Tennessee Valley Authority v. Hill 437 U.S. 153 (1978)
The Tennessee Valley Authority
(TVA) was building the Tellico dam on the Little Tennessee River. After
construction had started, the US passed the Endangered Species Act (16 U.S.C. §1351).
TVA was building the Tellico
dam with Federal money.
As construction progressed,
researchers found a small endangered fish (the snail darter) that lived in
the river upstream of the dam. It was determined that completion of the
dam would wipe out the darters.
The Department of the Interior
(DOI) (and the Secretary of the Interior, Hill) declared the darter to be
an endangered species, declared the river to be a critical habitat, and sued for an injunction to stop
construction of the dam.
Under ESA §7(2), all Federal agencies must ensure that action
actions authorized, funded, or carried out by them were not likely to
jeopardize the continued existence of any endangered species or result in
the destruction or adverse modification of such species' critical
The Trial Court found for TVA.
The Trial Court agreed that
construction of the dam would most likely result in the extinction of the
darter. However, they decided not to issue an injunction.
The Appellate Court reversed
and issued the injunction. TVA appealed.
The Appellate Court found
that the plain language of the ESA
required a permanent injunction, for at least as long as the darter was
on the endangered species list.
The US Supreme Court affirmed
and upheld the injunction.
TVA argued that they should
be grandfathered in because the dam was constructed before ESA was passed. However, the US Supreme Court
found that the completion of the project required actions to be 'carried
out', which was prohibited under ESA §7(2).
TVA argued that a balancing
approach should be used and the fact that taxpayers had already spent
over $100M on the dam should mean that the project shouldn't be derailed
by a few fish, but the Court found that Congress intended endangered
species to be afforded the highest of priorities and to halt and reverse
the trend toward species extinction, whatever the cost because the value
of endangered species was "incalculable."'
That would be an absurd
TVA unsuccessfully argued
that Congress had implicitly repealed ESA because they kept appropriating money for completion of the dam
even after it was known to be interfering with the critical habitat.
However, the courts have traditionally disfavored repeals by
Sometimes known as the "dog
did not bark" doctrine.
The Court did not appear to
be happy about this decision, but felt that they were obligated to
interpret the laws as written, no matter how dumb they though the law
"In our Constitutional
system the commitment to the separation of powers is too fundamental for
us to preempt congressional action by judicially decreeing what accords
with 'common sense and the public weal.' Our constitution vests such
responsibilities in the political branches."
After this case was decided,
Congress made significant amendments to the ESA and there is now a provision for granting
Two years after this case was
decided, Congressional proponents pushed through an appropriations rider
that expressly authorized completion of the dam notwithstanding the
provisions of the ESA. The dam
was completed, and the darters died out soon after.
The good news is that small
populations of snail darters have been found in other rivers.