Sierra Club v. Glickman
156 F.3d 606 (5th Cir. 1998)
The Edwards aquifer supported
a number of endangered species, but it also supported a lot of agriculture
and provided drinking water to a lot of people.
More and more water was
getting pumped out of the aquifer, which could put the endangered species
Sierra Club sued the
Department of Agriculture (USDA) for violating §7(a)(1) of the Endangered Species Act (ESA).
Sierra Club argued that §7(a)(1) required USDA to adopt programs "for the
conservation of endangered species."
USDA argued that they
weren't the ones pumping the water, it was private farmers. USDA argued
that they didn't have the authority to forbid farmers from taking water,
all they could do was offer them incentives not to. Since (in USDA's
opinion) that probably wouldn't work, ordering USDA to take that action
would have no effect, so there was a lack of redressability.
Basically, USDA was saying
that they weren't the cause of the problem and had no power to fix it,
so there was no reason to sue them.
USDA also argued that their
duties under §7(a)(1) were not
judicially reviewable, because it was solely a question of fact and not a
question of law.
See Citizens to Preserve
Overton Park v. Volpe (401 U.S. 402
The Trial Court found for
Sierra Club. USDA appealed.
The Appellate Court affirmed.
The Appellate Court found
that USDA could have an influence on the irrigation decisions of farmers,
so the injury Sierra Club claimed was redressable.
The Court found that the
matter was judicially reviewable because §7(a)(1) contained a clear statutory directive. The
Court found that just because USDA has broad discretion as to how to
apply §7(a)(1), they could
not simply ignore it entirely.
Does this decision mean that
every Federal Agency has to reconsider every one of their programs and
decide if they doing everything they can to preserve endangered species?
Courts are mixed. Pyramid
Lake Paiute Tribe of Indians v. U.S. Department of the Navy (898 F.2d 1410 (1990)) rejected the reasoning
behind this decision said that the Navy didn't have to consider
conservation and go with the 'least burdensome alternative' possible.