Tennessee Valley Authority v. Hill

Mr. Justice Powell,

with whom Mr. Justice Blackmun joins, dissenting.

The Court today holds that § 7 of the Endangered Species Act requires a federal court, for the purpose of protecting an endangered species or its habitat, to enjoin permanently the operation of any federal project, whether completed or substantially completed. This decision casts a long shadow over the operation of even the most important projects, serving *196vital needs of society and national defense, whenever it is determined that continued operation would threaten extinction of an endangered species or its habitat. This result is said to be required by the “plain intent of Congress” as well as by the language of the statute.

In my view § 7 cannot reasonably be interpreted as applying to a project that is completed or substantially completed1 when its threat to an endangered species is discovered. Nor can I believe that Congress could have intended this Act to produce the “absurd result” — in the words of the District Co'urt — of this case. If it were clear from the language of the Act and its legislative history that Congress intended to authorize this result, this Court would be compelled to enforce it. It is not our province to rectify policy or political judgments by the Legislative Branch, however egregiously they may disserve the public interest. But where the statutory language and legislative history, as in this case, need not be construed to reach such a result, I view it as the duty of this Court to adopt a permissible construction that accords with some modicum of common sense and the public weal.

I

Although the Court has stated the facts fully, and fairly presented the testimony and action of the Appropriations Committees relevant to this case, I now repeat some of what has been said. I do so because I read the total record as compelling rejection of the Court’s conclusion that Congress intended the Endangered Species Act to apply to completed or substantially completed projects such as the dam and reservoir project that today’s opinion brings to an end — absent relief by Congress itself.

*197In 1966, Congress authorized and appropriated initial funds for the construction by the Tennessee Valley Authority (TVA) of the Tellico Dam and Reservoir Project on the Little Tennessee River in eastern Tennessee. The Project is a comprehensive water resource and regional development project designed to control flooding, provide water supply, promote industrial and recreational development, generate some additional electric power within the TVA system, and generally improve economic conditions in an economically depressed area “characterized by underutilization of human resources and outmigration of young people.” 2

Construction began in 1967, and Congress has voted funds for the Project in every year since. In August 1973, when the Tellico Project was half completed, a new species of fish known as the snail darter3 was discovered in the portion of the Little Tennessee River that would be impounded behind Tellico Dam. The Endangered Species Act was passed the following December. 87 Stat. 884, 16 U. S. C. § 1531 et seg. (1976 ed.). More than a year later, in January 1975, respondents joined others in petitioning the Secretary of the Interior to list the snail darter as an endangered species. On November 10, 1975, when the Tellico Project was 75% completed, the Secretary placed the snail darter on the endangered list and concluded that the “proposed impoundment of water behind *198the proposed Tellico Dam would result in total destruction of the snail darter’s habitat.” 40 Fed. Reg. 47506 (1975). In respondents’ view, the Secretary’s action meant that completion of the Tellico Project would violate § 7 of the Act, 16 U. S. C. § 1536 (1976 ed.):

“All . . . Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species ... listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary ... to be critical.”

TVA nevertheless determined to continue with the Tellico Project in accordance with the prior authorization by Congress. In February 1976, respondents filed the instant suit to enjoin its completion. By that time the Project was 80% completed.

In March 1976, TVA informed the House and Senate Appropriations Committees about the Project’s threat to the snail darter and about respondents’ lawsuit. Both Committees were advised that TVA was attempting to preserve the fish by relocating them in the Hiwassee River, which closely resembles the Little Tennessee. It stated explicitly, however, that the success of those efforts could not be guaranteed.4

*199In a decision of May 25, 1976, the District Court for the Eastern District of Tennessee held that “the Act should not be construed as preventing completion of the project.” 5 419 F. Supp. 753, 755 n. 2. An opposite construction, said the District Court, would be unreasonable:

“At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. Arlington Coalition on Transportation v. Volpe, 458 F. 2d 1323, 1331-32 (4th Cir.), cert. den. 409 U. S. 1000 . . . (1972). Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection.” Id., at 760.

Observing that respondents’ argument, carried to its logical extreme, would require a court to enjoin the impoundment of *200water behind a fully completed dam if an endangered species were discovered in the river on the day before the scheduled impoundment, the District Court concluded that Congress could not have intended such a result.6 Accordingly, it denied the prayer for an injunction and dismissed the action.

