Author: Brandon Middleton
Judge Wanger's decision invalidating the U.S. Fish and Wildlife Service's 2008 delta smelt biological opinion is sure to bring short-term relief to victims of the regulatory drought--the federal government will no longer be able to use the biop's "scientifically unacceptable" methodology as a means to deprive people in Southern California and the San Joaquin Valley (including PLF's farming clients) of critical water supplies.
The long-term consequences of Judge Wanger’s decision may be of equal significance. First and foremost, the court made it clear that the Central Valley and State Water Projects’ pumps that deliver water to millions of Californians may not be blamed for adverse effects to the delta smelt which are caused by other factors, such as pollution and invasive species. The government, while acknowledging the numerous factors contributing to the delta smelt’s decline in recent years, inexplicably wrote the delta smelt biological opinion as if restricting the Projects’ pumps would serve as a panacea for all of the smelt’s problems. As the court saw it,
It is undisputed that numerous stressors, including ammonia and other toxics, food limitation, predation, the introduction of non-native species and other factors, all have adverse impacts to delta smelt. See e.g., BiOp at 182-84 (discussing other stressors). Yet, the BiOp concludes that Project Operations are 'a primary factor influencing delta smelt abiotic and biotic habitat suitability, health, and mortality.' BiOp at 189 (emphasis added). FWS rationalizes this conclusion, at least in part, by attributing the impacts of many of the 'other stressors' to the Projects. This attribution has not been justified, nor is it logical or explained by any science. Given that the impacts of regulating Project Operations are so consequential, such unsupported attributions (a result in search of a rationale) are unconscionable.
A second long-term consequence is likely to be, in the words of the court, a much needed "willingness or capability to protect interests other than species." Throughout the litigation, Judge Wanger has expressed frustration over the government’s unlawful failure to consider anything but the purported needs of the delta smelt. While the government’s restrictions were required to be reasonable, the court understood that the restrictions could not be reasonable simply because the government said they were:
The RPA Actions manifestly interdict the water supply for domestic human consumption and agricultural use for over twenty million people who depend on the Projects for their water supply. 'Trust us' is not acceptable. FWS has shown no inclination to fully and honestly address water supply needs beyond the species, despite the fact that its own regulation requires such consideration.
Overall, the decision is a setback for those who take a narrow, species-only approach to environmental regulation. In other words, if you believe that the government should consider the human effects of environmental regulation, and recognize that the delta smelt’s decline is due a variety of factors besides the Central Valley and State Water Projects’ pumps, then Judge Wanger’s decision offers several reasons to cheer.
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