Snail darter
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| Snail darter Conservation status: Vulnerable | ||||||||||||||
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| Percina tanasi Etnier, 1976 |
The snail darter is a small (up to 9 cm long) fish native to waters of East Tennessee. It was declared to be an endangered species in 1975 under the new Endangered Species Act (ESA) of 1973. The snail darter is a variety of darter (fish) which feeds primarily on aquatic snails.
On August 12, 1973 University of Tennessee biologist and Professor David Etnier discovered the snail darter in the Little Tennessee River while doing research related to a lawsuit involving the National Environmental Policy Act (NEPA) and the Tellico Dam, then under construction on the Little Tennessee River near the confluence with the main stem of the Tennessee River. The NEPA lawsuits slowed down the Tellico Dam but did not stop it.
Dam opponents used the newly discovered snail darter in a new round of litigation attempting to stop the dam. The case worked its way up to the Supreme Court who decided in favor of the snail darter and the ESA.
The court’s interpretation of the Endangered Species Act was a groundbreaking decision. The TVA argued to the Supreme Court that (1) since the Act was passed after the project began it did not apply to them, and (2) even after Congress passed the Endangered Species Act it continued to appropriate funds to Tellico. This was proof that Congress did not intend for the Endangered Species Act to apply to Tellico.
Indeed Congress had been inconsistent regarding the snail darter and the Endangered Species Act. Appropriations committees in both the House and Senate had taken a strong position against the snail darter. A 1977 Senate Appropriations Committee report stated:
This committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee’s understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act not withstanding.
This was an especially touchy point. The Supreme Court was not about to say that Congress broke the law by funding Tellico. With Chief Justice Warren Burger writing for the majority, the Court replied to TVA’s arguments and expanded on its decision as follows:
• The language of the Act was plain. It made no exceptions for projects like Tellico that were well under way when Congress passed the act.
• It is clear from the Act’s legislative history that Congress intended to halt and reverse the trend toward species extinction—whatever the cost. The pointed omission of the type of qualified language previously included in endangered species legislation reveals a conscious congressional design to give endangered species priority over the “primary missions” of federal agencies. Congress, moreover, foresaw that on occasion this would require agencies to alter ongoing projects in order to fulfill the Act’s goals.
• Though statements in Appropriations Committee Reports reflected the view of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the Act’s provisions, nothing in the TVA appropriations measures passed by Congress stated that the Tellico project was to be completed regardless of the Act’s requirements. . . . When voting on appropriations measures, legislators are entitled to assume that the funds will be devoted to purposes that are lawful and not for any purpose forbidden. A contrary policy would violate the rules of both Houses of Congress, which provide that appropriations measures may not change existing substantive law. An appropriations committee’s expression does not operate to repeal or modify substantive legislation.
• The Court of Appeals did not err in ordering that completion of Tellico Dam, which would have violated the Act, be enjoined. Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities. Since that legislative power has been exercised, it is up to the Executive Branch to administer the law and for the Judiciary to enforce it when, as here, enforcement has been sought.
Burger’s opinion made it clear that, as written, the Endangered Species Act explicitly forbade the completion of such projects as Tellico if the Secretary of Interior had determined that such a project would likely result in the elimination of a species. Regardless of the fact that over $100 million had been spent by 1978, and the dam was substantially finished, the court could not allow the TVA to finish the project. According to Burger, this would force the court “to ignore the ordinary meaning of plain language. It has not been shown, for example, how TVA can close the gates of Tellico Dam without ‘carrying out’ an action that has been ‘authorized’ and ‘funded’ by a federal agency. Nor can we understand how such an action will ‘insure’ that the snail darter’s habitat is not disrupted.”
