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Federal Judge denounces phony viro science -

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From the Washington Examiner:

Judge questions honesty of Interior Department scientists

Examiner Editorial 09/22/11

U.S. District Court judges aren't known for using inflammatory language in deciding the weighty issues that come before them on the federal bench. So it was remarkable to read the scorching indictment of a federal environmental agency and two of its scientists last week by Judge Oliver W. Wanger. (See also Washington Examiner Columnist Ron Arnold's detailed look at the case on Page 30. [next post]) The case concerns how the government should manage California water supplies and at the same time seek to preserve the delta smelt, an allegedly endangered species of minnow-like fish.

Big Green environmentalists claim the delta smelt is threatened with extinction by diversion of water from the San Joaquin and Sacramento rivers to supply farms in California's Central Valley and cities in Southern California. Those diversions are handled by the Central Valley Project, a Depression-era federal water project designed to move water from California's northern area to its arid southern region. The issue before Wanger was where Department of Interior officials should set boundaries between the fresher water of the rivers the fish prefer and the saltier waters from the San Francisco Bay. The 2-inch-long fish mainly breeds in marshy estuary areas where the fresh and salt water mix.

By diverting more fresh water for the delta smelt, federal officials reduce the amount available for people on farms and in cities. California's Central Valley was long among the nation's richest agricultural areas, producing fruits and vegetables shipped to grocery shelves across the country. Increased water diversion under President Obama and Interior Secretary Kenneth Salazar, however, has wreaked Depression-like economic havoc on the region, costing thousands of jobs, increasing food prices nationwide, and destroying a way of life for many California farm families. Unemployment in some areas of the valley has reached 40 percent.

Wanger was angered by testimony from the two scientists, Frederick V. Feyrer and Jennifer M. Norris, that he said was "false," "contradictory" and "misleading." He accused the Interior Department of "bad faith" in providing the two scientists as experts, and claimed their testimony was "an attempt to mislead and to deceive the court into accepting not only what is not the best science, it's not science." An Interior Department spokesman defended Norris and Feyrer, telling the New York Times that "we stand behind the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science."

Wanger and the Interior Department scientists cannot both be right. The judge's assessment of their testimony and his conclusion about the agency's conduct in the case raise profoundly serious questions about the integrity and honesty of all the federal officials involved in the delta smelt case. And if the judge is correct in that case, taxpayers should be wondering whether other government scientists have given impeachable testimony on behalf of questionable federal environmental policies.

Rep. Devin Nunes, R-Calif., who represents a large portion of the Central Valley, is right to call for a congressional investigation "into the actions of Secretary Salazar and others at Interior in relation to California water policy. The recent U.S. District Court ruling, citing illegal actions and abuse of power on the part of Interior, must be addressed."

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Washington Examiner:

Angry federal judge rips 'false testimony' of federal scientists

By: Ron Arnold 09/22/11

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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Good for this honest judge, whose job it is to interpret and apply received law, but the premise that the gov't has the right and obligation to defend the environment against individuals, rather than individuals against the deleterious actions of other individuals grants the epistemological premise that "The Environment" has intrinsic rights, that the delta smelt, for example, has rights that trump the property rights of thousands of Central Valley farmers (or even one). That is nonsense and the next law that comes out of the rancid pen of the Left will erase this alleged gain. If you have traveled through the Valley of Death that is the California Central Valley since those rulings, you will see an atrocity. It was once a bountiful producer of an array of crops and is now a desolate wasteland for miles of blackened sticks that once were orchards and dead brown grasses that were once fields of grain. And beyond the entire towns and farmers who lost their livelihoods, just for irony, how many insects and birds and chipmunks and lizards and snakes have died, now bereft of food and shelter, to preserve this "endangered species"?

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The role of ESA has always been to use an "endangered species" as a surrogate to preserve entire "ecosystems" devoid of human interference. The viros don't care about individual species, they want control of the whole "habitat" and have been trying to expand ESA to give it to them more directly so they don't have to work so hard with the surrogate ploy.

Even the viros were surprised that they got a law as extreme as ESA through Congress, but it has been politically impossible to get rid of it. In the 1990s a serious attempt to at least roll it back was sabotoged by Gingrich.

The provision in law relied on by the judge in this case is in NEPA, the National Environmental Policy Act, in which a requirement was inserted to at least require a "balance" between humans and other species. It suffers the same invalid premise, and in practice has been largely ignored by Federal agencies, revealing that viros don't even want a "balance". Living in "balance with nature" to them means subordinating human interests to nature in maybe surviving but at most minimizing our "footprint". At least the provision in NEPA requiring consideration of human "socio-economic" factors flushes out the viros for what they are when they try to avoid even that. But hardly anyone in the general population realizes that any of this is going on.

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