Trust us, we're federal scientists

September 02, 2011 | By PACIFIC LEGAL FOUNDATION

Author: Brandon Middleton

John Bass accuses Judge Wanger of demanding "an impossibly high scientific standard" to justify the location of X2 (the italicized language is Bass's quoting of the Kern Valley Sun):

In yesterday’s injunction, Judge Wanger ruled the 2008 biological opinion still "fail[s] to explain why it is essential to maintain X2 at 74 km and 81km respectively, as opposed to any other specific location." Judge Wanger instead ordered that the outflow requirement be modified to minimize the amount of Delta water lost to the ocean.

"As opposed to any other specific location?" It is possible to turn the Judge’s reasoning on its head, to interpret the location of the X2 line as doing just what the Judge asked for – "minimizing" water lost to the ocean. It is just that any water lost is too much for the thirsty.

In other words, according to Bass, any time water users seek relief from an Endangered Species Act decision that will result in lost water, the water users always win.  This is a baseless critique of the court, and Bass surely knows how water users fared in litigation over the prior set of delta smelt and salmonid biological opinions.

Likewise, if "any water lost is too much," then why exactly did Judge Wanger order X2 to be located such that water users will lose 90,000 acre-feet of water under most circumstances?  The court could have enjoined any use of the X2 measure, but despite recognizing that "the record reveals no support for X2 and smelt abundance," it did not.

Bass apparently approves of the U.S. Fish and Wildlife Service's most unseemly delta smelt tactic: the continual approval of regulatory measures that have little to no basis in science and that are concocted without any consideration of the harm they will bring.  His claim that the X2 decision sets up an "impossibly high scientific standard" is laughable.  If it's asking too much for federal agency scientists to use the best science when analyzing the delta smelt and water projects, and if we shouldn't be concerned when these scientists rely on uncertain and speculative modeling and then offer inconsistent court testimony in a poor attempt to justify this uncertainty, then we should all just acquiesce and subject ourselves to the whims of arbitrariness.

Bass seems to want to live in a world where the feds can do what they want, when they want, and not be expected or required to explain their decisions.  Fortunately, as Judge Wanger has recognized, "Trust us is not acceptable."