Sunday, September 18, 2011

Fishy Environmentalism At The High Court

The Pacific Legal Foundation has prepared its pleadings asking the United States Supreme Court to reverse the decision of the Ninth Circuit Court of Appeals in Delta Smelt v. Human Reality. That's not the real title of the case, but it gets the point across. Calling it Environmentalism Gone Mad v. The Economy, Human Beings, Agriculture, et al seemed too melodramatic.

You can bring yourself back up to speed by reviewing my original article on the subject here: The Fish That Conquered California. When I wrote the original piece, I was still living in San Francisco. Since that time, I've been living right in the heart of the agricultural wasteland (and former agricultural Eden) that is the result of crazed environmentalism.

As part of the ongoing battle, hearings were recently held at the House Natural Resources Subcommittee on Water and Power attempting to determine how to curb the power of Interior Secretary Ken Salazar and EPA officials. The subcommittee was specifically addressing the issue of bureucratic-created droughts. No natural disaster has caused the greatest farmland in the world to dry up. It took green weenies, their government tools, a lot of addled politicians, and one useless fish to do that.

"Jobs President" Barack Obama has entirely ignored this cancer on the job market. California's unemployment rate is now officially at 12%+, making it the second worst in the nation. In farming towns in the formerly lush Central Valley, unemployment rates are more like 35% to a staggering 42%. Farmers have been put out of business, and thousands of workers have been put out of work. When the water restrictions protecting the previously-unheard of and totally environmentally-useless Delta smelt were first put into effect, the members of the Fresno Farm Bureau alone produced $7 billion in food. Today, that figure has shrunk by $2.3 billion.

Federal Judge Oliver Wanger was the trial judge who heard the original lawsuit filed by the local farmers. Wanger, retiring this month, was the former city attorney for the town of Mendota before being appointed to the California Superior Court for Fresno County and ultimately to the federal court by George W. Bush. Mendota's current unemployment rate is 39.5%. Wanger weighed all the facts, considered the law and precedent in a lengthy opinion, and ruled in favor of the farmers and against the green weenies and their lousy fish. The enviro-kooks then appealed to the Ninth Circuit, the most-reversed federal district court of appeals, and got the decision overturned.

Judge Wanger had ruled that federal scientists had completely ignored the balancing test of environmental matters versus human needs required by the National Environmental Policy Act (NEPA). "FWS and Reclamation have not complied with the NPA or the public policy underlying NEPA which favors protecting the balance between humans and the environment." In 2005, the federal Fish and Wildlife Service had already done a comprehensive study on the Delta smelt, and determined that it was not endangered by the water transfer facilities and machinery, and if endangered at all, it was a purely natural thing having nothing to do with the movement of water into the aqueducts. Not good enough for the green weenies.

Judge Wanger's opinion went on to say: "Federal defendants completely abdicated their responsibility to consider reasonable alternatives that would not only protect the species, but would minimize the adverse impact on humans and the human environment. The result is an issuance and implementation of a one-sided, single purpose rule that inflicts drastic consequences on California's water users, a situation NEPA prohibits." The Ninth Circuit decided instead that humans are irrelevant when it comes to strict enforcement of EPA regulations and the protection of useless fish.

If the Supreme Court grants certiorari (agrees to hear the case), there is a substantial chance that at long last, the protection of "endangered species" which play no significant role in the ecosystem may finally have to give way to human needs and even simple reality. If so, the pumps will be started up, the spigots will be opened again for the first time since early 2009, the water fill flow, the Delta smelt will or will not disappear (who cares?), jobs will return, and the American food basket will thrive again.

Author's Note: No Delta smelt were harmed during the preparation of this article--unfortunately.


AndrewPrice said...

Well, I wish these farmers luck. The problem here, though may be the law and not the court. So going to the Supremes might not help since they will be limited to interpreting the law rather than trying to impose a little sanity.

LawHawkRFD said...

Andrew: The ruling in the lower court addressed that exact issue. There was a full balancing test done by the judge, which was not done by either the green weenies and their bureucrats or the Ninth Circuit. The judge didn't make up the rule, it is contained in clear language within the statute. There MUST be a balancing of interests when the EPA makes its decision, and that wasn't done. The court put all the evidence and testimony together as required by the statute, and found in favor of the plaintiff farmers.

