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Agencies running from agency discretion.


Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming predecision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such predecision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, but agency discretion aversion and the concerns it raises have gone largely unaddressed in legal scholarship. And yet the discretion aversion syndrome is primed only to expand as climate change implicates a broadening span of agency programs as having environmental impacts.

This Article is the first to comprehensively describe and assess the discretion aversion trend and to extract what it has to say not only about agencies, courts, and statutes, but also about agency discretion in general. Part I describes the origins and features of the ESA and NEPA assessment programs leading to agency discretion aversion.

Part II identifies the strategies agencies use to escape the ESA and NEPA assessment programs by disclaiming discretion. Part III probes institutional concerns for agencies, courts, and the statutes that arise from the discretion aversion syndrome, including agency gaming behavior, judicial conflicts regarding when nondiscretion exists, and compromised statutory purposes. Before turning to solutions, Part IV steps back to assess what questions the ESA and NEPA nondiscretion case law raises for the conceptualization of agency discretion writ large, identifying discretion's "negative space" as the source of tension between agencies and courts. Part V then circles back to reexamine the ESA and NEPA nondiscretion doctrines, evaluating alternative measures to deflate agencies' discretion aversion impulse while promoting the statutes' purposes. We conclude that the most effective reform will be to eliminate discretion as the litmus test for the ESA and NEPA, replacing it with criteria more responsive to the statutes' twin purposes of improving agency decisions and providing information to other political institutions and the public.

     A. The Endangered Species Act
     B. The National Environmental Policy Act
     A. Expired Discretion
     B. Dormant Discretion
     C. Nonenvironmental Discretion
     D. No Discretion
     A. The Agencies--Trade-Offs and Gaming
        1. Blatant Arbitrage
        2. Fuzzy Lines
        3. Decision Disaggregation
        4. Firewalls
     B. The Courts--Applying Clear Tests with Incoherent
     C. The Statutes--Undermined Information-Production
     A. The Temporal Dimension of Discretion
        1. When Does Agency Discretion Begin?
        2. When Does Agency Discretion End?
        3. When Is Agency Discretion Perpetual?
     B. The Spatial Dimension of Discretion
        1. Can Discretion Be Compartmentalized?
        2. Does "If Find" Discretion Matter?
     C. Institutional Discretion over Discretion
        1. Do Agencies Have Discretion to Abdicate Discretion?
        2. Must Courts Defer?
     A. Tightening--Discretion as a Toggle Switch
     B. Smoothing--Discretion as a Dial
     C. Decoupling--Discretion as the Wrong Question
        1. Proposal
        2. Virtues
        3. Objections

   The law may be said to give an agency discretion when under clear
   facts the agency may make more than one choice. If, however, on
   undisputed facts the law permits only one choice, then the agency
   is said to have no discretion. (1)

If only it were that simple.

Discretion is the root source of administrative agency power and influence and thus a ubiquitous presence in the modern administrative state. (2) Agencies wield their statutorily delegated discretion through rulemaking, adjudication, licensing, enforcement, and policy setting to choose what gets done and who wins and who loses. Discretion also pays some incidental dividends for agencies: mandamus is unavailable for agency actions that are discretionary; tort liability does not lie against agencies exercising discretionary functions or against agency officials exercising discretionary authority; judicial review is unavailable for acts entirely committed by law to agency discretion; and even acts not committed to agency discretion in that absolute sense are usually reviewable only for abuse of discretion. (3) With all these benefits flowing from the power to exercise discretion, one might reasonably assume that agencies soak discretion up like sponges and that it takes a hard squeeze for them to give back even a drop.

So why in 2013 did the U.S. Army Corps of Engineers--the agency responsible for building and maintaining much of the nation's water resources infrastructure--loudly proclaim that it possesses not a scintilla of discretion over carrying out "the responsibility to maintain Civil Works structures so that they continue to serve their congressionally authorized purposes"? (4) That is a lot of authority for an agency to squeeze out of its discretion sponge. Yet the Corps is not alone in aggressively eschewing discretion, as the Environmental Protection Agency, Navy, Bureau of Land Management, Interstate Commerce Commission, Department of Agriculture, Federal Emergency Management Agency, Bureau of Reclamation, Coast Guard, and a host of other federal agencies have also insisted they have no or limited discretion over particular actions within their jurisdiction. (5) Although some of the actions for which agencies have disavowed discretion are admittedly mundane, such as small-scale land exchanges, others lie at or near the core of vast agency regulatory domains, including issuing national flood insurance, approving mining on public lands, regulating pesticides, approving federal delegation of pollution control programs to states, operating major dam systems, and allocating irrigation water in the arid West. (6)

What is leading these and other federal agencies to run from agency discretion? One possible explanation is that the agencies are hoping to avoid the political heat that comes with the power to decide. At one time, for example, the EPA, for largely political reasons, took the position that it had no discretion to regulate greenhouse gas emissions under the Clean Air Act, a position the Supreme Court rejected--albeit by a narrow majority. (7) But shying away from hard politics is not what is behind the wave of discretion aversion that led the Corps to shed maintaining water resources infrastructure from its inventory of discretionary functions. Rather, discretion comes with plenty of process baggage in the modern administrative state. In a broad range of settings, when agencies exercise discretion, they also must jump through procedural and substantive hoops requiring them to produce a litany of studies and findings before moving forward with a final decision about how to exercise their discretion, and even then they face rounds of litigation over whether they jumped through the hoops the right way. (8) The perverse "ossification" effects of these decision-making prerequisites on agency behavior have been well documented and debated in legal scholarship. (9) What is taking on an increasingly larger, and surprising, role in this dynamic is that agencies now think twice about claiming discretion at all, even going so far in many contexts as to actively claim nondiscretion over a particular action or class of actions. (10)

A primary driver behind this form of discretion aversion has been the combined effect of two environmental laws: the Endangered Species Act (the ESA) (11) and the National Environmental Policy Act (NEPA). (12) Section 7 of the ESA requires federal agencies to consult with the Secretaries of the Departments of Interior and Commerce to ensure actions they carry out, fund, or authorize do not jeopardize the continued existence of species designated under the ESA as endangered or threatened. (13) NEPA requires federal agencies to prepare statements assessing the environmental impacts of their proposed actions. (14) Often applying to agency decisions in tandem, these two processes impose costly and time-consuming impact assessment procedures, ensnare agencies in potentially years of litigation over the adequacy of their assessments, and in practical effect can substantially alter an agency's proposed action, if not flat-out kill it. (15)

But there is a way out of the ESA and NEPA assessment requirements for agencies: pursuant to judicial and administrative interpretations, the two programs do not apply to actions over which an agency has no discretion. (16) Indeed, since the Supreme Court's 2007 decision in National Ass'n of Home Builders v. Defenders of Wildlife, in which the Court upheld an administrative policy that agency discretion over an action is necessary to trigger ESA consultation requirements, (17) agencies have been aggressively attempting to wiggle out of ESA and NEPA assessment requirements by claiming nondiscretion. (18) The Corps's declaration of non-discretion over maintaining its water infrastructure projects, for example, was made in the context of a policy statement regarding the agency's approach to ESA section 7 consultations. (19)

This phenomenon is far from a trivial niche problem of environmental law. The scope of the ESA and NEPA is immense--they capture all actions federal agencies authorize, fund, or carry out. The only thing trivial is what is not swept into that space. And as climate change pulls more and more agency programs into the realm of affecting the environment, (20) the ESA and NEPA will only grow in reach. Agencies, particularly those new to the ESA and NEPA, are likely to evaluate whether and how to take advantage of the ESA and NEPA nondiscretion exemptions.

