Sierra Club v. Glickman, 56 F.3d 606 (5th Cir. 1998)

Kristen M. Fletcher, J.D., LL.M.

In the latest of a series of cases brought by the Sierra Club concerning endangered species dependent upon water from the Edwards Aquifer in Texas, the Fifth Circuit found that it does have standing to challenge Department of Agricul-ture policies. The Fifth Circuit upheld successful challenges under the Endangered Species Act and Administrative Procedures Act and reaffirmed that federal agencies have an affirmative duty to conserve endangered species.

History of the Edwards Aquifer

The Edwards Aquifer is a 175-mile long underground aquifer that stretches through central Texas. Unless removed by pumping, water in the aquifer is eventually discharged through a series of springs, the two largest of which are in areas that serve as the only habitat of five federally endangered and threatened species that are dependent on the aquifer waters for their survival.1 Humans also depend upon the aquifer for irrigation for crops, as a primary source of water, and for businesses which support the area economy. As a result of this dependence by both man and nature, the Edwards Aquifer has been the focus of extensive efforts to conserve its limited water resources.

In addition to prior legislative efforts to conserve water, the Sierra Club brought a series of lawsuits attempting to further regulate water usage.2 In suing the Department of Agriculture (USDA), the Sierra Club asserted that the agency failed to properly consult with the U.S. Fish and Wildlife Service (FWS) regarding the endangered species and failed to develop and implement programs to protect them. After the trial, the district court ordered the USDA to develop conservation programs and to consult with the FWS about aquifer-dependent endangered and threatened species. The district court noted that the USDA had unquestionable authority to target monies for areas such as the Edwards Aquifer.

The USDA appealed arguing that the Sierra Club lacked standing, that the cause of action was not supported under the Endangered Species Act (ESA) or Administrative Procedure Act (APA), and that the USDA had performed its ESA duties.

Standing

On appeal, the Fifth Circuit first reviewed the Sierra Club's standing to sue. The Supreme Court has determined that to have constitutional standing to sue, the Sierra Club must show: (1) an injury in fact, i.e., a harm suffered that is concrete and actual or imminent, not conjectural or hypothetical; (2) causation, i.e., a fairly traceable connection between the plaintiff's injury and the defendant's conduct; and (3) redressibility, i.e., a likelihood that the requested relief will redress the injury.3

The Sierra Club met the first prong of standing since, as admitted by the USDA, the aquifer-dependent species were in substantial, imminent risk of injury, a cognizable injury under the ESA.

The USDA, however, argued that the Sierra Club failed to meet the second prong - that the agency's failure to consult with the FWS and develop conservation programs caused the alleged injury. Rather, the USDA claimed the injury was caused by the independent actions of third party farmers over whom the USDA has no coercive control. The court disagreed and pointed to three pieces of evidence that causation existed.

First, the court pointed to a 1995 study partially conducted by the USDA that proposed a program to provide financial assistance to farmers for the installation of conservation measures. This program would have led to 38,000 acre-feet of irrigation water saved in an average year. Second, a USDA Biological Evaluation concerning irrigation water stated that this 38,000 acre-feet represents a significant percentage of the total Edwards Aquifer irrigation pumping. Finally, the court found that the FWS "categorically disagreed with the USDA's statement that a 20% decrease in Edwards irrigation pumping would have no significant effect on [aquifer]-dependent species."4 With this evidence, the court found that the USDA's failure to adopt a conservation or assistance program was fairly traceable to the Sierra Club injury, meeting the causation requirement for constitutional standing.

In deciding whether the requested relief by the Sierra Club would redress this injury, the court turned to section 7(a)(1) of the ESA which states that "federal agencies shall, in consultation with . . . the Secretary [of Interior], utilize their authorities . . . by carrying out programs for the conservation of endangered species and threatened species."5 The court admitted that section 7 appears to require only a generalized duty to confer and develop programs for endangered and threatened species, not with respect to any particular species. But, in looking at the ESA as a whole, the court found a more specific duty.
 

The language of the statute calls for agencies to use all of the methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures are no longer necessary.6 The court then relied upon the Supreme Court's examination of the ESA in TVA v. Hill, a landmark ESA case which held that Congress was clearly concerned with the conservation of each endangered and threatened species.7
 

Finally, legislative history of the ESA revealed a concern for specific species to see that they are not driven to extinction.8 Given the plain language of the statute, its legislative history, and U.S. Supreme Court rationale, the court concluded that Congress intended to impose an affirmative duty on every federal agency to conserve each listed species. In so concluding, the court found that the USDA procedures could protect Sierra Club's threatened interest.

Judicial Review

The USDA then argued that neither the ESA nor the APA supported the Sierra Club's cause of action. Relying on the recent Supreme Court decision in Bennett v. Spear, the USDA claimed that the ESA citizen suit provision cannot be used to challenge the failure of an agency to follow the requirements of section 7. The Fifth Circuit dismissed the argument as a misinterpretation of the reach of Bennett finding that the ESA provides for suits against the Secretary to compel performance of a non-discretionary duty.

In addressing the APA provisions, the court again found support for Sierra Club's action. The USDA claimed its actions are unreviewable because there is no applicable law to review relying on its own argument that § 7(a)(1) of the ESA does not impose a duty on federal agencies to consult and develop conservation programs for endangered species. Alluding to its finding of an affirmative duty on the USDA earlier in the opinion, the court dismissed this argument, recognizing there is "more than enough law against which a court can measure agency compliance."9

Finally, the USDA argued that it has unreviewable discretion in developing programs for these species. The court turned to the Supreme Court holding that it is "rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making."10

USDA Programs

The court then turned to Sierra Club claims under the Agriculture and Water Policy Coordination Act, related provisions that establish a USDA Council on Environmental Quality, and the Bankhead-Jones Farm Tenant Act, statutes that require the USDA to develop and implement programs to protect waters from contamination and prevent environmental problems that may result from agricultural production as it relates to the aquifer-dependent species. The Fifth Circuit first addressed whether the Sierra Club had standing to sue on these claims. The Court found the Sierra Club did not offer evidence showing its injury was traceable to the USDA's failure to implement these statutes or how implementation would redress the injury. Thus, without standing, the court reversed the lower court's judgment to favor the USDA.

Conclusion

The Fifth Circuit successfully maneuvered through the Supreme Court's two decades of rulings on the Endangered Species Act and constitutional standing. In applying the Court's reasoning and fair readings of the statutes at hand, the Fifth Circuit may have brought a closure to the struggles for power and protection at the Edward's Aquifer.
 

NOTES

1. The species are the fountain darter, San Marcos gambusia, San Marcos salamander, Texas blind salamander, and Texas wild rice. See 50 C.F.R. §§ 17.11, 17.12.

2. See Sierra Club v. Glickman, 156 F.3d 606, 610 (5th Cir. 1998).

3. See box below for Supreme Court cases.

4. Sierra Club v. Glickman, 156 F.3d at 614.

5. 16 U.S.C. § 1536(a)(1) (1998).

6. 16 U.S.C. at § 1532(2) (1998).

7. TVA v. Hill, 437 U.S. 153 (1978).

8. See Statement of Representative Dingell, 119 Cong. Rec. 42913 (1973), as cited in TVA v. Hill, 437 U.S. at 183-84.

9. Sierra Club v. Glickman, 156 F.3d at 619.

10. Bennett v. Spear, 117 S.Ct. at 1166.
 
 

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