html xmlns="" xml:lang="en" lang="en"> From the archives: Don't you worry. There'll be lots more tomorrow.

Friday, June 29, 2007

Don't you worry. There'll be lots more tomorrow.

For whose benefit do we set up the laws? Did anyone who set up the EPA back in the Nixon administration really envision a day when it would be a fish run vs. tens of thousands of farmers? And if so, did they think: "Of course we'll side with the fish."

I doubt it. And if they did, they were silly and misguided.

Another sentence where I start off agreeing with you. The Endangered Species Act is incredibly draconian. It stuns me when I stop to think about it. There is no economic balancing whatsoever in the Endangered Species Act and the breadth of its power is astounding. Fourteen hundred farmers1 versus attractive salmon is NOTHING to the Endangered Species Act. You can stop an almost completed dam with a little snail. You can shut off water to Los Angeles for an inch-long fish. The Endangered Species Act takes my breath away.

Did you know that the Endangered Species Act passed virtually unanimously? Yep. I can’t imagine how that happened. Did they not read it? Did they not think at all about what the words meant? Where they hypnotized? I am very sure that they didn’t mean what they voted on. They couldn’t have; it is too much. I don’t think they thought that anyone would side with the fish in a fish vs. farmers standoff. I don't know what they thought. I don’t think they were silly or misguided, but I do think they can’t have meant the law they actually passed.

Now we have an Endangered Species Act that requires turning off irrigation water when irrigating puts a fish species at risk of extinction. I bet the legislators who passed it never envisioned that.

But. The Endangered Species Act is the law of our country. Too extreme? Misguided? Silly? Maybe. I don’t think so, but it might be. Even if it is all of those, it is the law that our Congressional representatives passed. That is the law that Dick Cheney is sworn to uphold. If we are ruled by law, then the executive branch must uphold and obey the laws of our country when they are extreme (the Endangered Species Act) or annoying (no torture) or absolute (habeus corpus). It is wrong for Dick Cheney to do an end run about the Endangered Species Act2, whether you like the Act or not, whether you care about the outcome in the Klamath or not.

If the Bush Administration does not like the way the Endangered Species Act works, they can try to sway public opinion and get Congress to change it. That is totally fair game3. But while it is law, they must enforce it scrupulously and they must obey it. That is the basis for democracy. If our highest officials treat the law like a hassle they must dodge to reward political cronies and consolidate their power, and if they are not punished as every other person would be for disobeying the law, then we do not live in a democracy.

1The Klamath Project serves 1364 farms.4

2The end run that Cheney did around the ESA was to bring in an additional level of review because he did not like an agency decision created in accordance with the ESA. There is no process in the ESA for that. There is, in fact, an escape clause in the ESA for cases of extreme outcomes. A “God Squad” of federal Cabinet members can convene to evaluate the species and they can publicly determine any outcome they want. They can doom a species, if they choose. Those are the people and that is the way you can override a Biological Opinion if preserving a species would pose unacceptable costs on society. What you CANNOT do is use the power of your office to remind agency officials of your preferred outcome, solicit an group outside the agencies or the God Squad to review the biological opinion and grant that group more authority than any other public comment, have them evaluate a Biological Opinion that was created responsibly and whose predominant fault is that it didn’t give the outcome you like, then personally fly to the agency and bully the nation’s employees into agreeing with you and reversing their own research. That is not the process outlined in the ESA.

When the revised plan got to court it was overturned. The plan that reversed the original Biological Opinion did not comply with the ESA. But by then it was too late.

3That happens to be a dangerous game for American politicians. Reasonable law or no, the American public loves the Endangered Species Act. By a lot. Messing with it gets politicians thrown out of office. Sucks to be you, Pombo.

4See how I did that without saying how your anger interferes with your ability to count? But that that was understandable, because all people of your ilk are so motivated by self-righteousness and anger that being within an order of magnitude is beyond you?


Anonymous HC said...

No one wanted to vote against endangered fluffy mammals with big eyes, I suppose.

I'm still missing the end run, or at least where what we know about it was wrong. If the NAS had spontaneously generated the report that they did, I suspect we would say that their draft report was wrong, badly timed, and led to bad results... but would it have been odd, or inconsistent with the ESA, for the B.R. to revise its water plan based on the latest research? I am not familiar with their interal procedures or with the law, but the part where an agency uses an NAS report to formulate a new water plan isn't the part of this story that strikes me as odd or execrable. Should it be?

