May 15, 2014

The fight for more water continues

By Damien M. Schiff Senior Attorney

Earlier this week, several parties in the Consolidated Smelt Cases (the Department of Water Resources, the State Water Contractors, and the Federal Water Contractors) filed petitions for rehearing before the full Ninth Circuit Court of Appeals.  (The court has already asked for a response from the federal agencies and their environmental group defenders).  Recall that in March, a panel of the Ninth Circuit upheld 2-1 the water cutbacks that have been imposed on the San Joaquin Valley and Southern California on account of the Endangered Species Act protections for the delta smelt.  The rehearing requests raise a number of issues, including the panel decision’s failure to account for the ESA’s requirement that environmental decisions be made on the basis of the best available scientific data.

For example, in the smelt biological opinion, the Fish and Wildlife Service prescibed the water cutbacks based in part on the relationship between the amount of water pumping and the number of smelt killed at the pumps.  This seems reasonable at first blush, but the Service’s approach is actually rather arbitrary because it does not take account of the fact that the number of smelt killed at the pumps is only significant in relative not absolute terms.  If only 1,000 smelt are alive in the Delta, then the death of 300 smelt at the pumps will be significant.  But if there are 100,000 smelt in the Delta, then the death of 300 will not be nearly as significant on the survival of the smelt as a whole.  Yet the Service’s biological opinion does not attempt to “normalize” the data to account for annual population fluctuations.

The district court held that this failure was a textbook example of arbitrary and capricious government decision-making.  But the Ninth Circuit panel majority disagreed, reasoning that the Service was simply being extra-protective of smelt.  Of course, the notion of extra-protectiveness, oftentimes labeled “the precautionary principle,” is fairly common in environmental law.  And it is true that the ESA does not allow the Service, when deciding just how much to protect the smelt, to take into account the negative economic and social effects of species extra-protectiveness.  Nevertheless, even assuming the legitimacy of the precautionary principle as part of government environmental decision-making, the law still demands that an agency explain why its decision would further the precautionary principle.  That is, an agency must still show that its decision-making has at least a decent chance of actually protecting the environment, as opposed to being merely the result of random considerations (or perhaps bad faith).  Yet here, the Service’s refusal to normalize the data is not so much slavish extra-protectiveness as it is irrationality; using data that have not been normalized precludes any reasoned conclusion, even an extra-protective one.

Standing alone, the panel decision’s misinterpretation of the ESA and administrative law merits further review.  The fact that the decision threatens a dependable water supply for millions of Californians makes further review a moral necessity.

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