Tide turns for victims of regulatory drought: government errors continue to mount; PLF appeals delta smelt regulations to 9th Circuit

Author: Brandon Middleton

The last couple of weeks has seen good news for Californians who have lost water and jobs as a result of the Endangered Species Act. But leave it to environmental groups to express dismay over Judge Wanger's decision to give humans a voice in the regulatory process:

"The last time around, he seemed to acknowledge that the fish had a value, so I don't know what he is thinking here," said Zeke Grader, the executive director of the Pacific Coast Federation of Fishermen's Associations. "This ruling doesn't seem to acknowledge the harm overpumping has done to the fish and the fishing communities. Instead, it appears to be judicial activism that could lead to the destruction of the Central Valley salmon stocks."

Judicial activism?  A decision to destroy Central Valley salmon stocks?

No, Mr. Greder, this was simply a common sense decision by the judge that the interests of species and humans must be considered by the federal government. And as the court's recent salmon biop ruling indicates, human beings were left high and dry by the National Marine Fisheries Service:

Federal Defendants completely abdicated their responsibility to consider alternative remedies in formulating RPA Actions that would not only protect the species, but would also minimize the adverse impact on humans and the human environment.

Meanwhile, two prominent members of the National Research Council's California Bay-Delta Committee have resigned from the panel.  Apparently, these members left or were forced to resign from the Committee because they hold the politically-incorrect view that water pumps should not be automatically scapegoated for the decline of fish species in the Delta.

According to Dr. Michael J. McGuire (whose resignation letter is available
here), one scientist's recent publication of study "which shows strong evidence that the ammonium discharge from the Sacramento Regional Wastewater Treatment Plant is a major, and likely overwhelming, factor impacting the food web in the Delta causing the decline of the Delta Smelt since 1982" was unacceptable to the Committee, several members of which "have made it clear that they have a fixed point of view that exports from and flows in the Delta are the controlling factors for the decline of fish species like the Delta Smelt." This type of atmosphere in the Committee, where dissent appears to be intolerable, is troubling.

Here at Pacific Legal Foundation, our latest contribution in the fight against the regulatory drought is our Commerce Clause appeal. Yesterday, we filed a brief in the Ninth Circuit (available
here) asking the court to invalidate the delta smelt biological opinion.

As the brief explains, the delta smelt water cutbacks are an unfortunate example of federal officials ignoring the Constitution. The federal government believes that it has power over the delta smelt under its Commerce Clause authority to regulate interstate commerce.

But if the regulation of the delta smelt (a species that is found only in California and has no commercial value) is a regulation of interstate commerce, then practically anything can be a regulation of interstate commerce, and there would be no limit the federal government's authority under the Commerce Clause.

The government's argument cannot be accepted because it is fundamentally contradictory to the federalism our Founding Fathers fought for and created.  Pacific Legal Foundation's brief makes clear that the federal government has no authority over the delta smelt.  In other words, the regulatory drought is not just wrong, it's flat-out unconstitutional.