In 1975, 1976, and 1977, Congress, with full knowledge of the Tellico Project’s effect on the snail darter and the alleged violation of the Endangered Species Act, continued to appropriate money for the completion of the Project. In doing so, the Appropriations Committees expressly stated that the Act did not prohibit the Project’s completion, a view that Congress presumably accepted in approving the appropriations each year. For example, in June 1976, the Senate Committee on Appropriations released a report noting the District Court decision and recommending approval of TYA’s full budget request for the Tellico Project. The Committee observed further that it did “not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage,” and it directed “that this project be completed as promptly as possible in the public interest.” 7 The appropriations bill was passed by Congress and approved by the President.

The Court of Appeals for the Sixth Circuit nevertheless reversed the District Court in January 1977. It held that the Act was intended to create precisely the sort of dramatic conflict presented in this case: “Where a project is on-going and substantial resources have already been expended, the conflict between national incentives to conserve living things and the pragmatic momentum to complete the project on schedule is most incisive.” 549 F. 2d 1064, 1071. Judicial reso*201lution of that conflict, the Court of Appeals reasoned, would represent usurpation of legislative power. It quoted the District Court’s statement that respondents’ reading of the Act, taken to its logical extreme, would compel a court to halt impoundment of water behind a dam if an endangered species were discovered in the river on the day before the scheduled impoundment. The Court of Appeals, however, rejected the District Court’s conclusion that such a reading was unreasonable and contrary to congressional intent, holding instead that “[c]onscientious enforcement of the Act requires that it be taken to its logical extreme.” Ibid. It remanded with instructions to issue a permanent injunction halting all activities incident to the Tellico Project that would modify the critical habitat of the snail darter.

In June 1977, and after being informed of the decision of the Court of Appeals, the Appropriations Committees in both Houses of Congress again recommended approval of TYA’s full budget request for the Tellico Project. Both Committees again stated unequivocally that the Endangered Species Act was not intended to halt projects at an advanced stage of completion:

“[The Senate] Committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee’s understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding.” 8
“It is the [House] Committee’s view that the Endangered Species Act was not intended to halt projects such *202as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act.”9

Once again, the appropriations bill was passed by both Houses and signed into law.

II

Today the Court, like the Court of Appeals below, adopts a reading of § 7 of the Act that gives it a retroactive effect and disregards 12 years of consistently expressed congressional intent to complete the Tellico Project. With all due respect, I view this result as an extreme example of a literalist10 construction, not required by the language of the Act and adopted without regard to its manifest purpose. Moreover, it ignores established canons of statutory construction.

A

The starting point in statutory construction is, of course, the language of § 7 itself. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). I agree that it can be viewed as a textbook example of fuzzy language, which can be read according to the “eye of the beholder.” 11 The critical words direct all federal agencies to take “such action [as may be] necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of . . . endangered species ... or result in the destruction or modification of [a critical] habitat of such species . . . .” Respondents — as did *203the Sixth Circuit — read these words as sweepingly as possible to include all “actions” that any federal agency ever may take with respect to any federal project, whether completed or not.

The Court today embraces this sweeping construction. Ante, at 184-188. Under the Court’s reasoning, the Act covers every existing federal installation, including great hydroelectric projects and reservoirs, every river and harbor project, and every national defense installation — however essential to the Nation’s economic health and safety. The “actions” that an agency would be prohibited from “carrying out” would include the continued operation of such projects or any change necessary to preserve their continued usefulness.12 The only precondition, according to respondents, to thus destroying the usefulness of even the most important federal project in our country would be a finding by the Secretary of the Interior *204that a continuation of the project would threaten the survival or critical habitat of a newly discovered species of water spider or amoeba.13

“[Frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.” Church of the Holy Trinity v. United States, 143 U. S. 457, 459 (1892).14 The *205result that will follow in this case by virtue of the Court's reading of § 7 makes it unreasonable to believe that Congress intended that reading. Moreover, §7 may be construed in a way that avoids an “absurd result” without doing violence to its language.

The critical word in § 7 is “actions” and its meaning is far from “plain.”, It is part of the phrase: “actions authorized, funded or carried out.” In terms of planning and executing various activities, it seems evident that the “actions” referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out. In short, these words reasonably may be read as applying only to prospective actions, i. e., actions with respect to which the agency has reasonable decision-making alternatives still available, actions not yet carried out. At the time respondents brought this lawsuit, the Tellico Project was 80% complete at a cost of more than $78 million. The Court concedes that as of this time and for the purpose of deciding this case, the Tellico Dam Project is “completed” or “virtually completed and the dam is essentially ready for operation,” ante, at 156, 157-158. See n. 1, supra. Thus, under a prospective reading of § 7, the action already had been “carried out” in terms of any remaining reasonable decision-making power. Cf. National Wildlife Federation v. Coleman, 529 F. 2d 359, 363, and n. 5 (CA5), cert. denied sub nom. Boteler v. National Wildlife Federation, 429 U. S. 979 (1976).

