Henry Miller points out in “Let Them Drink Dust” that in scientific disputes spawned by the Endangered Species Act the government usually wins.
But not always. In litigation that has been playing out in California for the last four years, regulators have been so incompetent and dishonest in the federal (mis)management of the state’s water supplies that the courts ruled against them. The U.S. District Court has found repeatedly that federal regulators failed to perform the most rudimentary analysis before ordering massive cuts in water that have reduced California’s supplies by more than a third during the last three years. “This is evidence of [Fish and Wildlife Service] intransigence,” the court ruled in the most recent of these cases at the end of August. “The agency’s ‘lack of data’ apologetic is the premise for the agency to do what it
chooses.”In this instance, FWS was proposing to use 300,000 to 670,000 acre-feet of water to flush a handful of minnows called delta smelt a few miles farther west in the Sacramento-San Joaquin Delta. (The lower amount is enough water to meet all of San Francisco’s drinking water needs for nearly two years.)
Instead of being available to help California’s cities and farms recover from the ruinous combined effects of three years of drought and federal regulation, all of that water would simply have run out into the ocean, unconserved, unrecycled and unavailable for any other use.
Although the court can’t fully prohibit the FWS plan as it is part of a larger case that is currently on appeal, the damage will be reduced. But as the judge observed at the end of his opinion, “The agencies still ‘don’t get it.’ They continue to believe their ‘right to be mistaken’ excuses [the lack of] precise and competent scientific analysis for actions they know will wreak havoc on California’s water supply.”
Dr. Miller is on to something when he asks, “Why hasn’t anyone else in government or academia simply called a halt to this nonsense? The answer may be that careers are at stake — along with so many lucrative research grants and consultancies. Meanwhile, the feds are trying to enforce the Endangered Species Act from inside a hen house in a way that makes foxes of us all.”
