The Endangered Species Act (ESA) has inflamed emotions for 45 years since its enactment, and everywhere there are strong feelings, on both sides.
The argument usually comes down to whether some species is more important than jobs, or whether all species are equally valuable. Most people venerate bald eagles above power plants, but how about weeds or bugs? The question burst into national headlines shortly after ESA was passed, because of a little 3-inch fish called the snail darter. Its discovery in 1973 landed it on the endangered list, halting construction of the Tellico Dam, a $100 million Tennessee Valley Authority (TVA) project for flood control, hydropower, and navigation. Congress had authorized the project years earlier, and it was nearly completed when a lawsuit was filed to “save the snail darter.”
Who could have imagined that the little minnow’s case would forever elevate even obscure species above all other priorities? Who could have foreseen that ESA would apply retroactively, even to continued operation of already-existing facilities? Lewis Powell.
U.S. Supreme Court Justice (1972-1987) Lewis Powell had been on the high court just 6 years when the snail darter case reached that level. The court famously decreed (TVA v. Hill) that ESA was “intended to halt and reverse the trend toward species extinction – whatever the cost.”
“This language admits of no exception,” the court ruled. That language is often cited, but few people today read Justice Powell’s prophetic dissenting opinion. It had no legal effect, of course, but it presciently foretold the ensuing conflicts. Powell anticipated Congress would eventually exempt Tellico Dam from ESA, which it did within a year. But he also knew the stakes were far higher than one fish or one dam. He, almost alone, fully grasped the consequences of applying ESA to projects already underway, or even already existing. Congress never intended that.
Congress authorized Tellico in 1966, and appropriated funds every year for the next decade. The snail darter was discovered when the project was half finished. When it was 75 percent complete, the government listed the fish as endangered, saying the dam “would result in total destruction of the snail darter’s habitat.” Congress nevertheless appropriated funds, with committee reports instructing that the project was to be built despite the fish problem. When it was 80 percent complete the lawsuit was filed, and both Houses held further hearings. The trial court ruled for TVA, knowing Congress did not intend ESA to stop nearly complete projects, as congressional action since then had reaffirmed.
From 1975-77, with full knowledge of the effect on snail darters, Congress continued to fund Tellico, with Appropriations Committees explaining that ESA did not prohibit completion. The 1976 committee report explicitly directed “that this project be completed as promptly as possible in the public interest,” without regard to ESA. Despite that clear direction, the appeals court reversed the trial court in 1977, saying “conscientious enforcement of the Act requires that it be taken to its logical extreme.” So, later that year Congress spoke clearly again, appropriating the funds, “the Endangered Species Act notwithstanding.” But in 1978 the Supreme Court sided with the appeals court, and the rest is history.
Justice Powell’s dissent cautioned that this “sweeping” interpretation meant ESA would now apply to “every existing federal installation, including great hydroelectric projects and reservoirs, every river and harbor project, and every national defense installation – however essential to the Nation’s economic health and safety.” He warned that this could “destroy the usefulness of even the most important federal project in our country,” any time there was “a newly discovered species of water spider or amoeba.”
That is precisely the way ESA has been interpreted ever since, just as Powell warned. His prediction of its unlimited reach came true, and species can now “compel the undoing or abandonment of any project or program later found to threaten a newly discovered species.”
A new Competitive Enterprise Institute report, by respected ESA expert Rob Gordon, says that interpretation has cost the economy hundreds of billions of dollars, in paperwork and legal expenses, lost jobs, and devalued property. Not a shred of evidence shows that any Member of Congress ever intended that when the ESA was adopted.
The dam is long-since complete, and snail darters are fine – they turned out to be far more numerous and widespread than originally thought. But that doesn’t really matter. Opponents of any project simply dart from fish to snail to bird, looking for any species that can be used to defeat anything – just as Powell predicted.
A version of this column appeared in the Grand Junction Daily Sentinel August 31, 2018.
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