White: Ruling puts birds ahead of people

By Kathleen Hartnett White

Texas Public Policy Foundation

As Texas continues to endure widespread drought, a new man-made water shortage is percolating through the federal courts. An unusually, if not uniquely aggressive court ruling under the Endangered Species Act now collides with a vital state authority and the Fifth, 10th and 11th amendments of the U.S. Constitution. This decision elevates the needs of the Whooping Cranes above all Texans need for water.

On March 11, the federal district court in Corpus Christi ruled that Texas had violated the federal law by causing harm to the endangered whooping cranes who winter in San Antonio bay and the estuary of the Guadalupe River basin. If this ruling survives appeal, our state’s already formidable effort to increase available water supply becomes, by orders of magnitude, more challenging. Thankfully, the Fifth Circuit Court of Appeals in New Orleans on March 25 granted that state’s request to stay the district court’s order pending complete appellate review.

The court’s decision sunders the state’s long-recognized authority to allocate the water within its borders for beneficial human use — without federal interference. Such a primary state authority is recognized in most federal laws but not in the ESA.

According to Judge Janis Jack, the state’s past actions and inactions reduced freshwater inflows and thus reduced the main food source of the cranes. Rare among ESA rulings, the judge held that Texas’ implementation of state water law made the state liable for the deaths of – some 23 whooping cranes during the severe drought of 2008 and 2009.

Continued:  http://www.statesman.com/news/news/opinion/white-ruling-puts-birds-ahead-of-people/nW6tL/