Federal court rejects state liability for take of endangered whooping cranes based on issuing water right permits

In a recent decision, the Fifth Circuit Court of Appeals held that Texas’ water rights permitting system did not result in illegal take of endangered whooping cranes merely because water was legally diverted from rivers that ultimately flow to one of the rare birds’ habitats on the Texas Gulf Coast. This is an important victory for balance and sanity in the administration of the Endangered Species Act. The Fifth Circuit chided the trial court for not properly applying the well-understood rules of proximate cause in determining whether the state agency had killed whooping cranes through its water rights permitting system, and also clarified important limits on when the future use of property can be enjoined even where a past ESA violation has been established.

Whooping cranes populations are still low but are steadily rising overall after several decades of federal protection. They migrate annually between two refuges, one in Canada and the other, the Aransas National Wildlife Refuge, on the Gulf Coast of Texas. A severe Texas drought in 2008-09 stressed the cranes and contributed to a number of deaths. The drought year was a set back, but the evidence is that their numbers have continued to climb since then. Despite this overall good outlook for the species, a group of fishing and bird watching guides and other activists decided that the diversion of water hundreds of miles upstream had killed the cranes, and sued the State of Texas for legally permitting those diversions.

The trial court ruled that Texas had killed 23 cranes by permitting water diversions dozens and even hundreds of miles away, and ordered the state to propose a habitat conservation plan and apply for an incidental take permit, under which federal wildlife conservation laws would have displaced Texas state law in the approval and administration of water rights. But the Fifth Circuit reversed the trial court, and held that the chain of events that led from distant water diversions, to small changes in salinity in the refuge, to changes in number of blue crabs, to changes in crane foraging patterns, to stress and ultimately the death of several cranes, every step of which was suggested by computer modeling and estimation rather than direct proof, was too attenuated a sequence for the issuance of water right permits to be the legal or proximate cause of the crane deaths.

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Power plants and renewable energy

Last week, Pacific Legal Foundation submitted comments (joined by Dalton Trucking and the Center for Environmental Science, Accuracy, and Reliability) on EPA’s proposed greenhouse gas rule for existing coal-fired power plants.  The rule is estimated to reduce greenhouse gas emissions 30% over the next few decades, and seeks to achieve that goal in part by encouraging greater wind and solar energy generation.  The Foundation’s comment letter focuses on EPA’s failure to consult under the Endangered Species Act over the proposed rule’s adverse impacts on protected species and their habitat.  The ESA requires federal agencies to consult with the Fish and Wildlife Service and the National Marine Fisheries Service to ensure that federal activities do not jeopardize the continued existence of protected species or adversely modify their critical habitat.

PLF’s comment notes that wind and solar energy are well known to have significant adverse effects on wildlife.  Yet EPA believes that its proposed rule does not require consultation, notwithstanding the rule’s reliance on increased wind and solar energy generation.  The agency reasons that any species impacts from wind and solar energy sources would be indirect, because under the rule states are simply required to meet the pertinent greenhouse gas reduction target; the rule doesn’t mandate that the target be met in a particular manner.  Yet, the reasonableness of EPA’s targets is based in part on the availability of wind and solar energy, and thus it’s the agency’s expectation that those sources will be used to meet the target.  Hence, it’s certainly foreseeable that the rule’s implementation will lead to great wind and solar energy generation.  Moreover, the pertinent ESA regulations are clear that just indirect effects are sufficient to trigger consultation.  Finally, the threshold for consultation is notoriously low (i.e., “may affect” species or habitat).

Agency actions shouldn’t get a pass from vigorous environmental review simply because the agency and its green allies believe the action to be environmentally green and benign.  EPA should consult on its proposed rule.


President’s weekly report — July 18, 2014

Equality Under the Law Project — Implicit Bias Victory

The Iowa Supreme Court today issued this unanimous opinion in Pippen v. State of Iowa, tossing out an “implicit bias” discrimination lawsuit against the State of Iowa. Under the theory of the case, because Iowa state government officials had, unbeknownst to themselves, an “implicit bias” against certain minorities, they were engaged in unconscious discrimination. In other words, the officials were discriminating against minorities not because they intended to, but because deep down in their subconscious minds they had negative thoughts about minorities. Sort of reminds of us the “Monster from the Id” in The Forbidden Planet, circa 1956. Well, this is Iowa, not Altair-5, and the Iowa Supreme Court struck the case down, pointing out that the plaintiffs could point to no discrete employment practice that caused any alleged injury. You can read more about the case on our blog, and our amicus brief here.

Monster from the Id

Equality Under the Law — More from Texas and the 5th Circuit

In Fisher v. University of Texas, the Fifth Circuit Court of Appeal ruled against Abigail Fisher in her challenge to the University of Texas’s “holistic review” admissions process that considers the race of the applicant.  This is after the United States Supreme Court told the court to take a more careful look at the University’s discriminatory policy in order to determine if it is “narrowly tailored” and whether there are “less restrictive means” of achieving racial diversity.  There was a strong dissent from Judge Garza who suggested that the University’s stated goal of reaching a “critical mass” of diversity was a standard without meaning.  We had filed this amicus brief urging the court to rule for Fisher.  You can read more in our blog post here.  Now, we’re not exactly sure what “critical mass” is supposed to mean in the classroom today either, but this is the sort of critical mass that some of us learned about in the classroom back in the day:

Pretty powerful stuff, critical mass is.

