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Lesson Plan: Roadblock Statutes (1) Delaney Clause: A roadblock clause that created a ban on any carcinogenic food

additive. But some carcinogenic food additives are only dangerous in huge amounts. FDA allowed use of some additives that posed cancer risks of less than one-in-a-million. Court imposed an injunction enforcing the ban. Congress revised the clause so that now safe is defined as when the Administrator has determined that there is a reasonable certainty that no harm will result balancing. Questions: -Assume you want a tougher standard. Which is better -- the roadblock form of the statute, or the balancing form of the statute, and why? [In this case, FDA was not enforcing the standard and was letting some additives slip through because the roadblock was tougher than it needed to be. But then it could be enforced because it was straightforward by citizen plaintiffs. But then there was legislative backlash.] -In what situation would a roadblock survive over time? [Strong political support sustains it.] (5 minutes) Endangered Species Act (2) ESA - Rationales Questions: -Which rationales for protecting endangered species are the most convincing to you? (p. 434) [-Aesthetic: Endangered species are dramatic and beautiful. -Utilitarian -An endangered species may contain chemical or medical properties that havent been discovered yet. -The more diversity that exists in the natural world, the more adaptable the world is to continuing stresses. -Religious: Sanctity of Life: Humans are stewards of the natural environment and are only constituent members of the community of life on the globe. -Stand-In: Endangered species act as levers for ecosystem protection. This species turns out to be a highly sensitive indicator of precisely the qualities of the habitat that citizens were fighting about in this case for years before the snail darter was known to exist. p. 435] -Do you think we should protect all species? [Extinction is a natural phenomenon. But: There has virtually never been an unavoidable need to trade off an endangered species for human benefit. Projects can be redesigned, retimed, relocated if there is a will or a legal requirement to do so.] (5 minutes)

(3) Section 7 parsing: Talk in pairs whats the answer to the exercise on the top of p. 429 (what is the substantive mandate? and what are the causes of action? - Section 7: Insure actions (substantive mandate) Do not Jeopardize (cause of action #1) Or Result in destruction or modification of critical habitat (cause of action #2) Questions: -Which cause of action is easier to prove? [Habitat destruction is much simpler to prove than the subtle biological fact of imminent extinction.] (5 minutes) (4) Discussion of TVA v. Hill (15 minutes) What are the facts? What are the issues? What is the holding? What was the courts reasoning? Facts: o Congress appropriated funds for the Tellico Dam on the Little Tennessee River near Knoxville. o In 1967, the Tennessee Valley Authority, a federal agency, began work on the dam. o NEPA took effect in 1970. Dam construction was enjoined pending an EIS. The EIS was completed, and the dam was found to comply with NEPA. o In 1973, Congress passed the Endangered Species Act. o An ichthyologist found a previously unknown species of perch, the snail darter, in the Little Tennessee. Plaintiff (Hill) petitioned the Interior Secty to list the snail darter as endangered. A court entered a permanent injunction against finishing the dam. o Both the House and Senate Appropriations Committees recommended the full amount requested for completion of the Tellico project. The budget, which included both funds for completion and $2 million in funds for the relocation of the snail darter, passed both houses and was signed into law in 1977. Issues: o (a) Would TVA be in violation of the Act if it completed and operated the Tellico Dam as planned? o (b) If so, is an injunction an appropriate remedy? Holding: The appellate court did not err in enjoining the completion of the dam. Reasoning:

o Plain meaning: If read straightforwardly, the statute compels a decision for the snail darter: It commands 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." o Legislative History: Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear. Congress was concerned about the unforesseable place such creatures may have in the chain of life on this planet. o The ESA and Article III of the Constitution do not provide federal courts with authority to balance economic loss with the loss of the snail darter. o In sum: "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as 'institutionalized caution.'" [-Postcript: Congress excepted Tellico from the ESA in a rider on an appropriations bill, and TVA completed the dam.Snail darter populations were soon discovered at other locations and the fish was eventually removed from the endangered species list.] (15 minutes) (5) Spotted Owl (p.440): Spotted owl was used as an indicator species. Injunction prohibiting the sale of logging rights in northern spotted owl habitat areas. Questions: -Should we use indicator species as legal handles to preserve critical ecosystems? (5 minutes) (6) Babbitt v. Sweet Home (p. 443): What are the facts? What are the issues? What is the holding? What was the courts reasoning?
Babbit v. Sweet Home Chapter, SCOTUS (1995)
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Facts: Under ESA Section 9, its unlawful to take endangerment species. Under ESA, take includes a series of words including harm. In 1975, Interior Department regulations defined "harm" in the definition of "take" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it

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actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Logging companies and others in the Pacific Northwest and in the Southeast sued to challenge the validity of this definition, claiming its application to red-cockaded woodpeckers and spotted owls, had harmed them economically. Question: Is the Secretary's interpretation of "harm" reasonable? Conclusion: Yes. Reasoning: The words plain meaning and its context in the ESA. Harm means damage, injury. The dictionary definition does not specify only direct or willful action. The purpose of the ESA. Intent of Congress was to reverse and halt species extinction. Structure of statute suggests indirect harm is part of take. The fact that Section 10 suspends the "take" prohibition if the taking is "incidental" to a lawful activity further supports including indirect as well as direct harms in the definition of "take."And other words are indirect: harass, pursue, wound, kill. oncurrence (O'Connor): The challenged regulation is limited to significant habitat modification that causes actual, not hypothetical or speculative, death or injury. The regulation has not dispensed with the traditional principles of causation, under which private parties would only be held liable if their actions proximately caused death or injury. Construes the regulation as limited to significant habitat modification, through impairment of essential behaviors, that proximately (meaning foreseeably) causes death or injury to identifiable animals Palila II was wrongly decided. "Destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently sustaining actual birds."

Concurrence (OConnor): Limited to significant habitat modification that causes actual death or injury, but that can include impairment of breeding.
Dissent (Scalia): Sees the regulation as imposing liability: whether the result is intended or even foreseeable even where causality is attenuated On both acts and omissions On non-existent animals (since "injury" includes impairment to breeding) The other 9 words in the statute describe actions directed immediately and intentionally against a particular animal. Congress's express prohibition of habitat modification in Section 7 bars the inference of implicit prohibition of habitat modification in Section 9

Questions: -Whose position do you agree withStevens, OConnors, or Scalias? (15 minutes)