“Providing drainage services” to where?
Why all the hand wringing over news that Judge Wanger, in his new career as attorney Wanger, will be representing Westlands Water District?
First, so what? Second, is it really a surprise, especially after his final, September ruling/rant? The case he is involved in is an important one, and a similar thematic of the relationship between shifting ideological winds, fact and science is likely to play out in it.
As we know from Judge Wanger’s last rulings, lots of science is, like a Jackson Pollock painting, open to too much interpretation.
Attorney Wanger will be representing WWD in a case against Westlands that asserts the district should be treated as a polluter, and therefore be required to obtain a state waste water discharge permit.
That Westlands’ soil leeches toxic salts that kill living things is not in dispute. What is in dispute is whether (ethically, ideologically, fiscally) the government should provide a “service” to deal with this privately produced pollution or - depending on your point of view - simply whether it is a matter of legal record that the government agreed to do this.
I suppose a secondary (perhaps even primary) question is whether the government can require the polluter to pay (through toxic discharge permitting fees) for the right to access this service.
Here are a string of comments exchanged between Mike Wade and others at Mr Carter’s blog - that gives a pretty clear sense of the chicken or the egg argumentation likely to be heard at the trail.
Which gets me back to Judge Wanger. And the likely logic of his WWD defense. This is not a question of overly speculative science about the degree of environmental harm Westlands toxic runoff produces. Stipulated - Westlands is toxic - but that’s not the issue.
What is at issue is what Mr Wade refers to in the comments string - the history of a promise made during the negotiation of the Central Valley Project Improvement Act (CVPIA) - that the government, that generally evil regulatory body of lying scientists and overzealous treehuggers, agreed to “provide drainage services” (aka: build a drainage infrastructure) to capture toxic drainage water discharged from the lands of a small group of private landowners.
Gotta love a euphemism that can make agreeing to create a very large and expensive government-built infrastructure sound like hiring a plumber to clear a clogged pipe.
But as anonymous asked at Mr Carter’s blog: A drain to where? The answer to that simple question lies in the legal geography where navigating facts becomes confusing, ideological, baseless and finally, Not My Problem.
I have a few basic public policy and engineering questions about this infrastructure:
Will this system be the agricultural (that is, the very horizontally extensive) equivalent of a mine’s tailings pond or dairy farm’s manure basin? If so, what are the precedents for things like mine tailing ponds or dairy farm manure capture basins, the products of private industry, being paid for by the government? Is it anticipated that the system will include water purification to remove the toxic salts before sending the water on its way north to the Delta or migrating birds die on its surface? If not, will the toxic water be stored and separated from the ecosystem indefinitely, like a Yucca Mountain for toxic drainage water?
From what I can infer from Mike Wade’s position, ex-Judge Wanger will likely argue that Yes, the government is contractually obligated to build this infrastructure, and therefore they are the appropriate body to answer these sorts of questions, and besides, are irrelevant to this case, and not the obligation of my client to answer.
Because they agreed to “provide drainage services” to Westlands in a legally binding contract. That’s all that matters.
What it costs and how to engineer it is the government’s problem, not the landowners’. As Kevin Bacon, aka Capt. Jack Ross, once said, “[t]hese are the facts of the case, and they are not in dispute.” What is, perhaps, is whether WWD will have to pay to use a government service, and if so, how much.
And once that’s determined, determining whether it makes more sense to buy out the WWD landowners than it does to indefinitely pay for lawyers to haggle, engineers to design, and remediation infrastructures to (possibly) correct an error in judgment made decades ago.