Thoughts on Judge Wanger’s December 2010 decision.

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.


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15 responses to “Thoughts on Judge Wanger’s December 2010 decision.

  1. Francis

    link to decision plz. I should have some time this week to slog thru the opinion if you’re interested in my thoughts.

  2. aaron

    Wanger also seems to be picking up on this assumption of the certainty of adverse community impacts of export restrictions. Exports go down and unemployment in SJV goes up but there has yet to be any science (that I’m satisfied with) employed to establish a causal link between those two events. Sure Howitt and Michaels have some numbers…that were derived with a model which assumes a causal link exists, then…surprise…they find a causal link. Shocking.

    Somewhere along the line Exports Restrictions & SJV Unemployment became Export Restrictions cause SJV Unemployment without much thought.

    …and god bless you for posting the summary because I sure as hell ain’t reading this thing.


  3. onthepublicrecord

    Sorry, Francis. It is linked in the post now, and also here. Yes, I’d love to hear your thoughts.

  4. onthepublicrecord

    You know, Aaron, that is totally true and a really good point. Well, when he gets to hear the NEPA cases on “the human impacts”, he’ll start to address the technical issues behind the social science. That should be interesting for him.

  5. dfb

    David Zetland has posted about the Howitt numbers several times. Howitt retracted massive job loss estimates but the political machine ignores his retraction.

    “In this revision [PDF] to the revision**** to their original study, Howitt et al. admit to using some flawed data in the first study and estimate 21,000 total job losses, with 16,000 from drought and 5,000 from pumping restrictions.”

  6. dfb

    Oh, and I agree with your assessment. Nothing changes.

    DWR and the Plaintiffs won on some items and lost on others. As much gloating as PLF, Westlands, and others are doing, it really is not that big a victory.

    Essentially, the BiOp has been remanded for the U.S. Fish and Wildlife Service (FWS) to correct its mistakes with a few slaps on the wrist. FWS gets another bite at the apple but does not need to start over from scratch. Judge Wanger said that FWS reasonably relied on some of its sources that the plaintiffs challenged and made some reasonable analysis and conclusions in at least one part of the BiOp.

  7. onthepublicrecord

    Thing is, if you believe that pumping operations (including salvage and return) take smelt, you aren’t afraid of the science. If it isn’t methodically done (which, again, the NAS panel found it was), a new, methodically done version will get you back to a similar protective pumping regime. Repeating the science is no threat to the outcome; it just takes longer.

  8. Wanger is a coward. There is no Truth, no absolute Fact in this. And he knows it.

  9. Mr. Kurtz

    And there is neither Truth nor Absolute Fact in the sloppy and rejected document that pretended to be both of those things. So, Mr Bass, what is your objection? Kindly tell the rest of us what imaginary universe contains either one of these constructs. It is assuredly not the universe we observe, and attempt to describe though both art and science.
    The scientific method we have developed, and prospered from for the last couple of centuries, eats its young gladly.

  10. onthepublicrecord

    C’mon, Prof. Bass and Mr. Kurtz. Judge Wanger’s decision was far more nuanced than either of your comments. Judge Wanger considered the plaintiff’s long list of objections point by point, and although I thought he was looking for ways to discredit the document, he upheld some of the agency’s work and wanted more justification for other pieces. I am disappointed that he is starting to make his political biases explicit. I know that “arbitrary and capricious” is a term of art, so I know why he’s saying that, but the accusation of sloppiness is pretty well bullshit. Look at what they’re arguing over:

    (4) Comparison of Calsim II to Dayflow model runs created potentially material bias in the BiOp’s evaluation of the impacts of Project operations on the position of X2 and related conclusions regarding population dynamics and habitat.

    These folks are deep in the weeds. They’re comparing the merits of different simulations models. You may have opinions about that, but by the time you’re discussing these kind of nuances, you are already not sloppy. Remember that the National Academy of Science panel review (which I was pissed about at the time, because the standard for judicial review is not “can a biological opinion pass a review of the best scientific body in the country”, but is instead “was the choice of method or results arbitrary and capricious.” Oddly enough, the Biological Opinion passed the more stringent scientific review, but not the more lax judicial review.) found the Biological Opinion was appropriately done.

  11. Mr. Kurtz

    The judge is not a scientist (and neither am I). Doubtless there were plenty of things in the B.O. that were modeled and done properly. But I believe he agreed with the plaintiffs in their assertion that the document drew conclusions far too broad for the date presented, and failed to give enough consideration of smelt killers other than water exports. It is not as though there is little at stake here. Just as in a death-penalty case, the court has every obligation to test and question the bona-fides of expert testimony, crime lab reports, and so on.
    The B.O. was not definitive enough to justify firing up Ol’ Sparky. People of all persuasions love to root around in thee sock-drawer full of scientists until they find one who declaims the “truth” they want to hear. Gratifying, politically useful, but neither good science nor good outcomes emerge.

  12. Mr. Kurtz

    Thank you, Mr. Bass. I had not known about that website.

  13. onthepublicrecord

    My blogroll is evidently too subtle.

  14. You could try floating the blogroll over the blog, and making the ‘close’ button impossibly hard to find. That would be less subtle but way more annoying. Happy holidays, OtPR.