To evaluate the scope and impact of this agency discretion aversion trend, we analyzed all reported judicial decisions in which the court ruled on an agency's ESA or NEPA nondiscretion claim. From this rapidly expanding body of case law, we identified four distinct strategies agencies use for asserting nondiscretion to avoid the ESA and NEPA. (21) One is to claim that any discretion that may have existed over a given matter has expired, which means the agency no longer has authority to take an action that would trigger the ESA and NEPA. (22) Another position is that, while the agency might hold some ongoing discretion over a matter in the background, it is proposing no action that would require exercising that discretion at the moment and thus has not triggered the ESA and NEPA. (23) The third strategy is for an agency to concede it has discretion over an action and plans to exercise it, but to describe its discretion as sharply cabined such that the agency cannot act to fulfill the purposes of the ESA and NEPA, thus purportedly rendering the assessment procedures pointless. (24) The fourth approach is for the agency to claim it has a mandatory duty to act in a prescribed manner and that ESA and NEPA assessment would be irrelevant to, or even impermissibly contrary to, fulfilling that mandate. (25) If successful in any of these arguments, agencies hope they can go about their business unbothered by the ESA and NEPA assessment programs.

To be clear, we are not proposing that agencies should overreach in their claims of discretion. If an agency's discretion over a matter is unambiguously bounded, limited, or does not exist at all, the agency should say so. But agencies should also not underclaim their discretion if merely utilized as a strategy to avoid the burdens of decision-making. The proliferation of agency non discretion claims raises a red flag in that regard. Indeed, we identified three institutional concerns arising from the rising trend of agencies running from agency discretion to avoid running into the ESA and NEPA. (26)

The first concern is that agencies will attempt to game their ESA and NEPA nondiscretion positions to have the best of all worlds: discretion where and when they want it and nondiscretion for purposes of escaping the ESA and NEPA programs. (27) Such gaming behavior puts pressure on the conventional model that agency discretion over an action falls neatly into one of three mutually exclusive buckets: (1) no authority over the action; (2) discretion over the action; or (3) mandatory duty to act a certain way with regard to the action. (28) In effect, agencies are searching for a fourth state of discretion--one that costs them nothing but gets them out of the ESA and NEPA. Of course, agency watchdogs and courts could detect when an agency explicitly takes inconsistent positions about the presence of discretion over an action for different discretion-based doctrines. But agencies might attempt to game the system more subtly, such as by subdividing actions into discretionary and nondiscretionary components separated by fuzzy lines or by hiding the true exercise of discretion behind what they portray as a nondiscretionary mandate. Our analysis of the case law finds ample evidence that agencies engage in such gaming behavior. (29)

The second concern has to do with how courts are to evaluate agency claims of nondiscretion. When an agency claims not to have discretion, the question for the court is whether the relevant statute or other authority extends more power than the agency purports to be able to exercise. (30) The agency is trying to prove a negative--lack of discretion--and the court must ask whether more can be extracted from the agency's statutory or other governing authority. That inquiry requires the court to hypothesize the positive--presence of discretion--in a context where the agency insists it has none and has structured its rules and behavior around that position. This role has proven difficult for courts to assume, as it requires the court, not the agency, to think like an agency would if attempting to maximize its claim of discretion. (31) The result has been that, notwithstanding broad judicial adoption of what on the surface appear to be clear tests for weighing agency nondiscretion claims, courts have been in turmoil over how to apply them and the outcomes defy any coherent synthesis. (32) Indeed, the issue has recently come to a boil and sharply divided judges on the Ninth Circuit. (33)

A third concern has to do with whether the mounting number of successful discretion aversion claims has begun to chip away at the underlying purposes of the ESA and NEPA. While it is true that both statutes are designed to improve agency decision-making by increasing information available to the agency, both are also designed to inform the public and other institutions about the effects of agency actions. (34) Relieving agencies of ESA and NEPA assessment procedures when they have no discretion relevant to the decision-improvement purpose arguably makes sense from the standpoint of agency decision-making; however, doing so may undesirably compromise the information-production functions of the two programs for other institutions and the public and thereby impair their decision-making. (35)

In addition to these institutional concerns, the perverse effects the discretion aversion trend is having on agencies, courts, and the statutes raise challenging questions regarding the very concept of discretion in administrative law. Although agencies and courts in the ESA and NEPA nondiscretion cases purport to treat agency discretion as a binary state--it either exists or not (36)--more questions are raised than answered by the courts' application of this simple conception of discretion. When does agency discretion begin, and when does it end for good? What is the effect of an agency having the discretion to decide whether and when to exercise discretion? What if an agency elects to limit its discretion through contract, permit terms, or other bilateral instruments? What, beyond enforcement discretion, is required before an agency can be said to have ongoing discretion over a matter? What effect does a "shall" mandate have on agency discretion if the mandate is triggered only when the agency makes discretionary findings? These and similar puzzling aspects of the ESA and NEPA nondiscretion case law reveal an untapped realm of potential discretionary power not exercised by the agency--what we call discretion's negative space--the temporal, spatial, and institutional dimensions of which confound binary conceptions of agency discretion. Ultimately, the core question boils down to which institution defines that negative space: agencies or courts.

The body of ESA and NEPA case law on agency nondiscretion claims provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, yet it and the questions and concerns it raises have gone largely unaddressed in legal scholarship. What makes these cases a dataset of particular interest is the unusual perspective agencies take of disavowing, rather than claiming, discretion. Although the sources, contours, and consequences of agency discretion have been core themes of legal scholarship for decades, (37) the ESA and NEPA discretion aversion trend has built steam while remaining below the radar screen of close scholarly assessment. In legal commentary, the trend has been picked up only through the lens of assessing its effects on the implementation of the ESA and NEPA, not its effects on how agencies manage their discretion or, more broadly, how it informs conceptions of the nature and scope of agency discretion writ large. (38) And yet the discretion aversion syndrome is primed only to expand as climate change implicates a broadening span of agency programs as having environmental impacts and thus forces more and more agencies to face the prospect of having to undergo the ESA and NEPA assessments.

