Disjointed thoughts on Judge Wanger’s ruling.

I’ve been slow to weigh-in on Judge Wanger’s most recent decision, because I haven’t read the ruling myself.  As I understand it, Judge Wanger decided that the pumping regime for smelt and salmon was invalid because it was uncertain to restore smelt and salon, and because the agencies hadn’t done an EIS on the human effects of the restricted pumping allowance.  My thoughts:

1.  Sure, whatever.  It is a wet spring and flows are high.  We can probably get away with higher pumping for the time being.  Sadly, as Matt Weiser pointed out, that doesn’t seem to be true for splittail smelt, which are on the verge of being listed themselves.

2.  I was hoping Prof. Doremus would explain the ruling to us, since that is much easier than reading things and understanding them.  My two main questions are:  I thought TVA v. Hill was pretty clear that there is no balancing the human impacts of preserving species.  Is Judge Wanger making shit up creating new law?  Will it stand?  Her quote in this story gets me closer to my other question.  The whole point of NEPA is to force people to take environmental impacts into consideration (although once they’re disclosed, you don’t have to change your plans based on them).  Why should you apply NEPA to actions upholding environmental laws?

Seems to me that tacking NEPA onto the back end of the ESA was Judge Wanger’s attempt to get around the fact that ESA has no balancing mechanism.  He’s been looking for a way to do that for a while, it seems:

When U.S. District Judge Oliver Wanger spoke in February at the Madera County Farm Bureau water conference, he explained the restrictions placed on judges by the Endangered Species Act. Once a species is given protection under the act, the government and the courts are obligated to put the needs of that species over the needs of humans.

He was clearly bothered that judges could not balance the competing needs of various parties in ESA cases as they do in other cases. “As a citizen, I ask the rhetorical question: If there isn’t a way to apply balance under the ESA, would it be appropriate to find a way to balance?”

Strange that a judge would understand the requirements of the law that he is enforcing, but look for ways to cancel those, perhaps by tacking a whole different law onto the process.  It is practically activist of him.

3.  Hoooo boy.  Judge Wanger has opened up an entirely new field for competing claims.  He’s going to look back wistfully on the days when all he had to do was figure out the relative causes of fish decline in the Delta.  So easy and straightforward compared to his new vocation: sorting the causes of poverty in the San Joaquin Valley.  I was delighted by this post, and am looking forward to seeing who Judge Wanger selects as his employment and social science technical experts.

4.  I’m curious as well whether Judge Wanger will be giving more definition about which human impacts to consider in writing EIS’s about Biological Opinions.  His focus appears to be on impacts to farmworkers in Westlands Water District.  This would be a curious standard, selecting the injuries to the most vulnerable of the poor to be the standard for balance.  Not the average Californian, who didn’t notice the effects of the pumping restriction?  What about the growers who benefited from pumping restrictions?  Every grower who got a better price for his melons because Westlands planted less had a positive impact.  I suspect that Judge Wanger didn’t think ahead to that, although I’m sure he’ll get to decide the standard for “human impacts” when the EIS is brought straight back to his courtroom.  He probably thought that whomever writes the EIS will make some call about which human impacts to list.

5.  Which brings me to my last thought.  Who the fuck does he think is going to write this EIS that parses out the impacts of different levels of pumping on poor people in Westlands?  I am so curious.  Are NMFS, DWR, the Dept of Fish and Wildlife, NOAA and the Dept of Fish and Game suddenly going to develop extensive sociology expertise?  They are fish scientists!  As a result of his decision, will the major fish agencies have to bring on new staff?  A couple demographers, a historian, an economist and a sociologist or two?  That’s what it would take to provide the “best available science” on human impacts.  Unless you want a bunch of biologists trying to write those up.

Honestly, I think Judge Wanger opened up a whole can of worms, and I doubt he thought through what that would mean to have to analyze and litigate “human impacts” to the extent that species impacts are examined in Biological Opinions.   But those worms are also bucking broncos, and he hopped on.  They’re gonna carry this process down the slippery slope into a whole new swampland of trouble.  He’s on the roller-coaster of unintended consequences now, when all he was really trying to do was avoid the well-established law of the Endangered Species Act saying “no balancing”.  Well, that swarm of angry bees will come back to bite him when the exciting new goldfield of “human impacts” becomes new territory to explore in his courtroom.  Hope he enjoys his new expertise.

LATER:  minor edits for wording.

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6 Comments

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6 responses to “Disjointed thoughts on Judge Wanger’s ruling.

  1. This story did a nice job honing in on the TVA v Hill problem and carries the recent Wanger finding of fact and ruling.

    The NEPA-ESA intersection is novel and, I think, wild for exactly the reasons you point out. As it looked to me reading the findings and transcripts, hundreds of pages later, Wanger himself was fishing — looking for a way in a wet year to say, “Look, fish huggers, most of the fish have gone through the system, unless someone can give me hard facts about entrainment and the value of the genetics of late run fish, lets open the pumps and give Westlands some water.”

    I agree completely that the decision was lazy, weird and dangerous.

  2. hydrobatidae

    My first thought is to just slot humans in as one of the impacted species:
    on a national level
    -breeding success and population growth rate are high
    -range is expanding
    -not at risk of listing
    at a local level
    -foraging habitat reduced by 0.05% (you’d have to pick what your impacted population would be but they don’t rely a lot of any of that area for their daily caloric intake)
    -breeding success still high (I’m guessing)
    -habitat quality low (you might get some emigration out of the area if habitat quality declines further)
    -not at risk of listing

  3. onthepublicrecord

    Even local populations are robust. There’s no reason to think the San Joaquin Valley population is a distinct sub-species.

  4. elizardbreath

    I’m relying on your summary, but boy does this sound like a decision that’s getting reversed on appeal.

  5. onthepublicrecord

    I’m sure it will get challenged. We’ll see. I don’t especially trust my summary.