Tennessee Valley Authority v. Hill

No. 76-1701

Argued April 18, 1978

Decided June 15, 1978

437 U.S. 153

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus



The Endangered Species Act of 1973 (Act) authorizes the Secretary of the

Interior (Secretary) in  4 to declare a species of life "endangered."

Section 7 specifies that all Federal departments and agencies shall, . .

. with the assistance of the Secretary, utilize their authorities in

furtherance of the purposes of [the] Act by carrying out programs for

the conservation of endangered species . . . and by taking such action

necessary to insure that actions authorized, funded, or carried out by

them do not jeopardize the continued existence of such endangered

species and threatened species or result in the destruction or

modification of habitat of such species which is determined by the

Secretary . . . to be critical. Shortly after the Act's passage, the

Secretary was petitioned to list a small fish popularly known as the

snail darter as an endangered species under the Act.  Thereafter, the

Secretary made the designation.  Having determined that the snail darter

apparently lives only in that portion of the Little Tennessee River that

would be completely inundated by the impoundment of the reservoir

created as a consequence of the completion of the Tellico Dam, he

declared that area as the snail darter's "critical habitat."

Notwithstanding the near completion of the multimillion dollar dam, the

Secretary issued a regulation in which it was declared that, pursuant to

7, all Federal agencies must take such action as is necessary to ensure

that actions authorized, funded, or carried out by them do not result in

the destruction or modification of this critical habitat area.

Respondents brought this suit to enjoin completion of the dam and

impoundment of the reservoir, claiming that those actions would violate

the Act by causing the snail darter's extinction.  The District Court,

after trial, denied relief and dismissed the complaint.  Though finding

that the impoundment of the reservoir would probably jeopardize the

snail darter's continued existence, the court noted that Congress,

though fully aware of the snail darter problem, had continued Tellico's

appropriations, and concluded that, [a]t some point in time, a federal

project becomes so near completion and so incapable of modification that

a court of equity should not apply a statute enacted long after

inception of the project to produce an unreasonable result. . . . The

Court of Appeals reversed. and [437 U.S. 154] ordered the, District

Court permanently to enjoin completion of the project until Congress, by

appropriate legislation, exempts Tellico from compliance with the Act or

the snail darter has been deleted from the list of endangered species or

its critical habitat materially redefined. The court held that the

record revealed a prima facie violation of  7 in that the Tennessee

Valley Authority had failed to take necessary action to avoid

jeopardizing the snail darter's critical habitat by its "actions."  The

court thus rejected the contention that the word "actions," as used in

7, was not intended by Congress to encompass the terminal phases of

ongoing projects.  At various times before, during, and after the

foregoing judicial proceedings, TVA represented to congressional

Appropriations Committees that the Act did not prohibit completion of

the Tellico Project. and described its efforts to transplant the snail

darter.  The Committees consistently recommended appropriations for the

dam, sometimes stating their views that the Act did not prohibit

completion of the dam at its advanced stage, and Congress each time

approved TVA's general budget, which contained funds for the dam's

continued construction.



Held:



1. The Endangered Species Act prohibits impoundment of the Little

Tennessee River by the Tellico Dam.



(a) The language of  7 is plain, and makes no exception such as that

urged by petitioner whereby the Act would not apply to a project like

Tellico that was well under way when Congress passed the Act.



(b) It is clear from the Act's legislative history that Congress

intended to halt and reverse the trend toward species extinction --

whatever the cost.  The pointed omission of the type of qualified

language previously included in endangered species legislation reveals a

conscious congressional design to give endangered species priority over

the "primary missions" of federal agencies.  Congress, moreover, foresaw

that  7 would, on occasion, require agencies to alter ongoing projects

in order to fulfill the Act's goals.



(c) None of the limited "hardship exemptions" provided in the Act would

even remotely apply to the Tellico Project.



(d) Though statements in Appropriations Committee Reports reflected the

view of the Committees either that the Act did not apply to Tellico or

that the dam should be completed regardless of the Act's provisions,

nothing in the TVA appropriations measures passed by Congress stated

that the Tellico Project was to be completed regardless of the Act's

requirements.  To find a repeal under these circumstances, as petitioner

has urged, would violate the "`cardinal rule . . . that repeals by

implication are not favored.'"  Morton v. Mancari, 417 U.S. 535, 549. 

The [437 U.S. 155] doctrine disfavoring repeals by implication applies

with full vigor when the subsequent legislation is an appropriations

measure.  When voting on appropriations measures, legislators are

entitled to assume that the funds will be devoted to purposes that are

lawful, and not for any purpose forbidden.  A contrary policy would

violate the express rules of both Houses of Congress, which provide that

appropriations measures may not change existing substantive law.  An

appropriations committee's expression does not operate to repeal or

modify substantive legislation.



2. The Court of Appeals did not err in ordering that completion of the

Tellico Dam, which would have violated the Act, be enjoined.  Congress

has spoken in the plainest words, making it clear that endangered

species are to be accorded the highest priorities.  Since that

legislative power has been exercised, it is up to the Executive Branch

to administer the law, and for the Judiciary to enforce it when, as

here, enforcement has been sought.



549 F.2d 1064, affirmed.



BURGER, C.J., delivered the opinion of the Court, in which BRENNAN,

STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined.  POWELL, J., filed a

dissenting opinion, in which BLACKMUN, J., joined, post,   REHNQUIST,

J., filed a dissenting opinion, post,  [437 U.S. 156] BURGER, J., lead

opinion



MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.



The questions presented in this case are (a) whether the Endangered

Species Act of 1973 requires a court to enjoin the operation of a

virtually completed federal dam -- which had been authorized prior to

1973 -- when, pursuant to authority vested in him by Congress, the

Secretary of the Interior has determined that operation of the dam would

eradicate an endangered species; and (b) whether continued congressional

appropriations for the dam after 1973 constituted an implied repeal of

the Endangered Species Act, at least as to the particular dam. I



The Little Tennessee River originates in the mountains of northern

Georgia and flows through the national forest lands of North Carolina

into Tennessee, where it converges with the Big Tennessee River near

Knoxville.  The lower 33 miles of the Little Tennessee takes the river's

clear, free-flowing waters through an area of great natural beauty.

Among other environmental amenities, this stretch of river is said to

contain abundant trout.  Considerable historical importance attaches to

the areas immediately adjacent to this portion of the Little Tennessee's

banks.  To the south of the river's edge lies Fort Loudon, established

in 1756 as England's southwestern outpost in the French and Indian War.

Nearby are also the ancient sites of several native American villages,

the archaeological stores of which are, to a large extent, unexplored. 

These include the Cherokee towns of Echota and Tennase, the former [437

U.S. 157] being the sacred capital of the Cherokee Nation as early as

the 16th century and the latter providing the linguistic basis from

which the State of Tennessee derives its name.



In this area of the Little Tennessee River, the Tennessee Valley

Authority, a wholly owned public corporation of the United States, began

constructing the Tellico Dam and Reservoir Project in 1967, shortly

after Congress appropriated initial funds for its development. Tellico

is a multipurpose regional development project designed principally to

stimulate shoreline development, generate sufficient electric current to

heat 20,000 homes, and provide flat-water recreation and flood control,

as well as improve economic conditions in "an area characterized by

underutilization of human resources and outmigration of young people." 

Hearings on Public Works for Power and Energy Research Appropriation

Bill, 1977, before a Subcommittee of the House Committee on

Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976).  Of

particular relevance to this case is one aspect of the project, a dam

which TVA determined to place on the Little Tennessee, a short distance

from where the river's waters meet with the Big Tennessee.  When fully

operational, the dam would impound water covering some 16,500 acres --

much of which represents valuable and productive farmland -- thereby

converting the river's shallow, fast-flowing waters into a deep

reservoir over 30 miles in length.



The Tellico Dam has never opened, however, despite the fact that

construction has been virtually completed and the [437 U.S. 158] dam is

essentially ready for operation.  Although Congress has appropriated

monies for Tellico every year since 1967, progress was delayed, and

ultimately stopped, by a tangle of lawsuits and administrative

proceedings.  After unsuccessfully urging TVA to consider alternatives

to damming the Little Tennessee, local citizens and national

conservation groups brought suit in the District Court, claiming that

the project did not conform to the requirements of the National

Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C.  4321

et seq.  After finding TVA to be in violation of NEPA, the District

Court enjoined the dam's completion pending the filing of an appropriate

environmental impact statement.  Environmental Defense Fund v. TVA, 339

F.Supp. 806 (ED Tenn.), aff'd, 468 F.2d 1164 (CA6 1972).  The injunction

remained in effect until late 1973, when the District Court concluded

that TVA's final environmental impact statement for Tellico was in

compliance with the law.  Environmental Defense Fund v. TVA, 371 F.Supp.

1004 (ED Tenn.197), aff'd, 492 F.2d 466 (CA6 1974).



A few months prior to the District Court's decision dissolving the NEPA

injunction, a discovery was made in the waters of the Little Tennessee

which would profoundly affect the Tellico Project.  Exploring the area

around Coytee Springs, which is about seven miles from the mouth of the

river, a University of Tennessee ichthyologist, Dr. David A. Etnier,

found a previously unknown species of perch, the snail darter, or

Percina (Imostoma) tanasi.  This three-inch, tannish-colored fish, [437

U.S. 159] whose numbers are estimated to be in the range of 10,000 to

15,000, would soon engage the attention of environmentalists, the TVA,

the Department of the Interior, the Congress of the United States, and

ultimately the federal courts, as a new and additional basis to halt

construction of the dam.



Until recently, the finding of a new species of animal life would hardly

generate a cause celebre.  This is particularly so in the case of

darters, of which there are approximately 130 known species, 8 to 10 of

these having been identified only in the last five years.  The moving

force behind the snail darter's sudden fame came some four months after

its discovery, when the Congress passed the Endangered Species Act of

1973 (Act), 87 Stat. 884, 16 U.S.C.  1531 et seq. (1976 ed.).  This

legislation, among other things, authorizes the Secretary of the

Interior to declare species of animal life "endangered" and to [437 U.S.

160] identify the "critical habitat" of these creatures. When a species

or its habitat is so listed, the following portion of the Act --

relevant here -- becomes effective:



The Secretary [of the Interior] shall review other programs administered

by him and utilize such programs in furtherance of the purposes of this

chapter.  All other Federal departments and agencies shall, in

consultation with and with the assistance of the Secretary, utilize

their authorities in furtherance of the purposes of this chapter by

carrying out programs for the conservation of endangered species and

threatened species listed pursuant to section 1533 of this title and by

taking such action necessary to insure that actions authorized, funded,

or carried out by them do not jeopardize the continued existence of such

endangered species and threatened species or result in the destruction

or modification of habitat of such species which is determined by the

Secretary, after consultation as appropriate with the affected States,

to be critical. 16 U.S.C.  1536 (1976 ed.) (emphasis added). [437 U.S.

161]



In January, 1975, the respondents in this case{10} and others petitioned

the Secretary of the Interior{11} to list the snail darter as an

endangered species.  After receiving comments from various interested

parties, including TVA and the State of Tennessee, the Secretary

formally listed the snail darter as an endangered species on October 8,

1975.  40 Fed.Reg. 47505-47506; see 50 CFR  17.11 (i) (1976). In so

acting, it was noted that "the snail darter is a living entity which is

genetically distinct and reproductively isolated from other fishes."  40

Fed.Reg. 47505.  More important for the purposes of this case, the

Secretary determined that the snail darter apparently lives only in that

portion of the Little Tennessee River which would be completely

inundated by the reservoir created as a consequence of the Tellico Dam's

completion.  Id. at 47506.{12}  [437 U.S. 162] The Secretary went on to

explain the significance of the dam to the habitat of the snail darter:

[T]he snail darter occurs only in the swifter portions of shoals over

clean gravel substrate in cool, low-turbidity water.  Food of the snail

darter is almost exclusively snails, which require a clean gravel

substrate for their survival.  The proposed impoundment of water behind

the proposed Tellico Dam would result in total destruction of the snail

darter's habitat. Ibid. (emphasis added). Subsequent to this

determination, the Secretary declared the area of the Little Tennessee

which would be affected by the Tellico Dam to be the "critical habitat"

of the snail darter.  41 Fed.Reg. 13926-13928 (1976) (to be codified as

50 CFR  17.81).  Using these determinations as a predicate, and

notwithstanding the near completion of the dam, the Secretary declared

that, pursuant to  7 of the Act, all Federal agencies must take such

action as is necessary to insure that actions authorized, funded, or

carried out by them do not result in the destruction or modification of

this critical habitat area. 41 Fed.Reg. 13928 (1976) (to be codified as

50 CFR  17.81 (b)).  This notice, of course, was pointedly directed at

TVA, and clearly aimed at halting completion or operation of the dam. 

During the pendency of these administrative actions, other developments

of relevance to the snail darter issue were transpiring.  Communication

was occurring between the Department of the Interior's Fish and Wildlife

Service and TVA with a view toward settling the issue informally.  These

negotiations were to no avail, however, since TVA consistently took the

position that the only available alternative was to attempt relocating

the snail darter population to another suitable location.  To this end,

TVA conducted a search of alternative sites which might sustain the

fish, culminating in the experimental transplantation of a number of

snail darters to the nearby Hiwassee River.  However, the Secretary of

the Interior was [437 U.S. 163] not satisfied with the results of these

efforts, finding that TVA had presented "little evidence that they have

carefully studied the Hiwassee to determine whether or not" there were

"biological and other factors in this river that [would] negate a

successful transplant."{13}  40 Fed.Reg. 47506 (1975).