This Article is the first to comprehensively piece together the ESA and NEPA discretion aversion trend to probe those questions and concerns. The discussion proceeds in five parts. Part I describes the origins and features of the ESA and NEPA assessment programs leading to agency discretion aversion. Part II identifies the strategies agencies use to escape the ESA and NEPA assessment programs by disclaiming discretion. Part III examines the institutional concerns for agencies, courts, and the statutes (and by extension, Congress) that arise from the discretion aversion syndrome. Before turning to solutions tailored to the ESA and NEPA, Part IV steps back to assess what questions the ESA and NEPA nondiscretion case law raises for the conceptualization of agency discretion writ large, identifying discretion's negative space as the source of tension between agencies and courts. With that broader context in place, Part V then reexamines the ESA and NEPA non-discretion doctrines and evaluates alternative measures to deflate agencies' discretion aversion impulse while promoting the statutes' purposes. We conclude that the most effective reform will be to eliminate discretion as the litmus test for the ESA and NEPA, replacing it with criteria more responsive to the statutes' twin purposes of improving agency decisions and providing information to other political institutions and the public.


Agency discretion is the oil that keeps the administrative state running. (39) Each year, for example, hundreds of federal, state, and local agencies exercise legislatively delegated discretion under hundreds of statutes to issue tens of thousands of permits, licenses, and other forms of permission for individuals and businesses to engage in otherwise statutorily proscribed activities. (40) On the other hand, agencies also carry out a multitude of functions over which they have no discretion, merely serving as ministerial agents of legislatures.

Because agency exercise of discretion often decides winners and losers, agencies inevitably take heat for their discretionary acts. Agencies also occasionally make mistakes in exercising discretion and could be exposed to liability for injuries caused to other parties. (41) A number of doctrines, some ages old, have developed to insulate agencies from these consequences. (42) Chief among them are mandamus, tort immunity, officer immunity, and deferential judicial review. (43) Each plays its role in the administrative state, and an agency's status under each depends on whether the agency is exercising discretion. (44)

Discretion is not invariably a good thing for agencies, however. For example, section 7 of the ESA and NEPA both apply to actions federal agencies carry out, fund, or authorize, which covers a lot of territory. (45) Although both programs include mechanisms for avoiding or truncating assessments for what are obviously no-impact or low-impact actions, (46) many federal agency actions nonetheless trigger the requirements to engage in thorough assessment of impacts to species protected under the ESA, to prepare a comprehensive assessment of environmental impacts under NEPA, or to comply with both programs. Yet both programs also have evolved so as to provide exceptions for nondiscretionary actions, the history and details of which this Part examines.

A. The Endangered Species Act

Widely regarded as the "pit bull" of environmental laws, (47) the central purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." (48) The agencies delegated to administer the ESA, the United States Fish & Wildlife Service (FWS) for the Department of the Interior and the National Marine Fisheries Service (NMFS) for the Department of Commerce, (49) have authority over several core programs aimed toward that objective:

* The Listing Programs. Known as the listing function, section 4 authorizes the agencies to identify "endangered" and "threatened" species, (50) to designate a "critical habitat," (51) and to develop a "recovery plan[]" (52) for each listed species.

* Interagency Consultations. Section 7 requires all federal agencies, using the "best scientific and commercial data available" and "in consultation with" the FWS or NMFS (depending on the species), to "insure" that actions they carry out, fund, or authorize do not "jeopardize" the continued existence of listed species or result in "adverse modification" of their critical habitat. (53)

* The Take Prohibition. Section 9 requires that all persons, including all private and public entities subject to federal jurisdiction, avoid committing "take" of listed endangered species of fish and wildlife. (54) The statute defines "take" to include "harm," (55) which the FWS and NMFS have defined to include significant modification of habitat leading to actual death or injury of protected species. (56)

* Incidental Take Authorization. Sections 7 (for federal agency direct, funding, and approval actions) (57) and 10 (for actions not subject to section 7) (58) establish the procedures and criteria for the FWS and NMFS to approve "incidental take" of listed species. (59)

Consultation under section 7 involves a multi-step process in which the "action agency" (the agency proposing the action) and the "consulting agency" (the FWS or NMFS) exchange information and reports about the impacts of the action on listed species. (60) The process, laid out in regulations the FWS and NMFS have jointly promulgated, (61) can take well over a year and can result in the consulting agency imposing conditions on the action that are, for all practical purposes, binding on the action agency. (62) Despite efforts by the FWS, NMFS, and other agencies to reduce these time and resource burdens, in 2004, the General Accounting Office (now the Government Accountability Office) found that federal officials and nonfederal parties still had extensive concerns about the consultation process. (63)

To be sure, the joint FWS and NMFS regulations governing consultations take some pressure off the cost and time associated with consulting by allowing agencies to exit the process early and with less assessment burden upon finding the action is "not likely to adversely affect" a protected species. (64) But there is another way around the section 7 quagmire: placed prominently at their beginning, the joint regulations provide that "[s]ection 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." (65) By implication, consultation requirements do not apply to actions over which there is not discretionary federal involvement or control. This "discretionary involvement or control" requirement, however, does not appear in the text or legislative history of the ESA, nor did it appear in the proposed consultation regulations the FWS and NMFS published in 1983, which applied the consultation process to all instances of federal "involvement or control." (66) Rather, the qualification that the action agency must have discretion with respect to its "involvement and control" for section 7 consultation to apply appeared for the first time, out of the blue, in the 1986 final promulgated regulations, without a word of explanation for the change. (67)

Nevertheless, in 2007 the Supreme Court, in a 5-4 decision, upheld the regulation and the agencies' implementation in the Home Builders case, ruling that "this interpretation is reasonable in light of the statute's text and the overall statutory scheme, and ... it is therefore entitled to deference under Chevron." (68) The majority's rationale emphasized how futile it would be to make agencies with no discretion nonetheless complete the ESA consultation process: "The regulation's focus on 'discretionary' actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to 'insure' that such action will not jeopardize endangered species." (69)

The lower courts had long been on board with that reasoning. For example, the Ninth Circuit has never questioned the validity of the regulatory exemption and has over time crafted a test requiring that the agency engage in consultation only if its statutory authority gives it "any discretion to act in a manner beneficial to a protected species or its habitat." (70) Under this test, it need not be shown that the agency must act for the benefit of the species, only that it could in some degree do so. (71) Thus, "[t]he agency lacks discretion only if another legal obligation makes it impossible for the agency to exercise discretion for the protected species' benefit." (72) The Supreme Court in Home Builders adopted basically the same test, holding that the consultation duty "covers only discretionary agency actions and does not attach to actions ... that an agency is required by statute to undertake once certain specified triggering events have occurred." (73) In short, lack of discretion is an agency's ticket out of ESA section 7 consultation.

B. The National Environmental Policy Act

When Congress enacted NEPA in 1969, it intended the legislation to be applied broadly. (74) NEPA's text forces agencies to consider the environmental impacts of all "major Federal actions significantly affecting the quality of the human environment," (75) which encompasses a wide universe of federal agency activity. And not only does NEPA cast a wide shadow, it imposes sizable reporting and analysis duties on agency actions that fall within its ambit. Agencies often must prepare an environmental assessment--which can be dozens of pages long (76)--to decide whether to generate a full-blown environmental impact statement (EIS)--which often number hundreds of pages (77)--all while navigating a complex maze of agency regulations promulgated by the White House Council on Environmental Quality (CEQ) (78) and subjecting each document to a lengthy period of public comment. (79) In short, even accepting the wisdom and efficacy of NEPA, the statute undoubtedly demands much of the many federal agencies charged with adhering to it.

