The Wide Open

When the Endangered Species Act passed in 1973, it was considered a bipartisan home run. The Act established protections for plants and animals on the endangered and threatened species lists, and across the aisle, everyone seemed to agree that it would be bad for a bunch of species to go extinct. When the act went to a vote, not a single senator voted against it. Flash forward just over fifty years and the story could not be more different. Today, communities across the nation are clashing over the ESA, and a whole legal specialty has sprung up around how to use it and how to fight it.

The first season of Montana Public Radio’s The Wide Open, hosted by Nick Mott, is about the past, present and future of the ESA. Mott says that the rise of the environmental movement in the 1970s led Richard Nixon and Congress to pass many of the United States’  bedrock environmental laws, including the National Environmental Policy Act, the Clean Air and Clean Water Act, and the Endangered Species Act. But when it came to the ESA, most lawmakers didn’t understand the law’s true implications. Believing it would mainly protect large charismatic animals like whales and grizzlies, very few of them even read it.

But the ESA didn’t just protect big charismatic species; it protected any species that was considered endangered or threatened, and far more species were under threat than anyone realized. Thousands of smaller, less well-known species of animals and plants soon wound up on the rolls of the endangered. As a result, any individual could sue using the Endangered Species Act to stop government projects and private land developers in their tracks, just so long as the project in question threatened an endangered species. At least, that was the theory.

The first big lawsuit to test that theory was brought against the Tennessee Valley Authority. The plaintiffs – a ragtag team of environmental lawyers, some fresh out of law school – wanted to use the Endangered Species Act to stop the completion of the Tellico Dam, which would flood the last wild stretch of the Little Tennessee River. And the endangered species they chose to use wasn’t a bear or eagle or even a river trout. It was a tiny, assuming fish called a snail darter.

The case was hard fought. The diminutive size of the snail darter was mocked by the opposing counsel, who brought snail darters in glass jars to court to demonstrate the supposed silliness of the species in question. The plaintiffs, for their part, at times resorted to selling T-shirts to raise money and awareness. But the case went all the way to Supreme Court, which ruled in favor the lowly fish. In so doing, the environmental legal movement proved that the ESA could be leveraged to protect large areas from development.

But the victory proved short lived — at least for the Little Tennessee. The case demonstrated the lasting power of the ESA, but the Tellico Dam was ultimately granted an exemption by the Carter administration and put into operation in 1979. The snail darters were transplanted into the Hiwassee River in southeastern Tennessee, where their population recovered. They were taken on the threatened species list in 2022. But, by that time, the last wild stretch of the Little Tennessee River was already long gone.

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