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Fifth Circuit Holds TCEQ Water Permits Not Proximate Cause of Whooping Crane Deaths, Reverses Ban on Permitting


HOUSTON, July 2, 2014 -- Following briefing and argument by lawyers from Baker Botts and the Texas Office of Solicitor General, on June 30, 2014 the United States Court of Appeals for the Fifth Circuit reversed a district court decision that concluded that water permits issued by the Texas Commission on Environmental Quality (TCEQ) caused the death of whooping cranes in violation of the Endangered Species Act (ESA). The Aransas Project v. Shaw, No. 13-40317. The Fifth Circuit also overturned the district court’s injunction that prohibited TCEQ from granting new water permits and that required TCEQ to seek federal approval of its water-management practices. Baker Botts represented lead defendant-intervenor Guadalupe-Blanco River Authority (GBRA) and led briefing and oral argument on behalf of all intervenors, including the Texas Chemical Council, and San Antonio River Authority on appeal. GBRA owns the majority of the water rights in the Guadalupe River and sells water for municipal, agricultural, and industrial use.

During the winter of 2008–09, a period of extreme drought, four carcasses of endangered whooping cranes were recovered in Texas’s Aransas National Wildlife Refuge, where the only naturally migrating flock of whooping cranes routinely winters. The Aransas Project (TAP), an environmental group that exists to protect the cranes’ habitat, sued TCEQ, alleging that its water-permitting practices caused the cranes’ deaths and thus violated the ESA, which forbids “takes” of protected species. Specifically, TAP alleged that TCEQ’s issuance of water permits led to private parties’ withdrawing water from the San Antonio and Guadalupe rivers; that the withdrawals reduced the flow of freshwater into San Antonio Bay; that reduced freshwater inflows increased the bay’s salinity; that the salinity decreased the cranes’ drinkable water and their food sources of blue crabs and wolfberries; and that decreased water and food caused the cranes to weaken and eventually die. This chain of events, TAP argued, led to the deaths of 23 of an estimated 247 cranes in 2008–09. Following a bench trial, the district court found TCEQ liable for a “take” under the ESA.

Agreeing with Baker Botts’s arguments on behalf of defendants-intervenors, the Fifth Circuit unanimously reversed the district court’s judgment, holding that TCEQ “cannot be held liable for a take or for causing a take under the ESA” because “the deaths of the whooping cranes are too remote from TCEQ’s permitting withdrawal of water from the San Antonio and Guadalupe Rivers.” Relying on Supreme Court precedent, the Fifth Circuit explained that a defendant violates the ESA only when his conduct is the proximate cause of a take, a requirement that precludes liability when the causal link between the conduct and a result is so attenuated that the defendant could not reasonably foresee the result. “Without even mentioning concepts of remoteness, attenuation, and foreseeability,” the court emphasized, the district court erroneously held that a government agency proximately causes a take whenever it “authorized the activity that caused the take.” That “incorrect test for causation,” the Fifth Circuit concluded, “creates liability far beyond the contours of current ESA case law.”

The court held that under a correct proximate cause analysis, TCEQ could not have reasonably anticipated that its water permitting would cause the chain of events that purportedly led to the death of cranes in 2008–09. For one thing, it was not foreseeable that decreased freshwater inflows in 2008–09 would result in abnormal crane deaths. For decades, the crane population had steadily increased despite increasing upstream water diversion and extreme droughts. For another, “[c]ontingencies 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 2008–2009 die-off found by the district court.” The court also emphasized that drought, tides and temperature conditions affect salinity in San Antonio Bay, and that the blue crab population in the bay had consistently declined for decades because of overfishing. These unpredictable and uncontrollable conditions, the court concluded, are “the essence of unforeseeability.”

Law360 has named The Aransas Project v. Shaw one of the top five environmental cases of the year.

The Baker Botts team included: Aaron Streett (argued) and Michelle Stratton (both in Houston), and Molly Cagle, Evan Young, Carlos Romo, and Ashley Carr (all in Austin), with invaluable assistance from Brad Reynolds (Washington) and Stephanie Cagniart (Austin), who participated in a pre-argument moot court, and Ellen Reeder (Austin) and Jacqueline Curtis (Houston), who provided paralegal and secretarial support.

Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit


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