May 2008 
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News from the Upper Cumberland Group Sierra Club
Sierra Scene, Vol. 13, No. 4
In This Issue
Zeb Mountain Fight Reignites
A Retrospective for the Sanil Darter and the Little Tenneessee River Valley
Save These Dates
Thursday May 22
UCGroup Planning Meeting
Putnam County Library
7 pm Downstairs Meeting Room - or  -
Join us at 6:30 for the Cool Cities Training Conference Call (see below)
Tuesday, May 20th, is a National Day of Action for clean energy!
Wed. May 21  - 7 pm Carmike theaters, Cool Springs $10 - Tennessee Environmental Council Fundraiser Premier showing of Indiana Jones and the Kingdom of the Crystal Skull,

cool cities

Cool Cities are committed to reducing their greenhouse gas emissions. One of the first steps in reducing emissions is knowing the sources and amount of global warming pollution your community is producing.
On May 22 at 6:30 pm CT, join us for a national phone conference training on measuring your city's greenhouse gas emissions. Learn more about GHG inventories and emissions inventory software that can help your community measure their emissions and formulate an effective local climate action plan.  You will be lead through the basic components of a municipal and community GHG inventories, and available inventory tools.
NOTE: This is right before our UCG planning meeting.  We will be at the Library at 6:30 and join the call on our speaker cell phone  for 30 minutes before our planning meeting.
You will be lead through the basic components of a municipal and community GHG inventories, and available inventory tools.
RSVP for the Cool Cities Training

Legislative Update

The state's budgetary problems are making it difficult for anything good to happen in the legislature.  This year, environmentalists stoppped a really terrible bill that would have severely restricted TDEC from protecting our's state's waters - the Limited Resources Water bill, but bills that we supported - the
Container Deposit bill, the Coal Severance Tax bill, the 
Scenic Vistas bill, the Open Meetings for rural electric co-ops bill  - all failed, though garnering some votes and important media attention and agency suppport. 
Now previous legislative successes in setting aside money for lands purchase for conservation purposes are jeopardized by the state's budget problems.


Bill Terry - The Tennessee Chapter's Legialstive Committee Co Chair says: The state is in a budget crises with cuts being made right and left and state workers being offered incentives to retire.  It was announced earlier today that the budget was at least $15 million out of balance after all the cuts.  So...the news tonight is that a very reliable high level source has let us know that one solution being offered is:
"to again take the real estate transfer tax that is devoted to open space, wetlands and parkland acquisition and use it to balance the budget."
The budget is out of balance by $15 million plus or minus and the transfer tax generates about $17 million.  This is a very real danger due to the budget and revenue crises. 
We need to call RIGHT NOW  the governor's office to express our disapproval of this scheme.  Second, we need to call our representatives and senators to tell them of our call to the governor's office.  If this particular solution passes, the transfer tax is least until it is reappropriated for its original purpose."
National Day for Solar Action May 20
On that day, Solar Nation, over 100 clean energy support and environmental groups, including the Sierra Club, Environment America, Vote Solar, the Natural Resources Defense Council and companies working to bring about the clean energy will be contacting their legislators to demand that they take this 'last best' chance, to pass meaningful legislation.

Congress has been trying unsuccessfully for a year now to extend tax credits for individuals, usinesses and developers who invest in clean power;  the credits expire at the end of this year, and it's estimated that over a hundred thousand jobs and some $20 billion in investment will disappear if this happens (see the report here). 
This legislation  for clean energy and energy efficiency would:

* significantly reduce costs for individuals, businesses and developers trying to make use of such power sources as solar, wind, geothermal, biomass, and fuel cells. 

*reward those who take steps to improve the energy efficiency of their homes and businesses, or who build new energy-efficient homes.
*encourage manufacturers to produce high-efficiency appliances.
*allow for bonds to be provided to finance certain renewable energy projects.

