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TVA v.

HILL The Secretary [of the Interior] shall


United States Supreme Court review other programs administered by him and
TVA v. HILL, (1978) utilize such programs in furtherance of the
No. 76-1701
purposes of this chapter. All other Federal
Argued: April 18, 1978 Decided: June 15, 1978
departments and agencies shall, in consultation
with and with the assistance of the Secretary,
1967 TVA began constructing Tellico Dam utilize their authorities in furtherance of the
Project purposes of this chapter by carrying out
programs for the conservation of endangered
Tennessee Valley Authority is a wholly owned species and threatened species listed pursuant to
public corporation of the United States, created to section 1533 of this title and by taking such
provide navigation, flood control, electricity action necessary to insure that actions
generation and economic development in authorized, funded, or carried out by them do not
Tennessee. jeopardize the continued existence of such
TVA started constructing the Tellico Dam, a endangered species and threatened species or
multipurpose regional development project result in the destruction or modification of
designed principally to stimulate shoreline habitat of such species which is determined by
development, generate sufficient electric current the Secretary, after consultation as appropriate
to heat 20,000 homes. When fully operational, the with the affected States, to be critical.
dam would impound water covering some 16,500 1975, January- the respondents and others
acres - much of which represents valuable and petitioned the Secretary of the Interior 11 to list
productive farmland - thereby converting the the snail darter as an endangered species.
river's shallow, fast-flowing waters into a deep
reservoir over 30 miles in length. 1975, October snail darter was formally
listed as endangered species.
1973, August Snail Darter was discovered
An "endangered species" is
A University of Tennessee defined by the Act to mean "any species which is
ichthyologist, Dr. David A. Etnier, found a in danger of extinction throughout all or a
previously unknown species of perch, the snail significant portion of its range other than a
darter, or Percina (Imostoma) tanasi. This three- species of the Class Insecta determined by the
inch, tannish-colored fish, whose numbers are Secretary to constitute a pest whose protection
estimated to be in the range of 10,000 to 15,000 under the provisions of this chapter would
1973, December Endangered Species Act present an overwhelming and overriding risk to
was passed into law man."

This legislation, among other things, authorizes The Secretary determined that the snail darter
the Secretary of the Interior to declare species of apparently lives only in that portion of the Little
animal life "endangered" and to identify the Tennessee River which would be completely
"critical habitat" of these creatures. When a inundated by the reservoir created as a
species or its habitat is so listed, the following consequence of the Tellico Dam's completion.
portion of the Act - relevant here - becomes "[T]he snail darter occurs only in the swifter
effective: portions of shoals over clean gravel substrate in
cool, low-turbidity water. Food of the snail darter
is almost exclusively snails which require a clean habitat," making it "highly probable" that "the
gravel substrate for their survival. The proposed continued existence of the snail darter" would be
impoundment of water behind the proposed "jeopardize. Despite these findings, the District
Tellico Dam would result in total destruction of Court declined to embrace the plaintiffs' position
the snail darter's habitat." on the merits: that once a federal project was
shown to jeopardize an endangered species, a
Subsequent to this determination, the Secretary court of equity is compelled to issue an injunction
declared the area of the Little Tennessee which restraining violation of the Endangered Species
would be affected by the Tellico Dam to be the Act.
"critical habitat" of the snail darter
At some point in time a federal project becomes
1976, February- pursuant to Endangered so near completion and so incapable of
Species Act, respondents filed the seeking to modification that a court of equity should not
enjoin completion of the dam and impoundment apply a statute enacted long after inception of the
of the reservoir on the ground that those actions project to produce an unreasonable result. . . .
would violate the Act by directly causing the Where there has been an irreversible and
extinction of the snail darter. irretrievable commitment of resources by
During the pendency of these Congress to a project over a span of almost a
administrative actions, negotiations between the decade, the Court should proceed with a great
Department of the Interior's Fish and Wildlife deal of circumspection
Service and TVA were conducted toward setting Ratio:
the issue informally but to no avail since TVA
consistently took the position that the only - the entire project was then about 80% complete
available alternative was to attempt relocating and, based on available evidence, "there [were]
the snail darter population to another suitable no alternatives to impoundment of the reservoir,
location. short of scrapping the entire project.