Meanwhile, Congress had also become involved in the fate of the snail

darter.  Appearing before a Subcommittee of the House Committee on

Appropriations in April, 1975 -- some seven months before the snail

darter was listed as endangered -- TVA representatives described the

discovery of the fish and the relevance of the Endangered Species Act to

the Tellico Project.  Hearings on Public Works for Water and Power

Development and Energy Research Appropriation Bill, 1976, before a

Subcommittee of the House Committee on Appropriations, 94th Cong., 1st

Sess., pt. 7, pp. 466-467 (1975); Hearings on H.R. 8122, Public Works

for Water and Power Development and Energy Research Appropriations for

Fiscal Year 1976, before a Subcommittee of the Senate Committee on

Appropriations, 94th Cong., 1st Sess., pt. 4, pp. 3775-3777 (1975).  At

that time, TVA presented a position which it would advance in successive

forums thereafter, namely, that the Act did not prohibit the completion

of a project authorized, funded, and substantially constructed before

the Act was passed.  TVA also described its efforts to transplant the

snail darter, but contended that the dam should be finished regardless

of the [437 U.S. 164] experiment's success.  Thereafter, the House

Committee on Appropriations, in its June 20, 1975, Report, stated the

following in the course of recommending that an additional $29 million

be appropriated for Tellico: The Committee directs that the project, for

which an environmental impact statement has been completed and provided

the Committee, should be completed as promptly as possible. . . .

H.R.Rep. No. 9319, p. 76 (1975). (Emphasis added.)  Congress then

approved the TVA general budget, which contained funds for continued

construction of the Tellico Project.{14}  In December, 1975, one month

after the snail darter was declared an endangered species, the President

signed the bill into law.  Public Works for Water and Power Development

and Energy Research Appropriation Act, 1976, 89 Stat. 1035, 1047.



In February, 1976, pursuant to  11(g) of the Endangered Species Act, 87

Stat. 00, 16 U.S.C.  1540(g) (1976 ed.),{15} respondents filed the case

now under review, seeking to enjoin completion of the dam and

impoundment of the reservoir on the ground that those actions would

violate the Act by directly causing the extinction of the species

Percina (Imostoma) tanas.  The District Court denied respondents'

request for a preliminary injunction, and set the matter for trial.

Shortly thereafter, the House and Senate held appropriations hearings

which would include discussions of the Tellico budget. [437 U.S. 165]



At these hearings, TVA Chairman Wagner reiterated the agency's position

that the Act did not apply to a project which was over 50% finished by

the time the Act became effective, and some 70% to 80% complete when the

snail darter was officially listed as endangered.  It also notified the

Committees of the recently filed law suit's status, and reported that

TVA's efforts to transplant the snail darter had "been very

encouraging."  Hearings on Public Works for Water and Power Development

and Energy Research Appropriation Bill, 1977, before a Subcommittee of

the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp.

261-262 (1976); Hearings on Public Works for Water and Power Development

and Energy Research Appropriations for Fiscal Year 1977, before a

Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d

Sess., pt. 4, pp. 3096-3099 (1976).



Trial was held in the District Court on April 29 and 30, 1976, and on

May 25, 1976, the court entered its memorandum opinion and order denying

respondents their requested relief and dismissing the complaint.  The

District Court found that closure of the dam and the consequent

impoundment of the reservoir would "result in the adverse modification,

if not complete destruction, of the snail darter's critical

habitat,"{16} [437 U.S. 166] making it "highly probable" that "the

continued existence of the snail darter" would be "jeopardize[d]."  419

F.Supp. 753, 757 (ED Tenn.).  Despite these findings, the District Court

declined to embrace the plaintiffs' position on the merits:  that, once

a federal project was shown to jeopardize an endangered species, a court

of equity is compelled to issue an injunction restraining violation of

the Endangered Species Act.



In reaching this result, the District Court stressed that the entire

project was then about 80% complete, and, based on available evidence,

"there [were] no alternatives to impoundment of the reservoir, short of

scrapping the entire project."  Id. at 758.  The District Court also

found that, if the Tellico Project was permanently enjoined, "some $53

million would be lost in nonrecoverable obligations," id. at 759,

meaning that a large portion of the $78 million already expended would

be wasted.  The court also noted that the Endangered Species Act of 1973

was passed some seven years after construction on the dam commenced, and

that Congress had continued appropriations for Tellico with full

awareness of the snail darter problem.  Assessing these various factors,

the District Court concluded:



At some point in time, a federal project becomes so near completion and

so incapable of modification that a court of equity should not apply a

statute enacted long after inception of the project to produce an

unreasonable result. . . .  Where there has been an irreversible and

irretrievable commitment of resources by Congress to a project over a

span of almost a decade, the Court should proceed with a great deal of

circumspection. Id. at 760.  To accept the plaintiffs' position, the

District Court argued, would inexorably lead to what it characterized as

the absurd result of requiring a court to halt impoundment of water [437

U.S. 167] behind a fully completed dam if an endangered species were

discovered in the river on the day before such impoundment was scheduled

to take place.  We cannot conceive that Congress intended such a result.

Id. at 763.



Less than a month after the District Court decision, the Senate and

House Appropriations Committees recommended the full budget request of

$9 million for continued work on Tellico.  See S.Rep. No. 9960, p. 96

(1976); H.R.Rep. No. 94-1223, p. 83 (1976).  In its Report accompanying

the appropriations bill, the Senate Committee stated: During

subcommittee hearings, TVA was questioned about the relationship between

the Tellico project's completion and the November, 1975, listing of the

snail darter (a small 3-inch fish which was discovered in 1973) as an

endangered species under the Endangered Species Act.  TVA informed the

Committee that it was continuing its efforts to preserve the darter,

while working towards the scheduled 1977 completion date.  TVA repeated

its view that the Endangered Species Act did not prevent the completion

of the Tellico project, which has been under construction for nearly a

decade.  The subcommittee brought this matter, as well as the recent

U.S. District Court's decision upholding TVA's decision to complete the

project, to the attention of the full Committee.  The Committee does not

view the Endangered Species Act as prohibiting the completion of the

Tellico project at its advanced stage, and directs that this project be

completed as promptly as possible in the public interest. S.Rep. No.

94-960, supra at 96.  (Emphasis added.)



On June 29, 1976, both Houses of Congress passed TVA's general budget,

which included funds for Tellico; the President signed the bill on July

12, 1976.  Public Works for Water and Power Development and Energy

Research Appropriation Act, 1977, 90 Stat. 889, 899. [437 U.S. 168]



Thereafter, in the Court of Appeals, respondents argued that the

District Court had abused its discretion by not issuing an injunction in

the face of "a blatant statutory violation."  549 F.2d 1064, 1069 (CA6

1977).  The Court of Appeals agreed, and on January 31, 1977, it

reversed, remanding with instructions that a permanent injunction issue

halting all activities incident to the Tellico Project which may destroy

or modify the critical habitat of the snail darter. Id. at 1075.  The

Court of Appeals directed that the injunction remain in effect until

Congress, by appropriate legislation, exempts Tellico from compliance

with the Act or the snail darter has been deleted from the list of

endangered species or its critical habitat materially redefined. Ibid.



The Court of Appeals accepted the District Court's finding that closure

of the dam would result in the known population of snail darters being

"significantly reduced, if not completely extirpated."  Id. at 1069.

TVA, in fact, had conceded as much in the Court of Appeals, but argued

that "closure of the Tellico Dam, as the last stage of a ten-year

project, falls outside the legitimate purview of the Act if it is

rationally construed."  Id. at 1070.  Disagreeing, the Court of Appeals

held that the record revealed a prima facie violation of  7 of the Act,

namely that TVA had failed to take "such action . . . necessary to

insure" that its "actions" did not jeopardize the snail darter or its

critical habitat.



The reviewing court thus rejected TVA's contention that the word

"actions" in  7 of the Act was not intended by Congress to encompass the

terminal phases of ongoing projects.  Not only could the court find no

"positive reinforcement" for TVA's argument in the Act's legislative

history, but also such an interpretation was seen as being "inimical to

. . . its objectives."  549 F.2d at 1070.  By way of illustration, that

court pointed out that "the detrimental impact of a project upon an

endangered species may not always be clearly perceived before

construction is well underway."  Id. at 1071.  Given such a [437 U.S.

169] likelihood, the Court of Appeals was of the opinion that TVA's

position would require the District Court, sitting as a chancellor, to

balance the worth of an endangered species against the value of an

ongoing public works measure, a result which the appellate court was not

willing to accept.  Emphasizing the limits on judicial power in this

setting, the court stated:



Current project status cannot be translated into a workable standard of

judicial review.  Whether a dam is 50% or 90% completed is irrelevant in

calculating the social and scientific costs attributable to the

disappearance of a unique form of life.  Courts are ill-equipped to

calculate how many dollars must be invested before the value of a dam

exceeds that of the endangered species.  Our responsibility under

1540(g)(1)(A) is merely to preserve the status quo where endangered

species are threatened, thereby guaranteeing the legislative or

executive branches sufficient opportunity to grapple with the

alternatives. Ibid.



As far as the Court of Appeals was concerned, it made no difference that

Congress had repeatedly approved appropriations for Tellico, referring

to such legislative approval as an "advisory opinio[n]" concerning the

proper application of an existing statute.  In that court's view, the

only relevant legislation was the Act itself, "[t]he meaning and spirit"

of which was "clear on its face."  Id. at 1072.



Turning to the question of an appropriate remedy, the Court of Appeals

ruled that the District Court had erred by not issuing an injunction.

While recognizing the irretrievable loss of millions of dollars of

public funds which would accompany injunctive relief, the court

nonetheless decided that the Act explicitly commanded precisely that

result: It is conceivable that the welfare of an endangered species may

weigh more heavily upon the public conscience, as expressed by the final

will of Congress, than the writeoff of those millions of dollars already

expended [437 U.S. 170] for Tellico in excess of its present salvageable

value. Id. at 1074.



Following the issuance of the permanent injunction, members of TVA's

Board of Directors appeared before Subcommittees of the House and Senate

Appropriations Committees to testify in support of continued

appropriations for Tellico.  The Subcommittees were apprised of all

aspects of Tellico's status, including the Court of Appeals' decision.

TVA reported that the dam stood "ready for the gates to be closed and

the reservoir filled," Hearings on Public Works for Water and Power

Development and Energy Research Appropriation Bill, 1978, before a

Subcommittee of the House Committee on Appropriations, 95th Cong., 1st

Sess., pt. 4, p. 234 (1977), and requested funds for completion of

certain ancillary parts of the project, such as public use areas, roads,

and bridges.  As to the snail darter itself, TVA commented

optimistically on its transplantation efforts, expressing the opinion

that the relocated fish were "doing well and ha[d] reproduced."  Id. at

235, 261-262.



Both Appropriations Committees subsequently recommended the full amount

requested for completion of the Tellico Project.  In its June 2, 1977,

Report, the House Appropriations Committee stated: It is the Committee's

view that the Endangered Species Act was not intended to halt projects

such as these in their advanced stage of completion, and [the Committee]

strongly recommends that these projects not be stopped because of misuse

of the Act. H.R.Rep. No. 95-379, p. 104.  (Emphasis added.)  As a

solution to the problem, the House Committee advised that TVA should

cooperate with the Department of the Interior "to relocate the

endangered species to another suitable habitat so as to permit the

project to proceed as rapidly as possible."  Id. at 11.  Toward this

end, the Committee recommended [437 U.S. 171] a special appropriation of

$2 million to facilitate relocation of the snail darter and other

endangered species which threatened to delay or stop TVA projects.  Much

the same occurred on the Senate side, with its Appropriations Committee

recommending both the amount requested to complete Tellico and the

special appropriation for transplantation of endangered species.

Reporting to the Senate on these measures, the Appropriations Committee

took a particularly strong stand on the snail darter issue: This

committee has not viewed the Endangered Species Act as preventing the

completion and use of these projects which were well under way at the

time the affected species were listed as endangered.  If the act has

such an effect, which is contrary to the Committee's understanding of

the intent of Congress in enacting the Endangered Species Act, funds

should be appropriated to allow these projects to be completed and their

benefits realized in the public interest, the Endangered Species Act

notwithstanding. S.Rep. No. 95-301, p. 99 (1977).  (Emphasis added.)



TVA's budget, including funds for completion of Tellico and relocation

of the snail darter, passed both Houses of Congress and was signed into

law on August 7, 1977.  Public Works for Water and Power Development and

Energy Research Appropriation Act, 1978, 91 Stat. 797.



We granted certiorari, 434 U.S. 954 (1977), to review the judgment of

the Court of Appeals. II



We begin with the premise that operation of the Tellico Dam will either

eradicate the known population of snail darters or destroy their

critical habitat.  Petitioner does not now seriously dispute this

fact.{17}  In any event, under  4(a)(1) [437 U.S. 172] of the Act, 87

Stat. 886, 16 U.S.C.  1533(a)(1) (1976 ed.), the Secretary of the

Interior is vested with exclusive authority to determine whether a

species such as the snail darter is "endangered" or "threatened," and to

ascertain the factors which have led to such a precarious existence.  By

4(d) Congress has authorized -- indeed commanded -- the Secretary to

"issue such regulations as he deems necessary and advisable to provide

for the conservation of such species."  16 U.S.C.  1533(d) (1976 ed.).

As we have seen, the Secretary promulgated regulations which declared

the snail darter an endangered species whose critical habitat would be

destroyed by creation of the Tellico Reservoir.  Doubtless petitioner

would prefer not to have these regulations on the books, but there is no

suggestion that the Secretary exceeded his authority or abused his

discretion in issuing the regulations.  Indeed, no judicial review of

the Secretary's determinations has ever been sought, and hence the

validity of his actions are not open to review in this Court.



