When we think of lawfare these days, Donald Trump and his allies come to mind.
With good reason, of course. Lawfare as a political strategy was refined into a political art form in order to hogtie Trump’s administration and destroy Trump’s political career (not to mention take his and others’ freedom).
But lawfare has been a tool of the left for decades, more often used to stall progress, hamstring the economy, and freeze the status quo to satisfy some constituency or another.
Having been born in 1964, the first big case of lawfare I remember was the use of the “endangered snail darter” to stop the building of the Tellico Dam by the Tennessee Valley Authority.
In the annals of environmental law, no creature is more famous than the Snail Darter, the endangered species that showdown completion of the Tellico Dam in the 1970s. Now, it appears that the species may turn out to be as mythical as a unicorn. https://t.co/8uxpgAqdBR
— Jonathan Turley (@JonathanTurley) January 9, 2025
As with all such construction projects, the Tellico Dam was controversial. A lot of people didn’t want it built, but they had few tools to stop it. Political support for its construction was substantial–Congress eventually passed a law specifically to enable its construction. However, the opposition found a new tool in their toolbox with the passage of the Environmental Protection Act.
Conveniently, during its construction, a local zoologist “discovered” a new species of darter fish, which he dubbed the “Snail Darter,” which the EPA rapidly declared a protected species.
And voila!, the lawsuits began, and construction of the dam was stalled. The lawsuits went all the way to the Supreme Court, where Justice Berger explained the issue:
Under the ESA, the snail darter was listed as protected and therefore triggered Section 7 of the Act barring federal agencies from undertaking actions that could jeopardize a species’ survival or destroy any of its critical habitat.
In Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978), Chief Justice Warren Burger noted that the finding of this “previously unknown species of perch” changed everything on a legal level. He added:
“Until recently, the finding of a new species of animal life would hardly generate a cause celebre. This is particularly so in the case of darters, of which there are approximately 130 known species, 8 to 10 of these having been identified only in the last five years. The moving force behind the snail darter’s sudden fame came some four months after its discovery, when the Congress passed the Endangered Species Act of 1973 (Act), 87 Stat. 884, 16 U.S.C. § 1531 et seq. (1976 ed.).”
Congress did eventually pass legislation that allowed the construction to move forward, but the whole fiasco meant increased costs, massive delays, and the ignition of a political firestorm over the Environmental Protection Act. Did it go too far?
Well, certainly, in this case, it did. There is no such thing as a snail darter. It was a convenient fiction.
The Times now quotes Thomas Near, the curator of ichthyology at the Yale Peabody Museum who leads a fish biology lab at the university, that “there is, technically, no snail darter.” Worse yet, it was actually just another member of the eastern population of Percina uranidea, or stargazing darters, which is not considered endangered.
Near and his colleagues have published the results in Current Biology
In other words, years of litigation and millions of dollars were spent on what was a false claim, and the courts accepted the claims hook, line, and sinker.
Think of this as the equivalent of the New York case against Trump, which turned a (if you stretch it) single misdemeanor committed many years ago into 34 felonies through legal maneuvering and facts created out of thin air. The desired result was specified, and a case was built to get that result regardless of whether the facts supported the conclusion.
In the Tellico case, the Darter in question existed; it simply wasn’t special in any way. It was a minor variation of the Darter, of which there are plenty and shouldn’t qualify to be a separate species in the first place. But a standard Darter was legally useless, so a new species was invented through the magic of words.
Sound familiar? That is the standard tactic of the left. Words mean what we say they mean.
As I said, the dam was built anyway, but even this minor variation of the Darter was never in danger.
Roughly three years ago, the government declared victory in restoring the snail darter and the Fish and Wildlife Service proposed removing it from the ESA list of threatened species.
Yes, that’s right: the new species that never was has survived the death and destruction wrought by the building of the dam.
In other words, not one thing about this case was ever true. There was no “Snail Darter,” and even that particular subspecies of Darter did just fine with or without the dam. It was never in danger.
That, my friends, is lawfare in action. Harassment through invention, with government officials colluding to get their way.