This is a reasonable construction of the language and also is supported by the presumption against construing statutes to give them a retroactive effect. As this Court stated in *206United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U. S. 306, 314 (1908), the “presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other.” This is particularly true where a statute enacts a new regime of regulation. For example, the presumption has been recognized in cases under the National Environmental Policy Act, 42 U. S. C. § 4321 et seq., holding that the requirement of filing an environmental impact statement cannot reasonably be applied to projects substantially completed. E. g., Pizitz, Inc. v. Volpe, 467 F. 2d 208 (CA5 1972); Ragland v. Mueller, 460 F. 2d 1196 (CA5 1972); Greene County Planning Board v. FPC, 455 F. 2d 412, 424 (CA2), cert. denied, 409 U. S. 849 (1972). The Court of Appeals for the Fourth Circuit explained these holdings.

“Doubtless Congress did not intend that all projects ongoing at the effective date of the Act be subject to the requirements of Section 102. At some stage of progress, the costs of altering or abandoning the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no longer be ‘possible’ to change the project in accordance with Section 102. At some stage, federal action may be so ‘complete’ that applying the Act could be considered a ‘retroactive’ application not intended by the Congress.” Arlington Coalition on Transportation v. Volpe, 458 F. 2d 1323, 1331, cert. denied sub nom. Fugate v. Arlington Coalition on Transportation, 409 U. S. 1000 (1972).

Similarly under § 7 of the Endangered Species Act, at some stage of a federal project, and certainly where a project has been completed, the agency no longer has a reasonable choice simply to abandon it. When that point is reached, as it was in this case, the presumption against retrospective interpretation is at its strongest. The Court today gives no weight to that presumption.

*207B

The Court recognizes that the first purpose of statutory construction is to ascertain the intent of the legislature. E. g., United States v. American Trucking Assns., 310 U. S. 534, 542 (1940).15 The Court’s opinion reviews at length the legislative history, with quotations from Committee Reports and statements by Members of Congress. The Court then ends this discussion with curiously conflicting conclusions.

It finds that the “totality of congressional action makes it abundantly clear that the result we reach today [justifying the termination or abandonment of any federal project] is wholly in accord with both the words of the statute and the intent of Congress.” Ante, at 184. Yet, in the same paragraph, the Court acknowledges that “there is no discussion in the legislative history of precisely this problem.” The opinion nowhere makes clear how the result it reaches can be “abundantly” self-evident from the legislative history when the result was never discussed. While the Court’s review of the legislative history establishes that Congress intended to require governmental agencies to take endangered species into account in the planning and execution of their programs,16 there is not *208even a hint in the legislative history that Congress intended to compel the undoing or abandonment of any project or program later found to threaten a newly discovered species.17

If the relevant Committees that considered the Act, and the Members of Congress who voted on it, had been aware that the Act could be used to terminate major federal projects authorized years earlier and nearly completed, or to require the abandonment of essential and long-completed federal instal*209lations and edifices,18 we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage. The absence of any such consideration by the Committees or in the floor debates indicates quite clearly that no one participating in the legislative process considered these consequences as within the intendment of the Act.

As indicated above, this view of legislative intent at the time of enactment is abundantly confirmed by the subsequent congressional actions and expressions. We have held, properly, that post-enactment statements by individual Members of Congress as to the meaning of a statute are entitled to little or no weight. See, e. g., Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974). The Court also has recognized that subsequent Appropriations Acts themselves are not necessarily entitled to significant weight in determining whether a prior statute has been superseded. See United States v. Langston, 118 U. S. 389, 393 (1886). But these precedents are inapposite. There was no effort here to “bootstrap” a post-enactment view of prior legislation by isolated statements of individual Congressmen. Nor is this a case where Congress, without explanation or comment upon the statute in question, merely has voted apparently inconsistent finan*210cial support in subsequent Appropriations Acts. Testimony on this precise issue was presented before congressional committees, and the Committee Reports for three consecutive years addressed the problem and affirmed their understanding of the original congressional intent. We cannot assume — as the Court suggests — that Congress, when it continued each year to approve the recommended appropriations, was unaware of the contents of the supporting Committee Reports. All this amounts to strong corroborative evidence that the interpretation of § 7 as not applying to completed or substantally completed projects reflects the initial legislative intent. See, e. g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U. S. Ill, 116 (1947); Brooks v. Dewar, 313 U. S. 354 (1941).

