Summary of a Recent
Judicial Development in
Environmental Law

ESA Imposes Affirmative Duty on Each Federal Agency
to Conserve Each Listed Species

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998), the United States Court of Appeals for the Fifth Circuit affirmed in part, reversed in part, and dismissed in part the district court's decision, which had granted the Sierra Club's motion for summary judgment. The Sierra Club brought action against the United States Department of Agriculture (USDA) alleging violations of the Agriculture and Water Policy Coordination Act, the Bankhead-Jones Farm Tenant Act, and the Endangered Species Act. The court held that the Sierra Club lacked standing to bring action against the USDA for violations of the Agriculture and Water Policy Coordination Act and Bankhead-Jones Farm Tenant Act. However, it also held: (1) the Sierra Club had standing to bring its ESA claim against the USDA for failing to carry out certain conservation programs; and (2) the ESA's citizen suit provision and/or the Administrative Procedure Act (APA) could be used to challenge the USDA's failure to carry out conservation programs.

Background

The Sierra Club and others brought a series of litigations aimed to protect threatened or endangered species that depended on the Edwards Aquifer for survival. Id. at 610. On April 28, 1995, the Sierra Club brought a three-count suit against the USDA alleging violations of the Agriculture and Water Policy Coordination Act (AWPCA), 7 U.S.C. §§ 5401-5405; the Bankhead-Jones Farm Tenant Act (BJFTA), 7 U.S.C. § 1010; and the Endangered Species Act (ESA), 16 U.S.C. § 1536. Id. In June 1996, after discovery was complete, the parties filed cross motions for summary judgment. Id. at 611. Additionally, the Sierra Club sought injunctive relief to stop disbursement of government payments to eligible producers until the USDA formally consulted with the Fish and Wildlife Service (FWS). Id.

On July 2, 1996, the district court granted the Sierra Club's motion for summary judgment as to the AWPCA and the BJFTA, but denied both parties' motions for summary judgment as to the ESA. Id. A bench trial was held on the Sierra Club's ESA causes of action, and on August 19, 1996, the court issued its opinion stating that "USDA had 'unreasonably delayed' ESA § 7(a)(2) consultation with respect to [making government payments to eligible producers]." Id. at 612. However, the court did not enjoin the payments or mandate that the USDA proceed to formal consultation with the FWS. Id. Rather, the court ordered the USDA to "'complete its portion of the informal consultation, including consulting and obtaining the assistance of the [the FWS] by November 1, 1996.'" Id. at 612. Thereafter, the USDA appealed. Id.

Arguments

The Sierra Club claimed that the AWPCA and the BJFTA required the USDA "to develop and implement programs to protect waters from contamination and to prevent environmental problems that may result from agricultural production." Id. at 610. The Sierra Club alleged in its complaint that the USDA had "unlawfully withheld or unreasonably delayed compliance with these statutes" in regard to the Edwards Aquifer. Id. The Sierra Club also alleged that the USDA violated § 7(a)(1) of the ESA by failing to consult with the FWS or utilize its authority to carry out programs to protect "Edwards-dependent species." Id. Finally, the Sierra Club claimed that the USDA had violated § 7(a)(2) of the ESA by subsidizing agricultural operations dependent on the Edwards Aquifer without first consulting with the FWS about the "Edwards-dependent species." Id. at 611.

Analysis and Holdings

The court first addressed the USDA's argument that the court erred in granting the Sierra Club relief under § 7(a)(1) of the ESA. Id. at 612. Pursuant to this section, the district court "ordered the USDA to develop, in consultation with FWS, 'an organized program for utilizing USDA's authorities for the conservation of the Edwards-dependent endangered and threatened species as contemplated by the ESA.'" Id. In response, the USDA argued that neither the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A), nor the APA authorized judicial review of the agency's actions pursuant to § 7(a)(1) of the ESA. Id. at 612-13. Additionally, the USDA argued that, to the extent the Sierra Club's claims were reviewable, the agency complied with its obligations pursuant to § 7(a)(1). Id. at 613. After reviewing the United States Supreme Court's decision in Bennett v. Spear, 520 U.S. 154 (1997), the court held that the USDA's actions pursuant to § 7(a)(1) were reviewable under the citizen suit provision of the ESA because § 7(a)(1) was "a means by which private parties [could] enforce the substantive provisions of the ESA against any regulated party-both private entities and Government agencies." Id. at 616-17. The court held that the USDA's actions pursuant to § 7(a)(1) were also reviewable under the APA because the USDA failed to dispute that the Sierra Club was "a person adversely affected or aggrieved within the meaning of § 7(a)(1)." Id. at 617. For these reasons, the court held that "the Sierra Club's cause of action under § 7(a)(1) [was] maintainable under the citizen suit provision of the ESA." Id. at 618.

The court then addressed the USDA's argument that the district court erred in granting relief to the Sierra Club pursuant to § 7(a)(2) of the ESA. Id. Because the court held that the USDA's appeal with respect to § 7(a)(2) was moot, it did not reach the merits of the agency's arguments. Id. at 619.

Finally, the court addressed the USDA's argument that "the district court erred in finding that the USDA had unlawfully refused or unreasonably delayed developing and implementing programs" under the AWPCA, "related provisions that establish a USDA Council on Environmental Quality," and the BJFTA. Id. at 620. The court first discussed whether the Sierra Club had standing to bring these claims. Id. Because it failed to "set forth any evidence showing that its injury at the springs [was] fairly traceable to the USDA's failure to implement [these] statutes" and it "failed to demonstrate in any way that an order requiring the USDA to comply with the [these] statutes would redress its injury at the springs," the court held that the Sierra Club had alleged nothing more than a generalized grievance. Id. at 620-21. A generalized grievance is not a case or controversy; therefore, the court reversed the judgment of the district court regarding the AWPCA, the related provisions establishing a USDA Council on Environmental Quality, and the BJFTA. Id. at 621.

The case was decided on September 24, 1998.