Ninth Circuit's eco-forays are unconstitutional says dissenting judge

Seal of the United States Court of Appeals for...

Seal of the United States Court of Appeals for the Ninth Circuit. (Photo credit: Wikipedia)

Guest post by Alec Rawls

Gabrial Malor at Ace of Spades HQ pulls some choice excerpts from what he calls an “epic broadside” by Judge Milan Smith. After reviewing a number of cases where the Ninth Circuit has upended whole fields of economic activity with rulings that contradict both statutory requirements and executive rulemaking (imposing stormwater runoff regulations on logging roads that had been explicitly exempted from such regulation by the EPA, twisting water use statutes to parch California’s central valley in favor of Delta Smelt), the last paragraph of Smith’s dissent drops the hammer:

No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.

Our green-obsessed legislatures are plenty bad but at least their electoral accountability forces them to limit the damage. Green judges are apparently seeing this as a problem that they should correct. After all, isn’t the role of the courts to hold the legislative and executive branches to higher principles than their worldly natures incline to?

Yes, but only when the higher principles in question are those laid out in the Constitution. Green principles, found nowhere in the Constitution, are entirely for the “political branches” to embrace or renounce as they see fit, so long as the Constitution is not violated.

When judges impose their own political principles they are the ones who are violating the Constitution. Trusted to defend against tyranny, they instead become tyrants themselves.

Willie Soon, Edward Calabrese and the not-so-demon mercury

The case that occasions Judge Smith’s dissent involves minute amounts of mercury stirred up by small scale suction dredging for gold. Both elements are heavy so neither is going to be carried far by the current but some increase in water-borne mercury does result, which is claimed to present a risk to drinking water downstream.

The California department of Fish and Game wants to deregulate the industry (originally regulated to protect fish, which can be accomplished by seasonal restrictions). That brought in the eco-activists and the EPA, both demanding suffocation by green tape, and the Ninth Circuit finds a way to do their bidding, regardless of the law.

But on to the science. As Willie Soon discussed here Monday, mercury regulation is highly irrational, with regulators imposing huge costs to reduce human mercury emissions that are dwarfed by natural emissions. Lacking any evidence that natural levels of mercury exposure are harmful, there is no basis for thinking that our small additions are doing any harm.

Actually, we can go further and say that small increases in exposure to mercury are beneficial. This is due to the poorly understood but well documented phenomenon of “hormesis” whereby seemingly any substance that is harmful in higher doses will have a “hormetic range” where small enough doses will typically have a stimulative or prophylactic effect, presumably from the body gearing up to resist the assault.

The expert on this subject is Dr. Edward Calabrese from the University of Massachusetts who has revolutionized toxicology with his vast research on hormetic effects, but the regulators don’t want to hear it:

Regulators currently assume that toxins either always pose some risk at any level or that there’s a threshold below which toxins won’t cause health problems. But while these assumptions are used to regulate everything from mercury to pesticides, Calabrese argues that they just don’t reflect the paradoxical and sometimes beneficial effects seen at low doses in the lab. “The central pillar of toxicology is the dose response,” he says. “I’m telling them that they got the most fundamental aspect of their field wrong.”

Here is a link to one of Dr. Calabrese’s papers on the subject. If you are not familiar with the hormesis phenomenon it is well worth a look. The hormetic effects of mercury are particularly well studied thanks to the thimerosal scare. This study, for instance, found that low dose exposure to thimerosal from its use as a vaccine preservative actually lowers autism rates, much to the surprise of its authors. Calabrese’s response (linked below the abstract), clues them in to the mother lode they just suction-dredged a nugget from.

Demonization of mercury is one of the main weapons the EPA wields against CO2-producing fossil fuels. Mercury and Air Toxics Standards released by the EPA in December (also called MACT rules for the Maximum Achievable Control Technology criterion that the EPA applies) are right now forcing the retirement of many existing coal-electric plants, even though for the great majority of people current levels of exposure to Mercury are well into the hormetic range, meaning that mercury exposure from coal generation actually has significant net health benefits.

The EPA is unplugging the grid in order to make us less healthy, a lose-lose proposition. It’s just what the Bizarro-Earth eco-doctor ordered: “first do harm.” Wherever they manage to ensconce themselves the eco-religionists betray the established principles of their professions. In the government bureaucracy and in academia they jettison science fact in favor of eco-presumption, then in the courts they treat their eco-ideals as a higher standard to which the other branches are to be held. It’s models all the way down and thuggery all the way up.

