October 21, 2013

Is endangered species protection the highest government priority?

By Damien M. Schiff Senior Attorney

This week, as we begin our blogfestschrift in honor of the Endangered Species Act’s 40th anniversary (and BTW, check out our daily poll), I think it important that we return to the decision that, more than any other, has influenced how the Act is interpreted.  In TVA v. Hill, the United States Supreme Court ruled that the Tellico Dam project in eastern Tennessee could not be completed, because it would impermissibly harm the snail darter, an ESA-protected fish.  The government had argued that, even if the project technically violated the Act, federal courts nevertheless have the equitable power to allow projects to go forward notwithstanding their species impacts.  The government underscored that the dam project was nearly complete, had been begun well before the passage of the ESA, and had received millions of federal tax dollars that would now be wasted if the project were stopped.

No matter, ruled the Supreme Court.  In an opinion authored by Chief Justice Warren Berger, the Court held that Congress, in enacting the ESA, removed the traditional equitable power of federal courts.  Based on the Act’s text and legislative history, the Court concluded 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.”

The decision sparked nationwide controversy and fear that the ESA would fundamentally alter federal agency practice and federal project funding.  In response, Congress passed the 1978 amendments to the ESA, which among other things added an Endangered Species Committee.  This body, known perhaps pejoratively as the God Squad, is composed of various high-level officials and has the power, on a case-by-case basis, to grant exemptions to projects that otherwise would violate the ESA’s command not to jeopardize endangered species’ continued existence.  For a variety of reasons, the Committee has rarely operated, but the fact of its existence speaks volumes, in my mind, as to the accuracy of the Supreme Court’s divination of Congressional intent.

On that point, I have recently been perusing the legislative history for the 1978 amendments (which passed by nearly the same margin as the 1973 Act).  That history makes clear that the members of Congress who voted for the ESA never dreamed that it would be applied so broadly and vigorously.  Senator Wallop of Wyoming observed on the Senate floor:

To my mind the greatest threat to [the ESA] all along has . . . been . . . that its provisions can be used by well-intentioned individuals to stop Federal projects as a primary goal and in a way never intended by Congress . . . . [A]n individual or group opposed to a particular Federal project [can] find one of those million of species and have its critical habitat protected not for the sake of the species, but to prevent the project . . . . [I]t is very possible that a good scientist with enough desire may be able to find an endangered species or subspecies on the vast areas impacted by a Federal project.

Senator Garn of Utah expressed a similar sentiment in advocating for the amendments that would authorize the Endangered Species Committee:

Some mechanism needs to be found to keep special interest groups from using the Endangered Species Act cynically, for their own purposes.  I have talked to a number of “environmentalists” who do not care about some of these endangered species at all.  They are using the act as a way to attack the construction of dams, grazing, drilling, mining, and any other activity they think is undesirable.

Other Senators were concerned about how the original Act was drafted so broadly as to risk being converted into an anti-human vehicle.  As Senator Scott of Virginia explained:

After reading the 1973 Endangered Species Act, it seems apparent that Congress concentrated upon the protection of fish, wildlife, and plants in a most general and constructive manner.  However, it also seems apparent that we—I say “we,” because I was a Member of the Senate and this passed on a rollcall unanimous vote—neglected to give sufficient emphasis to our own welfare, to the fact that mankind is superior to animal and plant life, that both are under the dominion of man.  Of course we should protect fish and wildlife in every proper way, and I would not suggest any other course, but in our stewardship over fish, wildlife, and plants, it does not appear reasonable to jeopardize the welfare of mankind, the society we have created, the economic, social, political, and cultural system we have developed over the years.

Mr. President, I am concerned about human like.  To me human life takes priority over that of any fish, of any wildlife, of any species of plant.

People are more important than fish.

In a similar vein, Senator Stennis of Mississippi noted:

I believe that in passing the Endangered Species Act we inadvertently unbalanced the scales unduly.  We must redress the situation and enact legislation which does not unnecessarily and unreasonably hamper progress, growth, and development.

Senator Garn also explained how the 1973 Act’s broad text did not correlate well to the Congress’s true intentions.

Certainly, in 1973, there was a great environmental push.  The Endangered Species Act passed the Senate extremely easily, with no dissenting votes.  But, talking to many of my colleagues, I learn that they certainly would not have voted for it if they had known the implications and the extremes to which the act would be carried. . . .  I think we need to face the fact that, in 1973, Congress did not say that endangered species were to be protected at any cost.

In the case of TVA against Hill, the Supreme Court concluded that it had been Congress’ intent to provide endangered or threatened wildlife and plants the highest possible degree of protection from Federal actions.  All other national goals, the Court said, must fall in the face of a threat to an endangered species. . . .  That interpretation is, in my opinion, patent nonsense, and it is not the interpretation put upon the act by the Congress in passing it.

In fact, Senator Garn’s position is probably typical of many legislators at the time who were prepared to go to some lengths to protect certain “charismatic” species who would view significant sacrifice for all species to be unwarranted.

I would be in favor of undertaking tremendous costs to preserve the bald eagle, but that kind of effort is out of proportion to the value of the woundfin minnow, or the snail darter, or the lousewort, or the waterbug, or many others that we are attempting to protect.”

Of course, one must always be chary about picking various statements from Congressional floor debates.  For as many of these comments, there are comments from other Senators singing the praises of the ESA.  Nevertheless, I believe it is a significant indicator of Congressional intent that the 1978 amendments were passed nearly unanimously, Congress acknowledging that the Supreme Court’s strict construction of the Act was not politically and socially viable.

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