So, if NEPA is both broad in its applicability and bulky in its procedural mandates, it would seem to follow that the statute leaves agencies little wiggle room when it comes to compliance. However, the courts have complicated matters considerably by creating an implied nondiscretion exemption. Instead of taking NEPA's text at its face and simply requiring agencies to engage in NEPA's procedural process for all "major Federal actions significantly affecting the quality of the human environment," (80) courts allow agencies to argue that certain actions are "nondiscretionary" and therefore outside the scope of NEPA. (81) To be sure, there are instances where Congress unambiguously intended certain classes of agency actions or specific agency projects to be exempt from NEPA, even if they can be appropriately classified as "major" and "significantly affecting the quality of the human environment." (82) But the implied nondiscretion exemption is entirely a product of judicial and agency craftsmanship; nothing in NEPA's text explicitly allows agencies to avoid it when their action is nondiscretionary. (83)

The NEPA implied exemption doctrine can be traced back forty years to Flint Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma, in which the Supreme Court considered an appeal by the U.S. Department of Housing and Urban Development (HUD) from a Tenth Circuit decision involving the the Interstate Land Sales Full Disclosure Act (Disclosure Act). (84) The Tenth Circuit affirmed an injunction against HUD that disallowed the approval of several disclosure statements from housing developers under the Disclosure Act until the agency prepared an EIS. (85) On its appeal to the Supreme Court, the government provided two legal theories as to why HUD had been exempted from producing an EIS due to the requirements of the Disclosure Act. (86) Both of the government's distinct arguments were intended to limit NEPA's applicability and relied on the ability of a statute to create an implied exemption to NEPA. (87)

The government based one argument on compliance and argued that it was impossible to comply with both the Disclosure Act's requirement to approve disclosure statements within thirty days of issuance and NEPA's requirement to produce an EIS before undertaking that same action. (88) Therefore, if HUD's approval of disclosure statements were to fall within the scope of NEPA as a "major federal action significantly affecting the quality of the human environment," (89) then the agency would be forced to run afoul of either the Disclosure Act (because creating an EIS inevitably takes longer than thirty days) or NEPA (by declining to generate an EIS). (90)

The government's other argument was similarly grounded in the idea of an implied exemption to NEPA, but it focused on characterizing the inherent nature of the agency action as nondiscretionary instead of the impossibility of compliance. (91) This argument asked the Court to examine the agency action in a vacuum, looking only to NEPA and not to any other statutory obligations. (92) The government asked the Court to decide that NEPA could be inapplicable when an agency "by statute, has no power to take environmental consequences into account in deciding" whether to undertake an action. (93) Put simply, the government argued that HUD was not subject to NEPA's requirements, because HUD could not exercise any discretion in discharging its Disclosure Act duties, as the statute's language compelled the agency to approve disclosure statements within thirty days. (94)

To support this argument, the government claimed that "NEPA is concerned only with introducing environmental considerations into the decision-making processes of agencies that have the ability to react to environmental consequences when taking action." (95) Put otherwise, if an agency's course was predetermined, then no measure of harmful environmental impacts could alter the agency's course of action. The respondents countered by noting:
   [E]ven if the agency taking action is itself powerless to protect
   the environment, preparation and circulation of an impact statement
   serves the valuable function of bringing the environmental
   consequences of federal actions to the attention of those who are
   empowered to do something about them--other federal agencies,
   Congress, state agencies, or even private parties. (96)

The two arguments thus juxtaposed NEPA's twin purposes of improving agency decision-making and providing information about agency actions to the public.

In the end, Justice Marshall's opinion for the Court accepted the government's impossibility of compliance argument, that "where a clear and unavoidable conflict in statutory authority exists, NEPA must give way," finding that this was the case under HUD's statute. (97) Because the Court resolved the case on this basis, it expressly reserved the question of whether an agency undertaking a nondiscretionary action must comply with NEPA. (98) While at least one prominent commentator has portrayed this outcome as a victory for environmentalists, (99) the dominant view has been that Flint Ridge ushered in a long line of Supreme Court cases antagonistic to NEPA's environmental protection goals. (100) In either case, since Flint Ridge, agencies have continued to advance the nondiscretion implied exemption position. (101) While the government at first experienced some pushback from a few courts, (102) over time the circuits almost uniformly coalesced around the Department of Justice's interpretation that NEPA does not apply to nondiscretionary agency actions. As a result, most (if not all) circuits now recognize an implied exemption from NEPA's requirements when an agency can successfully portray its action as nondiscretionary. (103)


The ESA and NEPA both require at a minimum that the agency carry out, fund, or authorize an action for there to be any assessment requirement in play. (104) In other words, some identifiable agency action must exist and the agency must have some connection to the action before the question of whether the agency also has discretion becomes relevant. The nondiscretion exemptions reflect the additional requirement that there be some role for agency discretion to play in the action. Saving for later the question of whether the ESA and NEPA nondiscretion exemptions are reasonable interpretations of the statutes and prudent policy, as the courts, FWS, and NMFS have determined, (105) in this Part, we examine the different approaches agencies have used to fit their way into the exemptions. To be sure, we are not suggesting that agencies should overclaim the scope of their discretion or unnecessarily engage in ESA and NEPA assessments. But agencies underclaiming the scope of their discretion to avoid the ESA and NEPA should be a concern, and the case law reveals a growing propensity among many agencies for doing so. We have identified four distinct agency discretion avoidance strategies.

A. Expired Discretion

Agency discretion often is exercised in one-off contexts, such as in negotiating conditions of regulatory permits, property transfers, or funding agreements. (106) The exercise of discretion in such contexts is concentrated in the discrete moment of the action, at which time the ESA and NEPA apply. Therefore, discretionary authority arguably terminates once the action is completed, and thus the time for ESA and NEPA compliance ends. As the Ninth Circuit has explained, "there is no 'ongoing agency action' where the agency has acted earlier but specifically did not retain authority," (107) and thus, for example, "[w]ere private activity is proceeding pursuant to a vested right or to a previously issued license, an agency has no duty to consult ... if it takes no further affirmative action regarding the activity." (108) In what we call the "expired discretion" approach to avoiding the ESA and NEPA, agencies argue that their position fits this scenario because they once could, but no longer can, take affirmative discretionary action regarding the activity in question. What is done is done.

The problem for agencies arises when conditions change after the agency has in theory terminated its discretionary contacts with the action. For example, a new species listing might put a previously permitted activity in the path of the species' habitat. Or, a previously "minor" federal project may significantly expand in scope, becoming a "major" federal action subject to NEPA. Indeed, both the ESA and NEPA programs contemplate changed circumstances and can require reassessment of the action, but not after discretion has expired. The ESA consultation regulations require "reinitiation" only if "discretionary Federal involvement or control over the action has been retained or is authorized by law," (109) and the NEPA regulations require a "supplemental" EIS only for proposed actions. (110) Hence the expiration of agency discretion shuts the door to further ESA and NEPA entanglements for the action, but the possibility that an agency may have somehow retained discretion opens the door to questioning whether the agency has truly escaped the assessment programs.

