Fifth Circuit Finds for Texas in Whooping Crane Case but Leaves Door Open to Future Endangered Species Act Challenges

On June 30, the U.S. Court of Appeals for the Fifth Circuit released its long-awaited opinion in The Aransas Project v. Shaw, a case that pitted the protection of the endangered whooping crane against the State of Texas’ water regulators. The court reversed a lower court’s ruling in favor of the environmental plaintiff and held that the Texas Commission on Environmental Quality – the defendant in the case – was not liable under the federal Endangered Species Act, because the environmental plaintiff had failed to prove that the agency’s permitting program was the “proximate cause” of the deaths of 23 cranes during the drought of 2008-2009.

Texas dodged a bullet in the TAP case on the narrow proximate cause issue, but the court’s opinion leaves open the possibility that the state could be held liable under the ESA in the future.  The decision underscores the importance of ensuring that the basic water needs of species are met when water permits are evaluated by TCEQ, in order to avoid colliding with the federal law.

The Aransas Project, a coalition of landowners and environmental groups, argued that TCEQ violated the federal Endangered Species Act by issuing water withdrawal permits in the San Antonio and Guadalupe basins to cities, farmers, and river authorities, because the withdrawals led to reduced freshwater flows in the rivers to the coast. Reduced freshwater inflows resulted in higher salinity levels in Aransas Bay, which impacted the abundance of wolf berries and blue crabs in the Aransas National Wildlife Refuge where the cranes spend their winters. Wolf berries and blue crabs are staples in the whooping cranes’ diet.

The trial court agreed with the plaintiffs and issued an injunction against TCEQ in March 2013 that forbade the issuance of any additional water withdrawal permits until TCEQ obtained a permit from the federal agency in charge of protecting endangered species. On appeal, the Fifth Circuit issued an emergency stay of the district court’s injunction and ordered an expedited oral hearing, which took place on August 8, 2013. Yesterday, the appellate court reversed the district court’s judgment and held that the deaths of the whooping cranes were “too remote” from TCEQ’s water permitting program to hold the agency liable.

The court focused its analysis on the question of proximate cause, a legal concept that courts use to analyze the appropriateness of imposing liability in individual cases. Proximate cause is closely akin to notions of foreseeability and fairness — the idea that, merely because one’s actions might start a chain of events that ultimately leads to harm does not mean that the imposition of liability is appropriate, if the causal link between the conduct and result is too attenuated for the harm to be reasonably foreseeable. The Fifth Circuit found that the causal link between the TCEQ’s permitting program and the whooping cranes’ deaths was too attenuated in the TAP case to satisfy the proximate cause requirement, citing multiple other factors that contributed to the decline of the crane’s habitat, including the severe drought that the region was experiencing in the winter of 2008-2009 and the fact that blue crabs were declining because of overfishing, as well as increased salinity levels.

The court’s decision means that TCEQ will not be forced to make any immediate changes in its water permitting program to satisfy the Endangered Species Act. The court did not reach the question of whether the state could ever be held liable for licensing third parties who cause harm to an endangered species, however.

The ESA’s prohibition on “take” or harm to endangered species applies on its face to states and state agencies.  The Texas Department of Transportation, for example, may not construct a highway that would destroy habitat for a listed species, unless it first obtains a permit from the federal government.

More controversial is the idea that the ESA imposes so-called “vicarious liability” on state agencies that issue permits to third parties who in turn harm a protected species, the key issue in the TAP case. Only a small number of courts have considered the question, but those cases support the idea that vicarious liability exists under certain conditions. In Strahan v. Coxe, for example, the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement and the Division of Marine Fisheries were found liable under the ESA for issuing permits to fishermen for lobster traps, which were known to harm the endangered Right Whale.

The vicarious liability issue may come up again soon, as Texas regulators consider building new dams and reservoirs to expand the state’s water supply. In a previous blog we wrote that the federal government is currently reviewing the status of over 20 aquatic species that occur in Texas’ rivers and streams and which are vulnerable to impaired water quality conditions and depleted flows.  We published a white paper that analyzed the potential for the new listings to affect the state’s ability to build new water infrastructure and concluded that most of the species under review occur in waterbodies that are far removed from proposed new water projects.

The Sharpnose and Smalleye shiners are exceptions, however. They occur in the upper Brazos River basin and, according to the U.S. Fish and Wildlife Service, the “primary” threat the species face is habitat loss and modification “resulting mainly from reservoir impoundments.” The agency has called out the proposed construction of Post Reservoir in Garza County, the Double Mountain Fork Reservoir (East and West) in Stonewall County, and the South Bend Reservoir in Young County, all included in the State Water Plan, as potential threats to the shiners. The shiners were proposed for listing last summer, with a final decision slated for this month. If an environmental group wished to challenge one of the proposed reservoirs under the ESA, proving proximate cause would not be difficult.

In TAP, TCEQ argued that water permitting could never constitute a “take” of an endangered species. The court did not go that far and wrote instead that “[t]hough the state interest is strong in terms of managing water use, so is the federal interest” in endangered species. The sooner TCEQ moderates its position and develops strategies that balance the needs of humans with the natural environment, the more likely it will be that future conflicts with the federal law — and the  rare species it is intended to protect — can be avoided.



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