Proximate Cause and Foreseeability Are Required Elements of Endangered Species Act Liability: Fifth Circuit Reverses Injunction Preventing Texas from Issuing Water Permits


The Fifth Circuit Court of Appeals has reversed an injunction that would have prohibited the Texas Commission on Environmental Quality

(“TCEQ”) from issuing new water withdrawal permits affecting an estuary where endangered whooping cranes winter. The decision confirms that, to impose liability under the Endangered Species Act (“ESA”), plaintiffs must prove that the defendant proximately caused the harm to listed species and that the harm to listed species was reasonably foreseeable. The court also rejected the lower court’s finding that a “relaxed” standard for injunctive relief applies in ESA cases, and reaffirmed that plaintiffs bear the burden of demonstrating an injunction is warranted even if they can establish an ESA violation. The decision is a victory for state and local governments, the agriculture and forestry industries, and anyone who engages in potentially regulated activities, because it reinforces important limits on ESA liability in cases where otherwise lawful activities might have attenuated but adverse consequences for protected species.

In The Aransas Project v. Shaw, an environmental group alleged that TCEQ’s issuance of water withdrawal permits reduced freshwater inflows to an estuary inhabited by endangered whooping cranes. According to the group, these permits authorized withdrawals that decreased freshwater flows which, coupled with a severe drought, increased salinities in the estuary. This allegedly led to a decline in the crane’s primary food supplies, which, in turn, resulted in the death of 23 cranes. Based on this causal chain of events, the district court found TCEQ liable under the ESA, granted an injunction prohibiting TCEQ from issuing new water withdrawal permits (later stayed by the Fifth Circuit pending appeal), and required TCEQ to apply for a Habitat Conservation Plan and Incidental Take Permit under Section 10 of the ESA.

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