Property Rights — Coastal Land Rights Project

We argued the Lynch v. California Coastal Commission before the California Court of Continue reading

Pippen v. Iowa: A victory for commonsense

In a unanimous opinion, the Iowa Supreme Court affirmed the trial court dismissing the plaintiffs’ disparate impact claims.  In this case, plaintiffs alleged that the subjective thoughts and biases of Iowa government officials caused a disparate impact on the basis of race.  To our knowledge, this was the first time that plaintiffs had tried to prevail on an “implicit bias” theory of discrimination.  Ala 1984, this was an attempt to punish unconscious thoughts that individuals are incapable of correcting.

PLF filed an amicus brief in this case, arguing that the entire implicit bias theory was a bunch of baloney.  The Iowa Supreme Court didn’t go that far; the Court held that plaintiffs had failed to prove that a particular “employment practice” was incapable of separation.  Title VII requires a disparate impact plaintiff to show that a discrete employment practice caused the disparate impact.  Because the plaintiffs had failed to separate out a particular practice, they failed to satisfy their prima facie case.

It’s hard to quibble with that opinion.  Indeed, the implicit bias theory was not the only ridiculous aspect of this case.  And while we hoped that this case would end — once and for all —  the idea that subconscious thoughts can lead to actionable discrimination claims, we are pleased that the Iowa Supreme Court rejected plaintiffs’ case in its entirety.

Many thanks to Jay Grimes of Hansen, McClintock & Riley and former PLF attorney Lana Harfoush for their help on the case.

Siskiyou groundwater decision

This week, the Sacramento Superior Court ruled in Environmental Law Foundation v. State Water Resources Control Board that the public trust doctrine extends to groundwater extraction that affects navigable waters.  The decision is an expansion of the landmark and controversial 1983 decision of the California Supreme Court in National Audubon Society v. Superior Court, the first California decision to hold that the public trust doctrine applies to activities not immediately affecting navigable waters and tidelands.  This week’s decision could play a role in the ongoing debate over whether and how the California Legislature should regulate groundwater extraction in the state generally, especially in light of increased groundwater use to counteract the effects of the drought.  Pacific Legal Foundation filed an amicus brief in the case on behalf of the California Farm Bureau Federation, arguing that extending the doctrine to groundwater extraction would raise serious constitutional questions under the due process and takings clauses.

It is important to note, however, the decision’s limitations.  First, the decision does not hold that harm to groundwater as such would violate the public trust doctrine, but only to the extent that such harm would ultimately carry over navigable waters.  Second, the decision does not say anything about the power of the State Water Resources Control Board to regulate groundwater under the doctrine, but rather only holds that Siskiyou County has the authority and obligation to take the doctrine into account when deciding whether to issue new well permits.  Finally, because the decision is on a motion for judgment on the pleadings, the facts were assumed in favor of the plaintiffs; hence, the County can still prevail if it demonstrates that groundwater extraction in the County does not affect the Scott River.

FBN’s John Stossel program features PLF’s Timothy Sandefur

On Thursday’s episode of Fox Business Network’s Stossel Show, I and my wife Christina Sandefur join John Stossel for a discussion of Obamacare and the increasing power of administrative agencies and the executive branch of the federal government. It’s a subject Christina and I wrote about for Regulation magazine some months ago, and which is at issue in the Obamacare lawsuits that she and I have argued before the federal courts in recent weeks. The show airs at 6 Pacific, 9 Eastern.

More EPA spin on “waters of the United States”

We have documented here and here how the EPA is misrepresenting its proposed rule to redifine “navigable waters” under the Clean Water Act.  The Administration unabashedly claims the new rule is compelled by Supreme Court decisions interpreting the Act and that the rule will not expand the government’s jurisdiction.  But this is utter nonsense, which only the uninformed believe.  So we give kudos to the Senate Environment and Public Works Committee for calling the EPA on its blatant misrepresentations.

Yesterday, the committee issued an interesting Fact Check showing how the actual language of the rule is contrary to the EPA’s claims about the rule, including such claims as;

The rule does not regulate new types of ditches;

The rule does not regulate activities on land;

The rule does not apply to groundwater;

The rule does not affect stock ponds;

The rule does not require permits for normal farming activities; and,

The rule does not regulate puddles.

The Fact Check is revealing.  Check it out here.

Re-cap of argument in San Diego seawall appeal

Yesterday, I argued Lynch v. California Coastal Commission, in the California Court of Appeal in San Diego.  As I explained last week, the appeal centers on the Commission’s refusal to allow two families to rebuild a shared, private staircase down to the beach, and its imposition of an arbitrary 20-year expiration date on a seawall (with a 75-year design life) that is necessary to protect their homes.

The three justices had plenty of good, thoughtful questions for me and my opponent.  The court has 90 days to render a decision, and we remain hopeful it will affirm the families’ rights.  Listen to my podcast for more discussion about yesterday’s argument.

The appeal—and what’s at stake—was widely covered by local media, including the San Diego Union-Tribune, and local TV affiliates for ABC and NBC.

Watch the case video for more

Fifth Circuit: Univ of Texas may admit students using race

Should public universities make admissions decisions based on a student’s race?  Last year, in Fisher v. University of Texas, the Supreme Court held that race could be considered, but only after a university establishes that its use of race is narrowly tailored to achieve “the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”  The Court then vacated an earlier Fifth Circuit decision which had approved the use of race by the University of Texas, and remanded the matter.

Today, the Fifth Circuit ruled that the University of Texas could continue to use race in student admissions in order to obtain a “critical mass of campus diversity.”  There is at least one rather large problem.  Neither the University, nor the court, ever specifically defined what that means.  As Judge Emilio Garza pointed out in his dissent in the latest Fisher decision by the Fifth Circuit:

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