Friday, March 28, 2014

TVA v Hill symposium issue and conservative anti-environmentalism

I just came across a symposium issue run by the Tennessee Law Review last year on TVA v Hill (1978), the "snail darter case", in which the US Supreme Court upheld a strict interpretation of the Endangered Species Act to prohibit the operation of a dam that had been built at great cost. The table of contents for the issue is here, and the foreword to the volume is here. The issue includes an article by lead attorney Zygmunt Plater, whose book and digital archive we mentioned last year.

Fran Scheidt,
Aerial Photo of Farmland Along the Little Tennessee River (1978)
Just having reread the case earlier this week, in preparation for a discussion with a group of environmental historians at Tel Aviv U., I was struck by something I hadn't noticed before: An amicus brief (a brief filed by a "friend of the court", not a direct party to the proceedings) in support of the TVA's position was filed by the Pacific Legal Foundation, an organization founded in 1973 by former Reagan staffers and self-described as working, among other things, to defend "the fundamental human right of private property" and "to promote sensible environmental policies that respect individual freedom and put people first".

Now, which side should a libertarian organization devoted to fighting big government, protecting "the fundamental human right of private property", and "promoting sensible environmental policies that respect individual freedom and put people first" have taken in the TVA v Hill fight?

The Tellico Dam at issue in the case was not only a notorious pork-barrel project and waste of taxpayer dollars (a government committee determined that even the minor marginal costs of completing the project were greater than any benefits that would flow from the project), but one that involved government expropriation of family farms in the Little Tennessee Valley in the name of development (the sort of thing much condemned by conservatives, including the PLF, in the wake of the 2005 Kelo case). The protection of the endangered snail darter, far from interfering with private property and limited government, was actually consonant with these conservative-libertarian values. (The East Tennessee Valley Landowners' Association indeed filed a brief on the side of the environmentalists.)

Yet the PLF came down on the side of bloated government and interference with private property. Opposition to the Endangered Species Act, which in other contexts impacts private property, may have been a rational, strategic move, but maybe it simply reflected deeper cultural commitments of the American right, more committed to opposing environmental regulation than to supposedly flagship issues like protection of private property or limiting government waste.

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