WILD EQUITY INSTITUTE v. ENVIRONMENTAL PROTECTION AGENCY (2017)

MEMORANDUM*

Wild Equity filed this suit claiming that the Environmental Protection Agency (EPA) must reinitiate Endangered Species Act consultation with the Fish and Wildlife Service about a 2001 permit because 1) new information shows the power plant authorized under the permit is causing greater harm to protected species than understood in 2001, and 2) “discretionary Federal involvement or control over [an agency] action has been retained or is authorized by law.” 50 C.F.R. § 402.16; see also 16 U.S.C. § 1536(a)(2).

The district court dismissed this case on the ground that there is no federal agency action on which the EPA could consult—the 2001 permit expired before construction was complete and now has no operative effect. Wild Equity's position on appeal is that as long as there was agency action in the past and the agency has some discretion over the subject matter of that agency action, the conditions for reinitiation are met. No new or ongoing agency action is required.

The district court is correct. Although the 2001 permit was “agency action” at the time of its issuance, its expiration severed any connection to subsequent plant operation. The current plant operation cannot be plausibly described as “authorized ․ by” the expired 2001 permit. 16 U.S.C. § 1536(a)(2). Wild Equity offers no viable statutory interpretation or case law to bridge that gap.

Because the plant was being operated without a valid permit, the EPA brought a civil enforcement suit that was settled with a consent decree in 2011, allowing the plant to remain in operation. Any argument that this consent decree constitutes agency action is waived by Wild Equity's statement that it “does not rely on the consent decree as a triggering event” requiring EPA to reinitiate consultation. See United States v. Laurienti, 611 F.3d 530, 543 (9th Cir. 2010).

Accordingly, the district court's judgment is AFFIRMED.