The Endangered Species Act was enacted in 1973, and while there is still substantial dispute over its purpose, efficacy and interpretation, there is now a hefty body of caselaw concerning it.
One of the most notable cases in ESA jurisprudence involved the Little Tennessee River and a small species of fish called the snail darter, which would allegedly have been eliminated had construction of a dam been allowed to be completed. The case, Tennessee Valley Authority v. Hill, reached the Supreme Court, and construction of the Tellico Dam was halted. Tens of millions of dollars had already been spent on construction of the dam, but the Court held that the plain language of the ESA made no exceptions for undertakings like Tellico which had been under construction when the law was passed. Accordingly, the project was supposed to be scrapped.
This resulted in the later amendments to the ESA that created the “God Squad,” and provided procedures by which that body could exempt an agency action from the ESA under certain conditions. Subsequently, after a lot of Congressional wrangling, President Carter signed a bill exempting Tellico.
In 1994, as part of a seminar on environmental litigation during my third year of law school, I wrote a 50-page paper on Tellico and subsequent developments in the history of the God Squad (see, e.g., the northern spotted owl). Then I pretty much forgot about them. While I still dabble in natural resources law, Tellico itself receded in my memory as I endeavored to memorize the GYCB color chart and the locations of all of Rick Clunn’s tournament wins.
But we’ve come full circle.
A month from now the Bassmaster Classic will take place on the Tennessee River, and the competitors will be launching just 30 miles (as the crow flies) from the Tellico Dam.
If you see a dude selling snail darter swimbaits out of the back of his Suburban, that’s me. Please come up and introduce yourself and be sure to buy at least two – they’re endangered.