According to the Supreme Court, the Endangered Species Act was therefore not merely some feel-good legislation Congress had passed to protect only the grandest of animals like whales and eagles. It also protected the lowly snail darter. The Supreme Court decision set off a fury in Congress as some members sought to rework the act. From a common sense point of view, despite the tactics that may have been employed by the TVA, it was simply impossible for many people to accept that a three-inch fish that nobody had ever heard of, and few people cared about, would stop a project that had displaced hundreds of families and cost the American public over $100 million—especially since the dam was basically finished. The case became a sensation. The media was having a field day with the unfolding drama, pitting the snail darter against the dam. In his tome The Fishes of Tennessee, David Etnier later wrote: “the snail darter had become almost a household word, and in current usage ‘snail darter types’ is approximately synonymous with ‘ultra-liberal environmental activists.’”
The battle between the preservationist friends of the snail darter and pro-development friends of the dam was only beginning to reach its climax. Two members of Congress from Tennessee quickly became critical to the Tellico story: Congressman John Duncan, whose district included Tellico, and Senator Howard Baker. Duncan had been a longtime congressional supporter of the project. On the other hand, Baker was a very late comer to Tellico. As it would turn out however, he would play a critical role in the future of the Little Tennessee River valley. Jim Range, who by the late 1970s had become a senior aide to Senator Baker, characterized Baker’s attitude toward Tellico:
Baker viewed it as a bad political situation no matter what came out, but his view was essentially the dam was built and if there was ever a project due an exclusion, the Tellico Dam was one. There was no certainty that they were correct that the snail darter was not a widely distributed species in the state of Tennessee, which we now know it is.
He was not an avid dam proponent. He was caught in the odd circumstance that he had in the TVA a very powerful entity and a very outlandish leader in Red Wagner. Baker had a sensible approach to things. Howard Baker likes the Endangered Species Act. Look at Baker now. What does he do? He goes out and takes pictures of wildlife. He’s not, he never was, a rabid dam builder. But he was a political pragmatist, and the way this thing had fallen into place, the dam was built! You had this PR machine that TVA was running saying how many hundreds of millions were going to be wasted. You had the governor of Tennessee and this woman [Democrat Senate candidate Jane Eskind] that was running against him saying essentially that Howard Baker was keeping the dam from being built.
Howard Baker considered John Duncan to be his congressman, not in the sense that he owned him, but in the sense that he was Duncan’s constituent. They were extremely good friends. Duncan had a much harder line on the dam than Baker did, until the point in the process after the Supreme Court decision, that is when Baker slammed his foot down. (End Jim Range quote)
Howard Baker was a leading sponsor of an amendment to the Endangered Species Act that was passed into law in November of 1978. The idea was to create a mechanism whereby a specific project could be excluded from the Endangered Species Act. If a controversy arose, the amendment called for the creation of a special committee consisting of various cabinet level members (such as Secretaries of Interior, Agriculture, etc.) and at least one member from the affected state where the project in question was located. It came to be known as the “God Committee” because if they exercised their power to exempt a project from the act, they were in effect acting like God and destroying an entire species.
There was a fear in Congress that every project in the country could grind to a halt in endless litigation as biologists might set out to discover more and more obscure species, including insects or even micro-biotic life forms. The proponents of the “God Committee” amendment saw it as a way of keeping the Endangered Species Act alive. According to the Burger opinion, U.S. Endangered Species laws at that time “represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” There were of course those who felt that the amendment dangerously weakened the act, but even they had to admit it was better than killing it completely.
The next step for Tellico then became the God Committee. Things did not go as Howard Baker, the TVA, or the dam’s other allies had planned. Instead of granting Tellico an exemption from the Endangered Species Act, the committee voted unanimously in favor of the snail darter. This was indeed one formidable little fish. Zyg Plater describes the decision:
On January 23, 1979, the Committee unanimously denied an exemption for Tellico specifically on economic grounds, rather than ecological grounds. “I hate to see the snail darter get the credit for stopping a project that was ill-conceived and uneconomic in the first place,” said Chairman Andrus [also Secretary of the Interior]. The reservoir project deserved to be killed on its own merits. As Charles Schultze, then-Chairman of the Council of Economic Advisors and a member of the Committee said, “Here is a project that is 95% complete, and if one takes the cost of finishing it against the total project benefits, and does it properly, it doesn’t pay, which says something about the original design.”
