The Constitution is (fortunately) a stubborn document


Author: Brandon Middleton

The Natural Resource Defense Council's Barry Nelson doesn't like what Pacific Legal Foundation is doing when it comes to California's water. (See his NRDC Switchboard blog post, "Facts are stubborn things"). According to Nelson, PLF and others have been "particularly careful to ignore facts that undermine their point." Nelson asks that the public to

pay attention to news stories and statements to see who’s addressing (and who’s ignoring) the following stubborn facts:

    • According to state and federal agencies, fully three quarters of the water supply reductions in 2009 were the result of a third consecutive dry year.  (The Pacific Legal Foundation virtually ignores the dry weather and refers to this as a “government drought” on a video on Delta water issues.)  

So, according to Nelson, if there is a natural drought, then there cannot be a government drought.

This, of course, is absurd and is belied by Nelson's own statistical concession — our government and the Endangered Species Act were responsible for 1/4 of California water supply reductions in 2009. And the 1/4 share is not insignificant: at more than 160 billions gallons of water, the amount of H2O devoted solely to the delta smelt in 2009 could have supplied the entire city of Los Angeles for more than eight months.

But while Nelson misses the point that the federal government has turned the natural drought into something much worse, his greater shortcoming is that he ignores the Constitution. The delta smelt water cutbacks are not only devoid of reasonableness, they're also devoid of constitutional authority.

Nelson may indeed desire to seek workable solutions to California's water problems, but the U.S. Fish and Wildlife Service has no business involving itself with a fish that has no connection to interstate commerce (as is required by the Commerce Clause), especially at the cost  of over 160 billion gallons of water, and especially when it's not even clear that decreased water deliveries help the delta smelt.

There's no question that a diverse set of groups have an interest in California's water, including farmers, fishermen, and municipalities.  But the Endangered Species Act was never intended to dictate California's water supply, nor is it capable of ensuring that all those who need water have an equal place at the table.

Far from being a panacea to the state's water woes, the continued overzealous implementation of the Endangered Species Act will only make things worse.