Until very recently, House leadership has insisted on funding the tax credits from oil & gas industry profits, an idea that the Senate has successfully resisted.  But in its latest form (HR 6049), the legislation would be funded from other, less contentious sources.  The bill has just passed out of the House Ways & Means Committee, and is expected to pass the House in due course.  Its final fate will rest upon the willingness of both chambers in Congress to find a mutually acceptable way to fund it. .

Dear UCG Sierrans, 
With this soggy cold May weather, it's hard to think summer is almost here.  We've had a very busy spring, with a very few UCG Sierrans trying to do an awful lot of things to improve our environment , and environmental -awareness, both locally and globally.
We're going to take a little break this summer from all this activity.  Maybe plan a picnic or party mid-summer.  Please come to our planning meeting Thursday May 22 (See Save these Dates column )  to give us ideas on a picnic location/date or other FUN event.  (Also note the Cool Cities Training Call - Come early to the meeting and join us on the call).
Then watch for out next newsletter for the details for the Picnic/Party or other FUN event - and PLEASE plan on coming and meeting and socializing with your other local Sierrans. 
Hope to see you next Thursday - or later in the summer!
Mary Mastin, UCGroup Chair
Zeb Mtn topZeb Mountain Fight Reignites

Wednesday, several UCG Sierrans travelled over to Elk Valley in Campbell county, TN.  for the Office of Surface Mining "informal conference" (what OSM calls a public hearing) on the five year permit renewal for the National Coal Corporation's "cross-rdge"mining permit for Zeb Mountain.
This is the largest surface mine in the state, 2100 acres.  It is really mountaintop removal, altho OSM calls it cross ridge mining.  The permit allows the coal company to blast the tops off three mountain peaks, destroying 200-300 feet of mountaintop to get to a thin 8-23 inch thick seam of high sulfur coal.  The original contour of the mountain is supposed to be restored, but it's kind of like slapping some flakes of oatmeal against a wall and hoping it will stick.  Eight streams in four different watersheds, home of a threatened species of fish, the blackside dace.  Many problems from the offset five years ago with landslides off these steep slopes and sediment laden streams.  110 coal truck trips a day through a community of 100.  We fought OSM's permitting decisions in federal court five years ago and again after the first big landslide remdiation action, but the Bush appointee judge agreed with OSM that there was little likelihood of Significant Impact to the Environment.  (And I thought, from a common sense perspective that it was a prima facie case).
Now, the National Sierra Club is weighing in.  Two weeks ago, I went on a site visit at Zeb Mtn with Gena Lewis and observed OSM taking samples from sediment basin outlets.  The results from one of these samples showed an alarmingly high reading of selenium, a dangerous pollutant.  Along with lawyers Joe Lovett of the Appalachian Center on the Economy we - on behalf of the Sierra Club, Save Our Cumberland Mountains(SOCM) and the Tennessee Clean Water Network (TCWN) - filed 40 pages of comments opposing the renewal and a citizen complaint with OSM.  We've asked OSM to halt any further mining until they conduct another water sample and determine if selenium is being discharged.  In addition there is a question of acid/toxic coal seams that has never been analyzed.
Local folks who've never spoken out against the mine showed up..After living with the mine for 5 years, they talked about problems with coal dust, uncovered coal trucks, black roof's and blasting damage.  They talked about their well water problems - black water in their toilets and shower water. 
Athe local county health (dept) doctor, a Franciscan (monk) talked a lot about health problems he had seen from being around coal & coal dust.  And, of course, the health consequnces of burning coal.
A Retrospective on the Snail Darter Case and the Valley of the Little Tennessee River
 red maple

Who Remembers the Snail Darter?Or the Crazed Rabbit that attacked Jimmy Carter's fishing boat in the 70's?

Friday April 18 was the 30th anniversary of the argument in the United States Supreme Court in the legendary snail darter case. UT Law School hosted a symposium: TVA vs. Hill: A 30 year Retrospective on the Legendary Snail Darter Case

The Timeline handed out at the symposium started with the tectonic uplift creating the Smoky Mountains and the Little Tennessee River in 200,000,000 BC, through the Woodland Indian habitations 15,000 years ago, the white settlers in the 1700's, the creation of TVA in the 1930's and proliferation of dams over the next two decades to the announcement of the Plan for the Tellico dam in 1959.

