Melinda Taylor and Jeremy Brown, For the San Antonio Express-News, Opinion
July 7, 2014 | Updated: July 7, 2014 4:11pm
SAN ANTONIO — The 5th Circuit Court of Appeals ruled recently that Texas did not violate the Endangered Species Act, or ESA, through the operation of its surface water permitting program.
The long-awaited opinion reverses a Corpus Christi district court decision holding that the Texas Commission on Environmental Quality caused the deaths of 23 endangered whooping cranes during the drought of 2008 and 2009.
The lower court had found the agency harmed the cranes indirectly by authorizing cities, farmers and river authorities to divert water from the San Antonio and Guadalupe river basins. The diversions reduced freshwater inflows into Aransas Bay, where the cranes spend their winters, increasing salinity levels and decreasing the wolf berries and blue crabs the birds depend on for food.
A coalition of landowners and environmental groups known as the Aransas Project accused the state of violating the ESA. The trial court agreed and enjoined the TCEQ from approving additional water withdrawals until it obtained a permit from the federal agency charged with protecting endangered species.
Had the appellate court affirmed, TCEQ would have faced the challenge of maintaining flows into Aransas Bay while respecting existing rights to surface water and working within a statutory framework that regards environmental flows as a secondary priority. With the 5th Circuit opinion, the agency has dodged a bullet — but only on the narrow issue of proximate cause.
As anyone who has ever heard about a butterfly flapping its wings knows, many factors can set a causal sequence into motion. Proximate cause is a legal concept providing that a person should only be held liable for that sequence if the outcome would have been reasonably foreseeable.
The 5th Circuit found the causal link between the TCEQ’s water permitting program and the cranes’ deaths too attenuated to satisfy the proximate cause requirement. The court cited multiple factors that affect crane habitat, including tides, drought and overfishing. Still, it 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.
If another state agency such as the Texas Department of Transportation wanted to construct a highway that would destroy habitat for a listed species, that agency would have to obtain a federal permit. On that point, the law is settled. More controversial is the idea that the ESA imposes vicarious liability on state agencies that issue permits to third parties that, in turn, harm a protected species.
The few courts that have considered the question have found that certain situations can give rise to vicarious liability.
The federal government is considering whether more than 20 aquatic species in Texas qualify for protection under the Endangered Species Act. Most of these species live in bodies of water far from proposed 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 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 its opinion, the 5th Circuit observed that “though the state interest is strong in terms of managing water use, so is the federal interest” in endangered species. Even though it won the case, the TCEQ will need to develop strategies that balance the needs of humans and the natural environment if it is to avoid future conflicts with the ESA and the rare species the law is intended to protect.
Melinda Taylor is executive director and Jeremy Brown is a research fellow at the Center for Global Energy, International Arbitration and Environmental Law at the University of Texas School of Law.
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***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat. *****