United States: Fifth Circuit Limits The Reach Of ESA "Take Liability" For State Regulatory Agencies Based On "Proximate Causation" Principles

Lawrence Liebesman and Rafe Petersen are Partners in the Washington D.C. office


  • 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 to act in managing the water diversions in the San Antonio and Guadalupe River systems violated the ESA by "harming and harassing" the cranes – causing the deaths of 23 of that flock. Specifically, TAP alleged that private parties' water withdrawals led to a significant reduction in freshwater inflow into the San Antonio ecosystem. That reduced flow, coupled with the drought, led to increased salinity which decreased the availability of drinkable water and a reduced supply of blue crabs and wolfberry, two of the staple foods for the cranes. This caused the cranes to become emaciated, forcing them to search further for food, thereby increasing the risk of predation.6 This chain of events allegedly led to the 23 crane deaths during the winter of 2008-2009. After a trial, the district court agreed with TAP and enjoined TCEQ from issuing new water permits until the State provided reasonable assurances that the permits would not take Whooping Cranes.

The Fifth Circuit's Holding

In reversing the district court, the Fifth Circuit elaborated on the "proximate case" principles laid out by Justice O'Connor in Sweet Home and other cases holding that "the requirement of proximate cause ... serves to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequences is more aptly described as mere fortuity."7 The court cited evidence in the record of contingencies affecting the chain of causation such as forces of nature, tides and temperature conditions that "dramatically affect salinity within and throughout the Bay and could have affected the blue crab and wolfberry population" – the crane's food source.8 Quoting Justice O'Connor extensively, the court held that "finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forest affecting the cranes' estuary environment goes too far."9 Thus, the court concluded that "the district court's ruling does not establish that the state could have reasonably anticipated the synergy among the links in the chain in 2008-09."10 Finally, the court distinguished the case from others where the courts "have held certain regulatory acts resulted in ESA liability where a close connection existed between the liable actor's conduct and habitat destruction or killing of endangered species."11

Implications of Proximate Causation

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. Thus, while the case primarily focuses on state regulatory actions, its limiting principles will benefit all actions, whether public or private, that may indirectly impact a listed species and its habitat. State and local agencies now have clearer guidance that the normal issuance of permits under state law will not result in ESA liability based on an attenuated chain of causation.

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 order to benefit from this ruling, public and private entities will need to develop solid factual and expert evidence to support any claim that the impacts to listed species and their habitat from proposed projects or actions are too attenuated to impose ESA liability.


1. 2014 WL 2932514 ( 5th Cir. June 30, 2014)

2. See 515 U.S. 687 ( 1995) The Sweet Home court upheld FWS definition of "take" under the ESA as including "harm" as covering "significant habitat modification" by significantly impairing essential behavioral patterns including "breeding, feeding or sheltering." 50 C.F.R. §222.102.

3. "Proximate causation" is the legal principle that liability should not be imposed for the remote and unforeseeable consequences of an act. In affirming this principle the Supreme Court recently held that "a requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between the conduct and result is so attenuated that the consequence is more aptly described as mere fortuity." Paroline v. United States, 134 S.Ct. 1710, 1719 (2014).

4. 515 U.S. at 713

5. Loggerhead Turtle v. Cnty Council of Volusia Co. Fla 148 F. 3d. 1231 (11th Cir. 1998) (County's authorization of nighttime vehicular beach traffic and regulation of outdoor lighting could directly resulted in killing of newly hatched loggerhead turtles by misdirecting them away from the sea); Anim. Welfare Inst. v. Martin, 623 F.3d. 19 (1st Cir. 2010) (licensing of animal traps directly resulted in the taking of endangered lynx).

6. Op. at p. 15

7. Op. at p.14

8. Op. at p. 15

9. Op. at p. 16

10. Op. at p. 15

11. Op. at p. 14

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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