U.S. Supreme Court blocks expansion of Endangered Species Act

5-4 decision means potential project planning delays eliminated

News ARTBA June 26, 2007
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The U.S. Supreme Court overturned a lower court ruling June 25 that would have injected another layer of bureaucracy and delay into the transportation planning process. The 5-4 decision prevents the Endangered Species Act (ESA) from being elevated to the nation’s preeminent environmental standard.

The American Road & Transportation Builders Association (ARTBA) filed a “friend of the court” brief Feb. 20 in partnership with the Nationwide Public Projects Coalition in the consolidated cases of National Association of Homebuilders v. Defenders of Wildlife and United States Environmental Protection Agency v. Defenders of Wildlife.

At issue was an earlier ruling by the U.S. Court of Appeals for the Ninth Circuit, which could have severely impacted the decision-making process for many vital transportation projects by elevating ESA considerations above all other factors. While the current environmental review process for transportation projects requires ESA considerations to be taken into account, the Ninth Circuit’s decision would have forced transportation planners to forecast projects’ future indirect effects on species.

“If the Ninth Circuit’s reasoning is allowed to stand, the ESA will be greatly broadened. The statute will, in effect, become a ‘trump card’ in relation to the other environmental requirements of the transportation planning process,” the ARTBA brief said.

Under this scenario, ESA considerations would have applied to transportation construction projects and any future development that may be linked to those projects. According to ARTBA’s brief: “This type of prediction would be impossible to measure. As a result, transportation projects could face a substantial increase in ESA-related delays because planners would not be able to forecast indirect impacts to species caused by their projects.”

ARTBA also highlighted the negative public health and safety impacts concerns associated with delaying transportation projects, including increased congestion and slower delivery of first responder services.

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