By Dr. Henry Miller
From Forbes Magazine - Wednesday, Sept. 14, 2011
In any scientific dispute spawned by the Endangered Species Act, the government almost always wins. Even if persuasive scientific evidence shows that federal environmental regulators are wrong or that they ignored all the facts that didn’t fit their preconceptions, the courts routinely defer to them.
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.” (As the principal federal partner responsible for administering the Endangered Species Act (ESA), the Fish and Wildlife Service (FWS) has primary responsibility for recovering and conserving imperiled plant and animal species.)
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. In 2009 this loss of tens of billions of gallons of water left hundreds of thousands of acres of farmland barren and forced cities in Southern California to ration their supplies. The drought is over now, but under federal rules, the more it rains the more water gets wasted by release into the ocean.
According to the court, by bypassing NEPA (the National Environmental Policy Act) the federal fish agencies “completely abdicated their responsibility to consider reasonable alternatives to the [proposed] action that would not only protect the species, but would also minimize the adverse impact on humans and the human environment. The result is the issuance and implementation of a one-sided, single purpose [action] that inflicts drastic consequences on California water users, a situation NEPA prohibits.” (NEPA requires that federal agencies consider the environmental impact – construed broadly – of any “major action” they take.)
The court found the regulators’ fundamental error: “There is essentially no biological evidence to support” this massive waste of water. And the feds knew it. The proposed action had been criticized as lacking any clear scientific basis by the National Research Council (the research arm of the National Academy of Sciences), by the federal government’s own independent review panel, and by numerous senior scientists who had studied the issue. The “biological opinion” – a sort of regulatory directive — which includes this massive water release had already been rejected by the district court as “shoddy science’ which is “arbitrary and capricious” in its misapplication of science.
Yet FWS was undeterred. Its idea was to move the point at which salt and fresh water mix in the Sacramento-San Joaquin Delta to a place that they opined was ideal for the smelt. But the scientific evidence shows that the smelt exist at many different salinity levels. Rather than clustering at one point, they range over 24 miles of the delta. In fact, the feds were forced to admit in court that their analysis failed to include 60% of the smelt population that is in an area that would be completely unaffected by the proposed action.
No one has been able to demonstrate that the location of this mixing point has anything to do with the abundance of smelt. The National Research Council found that the fish agencies’ claims on this score were “poor and sometimes confounding.” Even when the feds brought together a review panel and cherry picked the data by refusing to provide the evidence that questioned FWS’ proposal, the panelists nevertheless complained that the government’s plan was “woefully deficient.”
The principal proponent of the smelt plan is a federal biologist who supported his claim with a chart that used one data set on both axes. When you compare something to itself you find correspondence. Duh! But as more competent scientists pointed out, it is “meaningless.” The same guy had also once produced a model of the smelt’s life cycle to support his theory, but it was withdrawn because of what he called a “practical complication.” And what was that complication? As he admitted on the witness stand, it showed that 54% of the time the application of these massive water releases would produce “negative abundance” — that is, it would kill the smelt, not help them. In the end, the court concluded euphemistically that his “credibility is called into question” and “his scientific objectivity is compromised by inconsistency.”
But the 3-inch-long smelts, which nobody eats and which have no commercial value, are not really the issue. They are just a pretext for the federal bureaucrats and their academic and environmental allies to attack a water system they blame for all the woes of the delta. Together they have been managing the decline of that estuary for decades, and as one of the attorneys in the most recent case quipped, “No other experts need apply.” Their objective, according to one of the academic high priests of the smelt cult, is to persuade people to get over our addiction to water. Where is the outrage at this sort of arrogance and idiocy?
This situation stinks like a dead smelt. The public water agencies responsible for serving two-thirds of California’s inhabitants shouldn’t have to go to court to protect the public from federal irresponsibility. Fortunately, case by case, science and the public interest have been pushing back against ideology. The academic defenders of the blame-the-thirsty faith have denounced this process as “combat science.” People who think Galileo was right would call it telling truth to power.
Because the FWS plan is part of an earlier case that is currently on appeal, the court couldn’t prohibit it altogether. At least the damage will be severely 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.”
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.
Henry I. Miller, a physician and molecular biologist, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at the Hoover Institution and a fellow at the Competitive Enterprise Institute. He was the founding director of the Office of Biotechnology at the FDA.