U.S. Supreme Court

 

TVA v. HILL, 437 U.S. 153 (1978)

 

437 U.S. 153

 

TENNESSEE VALLEY AUTHORITY v. HILL ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

 

No. 76-1701.

 

Argued April 18, 1978

Decided June 15, 1978

 

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. 153, 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. Pp. 172-193.

 

(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. Pp.

172-174.

 

(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. Pp. 174-187.

 

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

even remotely apply to the Tellico Project. P. 188.

 

(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. 153, 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. Pp. 189-193.

 

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. Pp. 193-194.

 

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, p. 195. REHNQUIST,

J., filed a dissenting opinion, post, p. 211.

 

Attorney General Bell argued the cause for petitioner. On the briefs were

Acting Solicitor General Friedman, Deputy Solicitor General Barnett, Herbert

S. Sanger, Jr., Richard A. Allen, Charles A. Wagner III, Thomas A. Pedersen,

and Nicholas A. Della Volpe.

 

Zygmunt J. B. Plater argued the cause for respondents. With him on the brief

was W. P. Boone Dougherty.*

 

[Footnote *] Briefs of amici curiae urging reversal were filed by Robert J.

Pennington for Monroe County et al.; and by Ronald A. Zumbrun, Raymond M.

Momboisse, Robert K. Best, Albert Ferri, Jr., Donald C. Simpson, and W. Hugh

O'Riordan for the Pacific Legal Foundation.

 

Briefs of amici curiae urging affirmance were filed by Ben Oshel Bridgers

for the Eastern Band of Cherokee Indians; by William A. Butler for the

Environmental Defense Fund et al.; and by Howell H. Sherrod, Jr., for the

East Tennessee Valley Landowners' Assn.

 

Ben B. Blackburn and Wayne T. Elliott filed a brief for the Southeastern

Legal Foundation as amicus curiae. [437 U.S. 153, 156]

 

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 archeological stores

of which are to a large extent unexplored.1 These include the Cherokee towns

of Echota and Tennase, the former [437 U.S. 153, 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.2

 

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.3 Tellico is a multipurpose

regional development project designed principally to stimulate shoreline

development, generate sufficient electric current to heat 20,000 homes,4 and

provide flatwater 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. 153, 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. 1973), aff'd, 492 F.2d 466 (CA6 1974).5

 

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.6 This three-inch, tannish-colored fish, [437 U.S. 153, 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.7 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"8 and to [437 U.S. 153, 160] identify the "critical habitat"9 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. 153, 161]

 

In January 1975, the respondents in this case10 and others petitioned the

Secretary of the Interior11 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. 153,

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. 153,

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. 153, 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. 94-319, 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.

900, 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) tanasi. 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. 153, 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 lawsuit'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. 153, 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. 153, 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. 94-960, 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. 153, 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. 153, 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. 153, 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. 153, 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. 153, 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. 153, 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. 153,

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. 153, 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. 153, 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. 153, 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 1973] 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. 153, 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 genetic 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. 93-412, 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. 153, 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. 153, 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) (1976 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. 153, 181] involvement was encouraged by the Act, with

provisions allowing interested persons to petition the Secretary to list a

species as endangered or threatened, 1533 (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