-The Secretary of the Interior was not - If the Tellico Project was permanently enjoined,
satisfied with the results of these efforts, finding "some $53 million would be lost in
that TVA had presented "little evidence that they nonrecoverable obligations, a large portion of
have carefully studied the Hiwassee to determine the $78 million already expended would be
whether or not" there were "biological and other wasted.
factors in this river that [would] negate a
successful transplant - Endangered Species Act of 1973 was passed
some seven years after construction on the dam
1976, April-May trial was held. District Court commenced and that Congress had continued
DENIED respondents requested relief and appropriations for Tellico, with full awareness of
DISMISSED the complaint the snail darter problem.

DISTRICT COURT FINDINGS 1976, June 29 budget request for Tellico


Dam was approved.
The closure of the dam and the
consequent impoundment of the reservoir would The Committee does not view the
"result in the adverse modification, if not Endangered Species Act as prohibiting the
complete destruction, of the snail darter's critical completion of the Tellico project at its advanced
stage and directs that this project be completed "It is conceivable that the welfare
as promptly as possible in the public interest. of an endangered species may weigh more
heavily upon the public conscience, as expressed
1977, January 31 - by the final will of Congress, than the writeoff of
CA agreed with respondents contention that those millions of dollars already expended for
District Court had abused its discretion by not Tellico in excess of its present salvageable value
issuing an injunction CA issued a permanent 1977, June 2 - members of TVA's Board of
injunction to halt all activities incident to the Directors appeared before Subcommittees of the
Tellico Project. The injunction to "remain in effect House and Senate Appropriations Committees to
until Congress, by appropriate legislation, testify in support of continued appropriations for
exempts Tellico from compliance with the Act or Tellico.
the snail darter has been deleted from the list of
endangered species or its critical habitat - The Committee strongly recommends that these
materially redefined." projects not be stopped because of misuse of the
Act.
CA Decision
Committee granted the appropriation requested
-prima facie violation of 7 of the with $2 million to facilitate the relocation of the
Act, namely that TVA had failed to take "such snail darter and other endangered species which
action . . . necessary to insure" that its "actions" threatened to delay or stop TVA projects.
did not jeopardize the snail darter or its critical
habitat. The House Committee advised that TVA should
cooperate with the Department of the Interior "to
- rejected TVA's contention that relocate the endangered species to another
the word "actions" in 7 of the Act was not suitable habitat so as to permit the project to
intended by Congress to encompass the terminal proceed as rapidly as possible
phases of ongoing projects

- Current project status cannot be


translated into a workable standard of judicial ISSUES
review.
(A) Would TVA be in violation of the Act if it
Whether a dam is 50% or 90% completed is completed and operated the Tellico Dam as
irrelevant in calculating the social and scientific planned?
costs attributable to the disappearance of a
unique form of life. Courts are ill-equipped to (b) If TVA's actions would offend the Act, is an
calculate how many dollars must be invested injunction the appropriate remedy for the
before the value of a dam exceeds that of the violation?
endangered species. Our responsibility under A. AFFIRMATIVE
1540 (g) (1) (A) is merely to preserve the status
quo where endangered species are threatened, 1. STATUTORY PROVISION- PLAIN
thereby guaranteeing the legislative or executive LANGUAGE
branches sufficient opportunity to grapple with
the alternatives." Its very words affirmatively command all federal
agencies "to insure that actions authorized,
funded, or carried out by them do not jeopardize showed that species were still being lost at the
the continued existence" of an endangered rate of about one per year and "the pace of
species or "result in the destruction or disappearance of species" appeared to be
modification of habitat of such species . . . ." This "accelerating and the primary causes: man and
language admits of no exception. technology disrupting the natural ecosystem.