Starting from the above premise, two questions are presented:  (a) would

TVA be in violation of the Act if it completed and operated the Tellico

Dam as planned?  (b) if TVA's actions would offend the Act, is an

injunction the appropriate remedy for the violation?  For the reasons

stated hereinafter, we hold that both questions must be answered in the

affirmative. (A)



It may seem curious to some that the survival of a relatively small

number of three-inch fish among all the countless millions of species

extant would require the permanent halting of a virtually completed dam

for which Congress has expended more than $100 million.  The paradox is

not minimized by the fact that Congress continued to appropriate large

sums of public money for the project, even after congressional

Appropriations Committees were apprised of its apparent impact upon the

survival of the snail darter.  We conclude, [437 U.S. 173] however, that

the explicit provisions of the Endangered Species Act require precisely

that result.



One would be hard-pressed to find a statutory provision whose terms were

any plainer than those in  7 of the Endangered Species Act.  Its very

words affirmatively command all federal agencies "to insure that actions

authorized, funded, or carried out by them do not jeopardize the

continued existence" of an endangered species or "result in the

destruction or modification of habitat of such species. . . ."  16

U.S.C.  1536 (1976 ed.).  (Emphasis added.)  This language admits of no

exception.  Nonetheless, petitioner urges, as do the dissenters, that

the Act cannot reasonably be interpreted as applying to a federal

project which was well under way when Congress passed the Endangered

Species Act of 1973.  To sustain that position, however, we would be

forced to ignore the ordinary meaning of plain language.  It has not

been shown, for example, how TVA can close the gates of the Tellico Dam

without "carrying out" an action that has been "authorized" and "funded"

by a federal agency.  Nor can we understand how such action will

"insure" that the snail darter's habitat is not disrupted.{18} Accepting

the Secretary's determinations, as [437 U.S. 174] we must, it is clear

that TVA's proposed operation of the dam will have precisely the

opposite effect, namely the eradication of an endangered species.



Concededly, this view of the Act will produce results requiring the

sacrifice of the anticipated benefits of the project and of many

millions of dollars in public funds.{19}  But examination of the

language, history, and structure of the legislation under review here

indicates beyond doubt that Congress intended endangered species to be

afforded the highest of priorities.



When Congress passed the Act in 1973, it was not legislating on a clean

slate.  The first major congressional concern for the preservation of

the endangered species had come with passage of the Endangered Species

Act of 1966, 80 Stat. 926, repealed, 87 Stat. 903.{20}  In that

legislation, Congress gave the [437 U.S. 175] Secretary power to

identify "the names of the species of native fish and wildlife found to

be threatened with extinction,"  1(c), 80 Stat. 926, as well as

authorization to purchase land for the conservation, protection,

restoration, and propagation of "selected species" of "native fish and

wildlife" threatened with extinction.   2(a)-(c), 80 Stat. 926-927.

Declaring the preservation of endangered species a national policy, the

1966 Act directed all federal agencies both to protect these species

and, "insofar as is practicable and consistent with the[ir] primary

purposes,"  1(b), 80 Stat. 926, "preserve the habitats of such

threatened species on lands under their jurisdiction."  Ibid.  (Emphasis

added.)  The 1966 statute was not a sweeping prohibition on the taking

of endangered species, however, except on federal lands,  4(c), 80 Stat.

928, and even in those federal areas the Secretary was authorized to

allow the hunting and fishing of endangered species.   4(d)(1), 80 Stat.

928.



In 1969, Congress enacted the Endangered Species Conservation Act, 83

Stat. 275, repealed, 87 Stat. 903, which continued the provisions of the

1966 Act while at the same time broadening federal involvement in the

preservation of endangered species.  Under the 1969 legislation, the

Secretary was empowered to list species "threatened with worldwide

extinction,"  3(a), 83 Stat. 275; in addition, the importation of any

species so recognized into the United States was prohibited.  2, 83

Stat. 275.  An indirect approach to the taking of [437 U.S. 176]

endangered species was also adopted in the Conservation Act by way of a

ban on the transportation and sale of wildlife taken in violation of any

federal, state, or foreign law.   7(a)-(b), 83 Stat. 279.{21}



Despite the fact that the 1966 and 1969 legislation represented "the

most comprehensive of its type to be enacted by any nation"{22} up to

that time, Congress was soon persuaded that a more expansive approach

was needed if the newly declared national policy of preserving

endangered species was to be realized.  By 1973, when Congress held

hearings on what would later become the Endangered Species Act of 1973,

it was informed that species were still being lost at the rate of about

one per year, 1973 House Hearings 306 (statement of Stephen R. Seater,

for Defenders of Wildlife), and "the pace of disappearance of species"

appeared to be "accelerating."  H R. Rep. No. 93-412, p. 4 (1973).

Moreover, Congress was also told that the primary cause of this trend

was something other than the normal process of natural selection: [M]an

and his technology has [sic] continued at an ever-increasing rate to

disrupt the natural ecosystem.  This has resulted in a dramatic rise in

the number and severity of the threats faced by the world's wildlife.

The truth in this is apparent when one realizes that half of the

recorded extinctions of mammals over the past 2,000 years have occurred

in the most recent 50-year period. 1973 House Hearings 202 (statement of

Assistant Secretary of the Interior).  [437 U.S. 177] That Congress did

not view these developments lightly was stressed by one commentator:



The dominant theme pervading all Congressional discussion of the

proposed [Endangered Species Act of 973] was the overriding need to

devote whatever effort and resources were necessary to avoid further

diminution of national and worldwide wildlife resources.  Much of the

testimony at the hearings and much debate was devoted to the biological

problem of extinction.  Senators and Congressmen uniformly deplored the

irreplaceable loss to aesthetics, science, ecology, and the national

heritage should more species disappear. Coggins, Conserving Wildlife

Resources:  An Overview of the Endangered Species Act of 1973, 51

N.D.L.Rev. 315, 321 (1975).  (Emphasis added.)



The legislative proceedings in 1973 are, in fact, replete with

expressions of concern over the risk that might lie in the loss of any

endangered species.{23}  Typifying these sentiments is the Report of the

House Committee on Merchant Marine and [437 U.S. 178] Fisheries on H.R.

37, a bill which contained the essential features of the subsequently

enacted Act of 1973; in explaining the need for the legislation, the

Report stated: As we homogenize the habitats in which these plants and

animals evolved, and as we increase the pressure for products that they

are in a position to supply (usually unwillingly). we threaten their --

and our own -- genetic heritage.



The value of this ethnic heritage is, quite literally, incalculable. * *

   *    *



From the most narrow possible point of view, it is in the best interests

of mankind to minimize the losses of genetic variations.  The reason is

simple:  they are potential resources.  They are keys to puzzles which

we cannot solve, and may provide answers to questions which we have not

yet learned to ask.



To take a homely, but apt, example:  one of the critical chemicals in

the regulation of ovulations in humans was found in a common plant. Once

discovered and analyzed, humans could duplicate it synthetically, but

had it never existed -- or had it been driven out of existence before we

knew its potentialities -- we would never have tried to synthesize it in

the first place.



Who knows, or can say, what potential cures for cancer or other

scourges, present or future, may lie locked up in the structures of

plants which may yet be undiscovered, much less analyzed? . . .  Sheer

self-interest impels us to be cautious.



The institutionalization of that caution lies at the heart of H.R. 37. .

. . H.R.Rep. No. 9,312, pp. 4-5 (1973).  (Emphasis added.)  As the

examples cited here demonstrate, Congress was concerned about the

unknown uses that endangered species might [437 U.S. 179] have and about

the unforeseeable place such creatures may have in the chain of life on

this planet.



In shaping legislation to deal with the problem thus presented, Congress

started from the finding that "[t]he two major causes of extinction are

hunting and destruction of natural habitat."  S.Rep. No. 93-307, p. 2

(1973).  Of these twin threats, Congress was informed that the greatest

was destruction of natural habitats; see 1973 House Hearings 236

(statement of Associate Deputy Chief for National Forest System, Dept.

of Agriculture); id. at 241 (statement of Director of Mich. Dept. of

Natural Resources); id. at 306 (statement of Stephen R. Seater,

Defenders of Wildlife); Lachenmeier, The Endangered Species Act of 1973:

Preservation or Pandemonium?, 5 Environ.Law 29, 31 (1974).  Witnesses

recommended, among other things, that Congress require all land-managing

agencies "to avoid damaging critical habitat for endangered species and

to take positive steps to improve such habitat."  1973 House Hearings

241 (statement of Director of Mich. Dept. of Natural Resources).

Virtually every bill introduced in Congress during the 1973 session

responded to this concern by incorporating language similar, if not

identical, to that found in the present  7 of the Act.{24}  These

provisions were designed, in the words of an administration witness,

"for the first time [to] prohibit [a] federal agency from taking action

which does jeopardize the status of endangered species," Hearings on S.

1592 and S.1983 before the Subcommittee on Environment of the Senate

Committee on Commerce, 93d Cong., 1st Sess., 68 (1973) (statement of

[437 U.S. 180] Deputy Assistant Secretary of the Interior) (emphasis

added); furthermore, the proposed bills would "direc[t] all . . .

Federal agencies to utilize their authorities for carrying out programs

for the protection of endangered animals."  1973 House Hearings 205

(statement of Assistant Secretary of the Interior).  (Emphasis added.)



As it was finally passed, the Endangered Species Act of 1973 represented

the most comprehensive legislation for the preservation of endangered

species ever enacted by any nation.  Its stated purposes were "to

provide a means whereby the ecosystems upon which endangered species and

threatened species depend may be conserved," and "to provide a program

for the conservation of such . . . species. . . ."  16 U.S.C.  1531(b)

(176 ed.).  In furtherance of these goals, Congress expressly stated in

2(c) that "all Federal departments and agencies shall seek to conserve

endangered species and threatened species. . . ."  16 U.S.C.  1531(c)

(1976 ed.). (Emphasis added.)  Lest there be any ambiguity as to the

meaning of this statutory directive, the Act specifically defined

"conserve" as meaning to use and the use of all methods and procedures

which are necessary to bring any endangered species or threatened

species to the point at which the measures provided pursuant to this

chapter are no longer necessary. 1532(2).  (Emphasis added.)  Aside from

7, other provisions indicated the seriousness with which Congress viewed

this issue:  virtually all dealings with endangered species, including

taking, possession, transportation, and sale, were prohibited, 16 U.S.C.

 1538 (1976 ed.), except in extremely narrow circumstances, see 

1539(b).  The Secretary was also given extensive power to develop

regulations and programs for the preservation of endangered and

threatened species.{25}   1533(d).  Citizen [437 U.S. 181] involvement

was encouraged by the Act, with provisions allowing interested persons

to petition the Secretary to list a species as endangered or threatened,

 133(c)(2), see n. 11, supra, and bring civil suits in United States

district courts to force compliance with any provision of the Act, 

1540(c) and (g).



Section 7 of the Act, which, of course, is relied upon by respondents in

this case, provides a particularly good gauge of congressional intent.

As we have seen, this provision had its genesis in the Endangered

Species Act of 1966, but that legislation qualified the obligation of

federal agencies by stating that they should seek to preserve endangered

species only "insofar as is practicable and consistent with the[ir]

primary purposes. . . ."  Likewise, every bill introduced in 1973

contained a qualification similar to that found in the earlier

statutes.{26}  Exemplary of these was the administration bill, H.R.

4758, which, in  2(b), would direct federal agencies to use their

authorities to further the ends of the Act "insofar as is practicable

and consistent with the[ir] primary purposes. . . ."  (Emphasis added.)

Explaining the idea behind this language, an administration spokesman

told Congress that it "would further signal to all . . . agencies of the

Government that this is the first priority, consistent with their

primary objectives." 1973 House Hearings 213 (statement of Deputy

Assistant Secretary of the Interior).  (Emphasis added.)  This type of

language did not go unnoticed by those advocating strong endangered

species legislation.  A representative of the [437 U.S. 182] Sierra

Club, for example, attacked the use of the phrase "consistent with the

primary purpose" in proposed H.R. 4758, cautioning that the

qualification could be construed to be a declaration of congressional

policy that other agency purposes are necessarily more important than

protection of endangered species, and would always prevail if conflict

were to occur. 1973 House Hearings 335 (statement of the chairman of the

Sierra Club's National Wildlife Committee); see id. at 251 (statement

for the National Audubon Society).



What is very significant in this sequence is that the final version of

the 1973 Act carefully omitted all of the reservations described above.

In the bill which the Senate initially approved (S. 1983) however, the

version of the current  7 merely required federal agencies to "carry out

such programs as are practicable for the protection of species listed. .

. ."{27}  S. 1983,  7(a).  (Emphasis added.)  By way of contrast, the

bill that originally passed the House, H.R. 37, contained a provision

which was essentially a mirror image of the subsequently passed  7 --

indeed, all phrases which might have qualified an agency's

responsibilities had been omitted from the bill.{28}  In explaining the

expected impact of this provision in H.R. 37 on federal agencies, the

House Committee's Report states: This subsection requires the Secretary

and the heads of all other Federal departments and agencies to use their

authorities in order to carry out programs for the protection [437 U.S.

183] of endangered species, and it further requires that those agencies

take the necessary action that will not jeopardize the continuing

existence of endangered species or result in the destruction of critical

habitat of those species. H.R.Rep. No. 93-41, p. 14 (1973). (Emphasis

added.)