Ill

I have little doubt that Congress will amend the Endangered Species Act to prevent the grave consequences made possible by today’s decision. Few, if any, Members of that body will wish to defend an interpretation of the Act that requires the waste of at least $53 million, see n. 6, supra, and denies the people of the Tennessee Valley area the benefits of the reservoir that Congress intended to confer.19 There will be little sentiment to leave this dam standing before an empty reservoir, serving no purpose other than a conversation piece for incredulous tourists.

But more far reaching than the adverse effect on the people of this economically depressed area is the continuing threat to the operation of every federal project, no matter how important to the Nation. If Congress acts expeditiously, as may be anticipated, the Court’s decision probably will have no lasting adverse consequences. But I had not thought it to be the province of this Court to force Congress into otherwise *211unnecessary action by interpreting a statute to produce a result no one intended.

Attorney General Bell advised us at oral argument that the dam had been completed, that all that remains is to “[ejlose the gate,” and to complete the construction of “some roads and bridges.” The “dam itself is finished. All the landscaping has been done .... [I]t is completed.” Tr. of Oral Arg. 18.

Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976).

Although the snail darter is a distinct species, it is hardly an extraordinary one. Even icthyologists familiar with the snail darter have difficulty distinguishing it from several related species. App. 107, 131. Moreover, new species of darters are discovered in Tennessee at the rate of about 1 a year; 8 to 10 have been discovered in the last five years. Id., at 131. All told, there are some 130 species of darters, 85 to 90 of which are found in Tennessee, 40 to 45 in the Tennessee River system, and 11 in the Little Tennessee itself. Id., at 38 n. 7, 130-131.

Hearings on Public Works for Water and Power Development and Energy Research Appropriations Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977, before a Sub*199committee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976).

The Court of Appeals interpreted the District Court opinion as holding that TVA’s continuation of the Tellico Project would violate the Act, but that the requested injunction should be denied on equitable grounds. 549 F. 2d 1064, 1069-1070 (CA6 1977). This interpretation of the District Court opinion appears untenable in light of that opinion’s conclusion that the Act could “not be construed as preventing completion of the project,” 419 F. Supp. 753, 755 n. 2 (1976) (emphasis added). Moreover, the District Court stated the issue in the case as whether “[it is] reasonable to conclude that Congress intended the Act to halt the Tellico' Project at its present stage of completion.” Id., at 760. It concluded that the “Act should be construed in a reasonable manner to effectuate the legislative purpose,” ibid., and “that the Act does not operate in such a manner as to halt the completion of this particular project,” id., at 763. From all this, together with the District Court’s reliance on cases interpreting the National Environmental Policy Act, 42 U. S. C. § 4321 et seq., as inapplicable to substantially completed projects, see 419 F. Supp., at 760-761, it seems clear that District Judge Taylor correctly interpreted § 7 as inapplicable to the Tellico Project.

The District Court found that $53 million out of more than $78 million then expended on the Project would be unrecoverable if completion of the dam were enjoined. 419 F. Supp., at 760. As more than $110 million has now been spent on the Project, it seems probable that abandonment of the dam would entail an even greater waste of tax dollars.

S. Rep. No. 94-960, p. 96 (1976).

S. Rep. No. 95-301, p. 99 (1977).

H. R. Rep. No. 95-379, p. 104 (1977).

See Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1263 (1947); Hand, The Speech of Justice, 29 Harv. L. Rev. 617, 620 (1916).

The purpose of this Act is admirable. Protection of endangered species long has been neglected. This unfortunate litigation — wasteful for taxpayers and likely in the end to- be counterproductive in terms of respondents’ purpose — may have been invited by careless draftsmanship of otherwise meritorious legislation.

Ante, at 184-188. At oral argument, respondents clearly stated this as their view of § 7:

“QUESTION: ... Do you think — it is still your position, as I understand it, that this Act, Section 7, applies to completed projects? I know you don't think it occurs very often that there’ll be a need to apply it. But does it apply if the need exists ?
“MR. PLATER: To the continuation — •
“QUESTION: To completed projects. Take the Grand Coulee dam—
“MR. PLATER: Right. Your Honor, if there were a species there—
“ — it wouldn’t be endangered by the dam.
“QUESTION: I know that’s your view. I’m asking you not to project your imagination—
“MR. PLATER: I see, your Honor.
“QUESTION: —beyond accepting my assumption.
“MR. PLATER: Right.
“QUESTION: And that was that an endangered species might turn up at Grand Coulee. Does Section 7 apply to it?
“MR. PLATER: I believe it would, Your Honor. The Secretary of the Interior—
“QUESTION: That answers my question.
"MR. PLATER: Yes, it would.” Tr. of Oral Arg. 57-58.

