a critique of TVA v. Hill

Yesterday marked the thirtieth anniversary of the U.S. Supreme Court's landmark decision interpreting the Endangered Species Act, TVA v. Hill.  In TVA, the Court was faced with the question of whether the Tennessee Valley Authority would be allowed under the ESA to proceed with the opening of a federal dam that would, as was believed at the time, adversely affect the likelihood of survival of the snail darter, an endangered species of fish.  The Court answered in the negative, holding that the ESA prohibited completion of the dam, and TVA cease work on the project until Congress granted it an exemption in 1979.

Yet the case is celebrated today not so much for the snail darter's short-lived victory over TVA's project (although it is worth noting that other populations of the snail darter were found after the decision and the species is alive and well today), but more so for the grandiose language invoked by the Supreme Court in preventing the project from proceeding.

In the decision, the Court was correct to label the ESA as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."  However, rather than simply apply the law to the facts of the case, Chief Justice Burger's opinion offered a romantic view of the ESA, citing to ambiguous legislative history for his view that the ESA was a law that trumped all other considerations.  Without support from the text of the statute, Burger wrote that the ESA "show[ed] clearly that Congress viewed the value of endangered species as 'incalculable.'"  Similarly, and again without any support from the text of the statute, he also declared that the "plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the cost" (emphasis added).

The impact of TVA has been significant, as courts have applied its "whatever the cost" language to various ESA decisions affecting private landowners and local land use projects, not simply to Section 7 federal agency consultations as were at issue in the decision.  Moreover, property owners faced with uncertain claims of ESA violations on their land are often not entitled to any benefit of the doubt because, under TVA, the ESA requires protection of endangered species, "whatever the cost," including property rights. 

TVA may also be very relevant in forthcoming litigation over the listing of the polar bear as a threatened species due to global warming.  Faced with the argument that using this listing to remedy global warming will impose draconian consequences upon the nation's economy, environmental groups may very well counter that such consequences are of little matter, as the ESA requires species protection "whatever the cost."

While TVA v. Hill provides an important weapon in environmental groups' ESA arsenal, it is not clear that TVA was correctly decided.  True, the TVA project posed what was then thought to be a direct threat to an endangered species.  But on the issue of whether to allow the project to proceed, the district court had held that the TVA project could continue given, among other factors, congressional funding of the project despite knowledge of the threat the project posed to an endangered species.

The underlying issue before the Supreme Court, then, was whether the district court abused its discretion in deciding for TVA.  As Justice Rehnquist noted in his dissent, "[t]he District Court denied respondents injunctive relief because of the significant public and social harms that would flow from such relief and because of the demonstrated good faith of [TVA].  As the Court recognizes . . . such factors have played a central role in the decisions of equity courts whether to deny an injunction."  For Justice Rehnquist, the district court's decision in favor of TVA was completely legitimate:

"Here the District Court recognized that Congress, when it enacted the Endangered Species Act, made the preservation of the habitat of the snail darter an important public concern.  But it concluded that this interest on one side of the balance was more than outweighed by other equally significant factors.  These factors . . . satisfy me that the District Court's refusal to issue an injunction was not an abuse of its discretion."

Chief Justice Burger's opinion did not deal with Justice Rehnquist's simple but important point at length, merely declaring (again without support from the statutory text of the ESA) that "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities."  Yet nothing in the ESA speaks of "priorities," let alone declaring constitutionally-protected property rights to be subservient to rights of endangered species.

Thus, while TVA v. Hill is a landmark decision, it has significant flaws.  The decision is grounded in majestic language that, although it cannot be found in the text of the ESA, has been used to the detriment of a reasonable approach to the law.  It also fails to adequately deal with the amount of discretion a federal court should receive when faced with remedying a potential violation of a law–the rule is that courts have a fair amount of discretion, but TVA held otherwise when it comes to the ESA, even though Congress did not explicitly declare that to be the case.

Accordingly, the thirtieth anniversary of TVA should not be celebrated as a victory for proper statutory interpretation, but instead should be looked upon as a feel-good decision that granted the ESA far more power than Congress intended.