The opposition would make much of the problematic benefit-cost issue throughout the 1970s. Despite his credentials as one of the nation’s top economists, however, Charles Schultze was no more prepared to accurately predict future benefits than anyone else at the time. Wheeler and McDonald state the problem was TVA’s general unfamiliarity with econometric models used to come up with benefit-cost ratios. Such models require some underlying assumptions. Wheeler and McDonald identify five general assumptions TVA used and declared them all to be false. They were: (1) The Tellico area would remain economically static without the project. (2) All economic projects that occurred in the area after completion of the project should be attributed to the project. (3) If an economic benefit could take place at Tellico, then it would. (4) The Tellico Project would not detract from any economic benefits already being enjoyed in the area. (5) Once set, costs would not rise faster than the normal annual inflation rate of the early 1960s.
Wheeler and McDonald’s analysis is very insightful, and it does identify potential flaws with TVA’s method. At the same time all econometric models must make some assumptions, and nobody can predict the future. Of course this is why people like Red Wagner never liked such numbers to begin with. Congress and the president required them however, and it certainly made sense to at least try to quantify the benefits of any project of this scale. People could make estimates of benefits, but benefits would always be difficult, or impossible, to quantify. Once they were quantified they became legitimate targets for the opposition.
Congress had updated and strengthened the Endangered Species Act in 1973. Tellico Dam opponents had successfully sued under the provisions of that law to stop the dam. The Supreme Court in no uncertain language had stated that as written, it was absolutely clear that Congress intended to protect all species including the snail darter. In 1978 Congress amended the law with the case of the snail darter specifically in mind. Now the committee that had been created by the new provisions in the law had failed to do what it was designed to do. This was at least the perspective of key amendment sponsor Howard Baker, the Senate Minority Leader from Tennessee.
Jim Range was standing in the Minority Leader’s office shortly after Baker heard that the God Committee failed to grant Tellico an exemption. Baker was furious. As Range stood by the marble mantle in the beautiful nineteenth-century office, Baker told him to “find a way to fix this situation.” Range immediately sat down and drafted an amendment that excluded the Tellico project from the Endangered Species Act, along the lines initially suggested by the federal courts. A man who in his early twenties had worked with Price Wilkins to oppose the dam was in a very different situation some ten years later. He now found himself in the very unfortunate position of having to write a law that would flood the Little Tennessee River valley and drown a river that he, as much as any of the dam opponents, loved. Range would say later that he has mixed emotions about his role in the Tellico controversy. He was a Senate staffer doing his job. Loyal to Howard Baker, he understood the political pressures Baker was under at that time. All the same, he hated the fact that he had some small role in drowning a beautiful river.
With an amendment drafted, Senator Baker, Congressman Duncan, their staffs and congressional allies set out to put an end to what they considered to be a never-ending fiasco. Jim Range recalls the effort. “What we did was we tried to move what we were doing in both houses and John Duncan wanted to take the lead. He felt it was in his political interest, to be the first person to move this thing.” And move it he did. Duncan got the amendment passed by the House on June 18, 1979, on a voice vote. The vote, cast in a “sleepy and nearly empty House of Representatives,” became especially infamous among dam opponents. Baker introduced the amendment in the Senate on July 17 and was defeated on a vote of 45-53. Undeterred, Baker reintroduced the amendment in September. Baker spoke in favor of his amendment on the Senate floor:
Mr. President, I hope this is the last time around. I hope we can resolve this issue once and for all, and I hope reason will finally prevail. . . .
Mr. President, the awful beast is back. The Tennessee snail darter, the bane of my existence, the nemesis of my golden years, the bold perverter of the Endangered Species Act is back.
He is still insisting that the Tellico Dam on the Little Tennessee River—a dam that is now 99% complete—be destroyed.
In the midst of a national energy crisis, the snail darter demands that we scuttle a project that would produce 200 million kilowatt hours of hydroelectric power and save an estimated 15 million gallons of oil.
