A Tale of Two Cases
By Daniel A. Farber
INTRODUCTION
Two cases, decided almost twenty years apart, provide a vivid picture of how environmental law evolved in the meantime. The first, TVA v. Hill, was a dramatic vindication of the urgent need to safeguard endangered species. In order to save an obscure fish, the Court upheld a last-minute injunction against the completion of a dam. The second, Babbitt v. Sweet Home, also was resolved in favor of endangered species, blocking an effort to release land developers from the Endangered Species Act's (‘ESA‘) coverage. But the tone of the two opinions differed. Unlike TVA v. Hill, the opinion in Sweet Home was low-key and technical. Where TVA v. Hill found it necessary to recount Congress' reasons for protecting endangered species, Sweet Home seemingly took such goals for granted.
The two cases also grew out of different approaches to environmental regulation. Unlike the draconian mandate applied in TVA v. Hill, the program involved in Sweet Home relied as much on negotiation as on direct regulation; it also focused on preserving ecosystems rather than individual animals. Like environmental law in general, the ESA had made gains in sophistication--and hopefully, in effectiveness--but perhaps at the cost of losing some of its early fervor. In a microcosm, these two cases encapsulate much of the intervening development of environmental law and hint at its future.
Two cases, decided almost twenty years apart, provide a vivid picture of how environmental law evolved in the meantime. The first, TVA v. Hill, was a dramatic vindication of the urgent need to safeguard endangered species. In order to save an obscure fish, the Court upheld a last-minute injunction against the completion of a dam. The second, Babbitt v. Sweet Home, also was resolved in favor of endangered species, blocking an effort to release land developers from the Endangered Species Act's (‘ESA‘) coverage. But the tone of the two opinions differed. Unlike TVA v. Hill, the opinion in Sweet Home was low-key and technical. Where TVA v. Hill found it necessary to recount Congress' reasons for protecting endangered species, Sweet Home seemingly took such goals for granted.
The two cases also grew out of different approaches to environmental regulation. Unlike the draconian mandate applied in TVA v. Hill, the program involved in Sweet Home relied as much on negotiation as on direct regulation; it also focused on preserving ecosystems rather than individual animals. Like environmental law in general, the ESA had made gains in sophistication--and hopefully, in effectiveness--but perhaps at the cost of losing some of its early fervor. In a microcosm, these two cases encapsulate much of the intervening development of environmental law and hint at its future.