Recent court rulings on Delta fish protection measures threaten to open the floodgates for lawsuits to weaken rules protecting endangered species.
U.S. District Judge Oliver Wanger ruled in two Delta cases that pumping restrictions meant to protect endangered fish could be relaxed because federal scientists had not adequately justified them and because the government had not done separate studies on their effects.
The decisions cheered water agencies and property rights advocates but alarmed environmentalists.
"I think it's actually a brilliant opinion in that it finally says we have to look at the big picture here, and not that endangered species trump everything," said Roger Marzulla, a Washington, D.C., lawyer who frequently sues the federal government over endangered species rules. "Don't we have to take some other things into consideration here?"
Others question the logic of requiring scrutiny of species protection rules under a second environmental law.
"It doesn't make any sense to do environmental analysis on the back end when you're trying to help the environment," said Holly Doremus, a professor at UC Berkeley's Boalt Hall School of Law. "What he's saying is the agencies have to find absolutely the least burdensome way to save the species."
She said it would be impossible to pinpoint the knife's edge between saving species from extinction while not taking from farmers a single drop more than needed.
If the decisions stand, Marzulla and Doremus agreed on the likelihood of more lawsuits from others — including builders, farmers, ranchers or anyone else — affected by endangered species regulations.
Since the U.S. Supreme Court in 1978 ruled in favor of another fish — the snail darter, which was threatened by the Tennessee Valley Authority's plan to build a dam — the law has held that economic cost may not be balanced against the threat of extinction.
Wanger did not contradict that principle, but he said federal regulators lacked adequate scientific evidence for their Delta pumping restrictions.
And he said the government should have done an environmental impact study under the National Environmental Policy Act to look for alternatives and determine the impact on the "human environment." The Delta cases, Wanger ruled, are unlike the snail darter case because the regulations have affected human welfare by increasing unemployment, for example.
"It's not just economics. It's talking about health and welfare," said Brandon Middleton, a lawyer for the libertarian Pacific Legal Foundation.
Several government officials and lawyers said such studies are never done on endangered species rules, though they are often done on the projects on which the rules are applied.
Indeed, environmentalists for years have argued that Delta pumping itself needs such studies.
Wanger denied such a request in 2007, but later ruled in favor of environmentalists who said the federal pumping permits were linked to the decline of Delta smelt and salmon.
When he struck down those permits, the deadlines he set for federal agencies to complete new permits were almost certainly too short to complete the detailed environmental analyses.
But now he has ruled that because those analyses were not done, the pumping restrictions could be weakened.
Environmental lawyers said it was odd that one environmental law was being used to scrutinize and perhaps weaken the requirements of another — the Endangered Species Act.
The National Environmental Policy Act was meant to make sure agencies consider the environment when they make decisions, said Kate Poole, a lawyer for the Natural Resources Defense Council, which was involved in the cases.
"Here, the Endangered Species Act is an environmental protection statute. It doesn't seem to make sense to require (an impact analysis) on an action that is supposed to protect the environment," she said.
Wanger also criticized the scientific justification for the limits imposed in the permits.
In ruling that the federal water restrictions lacked sufficient scientific support, Wanger went further than a committee appointed by the National Academy of Sciences that studied the rules. It found them conceptually justified, even though it said more study was needed of the specific limits placed on the pumps.
Still, it said it found no better alternatives.
Doremus said the panel of scientists understood better the difficulty of getting the information to support the restrictions.
"I think it might be impossible," she said.
An official at one of the agencies that wrote one of the permits defended it.
"We're disappointed in his ruling and the injunction he provided," said Howard Brown, acting Central Valley office supervisor for the National Marine Fisheries Service. "We think the (restrictions) he ruled on were based on the best available science."
Contact Mike Taugher at 925-943-8257.