On July 23, 2014, the United States Court of Appeals for the Tenth Circuit held that the U.S. Environmental Protection Agency (EPA) was not required to consult with the U.S. Fish and Wildlife Service regarding potential endangered species impacts of air quality regulations designed to reduce visual impacts of the Four Corners Power Plant on the Grand Canyon and other national parks.  WildEarth Guardians v. EPA, 2014 U.S.App.LEXIS 13968.  The court concluded that the EPA decision not to regulate air pollutants with potential to impact endangered fish was not an “action” subject to the consultation requirements of section 7 of the Endangered Species Act (ESA).  The decision suggests that federal agencies may avoid ESA consultation obligations by restricting the scope of federal agency actions.

EPA adopted a federal Clean Air Act implementation plan for the power plant in order to reduce haze in the Grand Canyon, Mesa Verde and Arches National Parks.  The EPA plan regulated oxides of nitrogen and particulate matter – two pollutants contributing to haze in the national parks.  EPA elected not to require the power plant to further reduce emissions of mercury and selenium.  Plaintiffs alleged that mercury and selenium emissions from the plant were having an adverse impact on endangered fish in a river close to the plant.  Plaintiffs claimed that EPA had discretion to impose additional restrictions on mercury and selenium emissions in the Clean Air Act implementation plan.

Relying on National Environmental Policy Act and ESA precedent that federal agency inaction does not constitute “action”, the court reasoned that the ESA consultation obligation “cannot be invoked by trying to piggyback nonaction on an agency action by claiming that the nonaction is really part of a broader action.”  The court concluded that the EPA’s consultation obligation was bounded by EPA’s limits on the scope of the Clear Air Act plan to the regulation of pollutants causing haze in the national parks.  “[T]he possibility that the EPA would have discretion in some other regulatory proceeding to directly regulate mercury and selenium did not impose a duty to consult under the ESA.”