Stevens ranks ESA case among his favorites in long judicial career

Retired Supreme Court Justice John Paul Stevens highlights a high-profile Endangered Species Act case about a tiny fish that delayed a reservoir project in his new memoir.

The case in question is Tennessee Valley Authority v. Hill, a 1978 ruling in which the court ruled that a project to build the Tellico Dam on the Little Tennessee River had to be halted because it would likely lead to the extinction of the snail darter.

The opinion was not one of Stevens' own from his 35-year tenure on the court, which came to an end when he retired in 2010. But it is one of Stevens' favorites from the pen of Warren Burger, who served as chief justice from 1969 to 1984.

The mention of the case is in keeping with the theme of the book, "Five Chiefs," in which Stevens focuses on the five chief justices he either worked alongside or came into contact during his long legal career.

Stevens, now 91, recalls that when the government first petitioned the court to overturn the Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals ruling that had halted construction of the almost completed dam, one of his law clerks sent him a memo dismissing the arguments as "feeble."

That clerk was Daniel Farber, who is now a well-known environmental law professor at the University of California, Berkeley, School of Law.

Stevens recollects that, initially, four of the nine justices had quite a different reaction: At one point the court was considering reversing the court of appeals without even hearing an argument, a relatively rare outcome.

It turned out that there were not enough votes to do that, so instead the court agreed to hear the case.


The case is also memorable for Stevens because Attorney General Griffin Bell argued it himself on behalf of the Carter administration. It is a tradition that the attorney general argue one case before the court during his term of office.

In an effort to persuade the court of the snail darter's unimportance, Bell brought with him a jar containing a specimen.

"His argument was unpersuasive," Stevens wrote.

Stevens was among several justices who had maintained throughout that the appeals court decision was correct.

As for Burger, Stevens says he was "equivocal during voting" but eventually was one of the two justices -- the other was Byron White -- who changed their minds. Burger ended up deciding to write the opinion himself.

"The excellent opinion that he then wrote explained why the investment in the dam was less important than obeying a congressional command to protect the snail darter," Stevens noted.

He concluded that "partly because of its quality and partly because of its history, it is one of my favorite opinions."

The decision led to a backlash from Congress, which passed a law exempting the dam from the Endangered Species Act, meaning the project could be completed.

However, the snail darter survived and has since had its status lowered from endangered to threatened.

In Stevens' book, which will be released Monday, the day the Supreme Court officially starts its 2011 term, he also mentions probably his most influential opinion, which is often cited in environmental cases.

In Chevron v. Natural Resources Defense Council, a 1984 case, the court ruled that judges should give expert agencies some leeway to interpret ambiguous congressional statutes.

The decision was unanimous, but Stevens recalls that initially the court was split, with Burger and White both in the minority.

But Burger switched "without comment" after reading Stevens' draft opinion, and so did White after Stevens visited his chambers to discuss the matter.

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