The Trump administration announced on October 22 that it will be dispensing with environmental regulations currently in place to protect several species of endangered California fish. The decision comes in the wake of a new report from the U.S. Department of the Interior (DOI). Based on the recommendations of this report, which claims that the current regulations are unnecessary, the administration plans to divert water from the fishes’ habitat to California farmland.
The DOI report, which claims that the diversion of water would not harm the protected species, contradicts a report drafted in June by federal scientists. The June report found that lifting the current protections would jeopardize the species’ ecosystem and survival, and urged the administration to uphold the environmental standards currently in place. Shortly after it was submitted, however, the draft was pulled and new scientists were assigned to create a revised report. Though the regional fish and wildlife director who assembled the new team claimed that the report needed revision because of “a lot of new information coming into the mix,” many were skeptical. Doug Obegi, a director for the National Resources Defense Council (NDRC), wrote that “the best available science . . . indicates that stronger protections are needed to prevent the extinction of our native fish and wildlife,” a sentiment shared by many environmentalists when the initial draft was pulled.
The current regulations were put in place in 2010 when the delta smelt and several species of California salmon were classified as endangered. The lack of water flowing through the fishes’ habitats was identified as a cause of their declining populations, threatening their survival as well as the survival of nearby whales and birds, and increasing the risk of toxic algae.
Both drafts were composed as part of a greater push to reexamine the current regulations beginning in August 2017. The reexamination efforts were spearheaded by David Burnhardt, then Deputy Secretary of the DOI. Prior to joining the Trump administration in 2017, Burnhardt worked as a lobbyist for Westlands Water District, an organization of California farmers whose lands would receive much of the water currently diverted to the fish’s habitats if the environmental regulations were relaxed. While lobbying for this organization, Burnhardt advocated for their weakening; his firm received $1.3 million for its efforts from Westlands over the course of five years.
Though Burnhardt’s involvement in the reexamination of these environmental protections was cleared verbally by an ethics attorney for the DOI, Burhardt’s conduct has been questioned by eight democratic senators and four government ethics groups. Their skepticism prompted an investigation to determine if this involvement, among other actions, violated the “revolving-door policies” that prohibit former lobbyists who enter the government to make policies that benefit their former clients.
Whether or not the water will ultimately be diverted from the fish in January depends, in part, on the reaction of California Governor Gavin Newsom. In the past, Newsom has supported environmental conservation and has not shied away from confrontations with the Trump administration. As of September 2019, the state of California had filed “59 lawsuits against the federal government since [President Donald] Trump took office.” Many of these cases, including a suit responding to Trump’s attempt at preventing California from setting its own vehicle pollution limits, have centered around Trump’s undermining California’s environmental standards, which are more substantive than those required federally. Newsom recently denounced Trump at the UN Climate Action Summit in New York, publicly stating that he was “absolutely humiliated” by the president’s approach to environmental issues.
Despite Newsom’s record of opposition to attempts to weaken California’s environmental regulations, it is unclear whether Newsom plans to oppose the administration on this issue. Though California’s electorate is overwhelmingly liberal (just 31 percent voted for Trump in the 2016 election and only 29 percent plan to support him in 2020) and generally supportive of Newsom’s resistance to the administration, he faces pressure to accept the proposed changes from Westlands Water District and other influential farming and water organizations who would benefit from the weakened regulations. In September, he vetoed a bill put forth by the state senate that would have preserved the protections for fish even if they were rolled back federally (in anticipation of the Trump administration’s move). Newsom claimed that this bill was not necessary as, in the past, California has been able to successfully challenge similar attempts alternatively, namely through lawsuits. However, Annie Nothoff, a director for the National Resources Defense Council (NDRC), was puzzled by Newsom’s stated reasoning: “Citing California’s record of ‘deploying all the tools at the state’s disposal,’ Governor Newsom just refused to employ a new potentially powerful tool . . . That’s mystifying.”
As Newsom’s explanation is not entirely convincing, it seems possible that his decision to veto this bill was motivated by uncertainty about the best course of action. The proposed diversion of water would help alleviate California’s drought in the short term, a problem that the governor cannot entirely ignore. However, it seems likely that Newsom will, as his explanation for his veto implied, support efforts to challenge the Trump administration’s move legally, and simply did not want to block it legislatively before the fact. Newsom is gambling on the success of a legal challenge. NRDC director Doug Obegi seems confident that the environmental protections will be upheld in court, claiming “given the level of political interference and the junk science that has been used . . . it would be very unsurprising if these were not challenged and eventually overturned in court.” If Newsom is similarly confident, he may simply prefer to wait for the proposed changes to be challenged in court, demonstrating that upholding these environmental regulations is not a partisan preference, but is legally required to avoid alienating the water agencies and farming organizations.
Eleanor Wachtel is a Contributing Writer for the Gate. The image for this article is licensed under the Creative Commons Attribution 2.0 Generic. The photographer was NCinDC. The original image can be found here.