Although some of the expired discretion claims rest on indisputable termination of all agency contacts with the action, (111) the success of expired discretion claims has more often hinged on the terms of the instrument the agency approved or entered into under its statutory authority. For example, in the earliest example of the expired discretion approach, Sierra Club v. Babbitt, the plaintiffs argued that the Bureau of Land Management (BLM) should have conducted ESA consultation and NEPA assessment with regard to effects from construction of a logging road across federal land pursuant to a previously issued right-of-way agreement. (112) The BLM argued, and the majority of the Ninth Circuit panel agreed, that the agreement created a permanent vested right and contained only three conditions triggering BLM authority to enforce the agreement--directness of route, interference with landowner facilities, and excessive erosion--none of which was relevant to the protection of species or the environment. (113) Thus, the court concluded, BLM had no ongoing discretion and, even if one of the conditions were violated, could not withdraw or modify the road approval for the benefit of species or the environment. (114)

Sierra Club v. Babbitt holds a particularly notable place in the nondiscretion jurisprudence because of the court's nearly indistinguishable treatment of the separate ESA and NEPA questions. After disposing of the ESA claim based on its interpretation of the agreement, the court opined that "[t]o a large extent, our decision concerning [the ESA claim] dictates the resolution of the NEPA claim ... [because] [b]oth of the statutes' procedural requirements are triggered by a discretionary federal action." (115) Though the court acknowledged a subtle difference in the two doctrines, noting that "[i]f anything, case law is more forceful in excusing nondiscretionary agency action or agency 'inaction' from the operation of NEPA," (116) it nonetheless treated them as one singular legal theory, as opposed to two distinct doctrines rooted in distinct justifications and statutory schemes. The result has been to instill cross-statute fungibility of the varying discretion doctrines across the ESA and NEPA, as well as other federal laws imposing similar discretion-based impact assessment triggers. (117)

Of course, whether an agency retains discretion to take action under its governing instrument depends on how one interprets the instrument and the agency's statutory authority. In a dissenting opinion in Sierra Club u. Babbitt, for example, Judge Pregerson observed that an "environmental stipulation" in the agreement authorized the BLM to halt construction of the roadway if it would violate any environmental laws. (118) The agency construed this provision as not providing any further discretion over the road than already provided through the three enforcement conditions. (119) Suggesting that the court not bind itself to the agency's own interpretation of its scope of discretion, the dissent argued that "[t]he authority to review the project pursuant to the contract or stop it until the conditions of the environmental stipulation are met plainly constitutes 'discretion,' albeit limited." (120)

The focus on contract interpretation in Sierra Club v. Babbitt suggests the importance of drafting of agency contracts, permits, and other instruments to define the scope of any retained agency discretion or to make clear there is none. Indeed, the expired discretion approach could lead to the perverse effect of agencies actively omitting any hint of ongoing discretion from their agreements and approvals. For example, in Environmental Protection Information Center v. Simpson Timber Co., the plaintiff argued that the FWS must consult under the ESA regarding a section 10 incidental take permit the agency had issued if subsequently listed species could be affected by the permitted activities. (121) The Ninth Circuit agreed with the agency that, once the FWS issued the permit, no provision retained agency discretion to alter the terms to impose new requirements to protect subsequently listed species. (122) In this sense, the agency action was completed once the permit issued and thus there was no ongoing agency action over which to exercise discretion.

Yet, as in Sierra Club v. Babbitt, (123) there was room for a different interpretation. A dissenting opinion in Simpson Timber objected that the ESA regulation "does not require the parties to anticipate the specific purpose for which discretion may be exercised in order for there to be sufficient discretionary control that it can benefit a newly listed species." (124) The dissent argued there were multiple sources of discretion authorizing the FWS to reconsider the permit. (125) Specifically, a regulatory phrase written into the permit "reserve[d] the right to amend any permit for just cause at any time during its term," (126) and a permit implementation agreement stated that nothing in the permit limited the government's authority or responsibility to fulfill its responsibilities under the ESA. (127) The dissent thus concluded that "[t]hese sources of discretion, together with the promises made by Simpson in its HCP, provide sufficient remedial authority for [the] FWS to implement measures that inure to the benefit of the [species]," thereby satisfying the condition of retained federal discretion that triggers the FWS's duty to reinitiate consultation. (128) Sierra Club v. Babbitt and Simpson Timber thus could easily have come out the other way, suggesting that even the slimmest reed of retained discretion in a permit or contract could derail an expired discretion claim, depending on how a court interprets the language.

In Sierra Club v. Babbitt and Simpson Timber, agency discretion was held to have expired immediately once the agency concluded the instrument. (129) But agencies sometimes structure their regulatory permitting processes in such a way as to ratchet down the scope of discretion as a particular project moves through the approval process, in effect expiring chunks of discretion in stages. (130) A classic example is Hammond v. Norton, in which plaintiffs alleged that the BLM violated NEPA when it failed to conduct a supplemental EIS for a pipeline project across public land managed by the BLM. (131) The BLM conducted an EIS for what was known as the Williams pipeline project and granted the pipeline the necessary right-of-way across BLM land, which included imposing environmental protection conditions. (132) From that point, the BLM's only additional discretion over the project was to approve a plan of development incorporating, among other things, the environmental protection measures imposed in the right-of-way, and then to issue a notice to proceed when the agency was satisfied the project would fully comply with the plan of development. (133) Before the plan of development was approved, however, a separate Holly pipeline project announced plans to expand capacity to the origination point of the Williams pipeline, which could have boosted the amount of oil the Williams pipeline would transport. (134) The plaintiffs argued that this required the BLM to prepare a supplemental EIS on the Williams pipeline to account for the Holly pipeline's environmental impacts. (135) Had the Holly pipeline project been proposed prior to the approval of the right of way for the Williams pipeline, the BLM presumably could have taken its effects into account when designing conditions for the Williams pipeline. (136) But once the right-of-way was issued, the BLM's discretion to do so expired. (137) As the court explained, "BLM's discretion now that the [right-of-way] has been approved ... is limited to determining whether the proposed [plan of development] adequately embodies the environmental stipulations set forth in the [record of decision], and whether Williams is complying adequately with those conditions, so that the [notice to proceed] may issue." (138) In other words, although plan and notice approvals are not "purely ministerial" acts, (139) they do not trigger the kind of "discretion that might usefully be informed by further environmental review." (140)

B. Dormant Discretion

Unlike the expired discretion claim, in some cases an agency cannot plausibly deny that it could exercise discretion over a matter that would allow further affirmative action regarding the activity. (141) In what we call the "dormant discretion" category, an agency in this predicament argues that, despite possessing discretion to make a particular decision, it is proposing no affirmative exercise of it at the time and thus cannot be dragged into the ESA and NEPA as if it were. (142) The dormant discretion claim resonates with the simple reality that agencies cannot be expected to be exercising all of their potential discretion all of the time and thus should be subject to the ESA and NEPA only when they are. (143) For example, when the EPA acted to regulate particulate emissions from a power plant to control regional haze, it was not required to consult under the ESA regarding other pollutants it possibly had discretion to also regulate. (144) As the court explained,
   [T]he possibility that the EPA would have discretion--in some
   other regulatory proceeding--to directly regulate mercury and
   selenium emissions at the Plant did not impose a duty to consult
   under the ESA before taking the only action under consideration
   at the time. Life is short. The EPA can, and by necessity must,
   proceed step by step. (145)

