Tennessee Valley Authority V. Hill

The Setting

When the Supreme Court considered Tennessee Valley Authority v. Hill in 1978, the Little Tennessee River was a freestone stream originating in the hills of Georgia and terminating at its confluence with the Big Tennessee River near Knoxville.¹ The Tennessee Valley Authority (TVA) intended to transform the river into a 30-mile long reservoir by building the Tellico Dam. Congress had authorized funding for the project in 1967 to generate hydroelectricity, create recreational opportunities and flood control, and promote shoreline development.²

In 1973, an ichthyologist discovered the snail darter in the Little Tennessee, a find that took on great importance four months later when Congress passed the Endangered Species Act of 1973 (ESA).³ In 1975, the Secretary of the Interior declared that the snail darter was an endangered species, the Little Tennessee was its critical habitat, and the impoundment of water behind the Tellico Dam would result in total destruction of that habitat.⁴ With 78 million dollars of public funds spent and the fate of the snail darter on the line, the plaintiffs filed suit in what would be the first major test of the courts’ willingness to enforce the ESA.

Ensuing Litigation

The District Court recognized the likely extinction of the snail darter, but interpreted continued Congressional funding with awareness of that extinction as an implied exception for the Tellico Dam.⁵

The Court of Appeals reversed and granted an injunction, ruling that the construction of the dam was a prima facie violation of the ESA. The Court of Appeals deferred to the plain language of the ESA, and found that adopting a utilitarian balancing test of the societal costs of construction versus extinction would exceed the power of the court. As such, the Court found that the completeness of the dam or the money spent was legally irrelevant.⁶

Supreme Court Justice Burger wrote a 6-3 decision affirming the Court of Appeals.

While the Court recognized the perceived absurdity in forfeiting tens of millions of dollars of public funds for a small fish, it interpreted both the plain language of Section 7 of the ESA and the legislative history as giving highest priority to the preservation of endangered species.

While previous versions of the ESA had contained qualifying language ordering federal agencies to protect endangered species only to the extent that was “practical and consistent with agency purposes,” the 1973 Act did not contain such qualifications.⁷ Finding that agency discretion and cost-benefit analysis had been purposefully omitted from the ESA of 1973, the Court affirmed the Court of Appeals’ injunction.

Congress Amends the ESA

In response to the Court’s decision, Congress amended Section 7 of the ESA in 1978 to add the so-called “God Committee,” which could consider the economic implications of a plan in order to grant exemptions. Reporting to this committee, the President’s Council of Economic Advisors concluded that the cost of the remaining 5% of the Tellico project would be greater than the benefits, and that the dam would lose 76 cents for every dollar spent.

Despite this economic data, Congress eventually bowed to political will and passed a rider on an appropriations bill that exempted the Tellico Dam from the ESA. Construction was completed in 1979, but TVA v. Hill is nonetheless considered a conservation success in that it demonstrated the courts’ willingness to enforce the ESA.

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¹ Tennessee Valley Authority v. Hill, 437 U.S. 153, 156 (1978) (citation omitted). Id. at 157.
²Id.
³Id. at 159, 162.
⁴Id. at 166.
⁵Id. at 169.
⁶Id. at 175, 182.
⁷Zygmunt J.B. Plater, Tiny Fish, Big Battle, 44 Tenn. B. J. 14, 18 (2008).