Judicial Predictability in United States Supreme Court Advocacy: an Analysis of the Oral Argument in Tennessee Valley Authority v. Hill

• Jurisdiction: United States,Federal
• Citation: Vol. 2 No. 01
• Publication year: 1978

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.1FALL 1978

Judicial Predictability in United States Supreme Court Advocacy: An Analysis of the Oral Argument in Tennessee Valley Authority v. Hill

by Donald S. Cohen(fn*)

Introduction

By the time this article appears in print, commentary on the United States Supreme Court's decision in the case of Tennessee Valley Authority v. Hill,(fn1) which pitted the snail darter, a three-inch member of the perch family, against T.V.A.'s Tellico Dam, will undoubtedly have been published or have gone to press. Few recent cases have attracted the degree of national publicity this controversy has, and more than one environmental law scholar will assuredly fully examine the ethical and practical ramifications of the Court's decision affirming the Sixth Circuit's determination that closure of the dam should be enjoined.

Because of the author's personal involvement in the case as co-plaintiff-respondent and co-counsel,(fn2) however, it became apparent that further insight might be gleaned from the decision than that provided by more traditional law review discussion. Although the Supreme Court's decision is, of course, unmistakably significant in its holding(fn3) that, despite T.V.A.'s expenditure of millions of dollars on the Tellico Project prior to the effective date of the Endangered Species Act(fn4) and the listing of the fish as "endangered," the Act prevents completion of the project because impoundment of the river would jeopardize the existence of the snail darter and modify or destroy its habitat,(fn5) the author found equally fascinating the apparent roles the various Justices seemed to play during oral argument of the case and the predictive value of the questions posed and comments made by the members of the Court.

This article will, therefore, analyze the transcript of oral argument in T. V.A. v. Hill and compare and contrast the apparent predispositions of the Justices as evidenced by their inquiries and remarks at the Supreme Court hearing with the positions ultimately taken by them.(fn6) In this connection, the article will evaluate the hypothesis that several of the Justices assumed specific roles during the argument based upon their predispositions concerning the substantive issues involved. Last, some general observations concerning predictability of Supreme Court decisions based upon oral argument interchange will be made. Hopefully, they will prove to be interesting to students of the Court and perhaps useful to students of appellate advocacy in general.

Background

Before a meaningful examination of the Supreme Court hearing can be made, a brief discussion(fn7) of the case's factual and procedural background is necessary. T.V.A. first proposed a dam on the Little Tennessee River near its junction with the Tennessee River, the present site of Tellico Dam, in 1936. Congress initially appropriated funds for the project in 1966, and construction began in 1967. In the early 1970's, federal litigation(fn8) concerning the adequacy of T.V.A.'s environmental impact statement required by the National Environmental Policy Act(fn9) delayed construction for twenty months, after which the district court found that the final environmental impact statement complied with the law.(fn10) The dam, which would impound the last remaining thirty-three miles of free-flowing river in the Tennessee River system(fn11) and thereby destroy a number of archeological sites of great historical significance(fn12) and cover some 16,500 acres-much of which is productive farmland-with water, was justified in terms of flood control, navigation, electrical power,(fn13) industrial development,(fn14) and recreation. A recent study by the General Accounting Office,(fn15) however, has cast suspicion on the alleged benefits of the project, and a T.V.A.-U.S. Department of Interior Report(fn16) prepared in August of 1978 indicates that many of the stated benefits can be achieved without closing the dam's gates and thereby bringing about the snail darter's extinction.

In August, 1973, a University of Tennessee ichthyologist discovered in the portion of the Little Tennessee River to be impounded by the dam a species of fish he did not believe had previously been scientifically identified. Further investigation led him to the conclusion that the fish, the "snail darter,"(fn17) requires a shallow, fast-flowing, clear, riverine environment with a clean gravel bottom to live and reproduce, and that the creation of Tellico Reservoir as a deep, silted, nonflowing lake, would destroy the fish's habitat and render it extinct within a few years. Four months after the discovery, the Endangered Species Act of 1973 became effective. Section 7 of the Act states that federal agencies, in consultation with the Secretary of Interior, shall utilize their authorities by carrying out programs to conserve species listed as endangered and threatened under the Act andby 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 [of Interior] . . . to be critical.(fn18)

In January of 1975, two of the plaintiffs petitioned the Secretary of Interior to list the fish as endangered. After ten months of administrative proceedings, the Secretary determined the snail darter lives only in that portion of the river that would be inundated, and closing the dam would result in the destruction of the fish and its habitat. The formal listing of the snail darter as an endangered species(fn19) became effective on November 10, 1975. During this period and at several subsequent times, T.V.A. informed a subcommittee of the House Committee on Appropriations(fn20) of the controversy concerning the snail darter; the House Committee, nevertheless, recommended that additional funds be appropriated for the completion of the project.

Consultation between the Department of Interior and T.V.A. proved fruitless, and in February of 1976, the plaintiffs filed a lawsuit in the United States District Court for the Eastern District of Tennessee seeking a temporary and permanent injunction prohibiting the closing of the dam. The district court denied plaintiffs' request for a preliminary injunction and set the matter for trial, which was held in late April, 1976. The snail darter's habitat in the Little Tennessee River had been determined to be "critical" pursuant to Section 7 of the Act in early April, 1976.(fn21) On May 25, 1976, the district court entered its opinion denying the plaintiffs' requested relief and dismissing the complaint.(fn22) The court took this position in spite of its findings that closure of the dam and subsequent impoundment of the river would adversely modify, if not completely destroy, the snail darter's critical habitat, making it highly probable the fish's continued existence would be jeopardized.(fn23) The district court based its decision on its inherent equitable power to consider such factors as the project's percentage of completion, the $53 million the court found would be irretrievably lost if the project were not completed, and T.V.A. testimony that other than scrapping the entire project, no viable alternatives to closure of the dam existed that would preserve the snail darter.(fn24)

In January of 1977, the Court of Appeals for the Sixth Circuit(fn25) agreed with plaintiffs' argument that the trial court had abused its discretion by not issuing an injunction in the face of a clear federal statutory violation. The court reversed the lower court decision and remanded the case with instructions that a permanent injunction issue halting all Tellico Project activities that may destroy or modify the snail darter's critical habitat.(fn26) The injunction was to remain in effect until Congress specifically exempts the project from the operation of the Endangered Species Act or the Secretary of Interior removes the fish from endangered status.

On April 18, 1978, the United States Supreme Court heard oral argument on the case, and on June 15, 1978, the Court affirmed the Sixth Circuit's decision, thus leaving the permanent injunction in effect.(fn27) Chief Justice Burger, writing for the majority, noted the clear findings of the trial court, undisputed on appeal, that the snail darter's existence would be jeopardized and its habitat modified or destroyed by the project's completion.(fn28) He observed that the language of section 7 makes no exception for projects underway on the date of the Act's passage,(fn29) and further noted that congressional appropriations could not, by implication, be permitted to repeal the clear application of the Act to the Tellico Project.(fn30) Last, he indicated that, despite the inherent power of a chancellor to balance the equities involved, to permit the trial judge to do so in these circumstances would undermine the nation's commitment to the doctrine of separation of powers.(fn31) That is, it is for the legislative, not the judicial, branch to determine whether, despite a violation of federal law, public policy, through a weighing of benefits and costs, demands the Tellico Project be completed. Justices Brennan, Stewart, White, Marshall, and Stevens joined the Chief Justice in his opinion. Justice Powell, joined by Justice Blackmun, dissented,(fn32)...