The judge didn't even have to strain his discretion or make a "close call." There were huge amounts of evidence showing that the Delta smelt might not even be affected by the water pumps, let alone endangered by them, along with ream upon ream of evidence of the human and economic toll that would (and did) result from the agency's actions.

On the other side of the scales of justice were one miserable fish and a whole lot of opinions about how wonderful the fish are and how the enviro-kooks believe they ought to be protected. No hard evidence to support their contentions.

The statute needs some revision, but in this case the statute itself worked for the plaintiff farmers. The statute requires the EPA to do what it never did--study and produce scientific evidence to weigh against the human cost.

I could be wrong, but I think the Supreme Court will apply exactly the same statutorily required standards that the judge relied on for his decision and reverse the unschooled and doctrinaire decision of the Ninth Circuit.

DCAlleyKat said...

I hope so Lawhawk. I live in northern California's Sacramento Valley and this has been a knife in the heart of our farmland. To have so many in government so ill concerned with the welfare of 'we the people' has reached the frightening stage. The tide must turn. Our livlihood depends on it, and our food supply!

LawHawkRFD said...

DCAlleyKat: You're at the northern edge of the drought, and I'm at the southern end. But while I lived in San Francisco, I was aware that much of the water that I watched flowing into San Francisco Bay was the overflow from the Delta region-- millions of acre-feet of water that previously slaked the needs of the Central Valley. The most fertile land on earth is just desert without water. The enviro-freaks must absolutely love deserts.

If the water doesn't start flowing soon, we'll have the additional problem of aging, rusting metal and cracked concrete in the vast aqueducts to deal with. Pumps on the scale that feed the water to the aqueducts need to be used, or they deteriorate. That will be another few billion dollars we'll have to spend which we wouldn't have had to spend without the tree-huggers.

TJ said...

Isn't that the way it always is with the tree huggers? It always ends up costing more to correct the problems they create with their interference.

Thanks for the update Lawhawk. Hopefully this will get turned around.

Tehachapi Tom said...

With the cost of food climbing getting the water back might be to sensible. bo and his elite are so bound and determined to ruin this country that allowing the Central Valley to return to it's feeding of America must not be allowed.
Green Weenie Washington State is removing two dams to restore a water way to it's original state. That means if they generate power that will stop and if they mitigate floods that will not be possible. The fish the fish will be the calling for them. The cost for the dam removals is over a third of a billion dollars. Washington State is right next to California in the slide to bankruptcy.
To use Andrews view why will government not impose a little sanity?

LawHawkRFD said...

TJ: So true. As they say, the cure is worse than the disease.

LawHawkRFD said...

Tehachapi Tom: Obama, the EPA and the local green weenies are all making the same mistake regarding the Act. It does allow for protection of allegedly endangered species, but does not mandate it when the human costs are too high. Enviro-absolutists never read the part about the human costs. Just "save the lousy fish." If the species is not a major contributor to the ecosystem, and would be going extinct with or without the human activity, then the Act doesn't apply at all. That seems to be the case of the Delta smelt, which was facing extinction anyway. Lovers of pure evolution theory should be aware that most species that ever inhabited the earth went extinct long before man arrived on the scene.

rlaWTX said...

WTX oil folks are fighting the EPA about some dumb lizard... which most people around here think is also part of this administration's hate-ignorance-hate relationship with oil & gas based energy...

good luck to the appeal...

LawHawkRFD said...

rlaWTX: Even the spotted owl (which has turned out not to be endangered) serves a purpose in the ecosystem. Whether that's worth stopping development entirely is a matter for debate. But nobody can tell us what purpose the Delta smelt serves in the ecosystem, or why if they disappeared tomorrow anybody would notice. It sounds like your lizard is in the same category. The political agenda is superior to the law and the best interest of Americans. They've protected crop-eating slugs, road-hopping frogs, and in once case, flies.

All of those enforcements focused on the "endangered" species itself without giving any consideration to the mandatory weighing test that includes the human misery factor.

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