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Acting fishy

Science | Judge has harsh words for government scientists over handling of delta smelt case

Issue: "Beyond the body count," Nov. 5, 2011

Before retiring from the bench on Sept. 30, U.S. District Judge Oliver Wanger, who has spent years presiding over a water-rights dispute in California, took a few moments to tongue-lash a couple of government biologists. At issue was whether the government's limits on the amount of fresh water withdrawn from the Sacramento-San Joaquin River Delta were necessary to protect native fish.

"I have never seen anything like what has been placed before this court by these two witnesses," said Wanger, referring to Frederick Feyrer and Jennifer Norris, both Interior Department officials who had argued an endangered fish, the delta smelt, needed a certain amount of fresh water from the two California rivers in order to survive. The judge determined they were being selective with their facts in their attempt to expand the fish's habitat.

"The only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science."

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Wanger's final rulings didn't resolve the longstanding dispute over the amount of water pumped to Central Valley and Southern California customers, but he did determine that federal officials should rewrite their plan for protecting delta fish species.

What gave Wanger's rebuke to the two scientists special force was his reputation as a non-activist judge. Throughout two decades in a Fresno courtroom, Wanger has ruled on multiple water-rights cases, taking a strict interpretation of the law and handing victories both to environmentalists and to farmers and other water interests. He has ruled that water pumping threatens fish in the delta, but has also determined that environmental decisions should take the needs of humans into consideration.

The independent thinking comes at a price, he told reporters: "At this point, I have no friends in California. That's the fact."

Ozone squabble

By Daniel James Devine

The Obama administration is facing a lawsuit from groups that would be his allies in most circumstances. The American Lung Association, the Natural Resources Defense Council, Earthjustice, and two other environmental organizations sued because the president rejected the EPA's new air standard for ozone. President Obama said the standard would cost businesses too much, and asked the agency to do more research and report back in 2013.

The EPA had proposed lowering the legal amount of ground-level ozone to a maximum of 70 parts per billion, slightly less than the current standard of 75 parts per billion established by George W. Bush. Compliance could cost industries $25 billion a year because, as the EPA admits, achieving the low standard would require "unknown, future technologies" that haven't been invented yet.

Those costs could exceed the savings the agency predicts will result from thousands fewer heart attacks and respiratory diseases. But Andrew Grossman, a fellow at the Heritage Foundation, told me those health benefits are speculative. Some are based on two studies from which the EPA drew different conclusions than the study authors, and others are based on slight reductions in airborne particles: "When they're merely estimating benefits ... they're willing to make calculations that really couldn't stand up to the light of day in a court of law."

Daniel James Devine
Daniel James Devine

Daniel is a reporter for WORLD who covers science, technology, and other topics in the Midwest from his home base in Indiana. Follow Daniel on Twitter @DanJamDevine.

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