State Water Contractors v. Jewell

Case Updates

In the coalition brief, the Chamber asked the U.S. Supreme Court to review and reverse the judgment of the Ninth Circuit. The brief argues that the Ninth Circuit’s interpretation of Section 7 of the Endangered Species Act (ESA) does not comport with the standard definition of reasonable and prudent. Additionally, the statute requires that alternatives not only be reasonable and prudent, but must also be alternatives that can be taken by a Federal agency or project applicant. The Chamber points out that this particular case presents the Court with an ideal vehicle to settle the meaning of “reasonable and prudent alternatives”. Review in this case is also warranted due to the fact that the Ninth Circuit’s interpretation of the regulation is not consistent with the approach taken by the Fourth Circuit in Dow AgroSciences LLC v. National Marine Fisheries Service, which creates a conflict of authority that can only be resolved by the Supreme Court. If the Ninth Circuit’s interpretation requiring species to be protected “whatever the cost” succeeds, the consequences of that ruling, will not only impact California individuals and businesses, but will also have massive consequences for this country’s economy. Prioritizing protection of the 1,500 species already listed as threatened or endangered in the United States, without considering the public interest, would have enormous negative implications for this country’s economy. The brief asserts that such ramifications are all the more dismal in light of the possible dramatic growth in the number of species that, under a court order, Respondents must decide whether to list as threatened or endangered over the next few years

The Chamber filed the brief jointly with the California Chamber of Commerce.

Kevin P. Martin, Jaime A. Santos, Robert H. Fitzgerald, and Shauneen G. Werlinger of Goodwin Procter LLP represented the U.S. Chamber as co-counsel to the U.S. Chamber Litigation Center in this case.