But the fact that the agency is not attempting to exercise discretion at a particular moment has proven unpersuasive in cases in which either the regulatory contacts never functionally expire or the agency's discretion appears to be generally "on call" and available for the agency to exercise at will. (146) An example of the first problem is Washington Toxics Coalition v. EPA, in which the plaintiffs argued that the EPA should have consulted under the ESA over continued registration of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) if the pesticides affected listed species. (147) The EPA argued that FIFRA alone governed rescission of pesticide active ingredient registrations; thus, once registered (at which time ESA consultation would take place), no subsequent action triggered the ESA consultation requirements. (148) The court disagreed, finding that the EPA retained continual discretion to alter the registration of pesticides for reasons that include environmental concerns and thus must consult under the ESA if it turns out that a registered pesticide is affecting a listed species. (149) Indeed, the court found the EPA's argument "remarkable" and flatly rejected the EPA's reliance on the expired discretion cases of Sierra Club v. Babbitt and Simpson Timber. (150) As the court reasoned, "[t]he principle enunciated in those cases does not apply here ... because here [the] EPA retains ongoing discretion to register pesticides, alter pesticide registrations, and cancel pesticide registrations." (151) In short, some forms of agency discretion never go away, and thus neither does the ESA or NEPA. (152)

In the second problem for dormant discretion claims, agencies must be careful when they call on allegedly dormant discretion on a regular basis, particularly if done through a formal procedure for deciding whether to exercise discretion. The more structured and hands-on this process becomes, the more the agency risks being deemed to have crossed the line from possessing to exercising ongoing discretion. For example, in Karuk Tribe of California v. U.S. Forest Service, a split en banc panel of the Ninth Circuit rejected the Forest Service's position that its review of a mining company's notice of intent to conduct mining operations on public land did not involve discretionary control that could inure to the benefit of species listed under the ESA. (153) The Forest Service argued that the mining companies had a statutory right to enter public lands to conduct mining activities and that the agency's review of a company's notice of intent did not include assessment of impacts to species. (154) In the Forest Service's view, all the agency did was receive and analyze the information about the intended mining operation. (155) The Ninth Circuit observed, however, that the Forest Service's regulations allow the agency to take further action on a notice of intent by requiring a company to submit a more detailed "plan of operations," which, according to agency regulations, could have included species protection requirements. (156) Indeed, the agency's regulations pronounced broad criteria governing the decision whether to require a plan of operations, including environmental impact criteria, and the agency had done just that to several notices of intent involved in the litigation and in those cases explicitly identified species impacts as the grounds for requiring a plan of operations. (157) Piecing together the agency's regulations and practices, the Ninth Circuit concluded that "the Forest Service can exercise its discretion to benefit a listed species by approving or disapproving [notices of intent] based on whether the proposed mining activities satisfy particular habitat protection criteria." (158) In other words, exercising discretion to decide whether to exercise more discretion is still exercising discretion.

C. Nonenvironmental Discretion

In what we call the "nonenvironmental discretion" claim category, the agency concedes it possesses ongoing discretion over an action and is affirmatively engaged in exercising it--thus eliminating the expired discretion and dormant discretion claims--but contends that its discretion is strictly limited such that species and environmental concerns are outside its scope, making ESA and NEPA assessment pointless. (159) In other words, the agency argues that it is not within whatever discretion it is purporting to exercise over the action to consider factors relevant to the ESA and NEPA. (160) The Ninth Circuit has embraced this approach with a caveat that agency discretion is necessary but not sufficient to impose ESA consultation on an agency action--for consultation to be triggered, the agency must also be capable of exercising its discretion for the benefit of a listed species. (161) Similarly, courts have explained that as a general principle NEPA assessments are not required when "agencies have no discretion that might usefully be informed by further environmental review." (162)

A classic example involves the Animal and Plant Health Inspection Service (APHIS) and its removal of genetically modified "Roundup Ready" alfalfa (RRA) from its list of regulated plants under the Plant Protection Act (PPA). (163) In Center for Food Safety v. Vilsack, plaintiffs argued that the agency should have consulted under the ESA to determine the effects on listed species of alfalfa farmers' increased use of the active ingredient in Roundup, glyphosate. (164) APHIS did not dispute those possible effects, but argued, and the court agreed, that regardless of the causal effects of its RRA delisting decision on farmers' glyphosate use, its statutory authority extends only to the determination whether a crop itself is a plant pest and thus provided no authority to determine where or how glyphosate can be applied. (165) Once the agency determined RRA posed no such plant pest risks, that was the limit of the agency's discretion as far as the court was concerned and thus no duty to consult regarding listed species was triggered. (166)

Although the PPA erected a formidable barrier between APHIS's plant pest determination and any discretion to exercise for the benefit of species, the divide is less clear when courts appear willing to probe harder to identify a source of discretion to trigger the ESA or NEPA. (167) A key principle in this respect is that the absence of explicit environmental terms associated with the grant of discretion does not cinch the nonenvironmental discretion claim, or any of the other forms of nondiscretion claim for that matter. (168) As one court put it, triggering the ESA or NEPA "does not ... require the statute at issue to use environmental terminology for agency discretion to be found: there is no environmental-words test." (169) Moreover, "an environmental purpose need not be expressed in the enabling statute." (170) Hence, unless the statute shuts the door as sharply as the PPA did to APHIS, the question is what the agency could do, not what it must do, to take species and the environment into consideration. (171) The approach, however, can lead courts down convoluted paths of reasoning.

In Turtle Island Restoration Network v. National Marine Fisheries Service, for example, the Ninth Circuit held that the NMFS had to consult under the ESA when issuing fishing permits under the High Seas Fishing Compliance Act. (172) The statutory permitting provision required the agency to "establish such conditions and restrictions on each permit ... as are necessary and appropriate to carry out the obligations of the United States" under an international treaty intended to address the tactic of reflagging a fishing vessel to avoid the species protection measures contained in bilateral agreements. (173) Because the permitting provision described the conditions as "including but not limited to" the markings of the boat and reporting requirements--conditions hardly conjuring up images of species and the environment--the agency argued, and the district court agreed, that it had no discretion to exercise on behalf of species. (174) But the Ninth Circuit interpreted the "but not limited to" caveat liberally and observed that the statute included within the scope of "obligations of the United States" all "international conservation measures," which the statute defined to mean "measures to conserve or manage one or more species of living marine resources." (175) Leveraging that combination of provisions, the court pointed to the sea turtle conservation terms of yet another convention to which the United States was party--which made it an "obligation[] of the United States"--to arrive at the sum effect that the NMFS had ongoing discretion to condition fishing permits based on impacts to turtle species. (176) The NMFS had never purported to hold or exercise such discretion when issuing fishing permits, but the finding that the agency could do so was all the court needed to require the agency to consult under the ESA. (177)

D. No Discretion

The ultimate and most frequently employed strategy for arguing lack of discretion for purposes of the ESA and NEPA is what we aptly call the "no discretion" claim, in which the agency contends that its action is "purely ministerial" in that it is directed by a statutory mandate--a "shall" or a "shall not"--leaving no room for agency choice in the matter. (178) For example, when a statute required the Navy to conduct missile testing at a particular base, the Navy was not required to consult under the ESA to evaluate the effects of accidental missile explosions on threatened salmon "because the Navy lacks the discretion to cease [missile] operations at [the base] for the protection of the threatened species." (179) In other cases, however, the analysis is not so cut-and-dry.

