A Little History Lesson

Elizabeth Garrett at USC Law Revisits TVA v. Hill.

When discussing yesterday's Ninth Circuit decision in National Parks Conservation Association v. BMA, I noted that, although the project at issue (a landfill adjacent to Joshua Tree National Park) could technically go forward after BLM goes back and complies with the panel's rulings on its NEPA evaluation, approval delayed is often approval denied.

The real nuclear bomb in environmentalists' arsenal is, of course, the Endangered Species Act, which absolutely forbids action that would constitute a "take" of listed species. (A substantive road block, rather than the procedural road block NEPA throws up.) The mother of all ESA cases, paving the way for decades of ESA-based attempts to litigate controversial projects to a halt is TVA v. Hill, 437 U.S. 153 (1978), in which the Tellico Dam was almost stopped by the Endangered Species Act for the sake of the infamous endangered snail darter.

Now Elizabeth Garrett, a scholar of legislative process at USC Law (and a former University of Chicago Law professor) is putting out a book on the subsequent legislative history of the controversy, in which Congress used appropriations legislation to overrule the Court. A preview of Professor Garrett's book, The Story of TVA v. Hill, Congress has the Last Word, can be read here, and a post on the book at Legal History Blog, here.

The book should be instructive, in light of the fact that Congress's tactic of using lines inserted into appropriations bills is alive and well. Far more recently, for example, Senator Domenici of New Mexico used an appropriations bill to override a ruling by the U.S. District Court for the District of New Mexico ordering the Army Corps of Engineers to release water set aside for farmers in the Rio Grande watershed back into the river to protect the endangered silvery minnow. You can read an article on the controversy, circa 2003, here.