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. 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. This is because Murchison’s discussion is almost exclusively about legal arguments, legal doctrine, and Black Letter Law. 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. And this he does, though in a particularly narrow sense. 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). 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. The fish was thus saved from extinction by TVA. 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. 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 or any other law” (p.165). 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.
The opponents of the dam actually won their battle in the U.S.
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 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. The author also puts this litigation into the broader context of environmental legislation as it developed in the 1970s. 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. 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. 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. Church, Department of Political Science, University at Albany, State University of New York. Lawrence: University Press of Kansas, 2007.
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