The plan was not for hydro-electric production, as many people now imagine - but for another TVA recreation lake and landside development. A $120 million project, for the purchase of 38,000 acres, less than half of which was to be flooded. The land was condemned for resale at a profit to pay off the cost of the project. 25,000 of those acres were prime agricultural farm land. More than 300 family farms condemned - for an algae-laden lake ( I remember swimming in TVA lakes as a teenager. I always came out covered a thin slimy green film.)

Folks living in the valley began to be approached by TVA about selling their farms. A few stalwart families held out and joined with some conservationists to begin the fight against the dam. One of the panelists said that of her 160 acre farm eventually lost to TVA, only 3 acres were actually flooded. The rest was for shore line economic development.

In 1970, the National Environmental Policy Act (NEPA) became law. The Environmental Defense Fund and Association for the Preservation of the Little T filed a NEPA suit and obtained an injunction stopping work on the dam until TVA completed an EIS. The EIS was completed in 1972 and failed to adequately address alternatives. In May 1973 the injunction was lifted and work resumed on the dam.

On August 12, 1973 Dr. David Etnier discovered a new species of fish, the snail darter at Coytee Springs on the Little T. On December 28, 1973 the Endangered Species Act (ESA) was signed into law.

In October 1974, law student Hank Hill proposed a term paper to his professor Zygmunt Plater: Tellico as a violation of the ESA.

Both Hank and Zyg were fly fishermen. Hank grew up loving to fish the Little T. Zyg had had not the heart to fish it during his years in Knoxville, knowing the river and valley were set for destruction. But Hank's theory gave him hope and at the retrospective symposium, they both recounted a great day fishing and reconnointering the river. They had hope they could save it.  And they almost did.

In 1975 the snail darter was put on the endangered list with a critical habitat designation, thanks to the efforts of the citizens involved and over TVA objections

They filed the ESA case in the Eastern District of Tennessee in 1976. The district judge promptly dismissed it, but in 1977, the Sixth Circuit Court of Appeals in Cincinnati reversed the district court and enjoined further construction. TVA applied for certiorari to the US. Supreme Court and the court granted cert.

Zyg Plater remembered the key point in the argument April 18, 1978: a question by chief Justice Burger, good Republican that he was and hardly the one to figure in as the saviour of the lowly snail darter. Burger was concerned that the project had already been started and a considerable sum of public money spent. Professor Plater used language from one of Burger's own opinions to remind the chief justice that he had said in Rondeau v Mosinee Paper v. Corp. that the courts have the "full panoply" of equity powers to enforce the laws of Congress.

Burger's opinion came out June 15. TVA vs Hill, 1978 United States Supreme Court, 437 U.S. 153, the landmark decision on the Endangered Species Act.:  "It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of extant species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million . . .

One would be hard pressed to find a statutory provision whose terms were any plainer than those of §7 of the endangered Species Act. Its very words affirmatively command 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 of modification of the species. This language admits of no exception. Accepting the Secretary's determination, as we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species. . .
Having determined that there is an irreconcilable conflict between the operation of the Tellico Dam and the explicit provisions of §7 of the Endangered Species Act, we must now consider what remedy, if any, is appropriate. It is correct, of course, that a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of the law. [But] once Congress, exercising its delegated powers, has decided the order of priorities in a given are, it is for the Executive to administer the laws and for the courts to enforce them . . . We agree with the court of Appeals that in our constitution system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with'common sense and the public weal.' Our Constitution vests such responsibilities in the political branches. Affirmed." 437 U.S. 153

It could not have been a better decision! So what happened that the dam was eventually completed and the Little T Valley destroyed?