As to the contention that Act cannot apply to It was the overriding need to devote whatever
federal project which was constructed prior to effort and resources were necessary to avoid
the Act, the court said that to sustain that position further diminution of national and worldwide
is to ignore the ordinary meaning of plain wildlife resources.
language.
"From the most narrow possible point of
view, it is in the best interests of mankind to
minimize the losses of genetic variations. The
2. ENDANGERED SPECIES ACT - language, reason is simple: they are potential resources.
history, structure They are keys to puzzles which we cannot solve,
Endangered Species Act of 1966 - the and may provide answers to questions which we
preservation of endangered species is a national have not yet learned to ask.
policy As it was finally passed, the Endangered
- The 1966 statute was not a sweeping Species Act of 1973 represented the most
prohibition on the taking of endangered species. comprehensive legislation for the preservation of
It qualified the obligation of federal agencies by endangered species ever enacted by any nation.
stating that they should seek to preserve Its stated purposes were "to provide a means
endangered species only "insofar as is practicable whereby the ecosystems upon which endangered
and consistent with the primary purposes . . . species and threatened species depend may be
conserved," and "to provide a program for the
Endangered Species Conservation Act of 1969 conservation of such . . . species . . .
- continued the provisions of the 1966 Act,
broadening federal involvement in the
preservation of endangered species. In passing the Endangered Species Act of 1973,
-the Secretary was empowered to list species Congress was also aware of certain instances in
"threatened with worldwide extinction," which exceptions to the statute's broad sweep
would be necessary. Thus, creates a number of
-importation of any species so recognized into the limited "hardship exemptions," none of which
United States was prohibited, ban on the would even remotely apply to the Tellico Project.
transportation and sale of wildlife taken in In fact, there are no exemptions in the
violation of any federal, state, or foreign law. Endangered Species Act for federal agencies,
meaning that under the maxim expressio unius
Endangered Species Act of 1973 est exclusio alterius, we must presume that these
Congress was persuaded that a more were the only "hardship cases" Congress
expansive approach was needed if the newly intended to exempt.
declared national policy of preserving Section 7 of the 1973 Act,
endangered species was to be realized. Research
relied upon by respondents in this case, While "[i]t is emphatically the province and duty
provides a particularly good gauge of of the judicial department to say what the law is,
congressional intent. it is equally - and emphatically - the exclusive
province of the Congress not only to formulate
It is against this legislative background that we legislative policies and mandate programs and
must measure TVA's claim that the Act was not projects, but also to establish their relative
intended to stop operation of a project which, like priority for the Nation. Once Congress, exercising
Tellico Dam, was near completion when an its delegated powers, has decided the order of
endangered species was discovered in its path. priorities in a given area, it is for the Executive to
The plain intent of Congress in enacting administer the laws and for the courts to enforce
this statute was to halt and reverse the trend them when enforcement is sought. ," and hence
toward species extinction, whatever the cost. This shape a remedy "that accords with some
is reflected not only in the stated policies of the modicum of common sense and the public weal."
Act, but in literally every section of the statute. All But is that our function? We have no expert
persons, including federal agencies, are knowledge on the subject of endangered species,
specifically instructed not to "take" endangered much less do we have a mandate from the people
species, meaning that no one is "to harass, harm, to strike a balance of equities on the side of the
30 pursue, hunt, shoot, wound, kill, trap, capture, Tellico Dam.
or collect" such life forms. Congress has spoken in the plainest of words,
3. CONTINUED APPROPRIATION OF TELICO making it abundantly clear that the balance has
FUND been struck in favor of affording endangered
species the highest of priorities, thereby adopting
Appropriations Committees had no a policy which it described as "institutionalized
jurisdiction over the subject of endangered caution."
species, much less did they conduct the type of
extensive hearings which preceded passage of the
earlier Endangered Species Acts, especially the
1973 Act.

There is no indication that Congress as a


whole was aware of TVA's position, although the
Appropriations Committees apparently agreed
with petitioner's views.

B. AFFIRMATIVE

It is correct, of course, that a federal judge sitting


as a chancellor is not mechanically obligated to
grant an injunction for every violation of law. As a
general matter it may be said that "[s]ince all or
almost all equitable remedies are discretionary,
the balancing of equities and hardships is
appropriate in almost any case as a guide to the
chancellor's discretion."