Snail darter controversy
Encyclopedia
Tellico Dam
Tellico Dam is a dam built by the Tennessee Valley Authority in Loudon County, Tennessee on the Little Tennessee River just above the main stem of the Tennessee River. It impounds the Tellico Reservoir....
on the Little Tennessee River
Little Tennessee River
The Little Tennessee River is a tributary of the Tennessee River, approximately 135 miles long, in the Appalachian Mountains in the southeastern United States.-Geography:...
in 1973. On August 12, 1973, University of Tennessee
University of Tennessee
The University of Tennessee is a public land-grant university headquartered at Knoxville, Tennessee, United States...
biologist and professor David Etnier discovered the snail darter
Snail darter
The snail darter is a small , rare fish found in the waters of East Tennessee. It is a variety of darter which feeds primarily on aquatic snails....
in the Little Tennessee River while doing research related to a lawsuit involving the National Environmental Policy Act
National Environmental Policy Act
The National Environmental Policy Act is a United States environmental law that established a U.S. national policy promoting the enhancement of the environment and also established the President's Council on Environmental Quality ....
(NEPA). The lawsuit stated that the Tellico Reservoir
Tellico Reservoir
Tellico Reservoir, also known as Tellico Lake, is a reservoir in Tennessee, created by the Tennessee Valley Authority in 1979 upon the completion of Tellico Dam. The dam impounds the Little Tennessee River and the lower Tellico River...
, to be created by Tellico Dam, would alter the habitat of the river to the point of extirpating the snail darter. The NEPA lawsuits slowed the construction of the Tellico Dam but did not stop it.
Supreme Court decision
The United States CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
had been inconsistent regarding the snail darter and the Endangered Species Act
Endangered Species Act
The Endangered Species Act of 1973 is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon on December 28, 1973, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and...
. Appropriations committees in both the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
had taken a strong position against the snail darter. A 1977 Senate Appropriations Committee
United States Senate Committee on Appropriations
The United States Senate Committee on Appropriations is a standing committee of the United States Senate. It has jurisdiction over all discretionary spending legislation in the Senate....
report stated:
This committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee’s understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act not withstanding.
The case eventually reached the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. In Tennessee Valley Authority v. Hill
Tennessee Valley Authority v. Hill
Tennessee Valley Authority v. Hill et al., or TVA v. Hill, 437 U.S. 153 , was a United States Supreme Court case. It is a commonly cited example of the canon of construction expressio unius est exclusio alterius .- Background :The Tennessee Valley Authority started the building of the Tellico Dam...
, 437 U.S. 153
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1978), Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren Burger wrote for the majority. The court replied to the Tennessee Valley Authority
Tennessee Valley Authority
The Tennessee Valley Authority is a federally owned corporation in the United States created by congressional charter in May 1933 to provide navigation, flood control, electricity generation, fertilizer manufacturing, and economic development in the Tennessee Valley, a region particularly affected...
's arguments and expanded on its decision:
- The language of the Act made no exceptions for projects like Tellico that were well under way when Congress passed the act.
- It is clear from the Act’s legislative historyLegislative historyLegislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
that Congress intended to halt and reverse the trend toward species extinction. The pointed omission of the type of qualified language previously included in endangered species legislation reveals a conscious congressional design to give endangered species priority over the “primary missions” of federal agencies. Congress, moreover, foresaw that on occasion this would require agencies to alter ongoing projects in order to fulfill the Act’s goals. - Though statements in Appropriations Committee Reports reflected the view of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the Act’s provisions, nothing in the TVA appropriations measures passed by Congress stated that the Tellico project was to be completed regardless of the Act’s requirements. When voting on appropriations measures, legislators are entitled to assume that the funds will be devoted to purposes that are lawful and not for any purpose forbidden. A contrary policy would violate the rules of both Houses of Congress, which provide that appropriations measures may not change existing substantive law. An appropriations committee’s expression does not operate to repeal or modify substantive legislation.
- Completion of the Tellico Dam project would violate the Act, so the Court of Appeals did not err by ordering the project to be enjoinedInjunctionAn injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
. Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities. Since that legislative power has been exercised, it is up to the executive branch to administer the law and for the Judiciary to enforce it when, as here, enforcement has been sought.
Burger’s opinion made it clear that, as written, the Endangered Species Act explicitly forbade the completion of such projects as Tellico if the Secretary of Interior had determined that such a project would likely result in the elimination of a species. Regardless of the fact that over $100 million had been spent by 1978, and the dam was substantially finished, the court could not allow the TVA to finish the project. According to Burger, this would force the court “to ignore the ordinary meaning of plain language."
The Supreme Court decision set off a fury in Congress as some members sought to rework the act. In his tome "The Fishes of Tennessee", David Etnier later wrote: “the snail darter had become almost a household word, and in current usage ‘snail darter types’ is approximately synonymous with ‘ultra-liberal environmental activists.’”
Two Tennessee legislators get involved
Two members of Congress from Tennessee quickly became critical to the Tellico story: Congressman John Duncan, Sr.John Duncan, Sr.
John James Duncan, Sr. was an American attorney and Republican politician who represented Tennessee's 2nd Congressional District in the U. S. House of Representatives from 1965 until his death in 1988. He also served as Mayor of Knoxville, Tennessee, from 1959 to 1964, and as assistant attorney...
, whose district included Tellico, and Senator Howard Baker
Howard Baker
Howard Henry Baker, Jr. is a former Senate Majority Leader, Republican U.S. Senator from Tennessee, White House Chief of Staff, and a former United States Ambassador to Japan.Known in Washington, D.C...
. Duncan had been a long-time congressional supporter of the project. On the other hand, Baker was a very late comer to Tellico. As it would turn out, however, he would play a critical role in the future of the Little Tennessee River valley.
