I recently returned from two weeks of trial in the federal district court in Fresno, on the validity of Endangered Species Act protections for salmon, steelhead, delta smelt, and other fish in California’s Bay-Delta estuary. The plaintiffs (Westlands Water District and other water users) had sought an emergency injunction to prevent implementation of the protections for endangered salmon and steelhead, but the Court denied their motion, concluding that the Plaintiffs had not demonstrated that they were likely to be able to prove that the biological opinion failed to use the best available science, and further concluding that the harm suffered by the commercial fishermen and the Winnemem Wintu Tribe who are defending the biological opinion, was “no less” than that suffered by agricultural communities in the Central Valley. The plaintiffs’ motions to prevent implementation of other protections for endangered species later this spring are still pending before the Court, with a ruling expected in the next several weeks.
What most impressed me at the hearing was the testimony of the government scientists (from NMFS, USFWS, and USBR) who had worked nights and weekends, toiling in near anonymity, to develop these plans to protect and sustain salmon and other endangered fish in the Delta, while attempting to minimize impacts on water supply. They went above and beyond legal requirements by subjecting their work to numerous independent peer reviews. The most recent of these peer reviews – now totaling at least five reviews by outside scientists, which have generally confirmed the analysis and conclusions of these biologists – was conducted by the prestigious National Research Council of the National Academy of Sciences, which concluded that the protections in the biological opinions generally were “scientifically justified.” They made personal sacrifices in order to be in court for a week or more, so that they could testify in Court about the need for these protections in the imperiled Bay-Delta estuary. They were cross examined for hours by many of the 25 or so lawyers for the water users who attended the trial – most of whom make ten times or more money than they do – and answered questions honestly and with humility. They squared off against experts who were paid up to $350 per hour for their testimony, one of whom will receive as much as $300,000 of ratepayer money for his testimony and work in these cases, far more than any of these government biologists. Despite these seemingly uneven odds, the Court at one point described hearing the testimony of the competing experts as a “prize fight. Because it was blow for blow.”
All too often we think of the federal government as a giant behemoth, populated by nameless, faceless bureaucrats. But this trial reminded me that government is made up of individuals, most of whom are working hard in service of the public – that would be you and me – and with very limited resources. They don’t make the big bucks. They don’t get their names in lights. But these agency biologists and scientists truly try to follow the law and do the right thing for the environment. And without their hard work – issuing permits to reduce air and water pollution, to protect endangered species and wildlife, to sustainably manage our fisheries and wild lands – America would be a heck of a lot worse off.
And that’s why I was so disappointed when lawyers for the plaintiffs accused these government scientists of acting in “bad faith,” of intentionally suppressing science in order to intentionally cause harm to the Plaintiffs, and of acting in concert with the “agency and academic research complex.” “Bad faith” occurs when political appointees personally profit from decisions that are supposed to be made in the public’s interest. “Bad faith” is when science and scientists are suppressed to achieve a more politically expedient result. Cases of bad faith and political interference in scientific decisions do occur, but these biological opinions are not such a case. Quite the opposite: these biological opinions have been reviewed by numerous scientific peer reviews, which have generally validated these endangered species protections. And there has been no evidence whatsoever presented in this case of political interference, of any data or studies that were ignored or suppressed. Such baseless allegations give the legal profession a bad name, and deservedly so in this case.
As an environmental advocate, I disagree frequently with positions taken by the government. Government employees hear my and others’ complaints constantly, and that won’t change. I will continue to advocate for changes to better protect the fish and wildlife in California's Bay-Delta, and to better manage and efficiently use our finite water resources. But I also deeply respect the integrity, hard work, and commitment of the men and women who serve as ecologists, biologists, and scientists for the federal government – for our government. And we simply don’t thank them enough for all of their hard work.
So to all of you, Happy Earth Day, and thank you for helping to protect our Nation's fisheries, public lands, and waters.