Endangered Species Law & Policy

Arizona Sen. Jeff Flake (R) and Rep. Matt Salmon (R) recently introduced a bill (pdf) that would remove several western states from the United States Court of Appeals for the Ninth Circuit and move them to a newly created Twelfth Circuit.  If the bill is passed as drafted, California, Hawaii, Oregon, Washington, Guam, and the Northern Mariana Islands would remain in the Ninth Circuit.  The new Twelfth Circuit would be comprised of Alaska, Arizona, Idaho, Montana, and Nevada.

Two other senators also introduced similar legislation (pdf).  Under the bill proposed by Montana Sen. Steve Daines (R) and Alaska Sen. Dan Sullivan (R), Oregon and Washington would also be moved to the new Twelfth Circuit, leaving just California, Hawaii, Guam, and the Northern Mariana Islands within the Ninth Circuit.

Some have questioned whether the move is politically motivated, given that the Ninth Circuit tends to be viewed as liberal, particularly with respect to environmental cases.  For example, in, National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), the Ninth Circuit held that the Environmental Protection Agency (EPA) was required to consult under section 7 of the Endangered Species Act (ESA) regarding the impacts of transferring Clean Water Act permitting authority, despite the fact that such transfers were non-discretionary if certain statutory criteria were met.  The Supreme Court reversed the Ninth Circuit, holding that the section 7 consultation requirement applies only to discretionary actions.  The Court reasoned that, because the transfers of permitting authority were non-discretionary, EPA could not be found to be a legally relevant cause of any harm to endangered species; thus, the ESA’s consultation requirement was not triggered.

These types of cases, which limit the scope of environmental statutes, are seen by some as motivation for the legislation.  Critics of the legislation assert that the bill amounts to gerrymandering in order to achieve preferred results in environmental cases.  Proponents of the split note the size and workload of the Ninth Circuit, and its historically high reversal rates by the Supreme Court.