As plaintiffs Hill and Plater relayed at the symposium, it all came down to politics in the end. The Tennessee Congressional delegation, including freshman representative Gore, had never gotten behind those Tennessee citizens fighting the dam. From the Plater TBA article:

"The Darter Icon in the Press and Politics. Ultimately the pork-barrel coalition in Congress, with a rider pushed onto an appropriations bill by Rep. John Duncan and Sen. Baker, overturned the ESA's protections for the darter,[18] and President Jimmy Carter retreated from his promised veto of the bill (which also had prohibited economic analysis of water projects by the president's water resources council). After 200 million years, the river ended on Dec. 29, 1979. 
The critical failure in the darter's final defense probably lay with the inability of the citizens to bring public recognition to the dramatic real economic merits of the darter's case and the dysfunctional economic demerits of TVA's dam. Before the rider vote, every Member of Congress was given a personal letter from Secretary of Interior Cecil Andrus, chair of the economic review ordered by Congress that had unanimously decided against the dam. But although every member knew of the Tellico Dam's economics, they also knew that the American public did not know, so the pork barrel was free to roll. And the president was told by his political liaison, Frank Moore, that he could not withstand the ridicule a veto would receive from the press and public opinion that viewed the snail darter as an economically irrational, environmentally extreme technicality.
And so it was. With Sen. Baker's assistance the congressional pork barrel was able to roll, and even the president of the United States was dissuaded from asserting the economic merits by the media mockery of the case. Despite the law and despite the economic record, in other words, the darter's last major natural population and its river were ultimately lost because their national political opponents were successful in framing the case in the public eye as an icon of foolishness, the caricature that still continues in press commentary and political discourse today."

And so now you know the role of the crazed rabbit in this sad saga. Professor Plater told us that, incredibly, then President Jimmy Carter, on the night after he decided he could not veto, called him, the professor plaintiff, to apologize. They had counted on his veto. He knew it was the right thing to do. But he told Zyg Plater that the subcommittee chair just would not let him do it. The President of the United States. A man we now know to have much courage, much honesty and truthfulness in his post presidency. But he had been subjected to ridicule already by the media earlier (I think) that summer, and certainly portrayed as weak by the media throughout his presidency that he just did not have - or his advisors did not think he had- the political capitol to do what he knew was right.

When I left the UT symposium that day three weeks ago, I was kind of jazzed. It had been a thrilling day. The lawyers, activists, the folks who had lost their farms were all inspiring. They all said if given the choice they would do it all over again. Though with some forknowledge about trying to work the politics better.

But they knew- and know that it was a righteous fight. And somehow they had strnght there that day, in the retrospective gathering, declaring their will to fight again if need be. And TVA's plans for the valley have never really materialized. There was no great economic boom, no great industrial park. There was no need for another recreational lake.

At the symposium, I had the honor to sit for much of the day next to one of the panelists who had come down to represent the Cherokee heritage part of the story. Except for the time on the panel when he was telling his story, he was pretty silent throughout, almost stoic. The flooding also took Chota, the old capitol of the Cherokee, as well as Tuskegee, the birthplace of Sequoyah.

As Sygmunt Plater says, from the UT snail darter website: "That wasn't exactly the end, because enviros are such bad losers, they keep on trying. The Cherokee Indians had been working with our coalition right along, so then they filed a constitutional lawsuit against the dam based on violation of Native American religious rights (Congress can't amend away constitutional claims). But the Cherokees' appeal came up one vote short in the 6th Circuit, the Supreme Court denied our petition for certiorari, and the river finally died. David Scates tells a sad story, of watching as the water came up. There was a budding rosebush at the edge of the river as the impoundment backed up, and as the sunlight filtered down through the two feet of cold clear water that had drowned it, for the last time its flowers blossomed, staying there for a few days, under water. He told us, 'I cried, seeing the blossoms open under the water as it came up.'"

A clear glass vase, filled with fresh water and a smallish fish over what look to be miniature farm silos, and a lovely red rosebud on top were the symbol for the retrospective. It was a fitting symbol for lovely day.

I can't help thinking that with the reversal of dams out west as a prototype, maybe someday those ancient Cherokee and Native American sites will once again see the light of day.