The NAS ultimately came down for increased flows, with the benefit of hindsight. But the draft report was against them. I have no idea about the science involved here, but how did he jigger that? Was the panel stacked? Are draft reports normally circulated and used, as this one was? Was the science in the draft an arguable point that turned out to be wrong, or something so crazy that the panel must have been tainted?

2:02 AM  
Blogger Megan said...

Dude, I should be long asleep. I'll try to say it again tomorrow and maybe then I'll bring in the Hatch Act, which says that you cannot use agencies for electioneering.

2:06 AM  
Blogger billo said...

No torture: annoying?

That is either brilliant sarcasm or-and I'll put on my affirmative kindness hat here-seriously messed up.

2:38 AM  
Anonymous HC said...

Ah, got it. It's the political motive you're focusing on. Sorry, thought there was some ESA procedural provision which was evaded, and wondered what it might be.

Hatch Act...
Title 5 s 7323 a1? The VP is explicitly exempt, so some theory of procurement or conspiracy w.r.t the bureaucrats?

Billo: I am betting sarcasm. Despite the ready availability of rubber hoses, very few civil servants go into to water work to beat on people.

6:27 AM  
Anonymous Francis said...

megan, you don't need to bring in the Hatch Act.

The federal government can always refer a matter to the NAS for its view. But what the NAS says is only advisory; the lead government agency must still use its own judgment on the matter.

Having done some more work on the issue (i've posted over at Volokh, but it's largely the same as what i've written here), here's my best guess as to what happened.

As required by the ESA, BuRec prepared a biological assessment (not opinion, very different thing) that justified substantially reduced flows.

Michael Kelly, a NMFS biologist, rejected the science in the b.a. and prepared reasonable and prudent alternatives that essentially kept flows at the same level. Under the ESA, the reasonable and prudent alternatives prepared as part of the bio. opinion must not cause jeopardy to the listed species.

Under pressure from Cheney, Kelly's superiors took the matters to the NAS. The NAS's interim report was non-commital.

Again overriding Kelly, NMFS senior officials took the non-commital report as supporting the original b.a. and allowing for substantially reduced flows in the summer.

The biological opinion prepared by NMFS was so irrational that when the government lost at the district court, it did not appeal. See PCFFA v. BuRec. 426 F3d 1082 (9th Cir. 2005). The environmentals appealed and, as best I can tell, won precisely on the issues that Kelly raised in his whistleblower action.

I have to reiterate the significance of the government's decision not to appeal the district court's ruling. In federal court, the government is always represented by the Department of Justice. So DOJ lawyers act as an independent review of the legality of the work done by NMFS, which has its own lawyers.

For DOJ to refuse to appeal an adverse district court ruling on the adequacy of a biological opinion is a HUGE slap in the face of NMFS and Cheney. It's simply unheard of.

11:07 AM  
Anonymous Francis said...

megan: minor technical correction.

The ESA specifically allows for the consideration of economic impacts in the designation of critical habitat.

For many years the critical habitat component of the ESA was irrelevant because the USFWS/NMFS treated the no jeopardy standard and the no adverse impact to critical habitat in the bio. opinion process as identical.

Those regulations were thrown out, and critical habitat designations now have real impact.

Just because I love this stuff, I'll explain.

The goal of the ESA is to recover species to the point where they can be delisted. See the bald eagle story.

The ESA does this in two parts. First, a species is listed as endangered. When USFWS/NMFS issues a bio. opinion on a federal action affecting a listed species, the agencies must find that the action does not cause jeopardy. (this is called the no jeopardy standard.)

Under the no jeopardy standard, USFWS/NMFS must hold the line on the listed species -- things cannot get worse.

Phase 2 is the designation of critical habitat. C.h. is the land needed by the listed species to grow a large enough population so that it can come off the list. As you might imagine, there is some flexibility in that determination -- if the species needs, say, 10,000 acres overall protected to delist, it may be the case that there is room to swap 1,000 acres over here for 1,000 acres over there. In this context ONLY, USFWS/NMFS can consider the economic impact of designating c.h.

Now, when USFWS/NMFS issues bio. opinions where the federal action affects critical habitat, the standard is much stricter. The federal action must not adversely affect the upward sloping trend line which will lead to the species being recovered and coming off the list.

(it took about 6 years of practicing law to understand that law and be able to write this comment.)

11:24 AM  
Blogger Megan said...


Awesome, thanks. The legal aspects are my weakest. I'm gonna put them off until over the weekend, and that is when I'll read through your comments carefully enough to understand them. But thank you for explaining that to us.

1:10 PM  
Anonymous HC said...

Seconded. Very nice to read, Francis.

10:21 PM  

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