United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM OPINION AND ORDER
PAMELA L. REEVES, Distrcit Judge.
The Defenders of Wildlife, Sierra Club, Statewide Organizing for Community Empowerment, and the Tennessee Clean Water Network brought this action against the defendant government agencies for alleged violations of the Endangered Species Act. The plaintiffs contend these agencies have ignored "mounting evidence that high conductivity wastewater from surface coal mines harms two rare ESA-protected fish species, " and that they have failed to fulfill their obligations under Section 7 of the Endangered Species Act to consult on the effects of such wastewater discharge to ensure it does not jeopardize the continued existence of these fish species or damage critical habitat. The defendants have moved to dismiss the plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing. (R. 80). For the reasons discussed below, the defendants' motion will be granted in part and denied in part.
A. Legal Background
i. The Endangered Species Act
In 1973, finding that "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation, " Congress passed the Endangered Species Act. 16 U.S.C. §§ 1531 et seq. Stated purposes of the Act include providing "a means whereby ecosystems upon which endangered species and threatened species depend may be conserved" and providing "a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). The Supreme Court has explained:
The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.... [T]he legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the primary missions' of federal agencies.
Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184-85 (1978). In TVA v. Hill, the Supreme Court further noted that "[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act." Id. at 174.
Under Section 7(a)(2) of the Endangered Species Act, federal agencies are required to consult with the Secretary of the Interior to "insure that any action authorized, funded, or carried out" by the acting agency "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of critical habitat. 16 U.S.C. § 1536(a)(2). Accordingly, federal agencies are required to consult with the U.S. Fish and Wildlife Service whenever their actions "may affect" listed species or critical habitat for those species. 50 C.F.R. § 402.14(a). On the other hand, the consultation requirement is excused if the acting agency and the Fish and Wildlife Service conclude that the proposed action "is not likely to adversely affect listed species or critical habitat." 50 C.F.R. 402.13(a).
An action will "jeopardize the continued existence" of a species if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. An action will result in the "destruction or adverse modification" of critical habitat if it results in "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species." Id.
In performing the required consultation, the Fish and Wildlife Service and the acting agency must "use the best scientific and commercial data available" to evaluate the impact of the proposed action on listed species or critical habitat, and the Fish and Wildlife Service must provide its "biological opinion" on whether, as a result of those impacts, the action will result in jeopardy or adverse modification. 16 U.S.C. §§ 1536(a)(2) & (b)(3); 50 C.F.R. § 402.14(g). If the Fish and Wildlife service concludes that the proposed action is likely to jeopardize the continued existence of a listed species or the destruction of critical habitat, it "shall suggest those reasonable and prudent alternatives" that it believes would avoid such a result. 16 U.S.C. § 1536(b)(3). If, on the other hand, the Fish and Wildlife service concludes that the proposed action is not likely to result in jeopardy or the destruction of critical habitat, it "shall provide" the acting agency with a written statement setting forth: (1) the impact of incidental taking on the species; (2) "reasonable and prudent measures... necessary or appropriate to minimize such impact;" and (3) the terms and conditions the acting agency must comply with to implement those "reasonable and prudent measures." 16 U.S.C. § 1536(b)(4). This written statement is known as an "Incidental Take Statement" or "ITS."
The Fish and Wildlife Service, as well as the acting agency, have ongoing duties to ensure against jeopardy or adverse modification. Both parties are independently obligated to reinitiate formal consultation if: (1) the amount or extent of the taking specified in the ITS is exceeded; (2) new information reveals that the action may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the action is subsequently modified such that it causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) a new species is listed or critical habitat is designated that may be affected by the identified action. 50 C.F.R. § 402.16.
The Endangered Species Act also includes a citizen-suit provision, the "obvious purpose" of which is to "encourage enforcement [of the Endangered Species Act] by so called private attorneys general.'" Bennett v. Spear, 520 US. 154, 155 (1997). Title 16 U.S.C. § 1540(g)(1)(A) provides:
Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf - (A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.
The sole jurisdictional limitation to the Endangered Species Act's citizen-suit provision is a requirement that litigants provide written notice of a violation to the Secretary of the Interior and any alleged violators at least 60 days ...