Robin Silver, board chairman of Center for Biological Diversity, heard first-hand U.S Supreme Court oral arguments on a case affecting Arizona’s San Pedro River.
The center, an Arizona environmental group, was a party in the lawsuit argued before the high court April 17 in Washington. Silver, an emergency-room physician, watched from the gallery as lawyers sparred with the justices over the reach of the Endangered Species Act.
In simple terms, the center says the federal government hasn’t done enough to stop groundwater pumping that could threaten the San Pedro’s flow and, in turn, harm endangered species like the Huachuca water umbel, a semi-aquatic plant.
Silver, a Phoenix-area emergency-room physician, said Chief Justice John Roberts and Justice Samuel Alito appeared to oppose the center’s stance, while Justices Stephen Breyer and David Souter seemed more favorably inclined. Justice Antonin Scalia was harder to figure, Silver said.
Then there was Justice Anthony Kennedy, Sandra Day O’Connor’s swing-vote heir apparent.
“Whenever Kennedy would ask a question, everybody would shut up,” Silver said from his cell phone following the hearing.
Tapping groundwater
The case hinged on whether the U.S. Environmental Protection Agency failed to hold Arizona officials accountable to the Endangered Species Act when it authorized the state to issue water-discharge permits for new homes in the Sierra Vista area. The special permits are required by the U.S. Clean Water Act.
In tapping groundwater, new developments could reduce the San Pedro’s flow and harm endangered species dependant on the river, the center says. The Arizona Department of Environmental Quality began issuing permits in 2002, when it took over the responsibility from the U.S. Environmental Protection Agency. The center contends the EPA ignored a memorandum of understanding between the EPA and DEQ — that the state would consider endangered species when issuing the permits.
The center sued the EPA for failing to require a stricter review of the permitting process in light of the Endangered Species Act. The case went up to the 9th Circuit Court of Appeals, which ruled in favor of the center. The EPA appealed to the U.S. Supreme Court and was joined by the state of Arizona and the National Association of Homebuilders. The Defenders of Wildlife joined the Center for Biological Diversity and supplied lawyers.
Silver likened the government’s position on endangered species to tossing animals off Noah’s ark.
“Noah’s ark is not important to the government,” Silver said.
He said the 9th Circuit did not block DEQ from issuing new permits while the case was under appeal. Since the appeals court’s December 2005 decision, permits for 5,000 more homes in the Sierra Vista area have been issued, Silver said.
The high court could rule on the case in June, Silver said, citing lawyers he talked to after the hearing.
A Gannett News Service article said the ruling could have wider implications, as 45 states have started programs to issue discharge permits under authority delegated by the EPA.
The article also quoted homebuilders who said losing the case could mean construction delays and a $5,000 to $10,000 increase in the price of a new home.
If the center wins, Silver said, builders would have to find ways to mitigate any harm done by pumping groundwater. In short, they’ve have to replace what’s lost.