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Book Review
| Kenneth P. Murchison, The Snail Darter Case: TVA versus the Endangered Species Act, Lawrence: University Press of Kansas, 2007. Pp. xii + 234. $35.00 cloth (ISBN 978-0-7006-1504-9); $15.95 paper (ISBN 978-7006-1505-6).
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| From the time the Supreme Court issued its 1978 decision in Tennessee Valley Authority v. Hill, the case has been understood in two contrasting ways. On one hand, it is the iconic "deep ecology" case, a ridiculous decision in which the Supreme Court held that the Endangered Species Act barred completion of an expensive dam project in order to save the snail darter. On the other hand, it is about a government agency that manipulated the cost-benefit numbers for a dam project, condemned thousands of acres of private land that were not to be flooded, and ultimately destroyed the last free flowing stretch of the Little Tennessee River—all for a project whose projected benefits were never realized. Kenneth Murchison's carefully researched, authoritative, and fair-minded retelling of the story—the most thorough account to date—shows how true the second version really is. |
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TVA, a depression-era federal agency, operates many hydroelectric dams and coal-fired power plants. The Tellico project grew out of TVA's desire to expand its mission to economic development; the Tellico dam does not produce electricity. As Murchison explains, TVA condemned 5,000 acres of shoreline that it planned to sell for planned industrial development and a model city and made the project's benefit-cost ratio positive by relying on speculation to increase the value of that land. The valley to be flooded contained valuable farmland. The Little Tennessee River's free flowing water provided a superb trout fishery and habitat for a small fish species discovered in 1973, the snail darter. The citizens who sued TVA were more concerned about the loss of their land and the valley than they were about snail darters. |
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As Murchison explains, much of the impetus for the Endangered Species litigation came from the absence of other opportunities for judicial review. Plaintiffs could not expect to successfully challenge TVA's statutory authority to condemn land for the project, thanks to a 1946 Supreme Court decision, nor could they effectively challenge TVA's cost-benefit analysis. A lawsuit under the National Environmental Policy Act, which requires federal agencies to prepare environmental impact statements for such projects, stopped the Tellico project until TVA prepared an impact statement. The Endangered Species Act, however, was different. As petitioners argued, and as Chief Justice Warren Burger wrote for the majority, Section 7 of the act, which prohibits any federal agency from jeopardizing the existence of a listed species, "admits of no exception." |
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The case illustrates how environmental law often puts the federal government at war with itself. The Department of the Interior listed the snail darter as endangered and thus triggered applicability of the statute after concluding that closure of the dam would destroy the snail darter's only then-known habitat. In fact, TVA's brief to the Supreme Court included a highly unusual appendix, written by the Interior Department, that contradicted TVA's position on all major issues. |
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As Murchison shows, the applicability of Section 7 as such was never seriously contested. The two main issues were whether annual congressional appropriations for the project implicitly amended the Endangered Species Act and whether an injunction against closure of the dam was the proper remedy for a project that was nearly completed. As litigation under the National Environmental Policy Act and the Endangered Species Act unfolded, Congress kept appropriating money for the project, and much of the project's overall cost had been expended by the time of the Supreme Court's decision. The Court upheld the language and purposes of the Act in deciding both of these issues for the citizens and against TVA. The citizens' other objections to Tellico were not relevant to this analysis. In the end, however, an explicit exemption to the Endangered Species Act in a water projects bill allowed Tellico to be completed. |
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Murchison concludes, properly, that both legislative and judicial support are necessary to protect endangered species. This legal history does not, however, explain why the project continued to attract support even after a congressionally authorized post–Supreme Court decision review concluded that its remaining costs outweighed its benefits, why the "little fish vs. big dam" version of the story was (and is) so widely believed, and why the public tolerates the continued deterioration of biodiversity and ecosystems—all of which undermine both legislative and judicial support. A 2007 Supreme Court decision, for example, appears to have trimmed the reach of TVA v. Hill. But Murchison's reliable account goes a long way toward setting the record straight on one of the Supreme Court's most important environmental decisions. |
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| John C. Dernbach
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| Widener University Law School |
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