Attorneys for petitioners and respondents in the Supreme Court ESA/CWA case have both observed that our initial update (Jan. 8) should have been clearer in describing the questions the parties have been asked to brief.

To clarify, the court requested briefing on all the questions presented by the petitioners (one in the Solicitor General's petition and three in the National Association of Home Builders'), and on one question crafted by the court but apparently informed in part by one of the questions presented in the opposition brief filed by Defenders of Wildlife.

The court's question is:

"Whether the court of appeals correctly held that the Environmental Protection Agency's decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U.S.C. Sec. 1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. Sec. 1536 (a)(2); and, if so, whether the court of appeals should have remanded to the Environmental Protection Agency for further proceedings without ruling on the interpretation of Section 7(a)(2)."

The fact that the court came up with its own question is important*, said Richard Lazarus, a law professor and Faculty Director of the Supreme Court Institute at Georgetown University Law Center.

Lazarus said it's not that unusual to see the court come up with a question of its own. Nevertheless, the fact that it has done so is "significant. They don't do it routinely," he said.

"It's an early sign of their thinking on the case," Lazarus said. "It suggests that the Court may not get to the statutory issue upon which the [Solicitor General] sought review."

That would be whether Section 7(a)(2) of the ESA is, in essence, a statutory trump card.

For all the questions and the grant of cert in a PDF, go here

The web page for this case is www.eswr.com/courts/ussc/06-340.htm

Steve Davies, editor

* In the update it was "significant," which is in the quote. (Department of Redundancy Department)