Summary of a Recent
Judicial
Development in
Environmental Law
Threat of Litigation Is Insufficient to Create a
Judicially Reviewable Case or Controversy
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Shields v. Norton, 289 F.3d 832 (5th Cir. 2002), the United States Fifth Circuit Court of Appeals vacated and remanded the district court's decision, which had granted the defendants' motion for summary judgment. Aquifer users sued an environmental organization, the Secretary of the Department of Interior, and others seeking a declaration that portions of the Endangered Species Act (ESA) were unconstitutional. The instant court held that the action was not ripe for judicial review because it failed to qualify as a judicially reviewable case or controversy.
Background
The plaintiffs relied on the Edwards Aquifer in Texas to irrigate crops valued at millions of dollars. Id. at 833. They brought the instant action challenging the constitutionality of the ESA's Take Provision, 16 U.S.C. § 1538(a)(1)(B), as applied to listed species located in San Marcos and Comal Springs. Id. at 834. The suit was filed in response to the defendants' threats "to sue area water pumpers for ESA violations based upon the theory that the pumping of water from the Edwards Aquifer harmed the Edwards Species and [was] a 'take' for purposes of the ESA." Id. The plaintiffs sought a declaration that the Take Provision exceeded Congress's delegation authority under the Commerce Clause. Id. The district court granted the Secretary of Interior's and Sierra Club's motion for summary judgment, holding that the Take Provision was a valid exercise of Congress's power pursuant to the Commerce Clause. Id. The district court reasoned that the case was ripe for adjudication because the "ESA 'effectively impose[d] immediate obligations on Edwards pumpers' and concluded that '[the plaintiff] should not be placed in the unenviable position that, in order to test the constitutionality of the ESA, he must expose himself to civil and criminal liability." Id. at 835. The plaintiffs appealed. Id.
Arguments
The plaintiffs alleged that the defendants had threatened them with suit for violating the ESA "based upon the theory that the pumping of water from the Edwards Aquifer harmed the Edwards Species and [was] a 'take' for purposes of the ESA." Id. at 834. The plaintiffs sought a declaration that the ESA's Take Provision, 16 U.S.C. § 1538(a)(1)(B), exceeded Congress's delegation authority under the Commerce Clause. Id.
Analysis and Holdings
The court was faced with the issue of whether the defendants' threat of litigation was specific and concrete enough to render the instant action an actual case or controversy and thus ripe for judicial review. Id. at 836. Article III of the United States Constitution permits federal courts to adjudicate cases or controversies only if ripe for decision. Id. at 834-35. Ripeness is essential for a federal court to exercise jurisdiction. Id. at 835. In holding that the proffered facts failed to rise to a sufficiently specific or concrete case or controversy, the court stated that there was "some saber rattling, but nothing more, and [it was] left with the unease that proceeding to the merits [was] more likely than not the offering of one answer to a hypothesis-a possible but not sufficiently possible injury." Id. at 837. For this reason, the court vacated the district court's judgment and remanded with instruction to dismiss for lack of jurisdiction. Id.
The case was decided on April 26, 2002.