Resolution of this difference in statutory language, as well as other

variations between the House and Senate bills, was the task of a

Conference Committee.  See 119 Cong.Rec. 30174-30175, 31183 (1973).  The

Conference Report, H.R.Conf.Rep. No. 93-740 (1973), basically adopted

the Senate bill, S.1983; but the conferees rejected the Senate version

of  7 and adopted the stringent, mandatory language in H.R.37.  While

the Conference Report made no specific reference to this choice of

provisions, the House manager of the bill, Representative Dingell,

provided an interpretation of what the Conference bill would require,

making it clear that the mandatory provisions of  7 were not casually or

inadvertently included: [Section 7] substantially amplifie[s] the

obligation of [federal agencies] to take steps within their power to

carry out the purposes of this act.  A recent article . . . illustrates

the problem which might occur absent this new language in the bill.  It

appears that the whooping cranes of this country, perhaps the best known

of our endangered species, are being threatened by Air Force bombing

activities along the gulf coast of Texas.  Under existing law, the

Secretary of Defense has some discretion as to whether or not he will

take the necessary action to see that this threat disappears. . . .

[O]nce the bill is enacted, [the Secretary of Defense] would be required

to take the proper steps. . . .



Another example . . . [has] to do with the continental population of

grizzly bears which may or may not be endangered, but which is surely

threatened. . . .  Once this [437 U.S. 184] bill is enacted, the

appropriate Secretary, whether of Interior, Agriculture or whatever,

will have to take action to see that this situation is not permitted to

worsen, and that these bears are not driven to extinction.  The purposes

of the bill included the conservation of the species and of the

ecosystems upon which they depend, and every agency of government is

committed to see that those purposes are carried out. . . .  [T]he

agencies of Government can no longer plead that they can do nothing

about it.  They can, and they must.  The law is clear. 119 Cong.Rec.

42913 (1973).  (Emphasis added.)



It is against this legislative background{29} that we must measure TVA's

claim that the Act was not intended to stop operation of a project

which, like Tellico Dam, was near completion when an endangered species

was discovered in its path.  While there is no discussion in the

legislative history of precisely this problem, the totality of

congressional action makes it abundantly clear that the result we reach

today is wholly in accord with both the words of the statute and the

intent of Congress.  The plain intent of Congress in enacting this

statute was to halt and reverse the trend toward species extinction,

whatever the cost.  This is reflected not only in the stated policies of

the Act, but in literally every section of the statute.  All persons,

including federal agencies, are specifically instructed not to "take"

endangered species, meaning that no one is "to harass, harm,{30} pursue,

hunt, shoot, [437 U.S. 185] wound, kill, trap, capture, or collect" such

life forms.  16 U.S.C.  1532(14), 153(a)(1)(b) (1976 ed.). Agencies in

particular are directed by  2(c) and 3(2) of the Act to "use . . . all

methods and procedures which are necessary" to preserve endangered

species.  16 U.S.C.  1531(c), 1532(2) (1976 ed.) (emphasis added).  In

addition, the legislative history undergirding  7 reveals an explicit

congressional decision to require agencies to afford first priority to

the declared national policy of saving endangered species. The pointed

omission of the type of qualifying language previously included in

endangered species legislation reveals a conscious decision by Congress

to give endangered species priority over the "primary missions" of

federal agencies.



It is not for us to speculate, much less act, on whether Congress would

have altered its stance had the specific events of this case been

anticipated.  In any event, we discern no hint in the deliberations of

Congress relating to the 1973 Act that would compel a different result

than we reach here.{31}  [437 U.S. 186] Indeed, the repeated expressions

of congressional concern over what it saw as the potentially enormous

danger presented by the eradication of any endangered species suggest

how the balance would have been struck had the issue been presented to

Congress in 1973



Furthermore, it is clear Congress foresaw that  7 would, on occasion,

require agencies to alter ongoing projects in order to fulfill the goals

of the Act.{32}  Congressman Dingell's discussion of Air Force practice

bombing, for instance, obviously pinpoints a particular activity --

intimately related to [437 U.S. 187] the national defense -- which a

major federal department would be obliged to alter in deference to the

strictures of  7.  A similar example is provided by the House Committee

Report: Under the authority of [ 7], the Director of the Park Service

would be required to conform the practices of his agency to the need for

protecting the rapidly dwindling stock of grizzly bears within

Yellowstone Park.  These bears, which may be endangered, and are

undeniably threatened, should at least be protected by supplying them

with carcasses from excess elk within the park, by curtailing the

destruction of habitat by clearcutting National Forests surrounding the

Park, and by preventing hunting until their numbers have recovered

sufficiently to withstand these pressures. H.R.Rep. No. 93-412, p. 14

(173).  (Emphasis added.)



One might dispute the applicability of these examples to the Tellico Dam

by saying that, in this case, the burden on the public through the loss

of millions of unrecoverable dollars would greatly outweigh the loss of

the snail darter.{33}  But neither the Endangered Species Act nor Art.

III of the Constitution provides federal courts with authority to make

such fine utilitarian calculations.  On the contrary, the plain language

of the Act, buttressed by its legislative history, shows clearly that

Congress viewed the value of endangered species as "incalculable." 

Quite obviously, it would be difficult for [437 U.S. 188] a court to

balance the loss of a sum certain -- even $100 million -- against a

congressionally declared "incalculable" value, even assuming we had the

power to engage in such a weighing process, which we emphatically do

not.



In passing the Endangered Species Act of 1973, Congress was also aware

of certain instances in which exception to the statute's brad sweep

would be necessary.  Thus,  10, 16 U.S.C.  1539 (1976 ed.), creates a

number of limited "hardship exemptions," none of which would even

remotely apply to the Tellico Project.  In fact, there are no exemptions

in the Endangered Species Act for federal agencies, meaning that, under

the maxim expressio unius est exclusio alterius, we must presume that

these were the only "hardship cases" Congress intended to exempt.  Cf.

National Railroad Passenger Corp. v. National Assn. of Railroad

Passengers, 414 U.S. 453, 458  (1974).{34} [437 U.S. 189]



Notwithstanding Congress' expression of intent in 1973, we are urged to

find that the continuing appropriations for Tellico Dam constitute an

implied repeal of the 1973 Act, at least insofar as it applies to the

Tellico Project.  In support of this view, TVA points to the statements

found in various House and Senate Appropriations Committees' Reports; as

described in Part I, supra, those Reports generally reflected the

attitude of the Committees either that the Act did not apply to Tellico

or that the dam should be completed regardless of the provisions of the

Act.  Since we are unwilling to assume that these latter Committee

statements constituted advice to ignore the provisions of a duly enacted

law, we assume that these Committees believed that the Act simply was

not applicable in this situation.  But even under this interpretation of

the Committees' actions, we are unable to conclude that the Act has been

in any respect amended or repealed.



There is nothing in the appropriations measures, as passed, which states

that the Tellico Project was to be completed irrespective of the

requirements of the Endangered Species Act.  These appropriations, in

fact, represented relatively minor components of the lump-sum amounts

for the entire TVA budget.{35}  To find a repeal of the Endangered

Species Act under these circumstances would surely do violence to the

"`cardinal rule . . . that repeals by implication are not favored.'"

Morton v. Mancari, 417 U.S. 535, 549 (1974), quoting Posadas v. National

City Bank, 296 U.S. 497, 503 (1936).  In Posadas, this Court held, in no

uncertain terms, that "the intention of the legislature to repeal must

be clear and manifest."  Ibid.  See Georgia v. Pennsylvania R. Co., [437

U.S. 190] 324 U.S. 49, 456-457 (1945) ("Only a clear repugnancy between

the old . . . and the new [law] results in the former giving way . .

."); United States v. Borden Co., 308 U.S. 188, (1939) ("[I]ntention of

the legislature to repeal `must be clear and manifest'. . . .  `[A]

positive repugnancy [between the old and the new laws]'"); Wood v.

United States, 16 Pet. 342, 363 (1842) ("[T]here must be a positive

repugnancy. . . .").  In practical terms, this "cardinal rule" means

that, "[i]n the absence of some affirmative showing of an intention to

repeal, the only permissible justification for a repeal by implication

is when the earlier and later statutes are irreconcilable."  Mancari,

supra, at 550.



The doctrine disfavoring repeals by implication "applies with full vigor

when . . . the subsequent legislation is an appropriations measure."

Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380,

382, 463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense

Fund v. Froehlke, 473 F.2d 346, 355 (CA8 1972).  This is perhaps an

understatement, since it would be more accurate to say that the policy

applies with even greater force when the claimed repeal rests solely on

an Appropriations Act.  We recognize that both substantive enactments

and appropriations measures are "Acts of Congress," but the latter have

the limited and specific purpose of providing funds for authorized

programs.  When voting on appropriations measures, legislators are

entitled to operate under the assumption that the funds will be devoted

to purposes which are lawful, and not for any purpose forbidden. Without

such an assurance, every appropriations measure would be pregnant with

prospects of altering substantive legislation, repealing by implication

any prior statute which might prohibit the expenditure. Not only would

this lead to the absurd result of requiring Members to review

exhaustively the background of every authorization before voting on an

appropriation, but it would flout the very rules the Congress carefully

adopted to avoid [437 U.S. 191] this need.  House Rule XXI(2), for

instance, specifically provides: No appropriation shall be reported in

any general appropriation bill, or be in order as an amendment thereto,

for any expenditure not previously authorized by law, unless in

continuation of appropriations for such public works as are already in

progress.  Nor shall any provision in any such bill or amendment thereto

changing existing law be in order. (Emphasis added.)  See also Standing

Rules of the Senate, Rule 16.4.  Thus, to sustain petitioner's position,

we would be obliged to assume that Congress meant to repeal pro tanto  7

of the Act by means of a procedure expressly prohibited under the rules

of Congress.



Perhaps mindful of the fact that it is "swimming upstream" against a

strong current of well established precedent, TVA argues for an

exception to the rule against implied repealers in a circumstance where,

as here, Appropriations Committees have expressly stated their

"understanding" that the earlier legislation would not prohibit the

proposed expenditure.  We cannot accept such a proposition.  Expressions

of committees dealing with requests for appropriations cannot be equated

with statutes enacted by Congress, particularly not in the circumstances

presented by this case.  First, the Appropriations Committees had no

jurisdiction over the subject of endangered species, much less did they

conduct the type of extensive hearings which preceded passage of the

earlier Endangered Species Acts, especially the 1973 Act.  We venture to

suggest that the House Committee on Merchant Marine and Fisheries and

the Senate Committee on Commerce would be somewhat surprised to learn

that their careful work on the substantive legislation had been undone

by the simple -- and brief -- insertion of some inconsistent language in

Appropriations Committees' Reports [437 U.S. 192]



Second, .there is no indication that Congress as a whole was aware of

TVA's position, although the Appropriations Committees apparently agreed

with petitioner's views.  Only recently, in SEC v. Sloan, 436 U.S. 103

(1918), we declined to presume general congressional acquiescence in a

34-year-old practice of the Securities and Exchange Commission, despite

the fact that the Senate Committee having jurisdiction over the

Commission's activities had long expressed approval of the practice. MR.

JUSTICE REHNQUIST, speaking for the Court, observed that we should be

"extremely hesitant to presume general congressional awareness of the

Commission's construction based only upon a few isolated statements in

the thousands of pages of legislative documents."  Id. at 121.  A

fortiori, we should not assume that petitioner's views -- and the

Appropriations Committees' acceptance of them -- were any better known,

especially when the TVA is not the agency with primary responsibility

for administering the Endangered Species Act.



Quite apart from the foregoing factors, we would still be unable to find

that, in this case, "the earlier and later statutes are irreconcilable,"

Mancari, 417 U.S. at 550; here, it is entirely possible "to regard each

as effective."  Id. at 551.  The starting point in this analysis must be

the legislative proceedings leading to the 1977 appropriations, since

the earlier funding of the dam occurred prior to the listing of the

snail darter as an endangered species.  In all successive years, TVA

confidently reported to the Appropriations Committees that efforts to

transplant the snail darter appeared to be successful; this surely gave

those Committees some basis for the impression that there was no direct

conflict between the Tellico Project and the Endangered Species Act.

Indeed, the special appropriation for 1978 of $2 million for

transplantation of endangered species supports the view that the

Committees saw such relocation as the means whereby collision between

Tellico and the Endangered Species Act could be avoided.  It should also

[437 U.S. 193] be noted that the Reports issued by the Senate and House

Appropriations Committees in 1976 came within a month of the District

Court's decision in this case, which hardly could have given the Members

cause for concern over the possible applicability of the Act.  This

leaves only the 1978 appropriations, the Reports for which issued after

the Court of Appeals' decision now before us.  At that point, very

little remained to be accomplished on the project; the Committees

understandably advised TVA to cooperate with the Department of the

Interior "to relocate the endangered species to another suitable habitat

so as to permit the project to proceed as rapidly as possible." H.R.Rep.

No. 95-379, p. 11 (1977).  It is true that the Committees repeated their

earlier expressed "view" that the Act did not prevent completion of the

Tellico Project.  Considering these statements in context, however, it

is evident that they "`represent only the personal views of these

legislators,'" and, "however explicit, [they] cannot serve to change the

legislative intent of Congress expressed before the Act's passage." 

