the country, " says Edward Taczanowsky, President of the Southern Homebuilders Association.
But it was close. If one vote on the high court had switched, developers say, it could have translated to a large out-of-pocket expense for future county homeowners and long and expensive delays for them. They say the result could have been crushing.
"It would have been devastating because every piece of property we would have developed, we would have to consult on whether or not there was an endangered species, which would have been biological surveys, field studies where there might never have been and endangered species," Taczanowsky said. “The costs would have been high he says and delays would have been measured in months.”
It's reminiscent of the pygmy owl battles between the two sides from the 90's and early 2000's. And as in that case, it was a big setback for the environmental movement. They expect more setbacks to come.
Daniel Patterson, the southwest Director of the Public Employees for Environmental Responsibility says, The Bush/Cheney administration “has their guys on the Supreme Court now and I think it was pretty clear to the people who paid attention, that particularly Justice Alito, had a very strong allegiance to big business and industry above and beyond the public interest. So I'm disappointed."
He says he believes Congress must now take the lead in environmental regulation because it's not going to come from the courts or the administration.
But the developers say they have enough environmental regulation now to protect the public and the Supreme Court just reaffirmed that.
"We still have to go through providing protection through the Sonoran Desert Conservation Plan. If there's an endangered species or critical habitat you still have to go through a consultation so all those things and protections are still in place," Tacznowsky says.
Even Congressman Raul Grijalva tends to agree. He issued a statement late this afternoon saying, "We are very disappointed in this narrow decision by the Supreme Court but more on its impacts to other communities around the state than for its direct impact in Pima County. Our community's planning standards for desert riparian eco systems preservation has a much higher standard than the federal 404 permit process."
Environmentalists say those protections have not been proven yet. If the courts weaken the laws, as they did in this case, we all pay.
Patterson says, "People need to remember those national environmental laws like the Clean Water Act and the endangered species act not only protect our water and our wildlife but they also protect our quality of life and that's why it's important."
By reading Alito's opinion, he says confirms that. Justice Samuel Alito, writing for the conservative majority, said the endangered species law takes a back seat to the clean water law when it comes to the EPA handing authority to a state to issue water pollution permits. Developers often need such permits before they can begin building.
A federal appeals court had said that EPA did not do enough to ensure that endangered species would not be harmed if the state took over the permitting.
Environmental groups, backed by the 9th U.S. Circuit Court of Appeal, said the administration position would in essence gut a key provision of the endangered species law. The act prohibits federal agency action that will jeopardize a species and calls for consultation between federal agencies.
The cases are National Association of Home Builders v. Defenders of Wildlife, 06-340, EPA v. Defenders of Wildlife, 06-549.