My my. Twitter hashtag #cawater sure did wake up when Judge Wanger posted his latest smelt ruling. I’ve skimmed it now, all 230 pages. I don’t know that it changes much. Seems to me that the decision points out some parts of the Biological Opinion that Judge Wanger thinks the Fish and Wildlife Service should do over, but it doesn’t up-end any of the situation we’ve come to live under. The smelt are still endangered; their welfare will still determine project operations. Judge Wanger is still calling the shots. He didn’t establish a new pumping regime or revise the ESA or anything. I can’t speak to any of his conclusions about the technical issues without hearing the testimony he heard, so I was mostly interested in the two paragraphs that reveals his state of mind (pg 218):
It cannot be disputed that the law entitles the delta smelt to ESA protection. It is significant that the co-operator of the Projects, DWR, in its endeavors to protect a substantial part of the State’s water supply, opposes as unjustified and based on bad science some of the RPA Actions. It is equally significant that despite the harm visited on California water users, FWS has failed to provide lawful explanations for the apparent overappropriation of project water supplies for species protection.
In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs. A court is bound by the law. Resource allocation and establishing legislative priorities protecting the environment are the prerogatives of other branches of government. The law alone cannot afford protection to all the competing interests at stake in these cases.
You know, I don’t love it that Judge Wanger is picking up the phraseology of the plaintiffs. The words “sloppy science” (science that passed a National Academy of Science panel’s review, btw) have been promoted and intentionally inserted into the public debate by activists and their paid PR consultants. I hear advocates use them in meetings and they always sound funny, with a slight pause and heavy emphasis on the phrase. It is a shame that Judge Wanger is using language that signals he is on their side. I wonder if I hear regret that his courtroom must be bound by law; how unfortunate for him that his integrity won’t let him flout the ESA.
I have two other thoughts about his commentary. I love that he calls out the legislature for not providing an adequate water supply for both people and fish. I want to reassure him, however, that even if they had gone much further with their 2009 legislation, it wouldn’t help solve his problems. The legislature can’t conjure more water in the short term; with wholehearted dedication to new plumbing, the best they could do is maybe have more flexible operations within a decade. Sites doesn’t create more water. The Peripheral Canal doesn’t create more water. They make moving water easier, but don’t provide an adequate water supply for both people and fish. Nothing does. We have hit and blown past the physical limits of our rivers and plumbing. That’s what the fish population crash means. Far from there ever being more water, we’ve got climate change taking water away within decades.
His other odd complaint is about “uni-directional prescriptions”, which is so odd and clunky that I suspect it is another bit of PR talk that got lodged in his brain. It almost sounds like it makes sense. The restrictions shouldn’t be uni-directional! One side shouldn’t take the brunt of the shortage! But it is meaningless, because what would the reverse direction be? What can the Delta smelt do for the growers in Westlands? Seriously. The smelt shouldn’t be so stubborn. They should all agree to move to the side when the pumps are turned on, and stop flirting with striped bass. The smelt should compromise too! They should… sacrifice one of the seventeen found in the summer trawl to die in the pumps? They should go extinct already, now that they number in the tens or hundreds? I don’t think Judge Wanger means that, because I don’t think the concept “uni-directional” actually means anything. I think it is PR gibberish, not to be thought about deeply.
This is disheartening for me. There are 225 pages in that decision, and Judge Wanger was willing to listen to testimony on stuff that I find arcane, and I was trained in this. He diligently sorted it and made split, separate decisions on all those points. On the technical and legal issues, he is still engaged and thinking. But I think he has chosen an ideological side, and isn’t applying the same rigor to his own thought. He’s using the mental shortcut of buzzwords now, and they are very much the buzzwords of the plaintiffs.
LATER: Couple more thoughts:
Oh! Perhaps Judge Wanger means that the prescriptions are uni-directional in that they only ever mean more pumping restrictions and less water for people south of the Delta. Well, fish populations are only going down, for the moment. When those start going up, the pumping restrictions can loosen.
Also, I’ve read elsewhere, and infer from those paragraphs above that Judge Wanger is frustrated that there is no balancing mechanism in the ESA for effects on an endangered species and effects on people. But that’s because by the time the ESA is invoked, the species is down to almost nothing. There could be balancing when the species is down by 25% or 50%, or maybe 75% or 80% (assuming that you think it is morally right to manipulate the existence of other beings). But by the time a species is endangered, there are only a few of them left. There’s no more balancing! There’s only doing what it takes. It must be very frustrating for him, but he should remember that he’s at the end of a century where the “balance” went very much the other way.