Framing

One of the memes that some in the agricultural community are pushing this year is that California is in a “regulatory drought”, that the problem is not that we got so very little precipitation, but that a judge gave what we got to scrawny fish in the Delta.  It is true that a judge stopped pumping in the Delta at some times of the year to protect fish, and that as a result, less water was moved south, and that junior rights holders like Westlands took the brunt of that.  But “regulatory drought’?  A regulation is written by bureaucrats in an agency, subject to the public process but usually filling in details that the legislature didn’t want to attend to.  The judge that reallocated water to scrawny fish in the Delta was enforcing the Endangered Species Act.  The ESA isn’t a regulation.  It is a huge law, one of the major legislative achievements of the 70’s.  It is not like the judge is down in the weeds, enforcing some obscure 432.5894.2(f)(3)(ii).  (Even if he were, it should be followed or changed through the public process.)  He is enforcing one of the major laws of the land, and he’s doing it because nothing less will preserve wild Californian salmon and the agencies sure weren’t doing it on their own.  “Legal drought”, maybe.  “Judicial drought”, if one must.  From now on, I’m correcting people who say “regulatory drought”.

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