Howard Baker was a leading sponsor of an amendment to the Endangered Species Act that was passed into law in November 1978. The idea was to create a mechanism whereby a specific project could be excluded from the Endangered Species Act. If a controversy arose, the amendment called for the creation of a special committee consisting of various Cabinet
United States Cabinet
The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, which are generally the heads of the federal executive departments...
level members and at least one member from the affected state where the project in question was located. It came to be known as the “God Committee” because if they exercised their power to exempt a project from the act, they were in effect acting like God and destroying an entire species.
There was a fear in Congress that many projects in the country would be affected by litigation as biologists might set out to discover obscure species, including insects or even micro-biotic life forms. The proponents of the “God Committee” amendment saw it as a way of keeping the Endangered Species Act alive. According to the Burger opinion, U.S. Endangered Species laws at that time “represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”
Instead of granting Tellico an exemption from the Endangered Species Act, the committee voted unanimously in favor of the snail darter. On January 23, 1979, the Committee unanimously denied an exemption for Tellico specifically on economic grounds, rather than ecological grounds. “I hate to see the snail darter get the credit for stopping a project that was ill-conceived and uneconomic in the first place,” said Chairman Andrus
Cecil D. Andrus
Cecil Dale Andrus was an American politician who served as Governor of Idaho from 1971 to 1977, and again from 1987 to 1995; and in Washington as United States Secretary of the Interior from 1977 to 1981, during the Carter administration...
. The reservoir project deserved to be killed on its own merits. As Charles Schultze
Charles Schultze
Charles L. Schultze is a United States economist and public policy analyst. He served as chairman of the United States Council of Economic Advisers during the Carter Administration. In the 1960s Schultze was appointed assistant director of the U.S. Bureau of the Budget by President John F...
, Chairman of the Council of Economic Advisors and a member of the Committee, said, “Here is a project that is 95% complete, and if one takes the cost of finishing it against the total project benefits, and does it properly, it doesn’t pay, which says something about the original design.”
The opposition would make much of the problematic benefit-cost issue throughout the 1970s. Despite his credentials as one of the nation’s top economists, however, Schultze was no more prepared to accurately predict future benefits than anyone else at the time. Wheeler and McDonald state the problem was TVA’s general unfamiliarity with econometric models used to come up with benefit-cost ratios. Such models require some underlying assumptions. Wheeler and McDonald identify five general assumptions TVA used and declared them all to be false. They were:
(1) The Tellico area would remain economically static without the project. (2) All economic projects that occurred in the area after completion of the project should be attributed to the project. (3) If an economic benefit could take place at Tellico, then it would. (4) The Tellico Project would not detract from any economic benefits already being enjoyed in the area. (5) Once set, costs would not rise faster than the normal annual inflation rate of the early 1960s.
Congress had updated and strengthened the Endangered Species Act in 1973. Tellico Dam opponents had successfully sued under the provisions of that law to stop the dam. The Supreme Court had stated that as written, it was clear that Congress intended to protect all species including the snail darter. In 1978 Congress amended the law with the case of the snail darter specifically in mind.
Baker then drafted an amendment that excluded the Tellico project from the Endangered Species Act, along the lines initially suggested by the federal courts. Duncan got the amendment passed by the House on June 18, 1979, on a voice vote. The vote became infamous among dam opponents. Baker introduced the amendment in the Senate on July 17 and was defeated on a vote of 45-53. Undeterred, Baker reintroduced the amendment in September. Baker spoke in favor of his amendment on the Senate floor:
Mr. President, I hope this is the last time around. I hope we can resolve this issue once and for all, and I hope reason will finally prevail. . . .
Mr. President, the awful beast is back. The Tennessee snail darter, the bane of my existence, the nemesis of my golden years, the bold perverter of the Endangered Species Act is back.
He is still insisting that the Tellico Dam on the Little Tennessee River, a dam that is now 99% complete, be destroyed.
In the midst of a national energy crisis, the snail darter demands that we scuttle a project that would produce 200 million kilowatt hours of hydroelectric power and save an estimated 15 million gallons of oil.
Although other residences have been found in which he can thrive serenely, the snail darter stubbornly insists on keeping this particular stretch of the Little Tennessee River as his principal domicile. ...
Let me stress again, Mr. President, that this is fine with me. I have nothing personal against the snail darter. He seems to be quite a nice little fish, as fish go.
Now seriously Mr. President, the snail darter has become an unfortunate example of environmental extremism, and this kind of extremism, if rewarded and allowed to persist, will spell the doom to the environmental protection movement in this country more surely and more quickly than anything else. ...
We who voted for the Endangered Species Act with the honest intentions of protecting such glories of nature as the wolf, the eagle, and other treasures have found that extremists with wholly different motives are using this noble act for meanly obstructive ends. ...
Completion of dam
On September 10, 1979, Baker's amendment passed on a vote of 48 to 44. 28 Republicans and 20 Democrats supported it. 10 Republicans and 34 Democrats opposed it. The next step for Tellico was President Carter’sJimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
desk.
On September 25, 1979, Jimmy Carter signed the bill that exempted Tellico from the Endangered Species Act. Tellico was never exempted from all of the laws as many would later claim they were.
On November 29, 1979, with retired TVA Chairman Red Wagner watching, the TVA closed the gates on the Tellico Dam.
Before the closure of the gates of Tellico Dam, numerous snail darters were transplanted into the Hiwassee River
Hiwassee River
The Hiwassee River has its headwaters on the north slope of Rocky Mountain in Towns County in northern Georgia and flows northward into North Carolina before turning westward into Tennessee, flowing into the Tennessee River a few miles west of State Route 58 in Meigs County, Tennessee...
in Tennessee. The snail darter was reclassified from endangered to threatened on July 5, 1984.