PLF Liberty Blog

The delta smelt X2 decision: the good, the bad, and the ugly

Author: Brandon Middleton

I'm sure much will be said in response to Judge Wanger's decision to enjoin the United States Fish and Wildlife Service's X2 action.  And given the length and complexity of the court's opinion, there's no way one blog post could highlight every significant aspect of today's decision.  Here, however, is what jumped out to me after my initial review:

The Good: X2 is basically a measure of salinity in the Sacramento-San Joaquin Delta, and the Service in this case wanted to locate X2 74 kilometers from the Golden Gate Bridge by having more Delta water flow to the Pacific Ocean (which would supposedly be beneficial to the delta smelt by providing more habitat) and less to people in the San Joaquin Valley and Southern California.  The Service sought this location only for the next couple of months, so one might ask what is the big deal about doing this even if means decreased south-of-Delta water deliveries, since 2011 has been a good water year and water allocations for 2011 would largely be unaffected by the X2 action.

But as Californians, we understand the fickle nature of the state's water supply--one wet water year could be followed by consecutive dry years, so it is important to store as much water as possible when it is available.

The Service and its friends at NRDC, however, took the head-in-the-sand approach to California water and claimed that implementing X2 the way the government wanted would not be harmful to California water users.  Fortunately, the court saw through the defendants' naïveté, noting that it was only through water storage during good times that water users got past the most recent natural drought.  By rejecting the Service's proposed X2 location and calling for an X2 location that is 5 kilometers to the east, the court has ordered a "far less draconian water supply cost" for Californians than what the Service felt was necessary.

U.S. Fish and Wildlife Service's delta smelt X2 action enjoined

Author: Brandon Middleton

In a 140 page decision issued late this morning, Judge Wanger enjoined the United States Fish and Wildlife Service's implementation of the agency's Fall X2 action.  The decision may be found here.

In a nutshell, this means the government will not be able to restrict water deliveries as much as it wants to over the next couple of months.  I will have more thoughts on the decision later today, but for now here is the court's conclusion:

VII. CONCLUSION

1. Plaintiffs have succeeded on the merits of their NEPA claim.

(a) NEPA requires that the responsible agency take a hard look at the environmental consequences of its actions, Robertson v. Methow Valley Citizen‟s Counsel, 490 U.S. 332, 350 (1989), obligating federal agencies to prepare an environmental impact statement (“EIS”) for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). This has not been done.

(b) Federal Defendants are required to evaluate the impact of the coordinated operations of the CVP and SWP, which constitutes major federal action. The evidence establishes significant detrimental effects visited on the quality of the human environment by implementation of the BiOp‟s RPA Actions, which impose substantialrestrictions on the water supply to California, solely to protect the delta smelt.

(c) Where required, an EIS is intended to disclose environmental effects of a proposed action and consider alternative courses of action. Id. Here, by erroneously by-passing NEPA, Federal Defendants completely abdicated their responsibility to consider reasonable alternatives to the Fall X2 Action that would not only protect the species, but would also minimize the adverse impact on humans and the human environment. The result is the issuance and implementation of a one-sided, single purpose RPA that inflicts drastic consequences on California water users, a situation NEPA prohibits.

2. Plaintiffs have also succeeded in part on the merits of their ESA challenge to the Fall X2 Action. This required de novo review of the available evidence to determine if equity permits injunctive relief:

(a) Plaintiffs have established the likelihood of irreparable harm. Imposition of the Fall X2 Action as it is currently planned will likely cause a negative 300,000 AF water supply impact to SWP contractors. This will impact long-term water supply reliability for both domestic and agricultural users. There will be further impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use. Water supply reductions will cause economic impacts to farmers and may have socioeconomic impacts on agricultural communities, although the magnitude of any such economic and/or socioeconomic impacts given the “very good” water year in 2011 is unclear.

(b) The scientific evidence in support of imposing any Fall X2 action is manifestly equivocal. There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this “wet” water year. The agencies still “don‟t get it.” They continue to believe their “right to be mistaken” excuses precise and competent scientific analysis for actions they know will wreak havoc on California‟s water supply.

(c) In balancing hardships, the record arguably supports a requirement that X2 not be allowed to shift east of the confluence of the Sacramento San Joaquin Rivers. Positioning X2 at 80 km or 79 km accomplishes this goal. It also serves the population data collection objective of the Action‟s adaptive management plan. The competing balance is the continuing imperiled status of the protected species, which counsels against doing nothing at all.

(d) Limiting the Fall X2 Action will significantly reduce the water supply impact. Positioning X2 at kilometer 79 will have a probable water supply impact of 90,000 AF, reducing the impact by 210,000 AF. Positioning X2 at kilometer 80 would equate to a probable water supply impact of 80,000 AF, reducing the impact by 220,000 AF in most water year types.