Regional Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974). (B)



Having determined that there is an irreconcilable conflict between

operation of the Tellico Dam and the explicit provisions of  7 of the

Endangered Species Act, we must now consider what remedy, if any, is

appropriate.  It is correct, of course, that a federal judge sitting as

a chancellor is not mechanically obligated to grant an injunction for

every violation of law.  This Court made plain in Hecht Co. v. Bowles,

321 U.S. 321, 329 (1944), that "[a] grant of jurisdiction to issue

compliance orders hardly suggests an absolute duty to do so under any

and all circumstances."  As a general matter it may be said that,

[s]ince all or almost all equitable remedies are discretionary, the

balancing of equities and hardships is appropriate in almost any case as

a guide to the chancellor's discretion. D. Dobbs, Remedies 52 (1973).

Thus, in Hecht [437 U.S. 194] Co., the Court refused to grant an

injunction when it appeared from the District Court findings that the

issuance of an injunction would have "no effect by way of insuring

better compliance in the future," and would [have been] "unjust" to

[the] petitioner, and not "in the public interest." 321 U.S. at 326.



But these principles take a court only so far.  Our system of government

is, after all, a tripartite one, with each branch having certain defined

functions delegated to it by the Constitution.  While "[i]t is

emphatically the province and duty of the judicial department to say

what the law is," Marbury v. Madison, 1 Cranch 137, 177 (1803), it is

equally -- and emphatically -- the exclusive province of the Congress

not only to formulate legislative policies and mandate programs and

projects, but also to establish their relative priority for the Nation.

Once Congress, exercising its delegated powers, has decided the order of

priorities in a given area, it is for the Executive to administer the

laws and for the courts to enforce them when enforcement is sought.



Here we are urged to view the Endangered Species Act "reasonably," and

hence shape a remedy "that accords with some modicum of common sense and

the public weal."  Post at 196.  But is that our function?  We have no

expert knowledge on the subject of endangered species; much less do we

have a mandate from the people to strike a balance of equities on the

side of the Tellico Dam.  Congress has spoken in the plainest of words,

making it abundantly clear that the balance has been struck in favor of

affording endangered species the highest of priorities, thereby adopting

a policy which it described as "institutionalized caution."



Our individual appraisal of the wisdom or unwisdom of a particular

course consciously selected by the Congress is to be put aside in the

process of interpreting a statute.  Once the meaning of an enactment is

discerned and its constitutionality determined, the judicial process

comes to an end.  We do not [437 U.S. 195] sit as a committee of review,

nor are we vested with the power of veto.  The lines ascribed to Sir

Thomas More by Robert Bolt are not without relevance here: The law,

Roper, the law.  I know what's legal, not what's right.  And I'll stick

to what's legal. . . .  I'm not God.  The currents and eddies of right

and wrong, which you find such plain-sailing, I can't navigate, I'm no

voyager.  But in the thickets of the law, oh there I'm a forester. . . .

What would you do?  Cut a great road through the law to get after the

Devil? . . .  And when the last law was down, and the Devil turned round

on you -- where would you hide, Roper, the laws all being flat? . . .

This country's planted thick with laws from coast to coast -- Man's

laws, not God's -- and if you cut them down . . . , d'you really think

you could stand upright in the winds that would blow them? . . .  Yes,

I'd give the Devil benefit of law, for my own safety's sake. R. Bolt, A

Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed.1967).



We agree with the Court of Appeals that, in our constitutional system,

the commitment to the separation of powers is too fundamental for us to

preempt congressional action by judicially decreeing what accords with

"common sense and the public weal."  Our Constitution vests such

responsibilities in the political branches.



Affirmed. POWELL, J., dissenting



MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins, dissenting.



The Court today holds that  7 of the Endangered Species Act requires a

federal court, for the purpose of protecting an endangered species or

its habitat, to enjoin permanently the operation of any federal project,

whether completed or substantially completed.  This decision casts a

long shadow over the operation of even the most important projects,

serving [437 U.S. 196] vital needs of society and national defense,

whenever it is determined that continued operation would threaten

extinction of an endangered species or its habitat.  This result is said

to be required by the "plain intent of Congress," as well as by the

language of the statute.



In my view,  7 cannot reasonably be interpreted as applying to a project

that is completed or substantially completed when its threat to an

endangered species is discovered.  Nor can I believe that Congress could

have intended this Act to produce the "absurd result" -- in the words of

the District Court -- of this case.  If it were clear from the language

of the Act and its legislative history that Congress intended to

authorize this result, this Court would be compelled to enforce it.  It

is not our province to rectify policy or political judgments by the

Legislative Branch, however egregiously they may disserve the public

interest.  But where the statutory language and legislative history, as

in this case, need not be construed to reach such a result, I view it as

the duty of this Court to adopt a permissible construction that accords

with some modicum of common sense and the public weal. I



Although the Court has stated the facts fully, and fairly presented the

testimony and action of the Appropriations Committees relevant to this

case, I now repeat some of what has been said.  I do so because I read

the total record as compelling rejection of the Court's conclusion that

Congress intended the Endangered Species Act to apply to completed or

substantially completed projects such as the dam and reservoir project

that today's opinion brings to an end -- absent relief by Congress

itself. [437 U.S. 197]



In 1966, Congress authorized and appropriated initial funds for the

construction by the Tennessee Valley Authority (TVA) of the Tellico Dam

and Reservoir Project on the Little Tennessee River in eastern

Tennessee.  The Project is a comprehensive water resource and regional

development project designed to control flooding, provide water supply,

promote industrial and recreational development, generate some

additional electric power within the TVA system, and generally improve

economic conditions in an economically depressed area "characterized by

underutilization of human resources and outmigration of young people."



Construction began in 1967, and Congress has voted funds for the Project

in every year since.  In August, 1973, when the Tellico Project was half

completed, a new species of fish known as the snail darter was

discovered in the portion of the Little Tennessee River that would be

impounded behind Tellico Dam.  The Endangered Species Act was passed the

following December.  87 Stat. 884, 16 U.S.C.  151 et seq. (1976 ed.).

More than a year later, in January, 1975, respondents joined others in

petitioning the Secretary of the Interior to list the snail darter as an

endangered species.  On November 10, 1975, when the Tellico Project was

75% completed, the Secretary placed the snail darter on the endangered

list and concluded that the "proposed impoundment of water behind [437

U.S. 198] the proposed Tellico Dam would result in total destruction of

the snail darter's habitat."  40 Fed.Reg. 47506 (1975).  In respondents'

view, the Secretary's action meant that completion of the Tellico

Project would violate 7 of the Act, 16 U.S.C.  1536 (1976 ed.): All . .

. Federal departments and agencies shall, in consultation with and with

the assistance of the Secretary, utilize their authorities in

furtherance of the purposes of this chapter by carrying out programs for

the conservation of endangered species . . . listed pursuant to section

1533 of this title and by taking such action necessary to insure that

actions authorized, funded, or carried out by them do not jeopardize the

continued existence of such endangered species and threatened species or

result in the destruction or modification of habitat of such species

which is determined by the Secretary . . . to be critical. TVA

nevertheless determined to continue with the Tellico Project in

accordance with the prior authorization by Congress.  In February, 1976,

respondents filed the instant suit to enjoin its completion. By that

time the Project was 80% completed.



In March, 1976, TVA informed the House and Senate Appropriations

Committees about the Project's threat to the snail darter and about

respondents' lawsuit.  Both Committees were advised that TVA was

attempting to preserve the fish by relocating them in the Hiwassee

River, which closely resembles the Little Tennessee.  It stated

explicitly, however, that the success of those efforts could not be

guaranteed. [437 U.S. 199]



In a decision of May 25, 1976, the District Court for the Eastern

District of Tennessee held that "the Act should not be construed as

preventing completion of the project."  419 F.Supp. 753, 755 n. 2. An

opposite construction, said the District Court, would be unreasonable:



At some point in time, a federal project becomes so near completion and

so incapable of modification that a court of equity should not apply a

statute enacted long after inception of the project to produce an

unreasonable result.  Arlington Coalition on Transportation v. Volpe, 45

F.2d 1323, 1331-32 (4th Cir.), cert. den., 409 U.S. 1000 . . . (1972).

Where there has been an irreversible and irretrievable commitment of

resources by Congress to a project over a span of almost a decade, the

Court should proceed with a great deal of circumspection. Id. at 760.

Observing that respondents' argument, carried to its logical extreme,

would require a court to enjoin the impoundment of [437 U.S. 200] water

behind a fully completed dam if an endangered species were discovered in

the river on the day before the scheduled impoundment, the District

Court concluded that Congress could not have intended such a result. 

Accordingly, it denied the prayer for an injunction and dismissed the

action.  In 1975, 1976, and 1977, Congress, with full knowledge of the

Tellico Project's effect on the snail darter and the alleged violation

of the Endangered Species Act, continued to appropriate money for the

completion of the Project.  In doing so, the Appropriations Committees

expressly stated that the Act did not prohibit the Project's completion,

a view that Congress presumably accepted in approving the appropriations

each year.  For example, in June, 1976, the Senate Committee on

Appropriations released a report noting the District Court decision and

recommending approval of TVA's full budget request for the Tellico

Project.  The Committee observed further that it did "not view the

Endangered Species Act as prohibiting the completion of the Tellico

project at its advanced stage," and it directed "that this project be

completed as promptly as possible in the public interest."  The

appropriations bill was passed by Congress and approved by the

President.  The Court of Appeals for the Sixth Circuit nevertheless

reversed the District Court in January, 1977.  It held that the Act was

intended to create precisely the sort of dramatic conflict presented in

this case: Where a project is on-going and substantial resources have

already been expended, the conflict between national incentives to

conserve living things and the pragmatic momentum to complete the

project on schedule is most incisive. 549 F.2d 1064, 1071. Judicial

resolution [437 U.S. 201] of that conflict, the Court of Appeals

reasoned, would represent usurpation of legislative power.  It quoted

the District Court's statement that respondents' reading of the Act,

taken to its logical extreme, would compel a court to halt impoundment

of water behind a dam if an endangered species were discovered in the

river on the day before the scheduled impoundment. The Court of Appeals,

however, rejected the District Court's conclusion that such a reading

was unreasonable and contrary to congressional intent, holding instead

that "[c]onscientious enforcement of the Act requires that it be taken

to its logical extreme."  Ibid.  It remanded with instructions to issue

a permanent injunction halting all activities incident to the Tellico

Project that would modify the critical habitat of the snail darter.



In June, 1977, and after being informed of the decision of the Court of

Appeals, the Appropriations Committees in both Houses of Congress again

recommended approval of TVA's full budget request for the Tellico

Project.  Both Committees again stated unequivocally that the Endangered

Species Act was not intended to halt projects at an advanced stage of

completion: [The Senate] Committee has not viewed the Endangered Species

Act as preventing the completion and use of these projects which were

well under way at the time the affected species were listed as

endangered.  If the act has such an effect, which is contrary to the

Committee's understanding of the intent of Congress in enacting the

Endangered Species Act, funds should be appropriated to allow these

projects to be completed and their benefits realized in the public

interest, the Endangered Species Act notwithstanding. It is the [House]

Committee's view that the Endangered Species Act was not intended to

halt projects such [437 U.S. 202] as these in their advanced stage of

completion, and [the Committee] strongly recommends that these projects

not be stopped because of misuse of the Act. Once again, the

appropriations bill was passed by both Houses and signed into law. II



Today the Court, like the Court of Appeals below, adopts a reading of  7

of the Act that gives it a retroactive effect and disregards 12 years of

consistently expressed congressional intent to complete the Tellico

Project.  With all due respect, I view this result as an extreme example

of a literalist{10} construction, not required by the language of the

Act and adopted without regard to its manifest purpose.  Moreover, it

ignores established canons of statutory construction. A



The starting point in statutory construction is, of course, the language

of  7 itself.  Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756

(1975) (POWELL, J., concurring).  I agree that it can be viewed as a

textbook example of fuzzy language, which can be read according to the

"eye of the beholder."{11}  The critical words direct all federal

agencies to take such action [as may be] necessary to insure that

actions authorized, funded, or carried out by them do not jeopardize the

continued existence of . . . endangered species . . . or result in the

destruction or modification of [a critical] habitat of such species. . .

. Respondents -- as did [437 U.S. 203] the Sixth Circuit -- read these

words as sweepingly as possible, to include all "actions" that any

federal agency ever may take with respect to any federal project,

whether completed or not.



The Court today embraces this sweeping construction.  Ante at Under the

Court's reasoning, the Act covers every existing federal installation,

including great hydroelectric projects and reservoirs, every river and

harbor project, and every national defense installation -- however

essential to the Nation's economic health and safety.  The "actions"

that an agency would be prohibited from "carrying out" would include the

continued operation of such projects or any change necessary to preserve

their continued usefulness.{12}  The only precondition, according to

respondents, to thus destroying the usefulness of even the most

important federal project in our country would be a finding by the

Secretary of the Interior [437 U.S. 204] that a continuation of the

project would threaten the survival or critical habitat of a newly

discovered species of water spider or amoeba.{13}



[F]requently words of general meaning are used in a statute, words broad

enough to include all act in question, and yet a consideration of the

whole legislation, or of the circumstances surrounding its enactment, or

of the absurd results which follow from giving such broad meaning to the

words, makes it unreasonable to believe that the legislator intended to

include the particular act. Church of the Holy Trinity v. United States,

143 U.S. 457, 459 (1892).{14}  The [437 U.S. 205] result that will

follow in this case by virtue of the Court's reading of  7 makes it

unreasonable to believe that Congress intended that reading.  Moreover,

7 may be construed in a way that avoids an "absurd result" without doing

violence to its language.



