The Volokh Conspiracy

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Activist litigation and statutory text: We've seen this one before


Ideological activists sought to advance their political aims through strategic litigation against a governmental initiative they opposed. Challenging the federal government is difficult, however, and the initial legal challenges failed. The activists remained undaunted and sought additional avenues of legal attack, filing one lawsuit after another, to no avail.

After several failed legal assaults, a belated discovery opened a new avenue of legal attack. The applicable provisions of federal law could have an unexpected application, so another lawsuit was launched. Relying upon the plain text of the relevant statutory provisions, the activists maintained that the government's actions were unlawful and must be stopped. The text admitted no exception. The government, for its part, argued that the law should not be construed so strictly, lest it produce an unwanted and unanticipated result. Were the law's consequences truly so severe, the government's defenders maintained, the law would have been more controversial and such risks would have been highlighted before the law was passed. Such were the battle lines when the legal challenge finally reached the Supreme Court.

King v. Burwell? Think again.

In Tennessee Valley Authority v. Hill, the Supreme Court concluded that the plain text of the Endangered Species Act required the issuance of an injunction barring the completion of the Tellico Dam lest it threaten the survival of the Tennessee snail darter, a newly discovered species of fish. After years of effort, the Tellico Dam's opponents were victorious. The discovery of the snail darter provided them with the necessary legal hook after numerous other legal challenges had failed.

By the time of the Court's decision, the dam was nearly complete. The federal government had already spent over $100 million on the project. Nonetheless, the Court concluded the dam could not be finished due to the ESA. Acknowledging that some might find the result "curious," Chief Justice Burger explained that "the explicit provisions of the Endangered Species Act" required the result. The relevant portions of the ESA were clear and did not provide the government with the flexibility it sought.

As with the ACA, alternative statutory language that might have allowed a contrary result had been considered as the ESA worked its way through Congress, but was ultimately left on the cutting-room floor. The final version of the law Congress actually enacted left little room for alternative interpretations. The dissenting justices objected that this result was absurd and could not have been intended, but the Court's majority saw things quite differently. That the plaintiffs in the case were more concerned with stopping the dam than protecting a fish was also of no moment.

After the Court's decision, one senator complained that stopping projects like the Tellico Dam was not "the intent at all, the conscious intent, of the membership of the Congress." Rather, he explained, "We get in a mighty big hurry sometimes and pass a bill that . . . contains language that overspeaks itself." Well aware that some in Congress might have preferred to see the Tellico Dam completed, even at the expense of an endangered fish, Chief Justice Burger had explained that it was "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."

After the Court's decision, Congress amended the ESA so as to create a process that could exempt projects like Tellico. When that failed to do the trick, Congress expressly exempted the Tellico Dam from the ESA altogether. The specific consequence of the plaintiffs' suit was undone, but remains good law, and few today question that the Court reached the right result.