Home Builders is the leading no discretion claim case. The statutory mandate in question was the Clean Water Act (CWA) provision for transferring permit issuance and administration authority from the EPA to a state. (180) The provision enumerates nine factors of "adequate authority" a state must demonstrate its state program satisfies. (181) If the EPA determines that adequate authority exists, the CWA provides that the EPA "shall approve" the program for transfer. (182) Defenders of Wildlife argued that the transfer action was subject to ESA consultation given that it was necessary to authorize state administration of the CWA permit program. (183) In a 5-4 split decision, however, the majority of the Court disagreed. (184)

As discussed above, the Home Builders majority endorsed the joint FWS and NMFS regulation creating the "discretionary Federal involvement or control" requirement as a reasonable interpretation of the ESA--describing it as exempting from consultation "actions ... that an agency is required by statute to undertake once certain specified triggering events have occurred." (185) The next question was whether the CWA provision for transfer of permitting authority to the states fit that description. (186) The majority determined it did because the provision specified enumerated standards that left the EPA, in the majority's view, no discretion "to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application." (187) Rather, the majority concluded, "[w]hile the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out [the] enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list." (188) Hence, once the EPA finds that a state has met the enumerated criteria, it is duty-bound to transfer permitting authority to the state. (189) The reasoning behind this "if find/then shall" exemption appears to be that agency findings made on the "if find" side of the process are not actions in the ESA sense. The findings then trigger the action taken on the "then shall" side of the process, but because the action follows from a "shall" command triggered by the findings it cannot be considered discretionary. After Home Builders, any agency that can identify such an "if find/then shall" trigger in its statutory program has found an opportunity to insulate its "if find" determinations and the "then shall" action they trigger from the burdens of the ESA and NEPA. (190)

Indeed, courts had embraced this form of the no discretion claim well before Home Builders. (191) A prototypical NEPA example comes from the D.C. Circuit in Citizens Against Rails-to-Trails v. Surface Transportation Board, in which the court faced a challenge to the Surface Transportation Board's (STB) approval of a plan to convert a railway into a trail under the National Trails System Act (Trails Act). (192) Specifically, the plaintiffs argued that the STB failed to conduct the requisite NEPA analysis before approving the conversion. (193) The STB countered that it had no discretion in the approval process because once the agency determined the railway was eligible for conversion under the Trails Act, it had no choice but to approve the conversion. (194) In siding with the STB, the D.C. Circuit conducted a thorough analysis of STB's discretion under the Trails Act. (195) Though it did not view it as an automatic nondiscretion "trigger," the D.C. Circuit noted that under the Trails Act, the STB "shall" approve conversions that meet certain conditions. (196) And though the plaintiffs tried to couch those conditions as discretionary, the court disagreed, noting that the six conditions "relate either to the statutory conditions for sponsorship [of the trail] or to decisions that Congress has determined shall be made by the railroad and trail sponsor in their voluntary agreement." (197) Thus, the D.C. Circuit deemed both the front end Trails Act "if find" analysis and the final Trails Act "then shall" decision "largely ministerial" and, therefore, it did not imbue the STB with sufficient discretion to implicate NEPA. (198) Similar "if find/then shall" statutory triggers have supported agency no discretion claims in a variety of ESA and NEPA contexts. (199)

Agency actions have failed to fit the no discretion category, however, when the "if find/then shall" obstacle to exercising discretion appears overplayed. A glaring example involves the Federal Emergency Management Agency (FEMA), which has argued several times that it has no discretion in its administration of the National Flood Insurance Program (NFIP) because once an area meets flood insurance eligibility criteria, the statute requires the agency to make flood insurance available. (200) FEMA had already lost this argument twice before Home Builders, (201) but the agency took another shot after the Court's ringing endorsement of the "if find/ then shall" style of no discretion claim. While on the surface the agency's position parrots the Home Builders scenario, the difference is that FEMA exercised its statutory discretion to design the NFIP eligibility criteria by regulation and enjoyed considerable latitude in how to craft them, (202) whereas in Home Builders the statute established the "if find" criteria that triggers the "then shall" mandate. (203) As the courts before it, the Eleventh Circuit saw through FEMA's no discretion claim in the most recent case, observing that "although FEMA is required to issue flood insurance to localities that satisfy certain criteria, FEMA itself is charged with developing those criteria and enjoys broad discretion in so doing." (204) FEMA could "tailor[] the eligibility criteria that it develops to prevent jeopardy to listed species" and thus must consult regarding the development of the criteria. (205) Nevertheless, in other cases courts have found that agencies can impose an "if find/then shall" trigger on themselves by promulgating tightly worded regulatory approval criteria implementing more broadly worded statutory criteria. (206)

In some cases, the no discretion strategy does not depend on an "if find/then shall" trigger provision; rather, the agency argues that it is hemmed in by a statutory mandate or other constraint that gives it no choice over the action. (207) However, although a statutory "shall" mandates agency action even when standing alone with no "if find" trigger, it does not necessarily limit the agency's discretion to shape the action with species and the environment in mind. As with the nonenvironmental discretion claim, (208) courts have questioned what the agency could do without exceeding its authority, not what it must do to fulfill its authority. (209) For example, in RESTORE: The North Woods v. United States Department of Agriculture, the court rejected the U.S. Department of Agriculture's (USDA) argument that the agency's sale of fifty-seven acres of land to a ski resort was nondiscretionary and therefore outside the scope of NEPA. (210) Though the court observed that the Sugarbush Land Exchange Act (SLEA) limited the agency's discretion in the land exchange, it found that the agency did "not lack all discretion in the process, its actions [were] not purely ministerial, nor [would] compliance with NEPA be an empty formality." (211) While the SLEA stated that the USDA "shall ... convey all right, title, and interest of the United States in and to the land," the SLEA nonetheless "did not invade the [USDA's] discretion to impose terms and conditions upon the exchange ... [or] to consider whether the lands to be acquired ... will be 'acceptable' in light of any environmental consequences identified by a NEPA review." (212) The court thus looked behind the statute's "shall" mandate to uncloak discretion resting generally within the agency's statutory authority. (213)

