May 18, 2010

Further thoughts on today's salmon biop decision

By Further thoughts on today's salmon biop decision

Author: Brandon Middleton

In reviewing today's decision on the National Marine Fisheries Service salmon biological opinion, two things stand out:

1) This is a defeat for the species-protection-whatever-the-cost mentality that we see from many environmental extremists.  For years, groups like Earthjustice and the Center for Biological Diversity have exploited language from a 1978 Supreme Court decision (TVA v. Hill) to argue that the Endangered Species Act should be used "to halt and reverse the trend toward species extinction, whatever the cost."

Clearly, that decision and its accompanying language apply only to the unique factual and legal circumstances of TVA — which concerned a federal dam project whose operation would indisputably wipe out an entire endangered species — but the environmental community has nonetheless been able to use it as a means to prevent the reasonable use of natural resources in a wide range of cases.

Until today, that is.  As Judge Wanger put it, the federal government's and the environmentalists' contention "that the ESA, under TVA v. Hill, precludes equitable weighing of Plaintiffs’ interests is not supported by that case, as evidence of harm to the human environment in the form of social dislocation, unemployment, and other threats to human welfare were not present in Hill. They are in this case."

Today's decision is a refreshing reminder that the Endangered Species Act does not require the interests of humans to take a back seat to the interests of endangered species.

2) The Obama administration has some explaining to do.  Despite the serious harm the loss of water has caused to the San Joaquin Valley and California, Interior Secretary Ken Salazar has been all too eager to pass the buck and blame the weather.  "Labeling this as a man-made disaster, a regulatory drought, ignores the real issues," he once said.

With today's decision, it is now apparent that Salazar and the rest of the Obama administration have been enforcing a biological opinion that is based not on the best available science, but instead on "guesstimations." The NMFS salmon biological opinion was made without regard to generally recognized scientific principles, and was accepted by the government despite potential alternatives that would result in less harm to water users.

As the Interior Secretary, Salazar is responsible for NMFS's failure to consider the consequences of its actions.  He would do well to admit his role in the regulatory drought.

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