(e) Balancing the imperiled status of the species, the equivocal and highly disputed support for the X2 action, and the even weaker and unjustified support for positioning X2 at 74 km, against the substantial and damaging water supply impact of doing so, limiting the X2 position to 80 km or 79 km achieves equity. Between these two targets, assuming the truth of Federal Defendants‟ scientific theories, positioning X2 at 79 km will provide substantial additional protection above and beyond an 80 km X2 for a relatively insignificant additional water cost of 10,000 AF. This is only 5 km further upstream than the BiOp's wet year requirements, yet imposes a far less draconian water supply cost.

The BiOp's Fall X2 Action shall be enjoined to prevent implementation of the 74 km X2 target. No Fall X2 action setting the X2 target west of 79 km shall be implemented. All other requirements of the Action, including the timing of the Action and the mechanisms for its measurement, shall remain unchanged.

Plaintiffs shall submit a form of injunction consistent with these findings of fact and conclusions of law within five days following electronic service.

SO ORDERED Dated: August 31, 2011 /s/ Oliver W. Wanger United States District Judge

Upcoming PLF events

PLF attorneys will be speaking soon at events across the country--and even around the world! Don't forget to check for upcoming appearances. And if you would like a PLF representative to speak to your club or at your event, just give us a call.

How's that eminent domain/redevelopment thing working out for ya?

Author: Timothy Sandefur

The city of New London, Connecticut, spent a decade and tens of millions of dollars to destroy Susette Kelo’s neighborhood—and replace it, literally, with a dump.

Don’t forget, in Kelo, the Supreme Court emphasized that “[t]he takings before us...would be executed pursuant to a ‘carefully considered’ development plan.”

Vituperation watch: Legal Planet

Author: Joshua Thompson

I really enjoyed this post from Legal Planet. In it, the blogger castigates PLF for supporting the plaintiffs in Save the Plastic Bag Coalition v. City of Manhattan Beach, because a win for the plaintiffs would result in an increase in “environmental bureaucratic red tape.” So why did PLF file an amicus brief in support of the plaintiffs in this case?

What Legal Planet got right. The blogger correctly recognizes that PLF did not file a brief supporting the plaintiffs on the merits. Instead PLF’s amicus brief (which you can read here) focused solely on the issue of citizen standing. “PLF focused on this aspect of the case, and argued that the form of a plaintiff — individual, unincorporated association, corporation, LLC, whatever — should not be the touchstone of whether a plaintiff has citizen suit standing (which under California law is much broader than Article III standing).” Absolutely! This is a fairly routine practice at PLF (and I imagine most public interest organizations). Many cases contain issues that interest PLF, but also issues that are of no interest to PLF.

What Legal Planet got wrong. The blogger argues that the California Supreme Court found PLF’s argument irrelevant. Not true. While it is true that the Supreme Court held that the Save the Plastic Bag Coalition would have had standing outside of the citizen suit context, that does not mean that the Supreme Court found the citizen suit issue irrelevant. First, a case from 2000, Waste Management of Alameda County, Inc. v. County of Alameda, had held that corporations lack standing to maintain citizen suits, thus creating a split between California courts of appeal. Second, the Supreme Court accepted review specifically on the citizen suit question – it was heavily briefed by both sides. Third, the California Supreme Court spent eight pages discussing the citizen suit issue, ultimately overruling Waste Management’s holding completely.

Legal Planet then argues that citizen suit standing is a position that PLF usually opposes, and that the only reason that PLF filed an amicus brief was to support “powerful corporations.” I enjoyed that bit for its sheer absurdity. Taxpayer and citizen standing are issues that are of great significance to PLF’s individual rights practice group. In numerous cases enforcing Proposition 209, PLF often relies on citizen standing. Two recent victories come to mind. In suits against both the State of California and the Los Angles Unified School District, PLF represented non-profit corporations in Proposition 209 actions. In both actions, PLF relied on citizen standing. Moreover, I am co-authoring a law review article that examines California standing in detail. Accordingly, I, primarily an attorney in PLF’s individual rights practice group, wrote the amicus brief in Save the Plastic Bag Coalition.

The reason PLF filed a brief in this case is self-evident: PLF has a strong interest in seeing that California’s citizen standing provisions are not narrowed. PLF’s amicus brief was also very powerful in this case. We were the only party to argue for a summary reversal of Waste Management, a case the severely curtailed the availability of citizen standing.Moreover, the Supreme Court’s analysis almost tracked our argument verbatim. As but one example, we wrote: “The lower court’s analysis is completely inapposite. As noted supra, the ‘citizen suit’ language is merely a (newly adopted) term of art that describes the right being asserted, not the status of the person or entity enforcing that right.” The court wrote: “The term ‘citizen’ in this context is descriptive, not prescriptive. It reflects an understanding that the action is undertaken to further the public interest and is not limited to the plaintiff‟s private concerns. Entities that are not technically ‘citizens’ regularly bring citizen suits.”

One final note regarding PLF’s involvement in the Save the Plastic Bag case. Counsel for the plaintiffs originally solicited PLF’s amicus participation in this case on the environmental issues. After some debate, the attorneys here felt that expansion of CEQA in the manner urged by the plaintiffs was not in PLF’s interest. However, I found the citizen suit issue, an issue the court explicitly granted review on, very interesting. Accordingly, I proposed filing a brief on that limited issue, and the staff and Board agreed. Had I not come forward there would not have been an amicus filing by PLF. Again, this is routine practice for public interest organizations. “[T]he fact that the plaintiffs were powerful corporations ... had absolutely nothing to do with it.”