The critical word in  7 is "actions", and its meaning is far from

"plain."  It is part of the phrase:  "actions authorized, funded or

carried out."  In terms of planning and executing various activities, it

seems evident that the "actions" referred to are not all actions that an

agency can ever take, but rather actions that the agency is deciding

whether to authorize, to fund, or to carry out.  In short, these words

reasonably may be read as applying only to prospective actions, i.e.,

actions with respect to which the agency has reasonable decisionmaking

alternatives still available, actions not yet carried out.  At the time

respondents brought this lawsuit, the Tellico Project was 80% complete

at a cost of more than $78 million.  The Court concedes that, as of this

time and for the purpose of deciding this case, the Tellico Dam Project

is "completed" or "virtually completed, and the dam is essentially ready

for operation," ante at 156,   See n. 1, supra.  Thus, under a

prospective reading of  7, the action already had been "carried out" in

terms of any remaining reasonable decisionmaking power.  Cf. National

Wildlife Federation v. Coleman, 529 F.2d 359, 363, and n. 5 (CA5), cert.

denied sub nom. Boteler v. National Wildlife Federation, 429 U.S. 979

(1976).



This is a reasonable construction of the language, and also is supported

by the presumption against construing statutes to give them a

retroactive effect.  As this Court stated in [437 U.S. 206] United

States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells

Co., 209 U.S. 306, 314 (1908), the presumption is very strong that a

statute was not meant to act retrospectively, and it ought never to

receive such a construction if it is susceptible of any other. This is

particularly true where a statute enacts a new regime of regulation. For

example, the presumption has been recognized in cases under the National

Environmental Policy Act, 42 U.S.C.  4321 et seq., holding that the

requirement of filing an environmental impact statement cannot

reasonably be applied to projects substantially completed.  E.g.,

Pizitz, Inc. v. Volpe, 467 F.2d 208 (CA5 1972); Ragland v. Mueller, 460

F.2d 1196 (CA5 1972); Greene County Planning Board v. FPC, 455 F.2d 412,

424 (CA2), cert. denied, 409 U.S. 849 (1972).  The Court of Appeals for

the Fourth Circuit explained these holdings.



Doubtless Congress did not intend that all projects ongoing at the

effective date of the Act be subject to the requirements of Section 102.

At some stage of progress, the costs of altering or abandoning the

project could so definitely outweigh whatever benefits that might accrue

therefrom that it might no longer be "possible" to change the project in

accordance with Section 102.  At some stage, federal action may be so

"complete" that applying the Act could be considered a "retroactive"

application not intended by the Congress. Arlington Coalition on

Transportation v. Volpe, 45 F.2d 1323, 1331, cert. denied sub nom.

Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000 (19,72).

Similarly, under  7 of the Endangered Species Act, at some stage of a

federal project, and certainly where a project has been completed, the

agency no longer has a reasonable choice simply to abandon it.  When

that point is reached, as it was in this case, the presumption against

retrospective interpretation is at its strongest.  The Court today gives

no weight to that presumption. [437 U.S. 207] B



The Court recognizes that the first purpose of statutory construction is

to ascertain the intent of the legislature.  E.g., United States v.

American Trucking Assn., 310 U.S. 534, 542 (1940).{15}  The Court's

opinion reviews at length the legislative history, with quotations from

Committee reports and statements by Members of Congress. The Court then

ends this discussion with curiously conflicting conclusions.



It finds that the totality of congressional action makes it abundantly

clear that the result we reach today [justifying the termination or

abandonment of any federal project] is wholly in accord with both the

words of the statute and the intent of Congress. Ante at 184.  Yet, in

the same paragraph, the Court acknowledges that "there is no discussion

in the legislative history of precisely this problem."  The opinion

nowhere makes clear how the result it reaches can be "abundantly"

self-evident from the legislative history when the result was never

discussed.  While the Court's review of the legislative history

establishes that Congress intended to require governmental agencies to

take endangered species into account in the planning and execution of

their programs,{16} there is not [437 U.S. 208] even a hint in the

legislative history that Congress intended to compel the undoing or

abandonment of any project or program later found to threaten a newly

discovered species.{17}



If the relevant Committees that considered the Act, and the Members of

Congress who voted on it, had been aware that the Act could be used to

terminate major federal projects authorized years earlier and nearly

completed, or to require the abandonment of essential and long-completed

federal installations [437 U.S. 209] and edifices,{18} we can be certain

that there would have been hearings, testimony, and debate concerning

consequences so wasteful, so inimical to purposes previously deemed

important, and so likely to arouse public outrage.  The absence of any

such consideration by the Committees or in the floor debates indicates

quite clearly that no one participating in the legislative process

considered these consequences as within the intendment of the Act.



As indicated above, this view of legislative intent at the time of

enactment is abundantly confirmed by the subsequent congressional

actions and expressions.  We have held, properly, that post-enactment

statements by individual Members of Congress as to the meaning of a

statute are entitled to little or no weight.  See, e.g., Regional Rail

Reorganization Act Cases, 419 U.S. 102, 132 (1974).  The Court also has

recognized that subsequent Appropriations Acts themselves are not

necessarily entitled to significant weight in determining whether a

prior statute has been superseded.  See United States v. Langston, 118

U.S. 389, 393 (1886).  But these precedents are inapposite.  There was

no effort here to "bootstrap" a post-enactment view of prior legislation

by isolated statements of individual Congressmen.  Nor is this a case

where Congress, without explanation or comment upon the statute in

question, merely has voted apparently inconsistent financial [437 U.S.

210] support in subsequent Appropriations Acts.  Testimony on this

precise issue was presented before congressional committees, and the

Committee Reports for three consecutive years addressed the problem and

affirmed their understanding of the original congressional intent.  We

cannot assume -- as the Court suggests -- that Congress, when it

continued each year to approve the recommended appropriations, was

unaware of the contents of the supporting Committee Reports.  All this

amounts to strong corroborative evidence that the interpretation of  7

as not applying to completed or substantially completed projects

reflects the initial legislative intent.  See, e.g., Fleming v. Mohawk

Wrecking & Lumber Co., 331 U.S. 111, 116 (1947); Brooks v. Dewar, 313

U.S. 354 (1941). III



I have little doubt that Congress will amend the Endangered Species Act

to prevent the grave consequences made possible by today's decision.

Few, if any, Members of that body will wish to defend an interpretation

of the Act that requires the waste of at least $53 million, see n. 6,

supra, and denies the people of the Tennessee Valley area the benefits

of the reservoir that Congress intended to confer.{19}  There will be

little sentiment to leave this dam standing before an empty reservoir,

serving no purpose other than a conversation piece for incredulous

tourists.



But more far-reaching than the adverse effect on the people of this

economically depressed area is the continuing threat to the operation of

every federal project, no matter how important to the Nation.  If

Congress acts expeditiously, as may be anticipated, the Court's decision

probably will have no lasting adverse consequences.  But I had not

thought it to be the province of this Court to force Congress into

otherwise [437 U.S. 211] unnecessary action by interpreting a statute to

produce a result no one intended. REHNQUIST, J., dissenting



MR. JUSTICE REHNQUIST, dissenting.



In the light of my Brother POWELL's dissenting opinion, I am far less

convinced than is the Court that the Endangered Species Act of 1973, 16

U.S.C.  1531 et seq. (1976 ed.), was intended to prohibit the completion

of the Tellico Dam.  But the very difficulty and doubtfulness of the

correct answer to this legal question convinces me that the Act did not

prohibit the District Court from refusing, in the exercise of its

traditional equitable powers, to enjoin petitioner from completing the

Dam.  Section 11(g)(1) of the Act, 16 U.S.C.  1540(g)(1) (1976 ed.),

merely provides that any person may commence a civil suit on his own

behalf . . . to enjoin any person, including the United States and any

other governmental instrumentality or agency . . who is alleged to be in

violation of any provision of this chapter. It also grants the district

courts "jurisdiction, without regard to the amount in controversy or the

citizenship of the parties, to enforce any such provision."



This Court had occasion in Hecht Co. v. Bowles, 321 U.S. 321 (1944), to

construe language in an Act of Congress that lent far greater support to

a conclusion that Congress intended an injunction to issue as a matter

of right than does the language just quoted.  There, the Emergency Price

Control Act of 1942 provided that, [u]pon a showing by the Administrator

that [a] person has engaged or is about to engage in any [acts or

practices violative of this Act] a permanent or temporary injunction,

restraining order, or other order shall be granted without bond. 56

Stat. 33 (emphasis added).



But in Hecht, this Court refused to find, even in such language, an

intent on the part of Congress to require that a [437 U.S. 212] district

court issue an injunction as a matter of course without regard to

established equitable considerations, saying: Only the other day, we

stated that An appeal to the equity jurisdiction conferred on federal

district courts is an appeal to the sound discretion which guides the

determinations of courts of equity.. . . The essence of equity

jurisdiction has been the power of the Chancellor to do equity and to

mould each decree to the necessities of the particular case.

Flexibility, rather than rigidity, has distinguished it.  The qualities

of mercy and practicality have made equity the instrument for nice

adjustment and reconciliation between the public interest and private

needs, as well as between competing private claims.  We do not believe

that such a major departure from that long tradition as is here proposed

should be lightly implied. . . .  [I]f Congress desired to make such an

abrupt departure from traditional equity practice as is suggested, it

would have made its desire plain. 321 U.S. at 329, 330.



Only by sharply retreating from the principle of statutory construction

announced in Hecht Co. could I agree with the Court of Appeals' holding

in this case that the judicial enforcement provisions contained in

11(g)(1) of the Act require automatic issuance of an injunction by the

district courts once a violation is found.  I choose to adhere to Hecht

Co.'s teaching: A grant of jurisdiction to issue compliance orders

hardly suggests an absolute duty to do so under any and all

circumstances.  We cannot but think that, if Congress had intended to

make such a drastic departure from the traditions of equity practice, an

unequivocal statement of its purpose would have been made. 321 U.S. at

329.



Since the District Court possessed discretion to refuse injunctive

relief even though it had found a violation of the Act, the [437 U.S.

213] only remaining question is whether this discretion was abused in

denying respondents' prayer for an injunction.  Locomotive Engineers v.

Missouri, K. & T. R. Co., 363 U.S. 528, 535 (1960).  The District Court

denied respondents injunctive relief because of the significant public

and social harms that would flow from such relief and because of the

demonstrated good faith of petitioner.  As the Court recognizes, ante at

193, such factors traditionally have played a central role in the

decisions of equity courts whether to deny an injunction.  See also 7 J.

Moore, Federal Practice  65.18[3] (1972); Yakus v. United States, 321

U.S. 414, (1944).  This Court has specifically held that a federal court

can refuse to order a federal official to take specific action, even

though the action might be required by law, if such an order "would work

a public injury or embarrassment," or otherwise "be prejudicial to the

public interest."  United States ex rel. Greathouse v. Dern, 289 U.S.

352, 360 (1933).  Here, the District Court, confronted with conflicting

evidence of congressional purpose, was on even stronger ground in

refusing the injunction.



Since equity is "the instrument for nice adjustment and reconciliation

between the public interest and private needs," Hecht Co., supra at a

decree in one case will seldom be the exact counterpart of a decree in

another.  See, e.g., Eccles v. People's Bank, 333 U.S. 426 (1948); Penn

Mutual Life Ins. Co. v. Austin, 168 U.S. 685 (1898).  Here the District

Court recognized that Congress, when it enacted the Endangered Species

Act, made the preservation of the habitat of the snail darter an

important public concern.  But it concluded that this interest on one

side of the balance was more than outweighed by other equally

significant factors.  These factors, further elaborated in the dissent

of my Brother POWELL, satisfy me that the District Court's refusal to

issue an injunction was not an abuse of its discretion.  I therefore

dissent from the Court's opinion holding otherwise. Footnotes BURGER,

J., lead opinion (Footnotes)



1. This description is taken from the opinion of the District Judge in

the first litigation involving the Tellico Dam and Reservoir Project.

Environmental Defense Fund v. TVA, 339 F.Supp. 806, 808 (ED Tenn.1972).

In his opinion, "all of these benefits of the present Little Tennessee

River Valley will be destroyed by impoundment of the river. . . ." Ibid.

 The District Judge noted that "[t]he free-flowing river is the likely

habitat of one or more of seven rare or endangered fish species." Ibid.



2. See Brief for the Eastern Band of Cherokee Indians as Amicus Curiae

2.  See also Mooney, Myths of the Cherokee, 19 Bureau of American

Ethnology Ann.Rep. 11 (1900); H. Timberlake, Memoirs, 1756-1765 (Watauga

Press 1927); A. Brewer & C. Brewer, Valley So Wild:  A Folk History

(East Tenn. Historical Soc. 1975).



3. Public Works Appropriation Act, 1967, 80 Stat. 1002, 1014.



4. Tellico Dam itself will contain no electric generators; however, an

inter-reservoir canal connecting Tellico Reservoir with a nearby

hydroelectric plant will augment the latter's capacity.



5. The NEPA injunction was in effect some 21 months; when it was

entered, TVA had spent some $29 million on the project.  Most of these

funds have gone to purchase land, construct the concrete portions of the

dam, and build a four-lane steel-span bridge to carry a state highway

over the proposed reservoir.  339 F.Supp. at 808.



6. The snail darter was scientifically described by Dr. Etnier in the

Proceedings of the Biological Society of Washington, Vol. 88, No. 44,

pp. 469-488 (Jan. 22, 1976).  The scientific merit and content of Dr.

Etnier's paper on the snail darter were checked by a panel from the

Smithsonian Institution prior to publication.  See App. 111.