Although other residences have been found in which he can thrive serenely, the snail darter stubbornly insists on keeping this particular stretch of the Little Tennessee River as his principal domicile. . . .
Let me stress again, Mr. President, that this is fine with me. I have nothing personal against the snail darter. He seems to be quite a nice little fish, as fish go.
Now seriously Mr. President, the snail darter has become an unfortunate example of environmental extremism, and this kind of extremism, if rewarded and allowed to persist, will spell the doom to the environmental protection movement in this country more surely and more quickly than anything else. . . .
We who voted for the Endangered Species Act with the honest intentions of protecting such glories of nature as the wolf, the eagle, and other treasures have found that extremists with wholly different motives are using this noble act for meanly obstructive ends. . . .
Senator Baker’s statement was humorous. It was melodramatic. It was, no doubt, heartfelt. For the Minority Leader of the Senate, the Tellico Dam was only one small issue of the many he was juggling at the time. It was also an issue that he was eager to bring closure to. His statement is important because it reflects, in part at least, the nature of the Tellico debate at that juncture. By then, the snail darter was being ridiculed nationwide.
On September 10, 1979, Baker's amendment carried the day on a vote of 48 to 44. 28 Republicans and 20 Democrats supported it. 10 Republicans and 34 Democrats opposed it. The next step for Tellico was President Carter’s desk.
The Carter Administration itself was split on the Tellico issue. The President and his Secretary of Interior were opposed to the dam. His Attorney General supported it. The administration was simply incapable of agreeing on a position, and their infighting was carried out in full view of the public (as well as the Supreme Court whose justices were not amused). At this late stage Carter would have preferred to veto the bill, but political realities forced him in the other direction. The Panama Canal Treaty was his most pressing issue at the time, and he needed support in the Senate, especially from Howard Baker. As a result, on September 25, 1979, Jimmy Carter signed the bill that exempted Tellico from the Endangered Species Act. Tellico was never exempted from all laws as many would later claim.
On November 29, 1979, with now retired TVA Chairman Red Wagner watching, the TVA closed the gates on the Tellico Dam. It meant the death of a river—a river that even those who supported the dam agreed was beautiful and unique. It was also a river that had already been permanently altered by upstream dams. The closing of the gates meant the end of one era and the beginning of another. This was also the birth date of Tellico Reservoir, an artificial and beautiful lake at the base of the Smoky Mountains. Only the future could tell what lay ahead for the Little Tennessee River valley, a valley that was after all, quite used to change.
The snail darter litigation was one of several legal maneuvers showing the efficacy of this approach to environmental activism; a slightly later dam project of the TVA was halted by this approach using a different endangered species and eventually dismantled.
Before the closure of the gates of Tellico Dam, numerous snail darters were transplanted into the Hiwasee River. These may have survived; in any event, the snail darter has been found in other locations. The Little Tennessee River was never the sole environment in which these fish lived as had been alleged in the suit.
The snail darter was taken off the endangered species list in the 1980s.
Sources
Supreme Court Decision: TVA v. Hill, 437 U.S. 153 (1978).
U.S. Senate Report Number 95-301, (1977): 99.
Etnier, David A. and Wayne C. Starnes. The Fishes of Tennessee. Knoxville: The University of Tennessee Press, 1993.
Jim Range, telephone interview with Jim Breitinger, February 27, 2001.
Zygmunt J. B. Plater, “Reflected in a River: Agency Accountability and the TVA Tellico Dam Case,” Tennessee Law Review, Summer 1992, Volume 49, Number 4, 754.
Congressional Record—Senate S12274, September 10, 1979.
William Bruce Wheeler and Michael J. McDonald, TVA and the Tellico Dam 1936-1979: A Bureaucratic Crisis in Post-Industrial America (Knoxville: The University of Tennessee Press, 1986).
External Links
Read the 1978 decision related to the snail darter (TVA vs. Hill) at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=437&invol=153