PLF appeals faulty polar bear decision

Author: Reed Hopper

In June of this year the D.C. District Court upheld the listing of the polar bear as a "threatened" species without ever answering the fundamental question: How is a thriving species threatened with extinction?  In a previous post we discuss how the court got the decision wrong.  Last week, PLF appealed that decision to the D.C. Circuit Court of Appeals on behalf of the California Cattlemen's Association and Congress of Racial Equality.  Briefing will begin in a few weeks. 

PLF's Timothy Sandefur speaks at Cato Constitution Day event

Author: Timothy Sandefur

I will be speaking at the Cato Institute's Constitution Day symposium on Sept. 15 in Washington, D.C. I'll be appearing on panel IV: Looking Ahead to The October 2011 Term. I believe you can watch the event online, but it's better to attend in person if you can. You can register here. Other speakers include Jonathan Adler, John Eastman, Tim Keller, Orin Kerr, Adam Liptak, and Judge Alex Kozinski.

A new chapter at the Coastal Commission?

Author:  Paul J. Beard II

That's the question I ask in an opinion editorial published in today's San Francisco Chronicle, in light of Executive Director Peter Douglas's recent announcement that he is retiring.  

If you can't pick up a copy of the Chronicle, read it on-line and offer your comments about what you think.

Property rights in the 21st century

Author: Timothy Sandefur

The latest video release from LearnLiberty.org is my talk, a few years ago, in Washington, D.C., on the subject of property rights in 21st century America. It related of course, to my then-new book.

The next steps in the Obamacare cases

Author: Timothy Sandefur

Cato's Ilya Shapiro has a breakdown of the next tactical steps in the Obamacare case, including a kind reference to PLF's brief in the Thomas More Law Center case. Note that the federal government has asked the Supreme Court for an extension of time to respond in that case until the Fourth Circuit decides the two cases still pending there.

Adler on environmental regulation

Author: Luke A. Wake

Jonathan Adler offers some interesting commentary on environmental regulation in today's New York Times.  

A Sackett update

Author: Damien M. Schiff

Last week I had the chance to visit again PLF's clients Mike and Chantell Sackett in Priest Lake, Idaho.  PLF represents the Sacketts in their now four-year struggle to build a family home for themselves near the Lake.  Their homebuilding has been stopped since 2007 because of an EPA compliance order which contends that the Sacketts' lot, within an existing built-out residential subdivision, constitutes wetlands that can be regulated under the Clean Water Act.  The Supreme Court will hear the Sacketts' case next Term to decide whether the Sacketts and other landowners can sue over a compliance order, or whether they must wait until some undetermined point in the future to have their day in court.

Two points struck me about my most recent visit to the Sacketts.  One is that they simply want to build a family home and get the opportunity to have a court tell EPA to back off without being threatened and bullied with tens of thousands of dollars in fines per day.  Isn't that the heart of Due Process of Law?  Another point came to me when the Sacketts took me out on the Lake.  As we were enjoying the lovely sunset, Chantell bent over the side of the boat to pick up some trash floating in the water.  She remarked in an off-hand way that she and Mike have been long-time members of a local group whose goal is to keep Priest Lake clean.  I thought to myself how ironic, that here we have law-abiding and environmentally responsible citizens whom EPA has targeted, when nothing they have done has had any measurable effect on any aquatic resource.  Couldn't all the time and effort EPA has spent in prosecuting this case have been better directed toward things like, gee, helping the Sacketts' group to clean up Priest Lake?

We're moving!

The Pacific Legal Foundation is moving its Sacramento headquarters to a new location downtown. As of Monday, our new address will be 930 G Street, Sacramento, CA 95814. Our telephone number will remain the same: (916) 419-7111.

PLF supports Supreme Court review of Obamacare decision

Author: Timothy Sandefur

The Pacific Legal Foundation filed this brief today in the U.S. Supreme Court urging it to take up the constitutional challenge to the Individual Mandate in reviewing the Sixth Circuit Court of Appeals’ decision in Thomas More Law Ctr. v. Obama. We argue that the Court should take the case not only to consider the Commerce Clause issue, but also to consider the Necessary and Proper Clause, and specifically to address whether Congress can regulate non-economic, non-interstate activity whenever it claims that doing so is necessary for the success of some national legislative scheme.

PLF’s Obamacare litigation...so far

Author: Timothy Sandefur

No organization has been more deeply involved in the litigation against Obamacare. Including our representation of Matt Sissel in his challenge to the Individual Mandate, PLF has filed eight briefs in six cases on a wide variety of constitutional issues relating to the “Patient Protection And Affordable Care Act”—and has provided important legal assistance to allied organizations that are fighting for individual liberty and constitutionally limited government. Here is the current list—with more to come, of course: