Wednesday, March 20, 2013
The State’s brief to the Fifth Circuit explains that the lower court’s ruling must be set aside because it will cause irreparable harm to the farmers, ranchers and communities along the Guadalupe and San Antonio Rivers as well as the State of Texas. Further, the State’s stay application details why the district court’s decision is legally flawed and thus likely to be overturned on appeal. For example, the district court improperly ordered the State to apply for permits from the federal government despite the fact that courts lack the authority to compel state officials to participate in a voluntary federal permitting regime.
Excerpts from the State’s Emergency Stay Application:
The district court interprets the Endangered Species Act to require state officials to maintain and enforce state-law prohibitions against water usage that purportedly harms an endangered species, holding that permits must be denied and state-law prohibitions on water use maintained whenever water is used in a manner that violates the Endangered Species Act. This approach contradicts basic principles of federalism.
the theory of causation adopted by the district court makes state officials legally responsible for practically every action undertaken by one of their State’s residents. A State will cause’ any conduct that it fails to criminalize or prohibit, even when that conduct is undertaken by autonomous private actors. That theory of state action that has been emphatically rejected by the Supreme Court for nearly 130 years, and no federal court can graft those understandings of state responsibility onto the Endangered Species Act in the face of these binding Supreme Court pronouncements.
The district court’s Memorandum Opinion seeks to protect the whooping crane without any regard to the State’s municipal, agricultural and industrial needs, or the need for rational policymaking that weighs interests in species preservation against other important considerations. The public interest involves more than a blinkered determination to protect an endangered species without regard to costs. Prohibiting TCEQ from issuing new permits to persons seeking to use water from the Guadalupe and San Antonio Rivers is an extreme response that elevates the interests of whooping cranes over everyone else in Texas who needs to use the rivers.