Under the Court’s interpretation, the prospects for such disasters are breathtaking indeed, since there are hundreds of thousands of candidates for the endangered list:

“ 'The act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10% of them — some 200,000 — may need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.’ ” Keith Shreiner, Associate Director and Endangered Species Program Manager of the U. S. Fish and Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B. J. 25, 27 (1978).

Accord, e. g., United States v. American Trucking Assns., 310 U. S. 534, 543 (1940); Armstrong Co. v. Nu-Enamel Corp., 305 U. S. 315, 333 (1938); Sorrells v. United States, 287 U. S. 435, 446-448 (1932) (collecting cases); United States v. Ryan, 284 U. S. 167, 175 (1931). The Court suggests, ante, at 187 n. 33, that the precept stated in Church of the Holy Trinity was somehow undermined in Crooks v. Harrelson, 282 U. S. 55, 60 (1930). Only a year after the decision in Crooks, however, the Court declared that a “literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose.” Ryan, supra, at 175. In the following year, the Court expressly relied upon Church of the Holy Trinity on this very point. Sorrells, supra, at 448. The real difference between the Court and myself on this issue arises from our per*205ceptions of the character of today’s result. The Court professes to find nothing particularly remarkable about the result produced by its decision in this case. Because I view it as remarkable indeed, and because I can find no hint that Congress actually intended it, see infra, at 207-210,1 am led to conclude that the congressional words cannot be given the meaning ascribed to them by the Court.

Landis, A Note on “Statutory Interpretation,” 43 Harv. L. Rev. 886 (1930).

The quotations from the legislative history relied upon by the Court are reasonably viewed as demonstrating that Congress was thinking about agency action in prospective situations, rather than actions requiring abandonment of completed projects. For example, the Court quotes Representative Dingeh’s statement as a highly pertinent interpretation of what the Conference bill intended. In the statement relied upon, ante, at 183-184, Representative Dingell said that Air Force bombing activities along the gulf coast of Texas, if found to endanger whooping cranes, would have to be discontinued. With respect to grizzly bears, he noted that they may or may not be endangered, but under the Act it will be necessary “to take action to see . . . that these bears are not driven to extinction.”

The Court also predicates its holding as to legislative intent upon the provision in the Act that instructs federal agencies not to “take” endangered *208species, meaning that no one is “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” such life forms. Ante, at 184r-185. The Court quotes, ante, at 18F-185, n. 30, the Secretary of the Interior’s definition of the term “harm” to mean — among other things — any act which “annoy [s wild life] to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of ‘harm.’ ” 50 CFR § 17.3 (1976). Two observations are pertinent. -First, the reach of this regulation — which the Court accepts as authorized by the Act — is virtually limitless. All one would have to find is that the “essential behavioral patterns” of any living species as to breeding, feeding, or sheltering are significantly disrupted by the operation of an existing project.

I cannot believe that Congress would have gone this far to imperil every federal project, however important, on behalf of any living species however unimportant, without a clear declaration of that intention. The more rational interpretation is consistent with Representative Dingell’s obvious thinking: The Act is addressed to prospective action where reasonable options exist; no thought was given to abandonment of completed projects.

The Senate sponsor of the bill, Senator Tunney, apparently thought that the Act was merely precatory and would not withdraw from the agency the final decision on completion of the project:

“[A]s I understand it, after the consultation process took place, the Bureau of Public Roads, or the Corps of Engineers, would not be prohibited from building a road if they deemed it necessary to do so.
“[A]s I read the language, there has to be consultation. However, the Bureau of Public Roads or any other agency would have the final decision as to whether such a road should be built. That is my interpretation of the legislation at any rate.” 119 Cong. Rec. 25689-25690 (1973). See also Sierra Club v. Froehlke, 534 F. 2d 1289, 1303-1304 (CA8 1976).

The initial proposed rulemaking under the Act made it quite clear that such an interpretation was not intended:

“Neither [the Fish and Wildlife Service of the Department of the Interior] nor [the National Marine Fisheries Service of the Department of Commerce] intends that section 7 bring about the waste that can occur if an advanced project is halted. . . . The affected agency must decide whether the degree of completion and extent of public funding of particular projects justify an action that may be otherwise inconsistent with section 7.” 42 Fed. Reg. 4869 (1977).

After the decision of the Court of Appeals in this case, however, the quoted language was withdrawn, and the agencies adopted the view of the court. 43 Fed. Reg. 870, 872, 875 (1978).

The Court acknowledges, as it must, that the permanent injunction it grants today will require “the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds.” Ante, at 174.