Similarly, courts have rejected agency interpretations of contracts as imposing "shall" duties obviating ESA and NEPA compliance when there is so much as a sliver of an argument that the agency has ongoing room to exercise choice on behalf of species or the environment. (214) Recently, for example, in Natural Resources Defense Council v. Jewell, the Ninth Circuit rejected the Bureau of Reclamation's position that it could not renegotiate terms on renewal of long-term water service contracts for diversions from the Central Valley Project and thus did not need to conduct ESA consultation when renewing the contracts. (215) The district court had applied what it described as the "federal common law" of federal contract interpretation and held that the express terms of the contracts prevented the agency from reducing diversion volumes on renewal. (216) Therefore, the agency had no discretion to exercise on behalf of an endangered fish in the river system, the delta smelt. (217) The Ninth Circuit initially affirmed, (218) but reversed en banc on the basis that nothing in the original contracts required the agency to renew them at all even under the same terms and, more to the point, the contracts constrained renegotiation of only the quantities and allocations of water. (219) Hence, "the Bureau could benefit the delta smelt by renegotiating the Settlement Contracts' terms with regard to, inter alia, their pricing scheme or the timing of water distribution." (220) Using that kind of "could do" interpretation of the contracts, the en banc court ruled there was sufficient discretion to trigger ESA consultation. (221)

Agencies also have argued that they lack all discretion, not because of a discrete "shall" or "shall not" in a statute or other authority, but rather because a confluence of authorities mandating and constraining agency action aggregates into the equivalent of a nondiscretionary regime. (222) Here as well, however, the distinction courts have drawn is between what could be and what must be. For example, in National Wildlife Federation v. National Marine Fisheries Service, federal agencies overseeing dams and other facilities in the Federal Columbia River Power System argued that a "reference operation" designed to balance a plethora of competing statutory mandates was, for all practical purposes, a nondiscretionary baseline not subject to ESA consultation. (223) However, the Ninth Circuit interpreted the mandates as specifying broad goals, such as flood control and power generation, without specifying exact levels. (224) Hence, "while the goals themselves may be mandatory, the agencies retain considerable discretion in choosing what specific actions to take in order to implement them" and thus could act on behalf of species. (225) By contrast, in Defenders of Wildlife v. Norton, because a combination of "a Supreme Court injunction, an international treaty, federal statutes, and contracts between the government and water users ... account for every acre foot of lower Colorado River water," a district court found that the Bureau of Reclamation had no discretion to release more water from federal reservoirs into Mexico for the benefit of endangered species in the Gulf of California and thus was not required to consult under the ESA regarding effects on those species. (226)


The case law reviewed in Part II reveals some rather inventive thinking by agencies in their quest to escape the ESA and NEPA. Agencies have prevailed in some cases (227) and failed spectacularly in others. (228) But there is more at stake than agencies' win-loss records. Taken as a whole, the rise of agency discretion aversion directed at avoiding the ESA and NEPA raises concerns about the institutional integrity of agency behavior, the capacity of courts to sort through creative agency nondiscretion claims, and the effects on the ability of agencies and courts to fulfill the purposes of the ESA and NEPA.

A. The Agencies--Trade-Offs and Gaming

One remarkable feature of the ESA and NEPA nondiscretion cases is the myopic focus of the agencies and the courts on the presence or absence of discretion purely in connection with the ESA and NEPA. The written judicial opinions suggest the agencies and the courts give no attention to the broader consequences of an agency prevailing on its nondiscretion claim. But those consequences could be very real and, in some cases, severe.

To begin, prevailing on a nondiscretion claim means the agency must be comfortable with having no or limited discretion. In the expired discretion context, therefore, the agency must cut all ties with the action once the discretionary event--for example, issuance of the regulatory permit or execution of a contract--is completed. (229) To be sure, retaining the background prosecutorial discretion to enforce against violations of a permit or breach of a contract has never been held to constitute the kind of ongoing discretion relevant to the discretion doctrines system, and that may be all the agency desires in the way of its future relationship with the permit or contract. But retaining any more formal relationship embodied in the permit or contract, even a generic reopener clause, risks being found to have retained discretion. Similarly, dormant discretion claims work best when the agency assumes essentially an inert position with respect to the potential exercise of discretion. (230) Registration procedures and notice of intent review requirements thus undercut the dormant discretion claim. Nonenvironmental discretion claims likewise require the agency to stay unambiguously on the nonenvironmental side of the discretion divide. (231) And the full-on no discretion claim requires the agency to behave in a purely ministerial manner. (232)

But the effect of prevailing on any form of nondiscretion claim goes beyond loss of power to decide. Disavowing discretion for purposes of the ESA and NEPA means the agency might have to accept the consequences of throwing the switch to "no discretion." After all, some beneficial doctrines for agencies are based on the presence or absence of discretion--mandamus, tort immunity, officer immunity, and deferential judicial review. (233) In the "if find/ then shall" no discretion claim context the agency would be subject to mandamus if it makes the trigger findings but fails to carry out the mandated action, and its reasons for not following through would not be entitled to deferential judicial review. Agency and officer immunities also would disappear. Similarly, if an agency prevailing on a nonenvironmental discretion claim were later to attempt to impose environmental conditions, it would be subject to an ultra vires mandamus challenge and receive no judicial deference regarding its action.

In some contexts, agencies may be perfectly comfortable accepting these trade-offs. Consider an agency issuing a permit to construct a home near the habitat of an endangered species. Issuing the permit may require modestly burdensome ESA and NEPA assessments that lead to a few conditions in the permit, such as avoiding construction in a specified area. Once the home is built, however, the agency has little at stake besides ensuring the conditions are enforced, and the other discretion doctrines have no continuing relevance. In that context, pursuing an expired discretion claim would only be beneficial for the agency, as it could cut all ties with the ESA and NEPA. With careful drafting, including omitting broad reopener clauses to leave only basic enforcement of the terms of the permit as a prosecutorial contingency, the agency could safely put this strategy into action and stand behind the precedent laid down in Sierra Club v. Babbitt and Simpson Timber.

As the cases covered in Part II reveal, however, in many contexts agencies do not seem to really mean what they say when advancing a nondiscretion claim to avoid the ESA and NEPA. To put it bluntly, they wish only to avoid the ESA and NEPA and face none of the "bad" consequences of disclaiming discretion. As the cases illustrate, each of the four nondiscretion claim types agencies use to avoid the ESA and NEPA contains the seeds of potential gaming designed to retain discretion and its benefits by shifting or hiding its whereabouts in the agency's overall program. Agencies may engage in such gaming simply to retain power over the action in some degree, or more deliberately to claim the advantages of the benefits of discretion when they are convenient. Although such gaming is not evident in every case that tests an agency's nondiscretion exemption claim, in this section we identify four strategies agencies have used, separately or in combination, to attempt to buffer the effects of successfully claiming nondiscretion to deflect the ESA and NEPA.
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Title Annotation:Abstract into III. Institutional Symptoms of Agency Discretion Aversion A. The Agencies - Trade-Offs and Gaming, p. 97-140
Author:Ruhl, J.B.; Robisch, Kyle
Publication:William and Mary Law Review
Date:Oct 1, 2016
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