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.
The Bad: At bottom, today's decision is a sober reminder that federal scientific determinations do not deserve credit simply because they have been blessed by a particular agency. In this case, it took the work of private attorneys, scientists, and statisticians, to demonstrate the flaws behind the Service's proposed X2 location. As the court ultimately found, there is "almost no biological support" for the Service's proposal:
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.
The Ugly: One cannot read Judge Wanger's 140 page opinion without noticing the sharp criticism he had for the Bureau of Reclamation scientist that is largely responsible for the government's flawed X2 determinations. This scientist issued meaningless correlations between delta smelt abundance and abiotic habitat, engaged in "scientifically improper" statistical modeling, and unjustifiably excluded several factors (such as predation and food availability) that play a role in delta smelt distribution.
This scientist's worst offense was perhaps his reliance on a particular model to suggest that the Service's X2 action would lead to greater delta smelt abundance, even though the model often suggested otherwise and despite the scientist's own recognition of the model's significant contradictions. According to Judge Wanger, these tactics lend the scientist's "credibility into question," as "[h]is scientific objectivity is compromised by inconsistency."
And it's not as if the government as a whole fared any better–Judge Wanger criticized the entire U.S. Fish and Wildlife Service for "agency intransigence" and noted that "the agency's 'lack of data' apologetic is the premise for the agency to do what it chooses without addressing Plaintiffs' objections."
The court's words speak for themselves. One wonders, however, whether environmentalists and the media will investigate and question the federal officials and scientists who are responsible for the flawed delta smelt decisions in the same manner they have questioned federal agency staffers in the past. Or if instead, they will give the current administration a pass because, after all, it is only trying to act in the best interests of "green" and "sustainable" policy.
Update: Further analysis can be found at the Kronick Moskovitz Tiedemann & Girard Natural Resources Blog.
Update 2: The Fresno Bee's story on today's decision can be found here.