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Nearly thirty years ago, the U.S. Supreme Court decided whether 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.' Stunningly, the fish won, because the language, history, and structure of the Endangered Species Act showed 'beyond doubt that Congress intended endangered species to be afforded the highest of priorities.' The Court acknowledged that this view of the statute would carry substantial economic costs, but was persuaded that '[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.' The Court's decision in Tennessee Valley Authority (TVA) v. Hill served notice that the Endangered Species Act ('ESA') had the power to become one of the nation's most important environmental laws. The dispute over United States Bureau of Reclamation's (USBR) discretion in operating its projects, however, is not a matter of compensation for water users. The question is whether the government remains 'free to preserve the fish' and other imperiled species. If the answer is no, that would represent a loss of existing protection for species affected by USBR projects, an unwarranted extension of the Court's recent decision in National Association of Home Builders (NAHB), and a rollback of a statute whereby Congress once made saving species from extinction the highest of national priorities.

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Columbia Journal of Environmental Law



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