276) The bottom line is that, far from being a ministerial agent in the delegation process, the EPA wields extensive discretion over the states.
Home Builders already seems to have influenced how lower courts approach the ESA and NEPA discretion tests when confronted with agencies' statutory firewall claims, making them reluctant to challenge the agency's assertion that it fits the no discretion category.
Of all the discretion gaming strategies, however, the firewall strategy seems to have gained the most immunity to judicial inspection and skepticism.
Two seemingly straightforward tests have guided courts in their evaluations of agency nondiscretion claims: ESA consultation is required if the agency has "any discretion to act in a manner beneficial to a protected species or its habitat," (280) and NEPA is triggered if the agency has any "discretion that might usefully be informed by further environmental review.
At heart, the nondiscretion exemptions require the courts to scour through an agency's authorities and hypothesize how the agency could maximally exercise discretion regardless of the agency's position that it has none or is limited in ways that exclude ESA and NEPA review.
For example, the BLM's expired discretion claim in Sierra Club v.
The Ninth Circuit has on three occasions used en banc proceedings to air out its internal conflicts over agency non discretion claims.
The upshot is that, notwithstanding uniform agreement among the courts that the ESA and NEPA assessment programs apply only when an agency has the right kind of discretion over the action, the case law does little to help define when an agency has the right kind of discretion over the action.
The nondiscretion claim strategies appeal primarily to the agency's inability to fulfill the decision process purpose when it does not have discretion to influence environmental outcomes.
298) Thus, while it is true that APHIS has no discretion regarding where, how, and how much glyphosate is used, (299) the indirect effects of deregulating RRA very likely may have included increased use of the chemical.
First, however, in Part IV, we consider what the ESA and NEPA nondiscretion case law teaches regarding the nature of agency discretion in general.
However, even if threats to the statutes' purposes were the chief concern, we believe scholars have worked too narrowly in designing solutions around the ESA and NEPA without first reflecting on what the nondiscretion jurisprudence reveals about agency discretion at its core.