7. In Tennessee alone, there are 85 to 90 species of darters, id. at

131, of which upward to 45 live in the Tennessee River system.  Id. at

130.  New species of darters are being constantly discovered and

classified -- at the rate of about one per year.  Id. at 131.  This is a

difficult task for even trained ichthyologists, since species of darters

are often hard to differentiate from one another.  Ibid.



8. An "endangered species" is defined by the Act to mean any species

which is in danger of extinction throughout all or a significant portion

of its range other than a species of the Class Insecta determined by the

Secretary to constitute a pest whose protection under the provisions of

this chapter would present an overwhelming and overriding risk to man.

16 U.S.C.  1532(4) (1976 ed.).



"The act covers every animal and plant species, subspecies, and

population in the world needing protection.  There are approximately 1.4

million full species of animals and 600,000 full species of plants in

the world.  Various authorities calculate as many as 10% of them -- some

200,000 -- may need to be listed as Endangered or Threatened.  When one

counts in subspecies, not to mention individual populations, the total

could increase to three to five times that number." Keith Shreiner,

Associate Director and Endangered Species Program Manager of the U.S.

Fish and Wildlife Service, quoted in a letter from A. J. Wagner,

Chairman, TVA, to Chairman, House Committee on Merchant Marine and

Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an

Endangered Statute:  The Endangered Species Act of 1973, 37 Federal B.J.

25, 27 (1978).



9. The Act does not define "critical habitat," but the Secretary of the

Interior has administratively construed the term: "Critical habitat"

means any air, land, or water area (exclusive of those existing man-made

structures or settlements which are not necessary to the survival and

recovery of a listed species) and constituent elements thereof, the loss

of which would appreciably decrease the likelihood of the survival and

recovery of a listed species or a distinct segment of its population.

The constituent elements of critical habitat include, but are not

limited to:  physical structures and topography, biota, climate, human

activity, and the quality and chemical content of land, water, and air.

Critical habitat may represent any portion of the present habitat of a

listed species and may include additional areas for reasonable

population expansion. 43 Fed.Reg. 874 (1978) (to be codified as 50 CFR

402.02).



10. Respondents are a regional association of biological scientists, a

Tennessee conservation group, and individuals who are citizens or users

of the Little Tennessee Valley area which would be affected by the

Tellico Project.



11. The Act authorities "interested person[s]" to petition the Secretary

of the Interior to list a species as endangered.  16 U.S.C.  1533(c)(2)

(1976 ed.); see 5 U.S.C.  553(e) (1976 ed.).



12. Searches by TVA in more than 60 watercourses have failed to find

other populations of snail darters.  App. 36, 410-412.  The Secretary

has noted that "more than 1,000 collections in recent years and

additional earlier collections from central and east Tennessee have not

revealed the presence of the snail darter outside the Little Tennessee

River."  40 Fed.Reg. 47505 (1975).  It is estimated, however, that the

snail darter's range once extended throughout the upper main Tennessee

River and the lower portions of its major tributaries above Chattanooga

-- all of which are now the sites of dam impoundments.  See Hearings on

Public Works for Water and Power Development and Energy Research

Appropriation Bill, 1978, before a Subcommittee of the House Committee

on Appropriations, 95th Cong., 1st Sess., pt. 4, pp. 240-241 (1977)

(statement of witness for TVA); Hearings on Endangered Species Act

Oversight, before the Subcommittee on Resource Protection of the Senate

Committee on Environment and Public Works, 95th Cong., 1st Sess., 291

(1977); App. 139.



13. The Fish and Wildlife Service and Dr. Etnier have stated that it may

take from 5 to 15 years for scientists to determine whether the snail

darter can successfully survive and reproduce in this new environment.

See General Accounting Office, The Tennessee Valley Authority's Tellico

Dam Project -- Costs, Alternatives, and Benefits 4 (Oct. 14, 1977).  In

expressing doubt over the long-term future of the Hiwassee transplant,

the Secretary noted: That the snail darter does not already inhabit the

Hiwassee River, despite the fact that the fish has had access to it in

the past, is a strong indication that there may be biological and other

factors in this river that negate a successful transplant. 40 Fed.Reg.

47506 (1975).



14. TVA projects generally are authorized by the Authority itself, and

are funded -- without the need for specific congressional authorization

-- from lump-sum appropriations provided in yearly budget grant.  See 16

U.S.C.  831c(j) and 831z (1976 ed.).



15. Section 11(g) allows "any person" to commence a civil action in a

United States District Court to, inter alia, enjoin any person,

including the United States and any other governmental instrumentality

or agency (to the extent permitted by the eleventh amendment to the

Constitution), who is alleged to be in violation of any provision of the

Act "or regulation issued under the authority thereof. . . ."



16. The District Court made the following findings with respect to the

dam's effect on the ecology of the snail darter:



The evidence introduced at trial showed that the snail darter requires

for its survival a clear, gravel substrate, in a large-to-medium,

flowing river.  The snail darter has a fairly high requirement for

oxygen, and since it tends to exist in the bottom of the river, the

flowing water provides the necessary oxygen at greater depths.

Reservoirs, unlike flowing rivers, tend to have a low oxygen content at

greater depths.



Reservoirs also tend to have more silt on the bottom than flowing

rivers, and this factor, combined with the lower oxygen content, would

make it highly probable that snail darter eggs would smother in such an

environment.  Furthermore, the adult snail darters would probably find

this type of reservoir environment unsuitable for spawning.



Another factor that would tend to make a reservoir habitat unsuitable

for snail darters is that their primary source of food, snails, probably

would not survive in such a environment. 419 F.Supp. 753, 756 (ED Tenn.

1976).



17. The District Court findings are to the same effect, and are

unchallenged here.



18. In dissent, MR. JUSTICE POWELL argues that the meaning of "actions"

in  7 is "far from `plain,'" and that it seems evident that the

"actions" referred to are not all actions that an agency can ever take,

but rather actions that the agency is deciding whether to authorize, to

fund, or to carry out. Post at 205.  Aside from this bare assertion,

however, no explanation is given to support the proffered

interpretation.  This recalls Lewis Carroll's classic advice on the

construction of language:



"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it

means just what I choose it to mean -- neither more nor less." Through

the Looking Glass, in The Complete Works of Lewis Carroll 196 (1939).



Aside from being unexplicated, the dissent's reading of  7 is flawed on

several counts.  First, under its view, the words "or carry out" in  7

would be superfluous, since all prospective actions of an agency remain

to be "authorized" or "funded."  Second, the dissent's position

logically means that an agency would be obligated to comply with  7 only

when a project is in the planning stage.  But if Congress had meant to

so limit the Act, it surely would have used words to that effect, as it

did in the National Environmental Policy Act, 42 U.S.C.  4332(2)(A),

(C).



19. The District Court determined that failure to complete the Tellico

Dam would result in the loss of some $53 million in nonrecoverable

obligations; see supra at 166.  Respondents dispute this figure, and

point to a recent study by the General Accounting Office, which suggests

that the figure could be considerably less.  See GAO Study, n. 13, supra

at 5-14; see also Cook, Cook, & Gove, The Snail Darter & the Dam, 51

National Parks & Conservation Magazine 10 (1977); Conservation

Foundation Letter 1-2 (Apr.1978).  The GAO study also concludes that TVA

and Congress should explore alternatives to impoundment of the

reservoir, such as the creation of a regional development program based

on a free-flowing river.  None of these considerations are relevant to

our decision, however; they are properly addressed to the Executive and

Congress.



20. Prior federal involvement with endangered species had been quite

limited.  For example, the Lacey Act of 1900, 31 Stat. 187, partially

codified in 16 U.S.C.  667e and 701 (1976 ed.), and the Black Bass Act

of 1926, 44 Stat. 576, as amended, 16 U.S.C.  851 et seq. (1976 ed.),

prohibited the transportation in interstate commerce of fish or wildlife

taken in violation of national, state, or foreign law.  The effect of

both of these statutes was constrained, however, by the fact that, prior

to passage of the Endangered Species Act of 1973, there were few laws

regulating these creatures.  See Coggins, Conserving Wildlife Resources:

An Overview of the Endangered Species Act of 1973, 51 N.D.L.Rev. 315,

317-318 (1975).  The Migratory Bird Treaty Act, passed in 1918, 40 Stat.

755, as amended, 16 U.S.C.  703 et seq. (1976 ed.), was more extensive,

giving the Secretary of the Interior power to adopt regulations for the

protection of migratory birds.  Other measures concentrated on

establishing refuges for wildlife.  See, e.g., Land and Water

Conservation Fund Act of 1965, 78 Stat. 897, 16 U.S.C.  4601-4 et seq.

(1976 ed.).  See generally Environmental Law Institute, The Evolution of

National Wildlife Law (1977).



21. This approach to the problem of taking, of course, contained the

same inherent limitations as the Lacey and Black Bass Acts, discussed,

n. 20, supra.



22. Hearings on Endangered Species before the Subcommittee of the House

Committee on Merchant Marine and Fisheries, 93d Cong., 1st Sess., 202

(1973) (statement of Assistant Secretary of the Interior) (hereinafter

cited as 1973 House Hearings).



23. See, e.g., 1973 House Hearings 280 (statement of Rep. Roe); id. at

281 (statement of Rep. Whitehurst); id. at 301 (statement of Friends of

the Earth); id. at 306-307 (statement of Defenders of Wildlife).  One

statement, made by the Assistant Secretary of the Interior, particularly

deserves notice: I have watched in my lifetime a vast array of mollusks

in southern streams totally disappear as a result of damming,

channelization, and pollution.  It is often asked of me, "what is the

importance of the mollusks, for example, in Alabama."  I do not know,

and I do not know whether any of us will ever have the insight to know

exactly why these mollusks evolved over millions of years, or what their

importance is in the total ecosystem.  However, I have great trouble

being party to their destruction without ever having gained such

knowledge. Id. at 207.  One member of the mollusk family existing in

these southern rivers is the snail, see 12 Encyclopedia Britannica 326

(15th ed.1974), which, ironically enough, provides the principal food

for snail darters.  See supra at 162,  n. 16.



24. For provisions in the House bills, see  5(d) of H.R. 37, 470, 471,

1511, 2669, 3696, and 3795;  3(d) of H.R. 1461 and 4755;  5(d) of H.R.

2735;  3(d) of H.R. 4758.  For provisions in the Senate bills, see  3(d)

of S. 1592;  5(d) of S.1983.  The House bills are collected in 1973

House Hearings 87-185; the Senate bills are found in the Hearings on S.

1592 and S.1983 before the Subcommittee on Environment of the Senate

Committee on Commerce, 93d Cong., 1st Sess., 3-49 (1973).



25. A further indication of the comprehensive scope of the 1973 Act lies

in Congress' inclusion of "threatened species" as a class deserving

federal protection.  Threatened species are defined as those which are

"likely to become an endangered species within the foreseeable future

throughout all or a significant portion of [their] range."  16 U.S.C.

1532(15) (1976 ed.) .



26. For provisions in the House bills, see  2(c) and 5(d) of H.R. 37,

470, 471, 1511, 2669, 3310, 3696, and 3795;  3(d) of H.R. 1461 and 4755;

5(d) of H.R. 2735;  2(b) of H.R. 4758; one other House bill, H.R. 2169,

imposed no requirements on federal agencies.  For provisions in the

Senate bills, see  2(b) of S. 1592;  2(b), and 5(d) of S. 1983.



27. We note, however, that in the version of S.1983 which was sent to

the floor of the Senate by the Senate Committee on Commerce, the

qualifying language "wherever practicable" had been omitted from one

part of the bill, that being  2(b).  See 119 Cong.Rec. 25663 (1973).

Section 2(b) was the portion of S.1983 that stated the "purposes and

policy" of Congress.  But the Committee's version of S.1983 -- which was

reported to the full Senate -- retained the limitation on  7 that we

note here.  119 Cong.Rec. 25664 (1973).



28. See id. at 30157-30162.



29. When confronted with a statute which is plain and unambiguous on its

face, we ordinarily do not look to legislative history as a guide to its

meaning.  Ex parte Collett, 337 U.S. 55, 61 (1949), and cases cited

therein.  Here it is not necessary to look beyond the words of the

statute.  We have undertaken such an analysis only to meet MR. JUSTICE

POWELL's suggestion that the "absurd" result reached in this case, post

at 196, is not in accord with congressional intent.



30. We do not understand how TVA intends to operate Tellico Dam without

"harming" the snail darter.  The Secretary of the Interior has defined

the term "harm" to mean an act or omission which actually injures or

kills wildlife, including acts which annoy it to such an extent as to

significantly disrupt essential behavioral patterns, which include, but

are not limited to, breeding, feeding or sheltering; significant

environmental modification or degradation which has such effects is

included within the meaning of "harm." 50 CFR  17.3 (1976) (emphasis

added); see S.Rep. No. 93-307, p. 7 (1973).



