Fifth Circuit Reins In Trend of Expanding ESA Liability for Remote Harm

by King & Spalding

The Fifth Circuit's recent decision in The Aransas Project v. Shaw, No. 13-40317 (5th Cir. June 30, 2014), clarified two points relating to the element of causation in claims under the Endangered Species Act (ESA). The case involved allegations that the Texas Commission on Environmental Quality (TCEQ) had "taken" endangered whooping cranes by issuing water withdrawal permits that were alleged to have resulted in the deaths of 23 whooping cranes. Reversing the district court, the Fifth Circuit held that the chain of events linking these permits to the deaths was not sufficiently "direct" or "foreseeable" to sustain a claim under the ESA. The court also cast serious doubt on the theory of "vicarious liability" that had been used to hold TCEQ liable under the ESA for failing to regulate private actions that resulted in harm to protected species.

Although the case was about whooping cranes, its implications are much broader. There are many situations in which the aggregate effects of diffuse actions by private individuals are alleged to cause harm to listed species through an extended chain of causation. Examples include the cumulative effects of energy production activities, site development, and even the combustion of fossil fuels. Because it can be difficult to hold any individual responsible for the cumulative impact of these activities, however, environmental groups have increasingly sought to hold state and local agencies vicariously liable for failing to use their regulatory authorities to prevent harm to federally-protected species. The Fifth Circuit's decision in The Aransas Project will make it much harder to do so, as it suggests state and local government regulators expose themselves to liability under the ESA only when their actions directly harm protected species.

District Court Had Held the State Liable for Harm to Protected Species and Enjoined Future Water Withdrawal Permitting

The plaintiff environmental group alleged that TCEQ had violated the ESA by permitting water withdrawals from tributaries of an estuary inhabited by whooping cranes. According to the group, the water withdrawals authorized by the permits decreased freshwater flows in the river, which increased salinities in the estuary. The group claimed the increased salinities, in turn, led to a decline in the abundance of blue crabs and wolfberries, the whooping crane's primary food supplies. This, the group alleged, caused "food stress" in the cranes inhabiting the estuary, which ultimately resulted in the death of 23 whooping cranes.

Accepting this theory of causation, the district court held that TCEQ's permitting decisions had caused the unlawful take of protected cranes and granted an injunction prohibiting TCEQ from issuing new water permits. (The Fifth Circuit later stayed the injunction pending appeal.) The district court also required TCEQ to apply for a Habitat Conservation Plan and Incidental Take Permit under Section 10 of the ESA.

Fifth Circuit Reverses: TCEQ Permitting Actions Did Not Proximately Cause Harm

The Fifth Circuit reversed. Explaining that ESA liability cannot be based on the actions of "remote actors in a vast and complex ecosystem," the court made clear that a defendant violates the ESA only when the harm to a listed species is sufficiently direct and reasonably foreseeable at the time of the defendant's actions.

In reaching this conclusion, the court "highlighted … the number of contingencies affecting the chain of causation from licensing to crane deaths," including many steps that were "outside the state's control and often outside human control." As the court explained: "Contingencies concerning permittees' and others' water use, the forces of nature, and the availability of particular foods to whooping cranes demonstrate that only a fortuitous confluence of adverse factors caused the unexpected … die-off found by the district court. This is the essence of unforeseeability."

The court found support for its conclusion in Justice O'Connor's concurrence in Babbitt v. Sweet Home, 515 U.S. 687 (1995). There, the Fifth Circuit noted that Justice O'Connor disavowed ESA liability "where a farmer tills his field, causes erosion that makes silt run into a nearby river, which depletes oxygen in the water, and thereby injures protected fish." Drawing on this analogy, the Fifth Circuit held that "the remote connection between water licensing, decisions to draw river water by hundreds of users, whooping crane habitat, and crane deaths that occurred during a year of extraordinary drought" was insufficient to impose ESA liability.

"Vicarious Liability" Questioned

The reversal is also significant because the district court had adopted a controversial theory under which state agencies can be liable for failing to regulate private activities that harm protected species. Environmental groups have promoted this theory of "vicarious liability" as a tool to address environmental harms resulting from the cumulative effects of many different private actors. By providing a single defendant to sue, vicarious liability would allow plaintiffs to litigate cases that otherwise would be nearly impossible to manage.

The vicarious liability theory under the ESA is questionable, however. In Section 7 of the ESA, Congress required federal agencies to engage in consultation to ensure that their actions are not likely to jeopardize the continued existence of protected species, or result in the destruction or adverse modification of critical habitat. The ESA contains no similar mandate for state and local agencies, and many have questioned whether the ESA was intended to impose liability on them for their regulatory actions—thus, effectively imposing a consultation requirement on these state and local agencies that the ESA expressly reserves only for specific federal actions. See e.g., J.B. Ruhl, State and Local Government Vicarious Liability under the ESA, 16 Nat'l Res. & Env't 70 (2001).

The Fifth Circuit did not reach the vicarious liability issue, given the problems with the district court's causation analysis. The court did, however, briefly discuss vicarious liability and questioned its use for holding state and local regulators liable under the ESA. The court noted that among appellate courts, only the First Circuit has held that a state agency should be liable under the ESA for failing to regulate private actors that harm protected species. See Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997). The court further observed that the First Circuit's reasoning "is challenged by other appellate opinions maintaining that the state governments may not be commandeered into enforcing federal prohibitions." While not definitive, this statement strongly suggests the Fifth Circuit will take a hard look at—and potentially skeptical view of—the vicarious liability issue in future litigation.

No "Relaxed Standard" for Injunctions Under the ESA

The Fifth Circuit also found that, even if causation had been established, it was an abuse of discretion for the district court to enjoin TCEQ from issuing new water permits.

The court held that the district court erred by applying a "relaxed standard" for injunctive relief in ESA cases, under which plaintiffs were not required to demonstrate that an injunction is necessary to prevent "certainly impending" future harm. As the court explained, past harms to listed species "may help establish the threat of a future injury," but "they are alone insufficient" to establish that injunctive relief should be granted. Thus, while the balance of harms may "lean more heavily in favor of protecting wildlife than it would in the absence of the ESA," plaintiffs in ESA cases—as in all other cases—are required to prove by a preponderance of the evidence "that there is a reasonably certain threat of imminent harm to a protected species."

Applying this standard, the Fifth Circuit had little difficulty concluding that the district court erred in issuing the injunction. Noting that the district court "focused almost exclusively" on past crane mortality that occurred during a period of extraordinary drought, the Fifth Circuit explained that "[i]njunctive relief for the indefinite future cannot be predicated on the unique events of one year without proof of their likely, imminent replication."

The Fifth Circuit's decision is an important reminder that "[f]ederal courts are not obligated to grant an injunction for every violation of the law," and that plaintiffs in environmental cases bear the burden of establishing that equitable relief is warranted.


The Fifth Circuit's opinion draws an important line against the trend of expanding ESA liability for attenuated harm to listed species. It reaffirms that proximate cause and foreseeability are required elements for ESA liability. It also questions whether state or local governments can be held liable for failing to use their regulatory authorities to prevent harm to federally-protected species.

The case is The Aransas Project v. Shaw, No. 13-40317 (5th Cir. June 30, 2014), available at

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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