THOUGHTS ON politics and the Endangered Species Act, over at The Volokh Conspiracy.

I think that one of the great blows to the Endangered Species Act was struck by a (then) University of Tennessee law professor, who rather opportunistically seized on a putative threat to the snail darter as a means of holding up construction on the Tellico Dam. First, the threat to the snail darter was pretty obviously hyped (the Little Tennessee river was called their “sole habitat” because nobody had looked elsewhere, as the darter was only discovered in 1973; when people did, they found them in a number of places, and in fact, they seem to be flourishing, post-Dam). Second, nobody cared about the Snail Darter, and the obstructionist use of the ESA, which was sold using images of bald eagles and redwoods, to block a dam in the name of the snail darter, seemed, well, cheesy. It engendered a political backlash, and a loss of moral capital, that I think cost the environmental movement dearly. I often mention this case to students as an example of how clever lawyering may not always be clever politics.