31. The only portion of the legislative history which petitioner cites

as being favorable to its position consists of certain statements made

by Senator Tunney on the floor of the Senate during debates on S.1983;

see 119 Cong.Rec. 25691-25692 (1973).  Senator Tunney was asked whether

the proposed bill would affect the Army Corps of Engineers' decision to

build a road through a particular area of Kentucky.  Responding to this

question, Senator Tunney opined that  7 of S.1983 would require

consultation among the agencies involved, but that the Corps of

Engineers "would not be prohibited from building such a road if they

deemed it necessary to do so."  119 Cong.Rec. 25689 (1973).  Petitioner

interprets these remarks to mean that an agency, after balancing the

respective interests involved, could decide to take action which would

extirpate an endangered species.  If that is what Senator Tunney meant,

his views are in distinct contrast to every other expression in the

legislative history as to the meaning of  7.  For example, when the

Kentucky example was brought up in the Senate hearings, an

administration spokesman interpreted an analogous provision in S. 1592

as "prohibit[ing] [a] federal agency from taking action which does

jeopardize the status of endangered species."  Supra at 179. Moreover,

we note that the version of S.1983 being discussed by Senator Tunney

contained the "as practicable" limitation in  7(a) which we have

previously mentioned.  See supra at 182.  Senator Tunney's remarks

perhaps explain why the Conference Committee subsequently deleted all

such qualifying expressions.  We construe the Senator's remarks as

simply meaning that, under the 1973 Act, the agency responsible for the

project would have the "final decision," 119 Cong.Rec. 25690 (1973), as

to whether the action should proceed, notwithstanding contrary advice

from the Secretary of the Interior.  The Secretary's recourse would be

to either appeal to higher authority in the administration, or proceed

to federal court under the relevant provisions of the Act; citizens may

likewise seek enforcement under 16 U.S.C.  1540(g) (1976 ed.), as has

been done in this case.



32. MR. JUSTICE POWELL characterizes the result reached here as giving

"retroactive" effect to the Endangered Species Act of 1973.  We cannot

accept that contention.  Our holding merely gives effect to the plain

words of the statute, namely, that  7 affects all projects which remain

to be authorized, funded, or carried out.  Indeed, under the Act, there

could be no "retroactive" application since, by definition, any prior

action of a federal agency which would have come under the scope of the

Act must have already resulted in the destruction of an endangered

species or its critical habitat.  In that circumstance, the species

would have already been extirpated or its habitat destroyed; the Act

would then have no subject matter to which it might apply.



33. MR. JUSTICE POWELL's dissent places great reliance on Church of the

Holy Trinity v. United States, 143 U.S. 457, 459 (1892), post at 204, to

support his view of the 1973 Act's legislative history.  This Court.,

however, later explained Holy Trinity as applying only in rare and

exceptional circumstances. . . .  And there must be something to make

plain the intent of Congress that the letter of the statute is not to

prevail. Crooks v. Harrelson, 282 U.S. 55, 60 (1930).  As we have seen

from our explication of the structure and history of the 1973 Act, there

is nothing to support the assertion that the literal meaning of  7

should not apply in this case.



34. MR. JUSTICE POWELL's dissent relies on cases decided under the

National Environmental Policy Act to support its position that the 1973

Act should only apply to prospective actions of an agency.  Post at The

NEPA decisions, however, are completely inapposite. First, the two

statutes serve different purposes.  NEPA essentially imposes a

procedural requirement on agencies, requiring them to engage in an

extensive inquiry as to the effect of federal actions on the

environment; by way of contrast, the 1973 Act is substantive in effect,

designed to prevent the loss of any endangered species, regardless of

the cost.  Thus, it would make sense to hold NEPA inapplicable at some

point in the life of a project, because the agency would no longer have

a meaningful opportunity to weigh the benefits of the project versus the

detrimental effects on the environment.  Section 7, on the other hand,

compels agencies not only to consider the effect of their projects on

endangered species, but to take such actions as are necessary to insure

that species are not extirpated as a result of federal activities.

Second, even the NEPA cases have generally required agencies to file

environmental impact statements when the remaining governmental action

would be environmentally "significant."  See, e.g., Environmental

Defense Fund v. TVA, 468 F.2d 1164, 1177 (CA6 1972).  Under  7, the loss

of any endangered species has been determined by Congress to be

environmentally "significant."  See supra at



35. The Appropriations Acts did not themselves identify the projects for

which the sums had been appropriated; identification of these projects

requires reference to the legislative history.  See n. 14, supra. Thus,

unless a Member scrutinized in detail the Committee proceedings

concerning the appropriations, he would have no knowledge of the

possible conflict between the continued funding and the Endangered

Species Act. POWELL, J., dissenting (Footnotes)



1. Attorney General Bell advised us at oral argument that the dam had

been completed, that all that remains is to "[c]lose the gate," and to

complete the construction of "some roads and bridges."  The "dam itself

is finished.  All the landscaping has been done. . . .  [I]t is

completed."  Tr. of Oral Arg. 18.



2. Hearings on Public Works for Water and Power Development and Energy

Research Appropriation Bill, 1977, before a Subcommittee of the House

Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976).



3. Although the snail darter is a distinct species, it is hardly an

extraordinary one.  Even icthyologists familiar with the snail darter

have difficulty distinguishing it from several related species.  App.

107, 131.  Moreover, new species of darters are discovered in Tennessee

at the rate of about 1 a year; 8 to 10 have been discovered in the last

five years.  Id. at 131.  All told, there are some 130 species of

darters, 85 to 90 of which are found in Tennessee, 40 to 45 in the

Tennessee River system, and 11 in the Little Tennessee itself.  Id. at

38 n. 7, 130-131.



4. Hearings on Public Works for Water and Power Development and Energy

Research Appropriations Bill, 1977, before a Subcommittee of the House

Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262

(1976); Hearings on Public Works for Water and Power Development and

Energy Research Appropriations for Fiscal Year 1977, before a

Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d

Sess., pt. 4, pp. 3096-3099 (1976).



5. The Court of Appeals interpreted the District Court opinion as

holding that TVA's continuation of the Tellico Project would violate the

Act, but that the requested injunction should be denied on equitable

grounds.  549 F.2d 1064, 1069-1070 (CA6 1977).  This interpretation of

the District Court opinion appears untenable in light of that opinion's

conclusion that the Act could "not be construed as preventing completion

of the project," 419 F.Supp. 753, 755 n. 2 (1976) (emphasis added).

Moreover, the District Court stated the issue in the case as whether "

[it is] reasonable to conclude that Congress intended the Act to halt

the Tellico Project at its present stage of completion."  Id. at 760. It

concluded that the "Act should be construed in a reasonable manner to

effectuate the legislative purpose," ibid., and "that the Act does not

operate in such a manner as to halt the completion of this particular

project," id. at 763.  From all this, together with the District Court's

reliance on cases interpreting the National Environmental Policy Act, 42

U.S.C.  4321 et seq., as inapplicable to substantially completed

projects, see 419 F.Supp. at 760-761, it seems clear that District Judge

Taylor correctly interpreted  7 as inapplicable to the Tellico Project.



6. The District Court found that $53 million out of more than $78

million then expended on the Project would be unrecoverable if

completion of the dam were enjoined.  419 F.Supp. at 760.  As more than

$110 million has now been spent on the Project, it seems probable that

abandonment of the dam would entail an even greater waste of tax

dollars.



7. S.Rep. No. 94-960, p. 96 (1976).



8. S.Rep. No. 95-301, p. 99 (1977).



9. H.R.Rep. No. 95-379, p. 104 (1977).



10. See Frank, Words and Music:  Some Remarks on Statutory

Interpretation, 47 Colum.L.Rev. 1259, 1263 (1947); Hand, The Speech of

Justice, 29 Harv.L.Rev. 617, 620 (1916).



11. The purpose of this Act is admirable.  Protection of endangered

species long has been neglected.  This unfortunate litigation --

wasteful for taxpayers and likely in the end to be counterproductive in

terms of respondents' purpose -- may have been invited by careless

draftsmanship of otherwise meritorious legislation.



12. Ante at   At oral argument, respondents clearly stated this as their

view of  7:



QUESTION:  . . . Do you think -- it is still your position, as I

understand it, that this Act, Section 7, applies to completed projects?

I know you don't think it occurs very often that there'll be a need to

apply it.  But does it apply if the need exists?



MR. PLATER:  To the continuation --



QUESTION:  To completed projects.  Take the Grand Coulee dam --



MR. PLATER:  Right. Your Honor, if there were a species there -- *    *

*    * -- it wouldn't be endangered by the dam.



QUESTION:  I know that's your view.  I'm asking you not to project your

imagination --



MR. PLATER:  I see, your Honor.



QUESTION:  -- beyond accepting my assumption.



MR. PLATER:  Right.



QUESTION:  And that was that an endangered species might turn up at

Grand Coulee.  Does Section 7 apply to it?



MR. PLATER:  I believe it would, Your Honor.  The Secretary of the

Interior --



QUESTION:  That answers my question.



MR. PLATER:  Yes, it would. Tr. of Oral Arg. 57-58.



13. Under the Court's interpretation, the prospects for such disasters

are breathtaking indeed, since there are hundreds of thousands of

candidates for the endangered list:



"The act covers every animal and plant species, subspecies, and

population in the world needing protection.  There are approximately 1.4

million full species of animals and 600,000 full species of plants in

the world.  Various authorities calculate as many as 10% of them -- some

200,000 -- may need to be listed as Endangered or Threatened.  When one

counts in subspecies, not to mention individual populations, the total

could increase to three to five times that number." Keith Shreiner,

Associate Director and Endangered Species Program Manager of the U.S.

Fish and Wildlife Service, quoted in a letter from A. J. Wagner,

Chairman, TVA, to Chairman, House Committee on Merchant Marine and

Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an

Endangered Statute:  The Endangered Species Act of 1973, 37 Federal B.J.

25, 27 (1978).



14. Accord, e.g., United States v. American Trucking Assns., 310 U.S.

534, 543 (1940); Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 333

(1938); Sorrells v. United States, 287 U.S. 435, 446-448 (1932)

(collecting cases); United States v. Ryan, 284 U.S. 167, 175 (1931). The

Court suggests, ante at 187 n. 33, that the precept stated in Church of

the Holy Trinity was somehow undermined in Crooks v. Harrelson, 282 U.S.

55, 60 (1930).  Only a year after the decision in Crooks, however, the

Court declared that a literal application of a statute which would lead

to absurd consequences is to be avoided whenever a reasonable

application can be given which is consistent with the legislative

purpose. Ryan, supra at 175.  In the following year, the Court expressly

relied upon Church of the Holy Trinity on this very point.  Sorrells,

supra at 448.  The real difference between the Court and myself on this

issue arises from our perceptions of the character of today's result. 

The Court professes to find nothing particularly remarkable about the

result produced by its decision in this case. Because I view it as

remarkable indeed, and because I can find no hint that Congress actually

intended it, see infra at  I am led to conclude that the congressional

words cannot be given the meaning ascribed to them by the Court.



15. Landis, A Note on "Statutory Interpretation," 43 Harv.L.Rev. 886

(1930).



16. The quotations from the legislative history relied upon by the Court

are reasonably viewed as demonstrating that Congress was thinking about

agency action in prospective situations, rather than actions requiring

abandonment of completed projects.  For example, the Court quotes

Representative Dingell's statement as a highly pertinent interpretation

of what the Conference bill intended.  In the statement relied upon,

ante at  Representative Dingell said that Air Force bombing activities

along the gulf coast of Texas, if found to endanger whooping cranes,

would have to be discontinued.  With respect to grizzly bears, he noted

that they may or may not be endangered, but, under the Act it, will be

necessary "to take action to see . . . that these bears are not driven

to extinction."



The Court also predicates its holding as to legislative intent upon the

provision in the Act that instructs federal agencies not to "take"

endangered species, meaning that no one is "to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect" such life forms.

Ante at   The Court quotes, ante at 184-185, n. 30, the Secretary of the

Interior's definition of the term "harm" to mean -- among other things

-- any act which annoy[s wild life] to such an extent as to

significantly disrupt essential behavioral patterns, which include, but

are not limited to, breeding, feeding or sheltering; significant

environmental modification or degradation which has such effects is

included within the meaning of "harm." 50 CFR  17.3 (1976). Two

observations are pertinent.  First, the reach of this regulation --

which the Court accepts as authorized by the Act -- is virtually

limitless.  All one would have to find is that the "essential behavioral

patterns" of any living species as to breeding, feeding, or sheltering

are significantly disrupted by the operation of an existing project.



I cannot believe that Congress would have gone this far to imperil every

federal project, however important, on behalf of any living species

however unimportant, without a clear declaration of that intention.  The

more rational interpretation is consistent with Representative Dingell's

obvious thinking:  the Act is addressed to prospective action where

reasonable options exist; no thought was given to abandonment of

completed projects.



17. The Senate sponsor of the bill, Senator Tunney, apparently thought

that the Act was merely precatory, and would not withdraw from the

agency the final decision on completion of the project: [A]s I

understand it, after the consultation process took place, the Bureau of

Public Roads, or the Corps of Engineers, would not be prohibited from

building a road if they deemed it necessary to do so. [A] s I read the

language, there has to be consultation.  However, the Bureau of Public

Roads or any other agency would have the final decision as to whether

such a road should be built.  That is my interpretation of the

legislation, at any rate. 119 Cong.Rec. 25689-25690 (1973).  See also

Sierra Club v. Froehlke, 534 F.2d 1289, 1303-1304 (CA8 1976).



18. The initial proposed rulemaking under the Act made it quite clear

that such an interpretation was not intended: Neither [the Fish and

Wildlife Service of the Department of the Interior] nor [the National

Marine Fisheries Service of the Department of Commerce] intends that

section 7 bring about the waste that can occur if an advanced project is

halted. . . .  The affected agency must decide whether the degree of

completion and extent of public funding of particular projects justify

an action that may be otherwise inconsistent with section 7. 42 Fed.Reg.

4869 (1977).  After the decision of the Court of Appeals in this case,

however, the quoted language was withdrawn, and the agencies adopted the

view of the court.  43 Fed.Reg. 870, 872, 875 (1978).



19. The Court acknowledges, as it must, that the permanent injunction it

grants today will require "the sacrifice of the anticipated benefits of

the project and of many millions of dollars in public funds."  Ante at

174. 