by Kenneth M Murchison. Lawrence: University Press of Kansas, 2007. 240pp. Cloth. $35.00. ISBN: 9780700615049. Paper. $15.95. ISBN: 9780700615056.
Reviewed by Thomas W. Church, Department of Political Science, University at Albany, State University of New York. Email: TChurch [at] albany.edu.
This case study of TVA v. HILL (1978), the Supreme Court’s first interpretation of the Endangered Species Act (ESA) of 1973, joins a distinguished series of books published by University Press of Kansas on “Landmark Cases and American Society.” A reader looking for a comprehensive doctrinal summary of this litigation aimed at stopping construction of the Tennessee Valley Authority’s (TVA) Tellico Dam on the Little Tennessee River will find it in this volume. Murchison moves from the litigation under the National Environmental Policy Act (NEPA) of 1970 to the litigation under ESA, culminating in the Supreme Court’s decision interpreting the ESA against TVA, and the subsequent action by Congress to negate it. Each step in the complicated legal process, including the arguments made by all sides in court, in legislative and administrative hearings, and in the judicial opinions issued at various points in the litigation, is faithfully summarized. The author also puts this litigation into the broader context of environmental legislation as it developed in the 1970s.
The history described in this book is less about Herculean efforts of naturalists to save an endangered fish as it is about the failed efforts of a coalition of sport fishermen, farmers and other landholders, river rafters, and national environmental activists to prevent construction of a dam across one of the last wild stretches of river in the Tennessee Valley. Indeed, the snail darter was a previously unknown species serendipitously discovered in the Little Tennessee River by a biologist looking for an animal to use in ESA litigation to halt dam construction. The story is replete with ironies. The opponents of the dam actually won their battle in the U.S. Supreme Court: the majority held that the ESA categorically forbids governmental projects that would result in critical habitat loss of an endangered species, irrespective of the costs and benefits of either the project or of the extinction of the animal in question, and that construction of the dam would thus violate the act. But in a noteworthy example of Court-Congress “dialogue,” Congress – after a protracted struggle – passed a statute specifically directing TVA to complete the Tellico dam “notwithstanding the provisions of [ESA] or any other law” (p.165). As a further irony, it might be said that the snail darter actually emerged a winner from the unsuccessful effort to stop the dam: the little fish continues to prosper in nearby locations – due in part to an effort by TVA to transplant the species elsewhere. The fish was thus saved from extinction by TVA. At the end of the day, however, the dam was built, the river tamed, and farmland, fishing streams, and rapids were submerged under the resulting reservoir. [*721]
Toward the end of his brief introduction, Murchison summarizes his endeavor by stating that “This book tells the story of the legal challenges to the Tellico Dam” (p.6). And this he does, though in a particularly narrow sense. While there is much useful information to be gleaned from the book, my major complaint is that the story told of these challenges is incomplete or, at the least, limited in perspective. This is because Murchison’s discussion is almost exclusively about legal arguments, legal doctrine, and Black Letter Law. His discussion of each of the major decision points in the rich and convoluted history consists primarily of setting out the competing legal arguments made by all the various participants, how they were subsequently addressed by the relevant court, judge, or administrative agency, and what legal arguments were ultimately made in support of that particular decision. Yet many of the most important decisions in the case, from TVA’s decision to build the dam in the first place, to the decisions by anti-dam activists to challenge the dam construction under NEPA and ESA, to TVA’s defense of the dam in court and in Congress, to the Congressional decision to override the Supreme Court’s interpretation of the ESA, were essentially strategic and political – outside the doctrinal issues focused upon in this book.
