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
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
In a searing opinion, Wanger ripped two
Interior Department scientists for giving "false" and
"incredible" testimony to support a "bad faith" delta smelt
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
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
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
In an earlier decision, for example, he
excoriated the U.S. Fish and Wildlife Agency for its
"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
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
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
"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.
Ron Arnold is executive vice president of the Center for the
Defense of Free Enterprise.