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Tennessee Valley Auth. v. Hill

Citation: 8 ELR 20513
No. No. 76-1701, 437 U.S. 153/11 ERC 1705/(U.S., 06/15/1978) Aff'd

The Supreme Court affirms a Sixth Circuit decision enjoining closure of the nearly completed Tellico Dam because filling the reservoir behind the dam would destroy the critical habitat of the snail darter, an endangered species. The language and legislative history of § 7 of the Endangered Species Act of 1973, which commands all federal agencies to ensure that their actions do not jeopardize the continued existence of an endangered species or destroy its habitat, indicatethat Congress intended this provision to apply to ongoing projects and to give endangered species priority over the "primary missions" of federal agencies. The Act itself contains no exception which would apply to the Tellico project, and continuing congressional appropriations for the dam did not, under the rule against repeal by implication, amend or repeal § 7 insofar as it applies to the dam. Given that operation of the dam would irreconcilably conflict with § 7, the district court was required to issue an injunction to remedy this statutory violation.

Justice Powell, in dissent, contends that the presumption against retroactive statutory application, the lack of indication in the legislative history of congressional intent to apply § 7 to substantially completed projects, and the continuing congressional approval of appropriations for the Tellico project all weigh against interpreting the statute to require the result reached by the majority.

Counsel for Plaintiffs-Respondents
Zygmunt J. B. Plater
Wayne State University Law School
Detroit MI 48202
(313) 577-3937

W. P. Boone Dougherty
Suite 1200, Hamilton Bank Bldg., Knoxville TN 37902
(615) 546-8030

Counsel for Defendant-Petitioner
Griffin B. Bell, Attorney General; Daniel M. Friedman, Acting Solicitor General; Stephen R. Barnett, Deputy Solicitor General; Richard A. Allen, Ass't Solicitor General
Department of Justice, Washington DC 20530
(202) 737-8200

Herbert S. Sanger, Jr., General Counsel; Charles A. Wagner, III, Assoc. General Counsel; Thomas A. Pedersen, Nicholas Della Volpe
Division of Law, Tennessee Valley Authority
400 Commerce Ave., Knoxville TN 37902
(615) 632-2101