It is clear from his Bibliographic Essay (there are no footnotes or citations) that while a few interviews informed his research, Murchison’s primary reliance was on legal documents – briefs, judicial opinions, hearing transcripts, legislative reports, and the like – rather than interviews, newspaper and other contemporary accounts, or other sources that might show us something about environmental law and policy “in action.” We are thus left with a strangely impersonal and apolitical story of a key monument in the history of the environmental movement in the United States, depicted as a series of official determinations of the meaning of statutory language, rather than as a complex policy-making process in which law and legal arguments were merely one strategy (and not the determinative one) among the many used by all sides of the dispute to obtain their favored policy result. The book is silent on how and why a particular strategy was chosen by the various actors, what debates informed the choice, how recourse to administrative agencies and Congress was related to the litigation strategy, the underlying politics of the administrative decisions or the Congressional reversal of the Supreme Court’s resolution of Hill, even who were the major players involved in these decisions. Indeed, there is very little discussion of individuals or organizations at all, at least not as strategic and political actors. As such, I do not think this would be a particularly useful book to assign to undergraduates, because it conveys the impression – probably inadvertently – that the key issues in multifaceted environmental disputes are essentially ones of legal doctrine, rather than of policy, politics, and strategy.
Reviewers frequently chastise authors for not writing the book the reviewers would like to see written, and perhaps (since I am a political scientist and Murchison is a lawyer) this is the basis [*722] of my complaints about this book. Rather than go further down this arguably unproductive road, I would like to briefly raise a broad issue suggested by the case study which might fruitfully be examined in another retelling of the snail darter/Tellico Dam story: the question of “adversarial legalism” and its relationship to environmental litigation.
By the time the ESA litigation began, TVA had expended a very substantial amount of money on design, land acquisition, and construction of the Tellico Dam. While figures on TVA’s expenditures at various stages are sprinkled throughout the book, it would appear that $78 million had been spent on the dam when further construction was enjoined in federal court as part of the ESA litigation; construction was then more than half complete (pp.84, 96). The opponents of the dam had failed to dissuade TVA from its plans to build the dam at the outset; subsequent efforts to halt the construction through legal action under the NEPA (alleging that the environmental impact statement was inadequate) failed; land acquisition, design, and construction had been ongoing for several years prior to passage of the ESA, a statute that provided a final opportunity to block the project.
Robert Kagan (1993) describes a similar story involving litigation aimed at halting efforts to expand and modernize the Port of Oakland, California, in the 1980s. Like the fight over the Tellico Dam, Kagan’s story involves protracted litigation, delays, substantial added transaction and construction costs, and lost opportunities. Unlike the dam – which Murchison suggests was a costly policy mistake – the expansion of the Port of Oakland appeared to most observers to be highly beneficial. But irrespective of one’s views on the desirability of damming rivers or modernizing ports, it is difficult not to view the decision-making processes that characterized these cases with some dismay. This is not only because of the high transaction costs and potentially arbitrary results, but also because the associated litigation was not really about the desirability of the overall policy objective, but merely a tactic used to negate a decision reached through political and administrative means. There is little question, for example, that the aim of the plaintiffs in the snail darter litigation was less about preventing the extinction of a newly discovered fish than it was to stop construction of a dam that would flood a scenic river without – or so the opponents claimed – offsetting social or economic benefits. Indeed, few environmentalists would regard the Tellico Dam as an environmental success story, despite the continued existence of the snail darter in adjacent streams.
Kagan terms the decision-making process in such cases “adversarial legalism,” and argues that it is a costly and ultimately unreliable way to make public policy. The Tellico case is almost a definitional example of this pathology: it involved intense legal disputation, litigant activism, and a context where decisions are “variable, unpredictable, and reversible” (p.372). But the Tellico Dam dispute was ultimately resolved in [*723] a purely political process through Congressional legislation mandating its construction. As such, the case study provides an interesting comparison of policy making through litigation versus legislation, and the interplay of the two processes. A dispassionate effort to compare and assess the processes – legal, administrative, and political – which characterized decision making in this case study would further the ongoing discussion of adversary legalism and perhaps provide some broader lessons.
Kagan, Robert A. 1993. “Adversary Legalism and American Government.” 10 JOURNAL OF POLICY ANALYSIS AND MANAGEMENT 369-406.
TVA v. HILL, 437 U.S. 153 (1978).
© Copyright 2007 by the author, Thomas W. Church.