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Angry federal judge rips 'false testimony' of federal scientists

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A tough federal judge in Sacramento has become a folk hero of Central California citizens for protecting people and endangered species instead of putting the interests of either over the other.

In the process, U.S. District Judge Oliver Wanger made two huge splashes last week in what began as a water-supply war a decade ago, then grew into a convoluted endangered-fish war.

Today, it's a gigantic good science versus bad science war pitting California residents against a tiny fish and government officials diverting two years' worth of water for a large city or agricultural region and flushing it into the San Francisco Bay.

The flushing might help save the allegedly endangered 2-inch-long fish, the delta smelt.

So many lawsuits sparked by the conflict have landed on Wanger's desk, with so many plaintiffs and so many defendants, that he merged them into one and titled his rulings "The Consolidated [salmonid, delta smelt, or whatever] Cases."

In a searing opinion, Wanger ripped two Interior Department scientists for giving "false" and "incredible" testimony to support a "bad faith" delta smelt preservation plan.

The two scientists are Frederick V. Feyrer of the U.S. Bureau of Reclamation, and Jennifer M. Norris of the U.S. Fish and Wildlife Service.

Wanger also threw out huge chunks of the federal government's official "biological opinion" on five different species, calling the opinion, which is a guidance document for environmental regulators, "arbitrary, capricious, and unlawful."

Wanger has become a hero to millions of Californians thanks to his strict interpretation of the National Environmental Policy Act of 1969.

Section 1 of NEPA establishes policy. Section 2 describes penalties. Environmentalists focus solely on the latter, while ignoring the former, even though both are federal law.

Wanger says "the public policy underlying NEPA favors protecting the balance between humans and the environment," by, according to the first purpose listed in the statute, establishing "a national policy which will encourage productive and enjoyable harmony between man and his environment."

Environmentalists worship NEPA as "the environment's bill of rights" and focus almost entirely on the penalties it provides, while Wanger looks at the whole law.

In an earlier decision, for example, he excoriated the U.S. Fish and Wildlife Agency for its to-hell-with-people policy:

"Federal defendants completely abdicated their responsibility to consider reasonable alternatives that would not only protect the species, but would also minimize the adverse impact on humans and the human environment."

Craig Manson, general counsel of the vast Westlands Water District (and a former assistant secretary of the interior for fish and wildlife and parks), said of Wanger's ruling on the government's biological opinion:

"The court is again calling for sound science. The people who depend on water supplied by these projects, are entitled to the government's best efforts supported by the best available science. The recent rulings by the court give us the best opportunity in a decade or more to make real NEPA's policy of harmony between humans and their environment."

Brandon Middleton, a Pacific Legal Foundation attorney, said, "The court's willingness to recognize NEPA's policy of 'protecting the balance between humans and the environment' is refreshing. For decades, environmental groups have attempted to impose their viewpoint without any consideration for the human impacts of 'environmentalism at all costs.' "

After reading Wanger's opinion, Feyrer and Norris may need to consider new careers.

In a court transcript of last week's decision obtained by The Washington Examiner, Wanger wrote of Norris: "I find her testimony to be that of a zealot. ... The suggestion by Dr. Norris that the failure to implement [her plan], that that's going to end the delta smelt's existence on the face of our planet is false, it is outrageous, it is contradicted by her own testimony."

Feyrer got worse -- a ruling of "agency bad faith."

Isn't that a firing offense, even for a career civil servant? I asked Julie McDonald, former deputy assistant secretary of interior for fish and wildlife and parks.

"No, they don't get fired, they get promoted," McDonald said, citing the power of the federal "science cartel" to protect its rule over America's environmental regulations from people like Wanger.

Wanger, who has announced his retirement, has cut a larger-than-life figure ever since he was nominated for the federal bench in 1991 by President George H.W. Bush.

He's been called colorful, but I think red white and blue are the colors that fit him best.

Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.

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