Law and the fourth estate: endangered nature, the press, and the dicey game of democratic governance.

• Author: Plater, Zygmunt J.B.

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I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.... (1) Thomas Jefferson Here is a proposition: Environmental attorneys, and especially public interest environmental attorneys, must constantly be aware that they--we--are lawyering simultaneously on two very different yet concurrent tracks. It is essential but insufficient to put together and present the technical merits of a winning legal argument in the forums of courts or agencies. In most public interest cases, ultimate outcomes are likely to be finally determined within the intricacies of the political process--local, state, or national. And while this second track requires that the rational merits of public interest cases are well presented in the internal processes of agencies or legislatures, that also is not enough. In many or most public interest cases it ultimately is the public's perception of the case that is the most important and determinative factor. What the public knows (or, significantly, does not know) of the case, ultimately determines outcomes.

And where is it, in the rapid-fire daily complexities of modern American democratic governance, that the public almost exclusively gets the information that shapes its perceptions and its Jeffersonian "discretion"? From the important and frustrating realm of the Fourth Estate. The Press inevitably plays a critical role in the ultimate resolution of most public interest controversies, and its omissions (rather than its more often criticized acts of commission) are the central focus of this Essay and the three suggestions with which it ends.

Warning: At one level at least, much of this disquisition is a legal war story, with all the dangers that implies. The kind people who invited me to present this Essay were warned that I would be enmeshed this year in the project of writing, finally after twenty-five years, a book about an endangered species case in which, for seven years in the 1970s, my students and I had the honor and the frustrating burden of representing an endangered two-and-a-half inch fish. The case is Tennessee Valley Authority v. Hill (TVA v. Hill), (2) which pitted the final dam of the Tennessee Valley Authority (TVA), the Tellico Dam on the Little Tennessee River, against the diminutive endangered fish, the snail darter.

There are always dangers in the war story mode. If the storyteller won, the hidden message is "How smart I am!" (Not much of a problem here, because ultimately we lost. In retrospect, if we had been a little smarter, a river that had flowed for 200 million years would still be flowing.) There is a danger that storytellers will refight old battles long ago lost, will believe that what they have experienced deeply is a metaphor for everything else in human society, or will be the last to realize that the story has become old hat.

But friends have urged that this case we experienced was important and has assumed something of the character of a classic. (3) It touched hundreds of lives and dozens of legal and governmental institutions in interesting and revealing ways. Though I've been challenged by a number of other interesting legal experiences in the years since, this one is the case that has pushed me into more legal explorations than any other--equitable remedies, review of agency discretion, puzzles of legislative process and statutory interpretation, the critically useful role of citizen activism, and more. And this is the one that still wakes me up in the middle of the night. The case has had some useful consequences, but it also has had some continuing and really bad consequences for the Endangered Species Act (ESA) (4) and for environmental protection. TVA v. Hill apparently is still nationally notorious as The Most Extreme Environmental Case There Ever Was. Twenty years later the snail darter still resurfaces regularly in news commentary and editorials, congressional floor speeches, (5) and Rush Limbaugh's diatribes against environmentalism, (6) and the deprecating terms in which the fish is remembered makes our point and makes it worth a retrospective look.

The Tellico Dam was indeed an Extreme Case. From start to finish the public and the political process perceived it, through the Press, as the stow of a trivial little fish discovered at the last moment by cynical environmental extremists who misused the fish and the law to block a huge hydroelectric dam. This stow, however, was almost completely inaccurate, in fact backwards. Significantly, the case was extreme in ways 180 degrees opposite to the public perception, to the implied mismatch on the economic merits between the little fish and the TVA dam that Rush mocks with his listeners and even sympathetic observers seem to take for granted. (7) The dam had never made economic sense. The environmental argument for the fish and its habitat maximized economic as well as ecological benefits to the public. A retrospective look may thus cast a small but useful spotlight not only on environmental lawyering issues but also more grandly on how American government works. In the Tellico Dam case, as you so often find in the environmental law field, when you scratch away at the surface of a stow pretty soon you find yourself staring at big questions of democracy.

MISTAKE

In a nutshell, on the objective record, the TVA's Tellico Dam project was a major public policy mistake from the start. In our legal system, however, even if on its merits a project is irrational and destructive, there is no forum in which public interest advocates, outsiders facing the insider Establishment of an "Iron Triangle" (8) pork barrel, can reliably trigger analytical scrutiny to obtain an accounting, and no way to "speak truth to power."

Twenty-five years after its founding, TVA, the New Deal's brightest rose, had lost momentum and suffered from low morale. After building more than five dozen dams, it had nm out of places where another dam could be justified. The agency had shifted ninety percent of its energy production to coal and nukes and was becoming just another big utility company. But in a decisive turnaround meeting held at his Watts Bar Dam conference center, Aubrey Wagner, the agency's general manager and later chairman, resurrected the agency's spirits by launching a new initiative that would let them build more dams: Starting with a dam to impound the last thirty-three miles of flowing river left in the Little Tennessee River, the Tellico Dam, TVA would justify a new series of projects as "regional economic demonstrations." (9)

TVA had to come up with a positive benefit-cost justification. Every federally-funded public works project is required to have a benefit-cost ratio that on its face is at least theoretically positive; that is, that at least $1.01 will arguably be returned over time for every taxpayer dollar invested. (10) Because such water projects are primary components of the congressional pork barrel, this requirement typically stimulates great bureaucratic artistry in boosting the hypothetical benefits and minimizing the estimated costs of the projects that the Iron Triangles want to build, (11) TVA's Tellico Project, ultimately a $150 million spending opportunity, was such a case. When the agency brought it to the pork barrel appropriations committees in Washington for funding, the committees welcomed TVA's benefit-cost projection with open coffers, as they do a parade of similar spending projects each year, despite questionable benefit-cost ratios. (12)

At the heart of TVA's project justifications for Tellico was a decision to acquire large areas of land that would never be flooded by the long, winding, shallow lake--more than twice as much private land was to be condemned than was needed for a reservoir, 340 family farms (13)--and the theory was that this land would be re-sold and redeveloped as a model industrial city to be called "Timberlake New Town." At a cost of $850 million, including at least $145 million in additional "infrastructure grant" subsidies that Congress would be asked to provide at some later date, TVA and its partner, the Boeing Corporation, said the hypothetical city would bring 50,000 people and 26,000 new jobs to the area. (14) The "shoreland development" benefits of this plan, along with even greater hypothesized recreational benefits, allowed TVA to claim a 1.70/1.00 benefit-cost ratio (later modified downward). (15) Because Tellico was such a marginal site, traditional water project benefits were minimal--small potential increments in barge navigation, water supply, power generation (Tellico had no generators itself, but could redirect flows through a canal to an adjacent dam), and flood control. Despite the inevitable image of the controversy, the Tellico Project was fundamentally not a hydroelectric dam project. The dam was just the dubious central feature of a federal recreational and land-development project. (16)

Starting in 1962, TVA's purported project justifications for Tellico had been challenged and resisted by a motley little coalition of farmers, fishermen, Native Americans, historians, archaeologists, and others. (17) The case they made from the beginning was that the hypothesized benefit claims were unreal and irrational and the project's true costs would be staggering. TVA was eliminating more than 300 family farms on some of the richest agricultural soils in the world. Of the project's 38,000 acres, 25,500 were prime-class soils. (18) The last remaining thirty-three-mile stretch of the Little Tennessee River was the best big river trout fishing resource east of the Mississippi, with special recreational values as a float-trip river, while twenty-four dams within fifty miles had eliminated all surrounding river mileage. (19) According to...