Who is to blame for the delta smelt saga?


Author: Brandon Middleton

I haven't watched any of the recent political debates here in California, but apparently the subject of environmental water cutbacks came up at Wednesday's debate between Sen. Barbara Boxer and Carly Fiorina.  KPCC reporter Molly Peterson took issue with Fiorina's thoughts on the delta smelt (hat tip: Aquafornia):

Fiorina got the first question on jobs and the economy – she was asked what regulations she would cut. She blamed the decision to cut off water to the Central Valley – made to protect the endangered Delta Smelt – on a "nameless, faceless bureaucrat." That part of California's water system is operated by the federal government . . . .

I assume she was referring to the writer of a biological opinion related to the Delta Smelt. But the decision to shut off the pumps actually was made by Judge Oliver W. Wanger. Just to give the faceless guy a name. The faceless bureaucrats, they're the ones who wrote the opinion supporting the right of the water receivers to get their water. But anyway.

Admittedly, the story of how a two-inch fish came to shut off critical water pumps is not easy to understand.  

But Ms. Peterson's analysis is not entirely accurate, so a few clarifying points are needed.

First, Judge Wanger is not responsible for the delta smelt shutting off the water pumps.  True, a few years ago he did issue a decision invalidating several federal agency determinations about the smelt.  But that decision was issued in response to a lawsuit brought by environmental groups, and the severe consequences which resulted from the decision were really the result of the Endangered Species Act–a law passed by Congress, not a judge.

Second, the Obama administration is responsible for the more recent delta smelt cutbacks.  After Judge Wanger's decision discussed above, the U.S. Fish and Wildlife Service took another look at the smelt and the species' relationship to California water projects.  But instead of taking a comprehensive look at all the factors affecting the delta smelt's status, the Service narrowly focused on water pumps.  As a result, the Service issued a biological opinion that scapegoats the pumps without placing adequate responsibility on other factors, like pollution and invasive species.  Although the Bush administration issued this latest biological opinion in December 2008 and deserves some criticism for this agency decision, the Obama administration took over the next month and Interior Secretary Ken Salazar has been in charge of enforcing the smelt restrictions since then.

Third, the legislative and executive branches of the United States government are ultimately to blame for taking water from humans and giving it to the delta smelt.  For years, our elected officials have ignored the Constitution and have passed laws which give the federal government virtually unlimited authority over our everyday lives.  Obamacare is just the latest example of this vast expansion of federal power, but the Endangered Species Act of 1973 is also a statute that has been enforced in complete ignorance of constitutional limitations, like the Commerce Clause.

The Commerce Clause, of course, gives Congress the enumerated power to regulate interstate commerce.  But according to politicians and the bureaucrats who impose the politicians' will, interstate commerce includes any and all animal species in the country, no matter if the species is found only in one state, and no matter if the species is in fact not an item of commerce and trade. 

In the case of the delta smelt, this species is found only in California and has no commercial value.  But for whatever reason (probably because they're on a power trip), the legislative and executive branches have chosen to regulate the delta smelt under an unlimited and unprincipled reading of the Commerce Clause.

Of course, the judiciary has a role to play in preventing elected officials from ignoring the Constitution–that is why Pacific Legal Foundation is currently before the Ninth Circuit Court of Appeals in a lawsuit that seeks to have the delta smelt water cutbacks invalidated as an illegal exercise of the Commerce Clause (briefing in the Ninth Circuit should be completed by the end of October, with oral argument to occur sometime within the next several months).

In the meantime, Ms. Peterson has raised an important and interesting point: who is to blame for the delta smelt water cutbacks?  I would contend, however, that the answer may be found in response to a broader question.  That is, who is to blame for the trampling of the Constitution?  In my opinion, one need look no further than our elected officials in Congress and the White House.