HIGHLIGHTS:
- The Fifth Circuit's decision provides important legal and factual guidance for whether an action will cause a "take" under the ESA. While the decision only affects states covered by the Fifth Circuit (Texas, Louisiana and Mississippi), the court's heavy reliance on Justice O'Connor's Sweet Home opinion provides solid legal support for using "proximate causation" principles in cases arising elsewhere.
- Private developers doing work in or near species' habitat can also refer to this ruling in making legal and business decisions on whether to seek an ESA "incidental take" permit where the development may only indirectly impact a listed species and its habitat.
In a major decision interpreting the reach and scope of Endangered Species Act (ESA) "take" liability for state regulatory actions, the Fifth Circuit in The Aransas Project v. Shaw1 (TAP) held that the Texas Commission on Environmental Quality (TCEQ) did not cause the deaths of Whooping Cranes when issuing water withdrawal permits under state law. The court reversed the District Court holding that under the U.S. Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the commission's issuance of withdrawal permits were not the foreseeable "proximate cause" of Whooping Crane deaths.2 While the decision focuses on state regulatory actions, the "proximate causation" principles in the decision provide guidance on the limits of ESA "take" liability that can benefit private developers as well.3
The Impact of State Agencies' Regulatory Decisions
The issue of whether state agencies normal regulatory decisions will result in ESA liability has been very controversial. Justice Sandra Day O'Connor's concurring opinion in the Supreme Court's Sweet Home decision held that liability for the "take" of listed species under the ESA will be limited by principles of "proximate causation" and "forseeability." That is, there is no ESA liability if the impacts of an action to a species and its habitat are too attenuated and remote. For example, Justice O'Connor opined that there would not be any ESA liability "where a farmer tills his field, causes erosion and makes silt run into a nearby river which depleted oxygen in the water and thereby injures protected fish."4
Since Sweet Home, a number of federal courts have found state regulators liable for "taking" species based on evidence that the state or local agency's regulatory actions were the direct and foreseeable cause of an ESA "take." For example, the First Circuit in Strahan v. Coxe held that the state of Massachusetts was liable under the ESA by allowing commercial fishing in right whale habitat. The court examined the considerable scientific evidence of harm to whales caught up in fishing equipment and employed a "but for" test – that is "but for" the issuance of permits, no taking would have occurred. Other cases have since employed similar reasoning.5
Here, the federal district court in TAP imposed ESA liability on TCEQ, the state agency responsible for water allocation, even though the relationship between the TCEQ permit action and the Whooping Crane deaths was very attenuated with a number of intervening events leading to the crane's deaths. The Whooping Cranes wintered in Texas around the Aransas National Wildlife Refuge. The cranes had been an ESA success story until the winter of 2008-2009 when the flock had purportedly declined to 247 cranes. A coalition of local coastal business owners, environmentalists and bird enthusiasts formed TAP and sued the FWS alleging that the state defendants' actions and failures...