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Sounds like common sense to me. Well said that judge.

The Ninth has the dubious distinction of having more of its decisions overturned by the Supreme Court than any other Court of Appeals — an 80% reversal rate. Rumor has it that the American Bar Association refers to it as the “Ninth Circus Court of Appeals”…

Curiousgeorge

“It’s models all the way down and thuggery all the way up.”
Hopefully that will all change in the next few months. Two things have to happen: Rio+20 needs to be a complete failure, and the Obama admin needs to be removed from power. Both are already on the ropes. Time for the knockout blow.

Steve Richards

Interesting but to say:
even though for the great majority of people current levels of exposure to Mercury are well into the hormetic range, meaning that mercury exposure from coal generation actually has significant net health benefits.
is quite a leap. “Significant health benefits” would indicate to me a whole pile of research pointing to this fact.

jack morrow

Nothing coming from this administration surprises anyone anymore. The EPA is out of control and the others too-especially the Justice dept. Maybe a big “broom” will sweep them out in Nov.

Andrew Greenfield

OT but this Walker win in WI…. does it have implications for AGW? It seems that in general people have had it with silly left wing spending, ideology etc… (Postee not leftist or right inclined)

polistra

“I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”
Boy, you’re 40 years late on that. Ship sailed in 1962, sank in 1973. Anyone who still respects the courts at this late date is hopelessly deluded or senile.

Alan Watt, CD (Certified Denialist), Level 7

Isn’t the 9th Circuit the court recently in the news for a big Hawaii annual conference?
Yes, as a matter of fact, it is. See here.
This will be the fourth time in the last ten years the court holds their annual conference in Hawaii. Apparently their passion for rule-making does not extend to rules about frugality with public money.

Coach Springer

I didn’t know about the work of Dr. Calabrese. Important stuff.
And yes, the rule of law is bad enough, but the rule of judges demands no judicial independence and does indeed cause despair of rule – by any means.

Michael Larkin

“Actually, we can go further and say that small increases in exposure to mercury are beneficial. This is due to the poorly understood but well documented phenomenon of “hormesis” whereby seemingly any substance that is harmful in higher doses will have a “hormetic range” where small enough doses will typically have a stimulative or prophylactic effect, presumably from the body gearing up to resist the assault.”
Hmm. So what about homeopathy? I believe also that radiation in small doses can be beneficial.

jlurtz

The reason for the “Carbon Tax” was to raise tax monies for broke governments. It is interesting that with the EPA rules, the EPA is terminating power plants that produce “Carbon”; and , therefore, reducing the “Tax Income” from the “Carbon Tax”.
Since the EPA is now causing a reduction in tax incomes to the governments, I would suggest that the EPA will be put on a very short leash. There will be a change by both the Courts [caused by the tax hungry government] and the other legislatures to repudiate the EPA’s efforts as being too extreme.
I would like to say that my comments are sarcasm, but we all know that any entity that affects tax incomes in a negative way will be crushed.
Obama gave reasons for why America is [became?] great. I would suggest that the reason American became great was the temporary elimination [1700-1900] of the Kings and Queens [government] of regulation, taxation, and oppressive religious rules.
Don’t worry, the rulers are back. This time with a world wide overreach. The methods are simple:
health care, EPA, global warming, carbon tax, etc. The bottom line is CONTROL under the guise of peace so that we don’t have a third world war.

DJ

How long have we been told that mercury in vaccines isn’t a health threat, that mercury in fillings (that coincidentally live in a perfect petri dish in your mouth) don’t pose a health threat, yet entire industries are brought to their knees on account of it?
While we’re focused here on the effect of judges on climate (money, in actuality), they also have far reaching influence on marriage, guns, health care, and privacy. That is why we should be fearful of a president “stacking the court” so as to have politically popular power in contrast to good constitutional interpretation.
Thank you, Alec, for posting this.

Caleb

You cannot legislate spirituality.
Even if the California judges had good ideas based on scientific fact and economic pragmatism, (which they don’t,) you cannot bully people into being good.
A great example is the example of Prohibition. It seemed we’d save money and all be more healthy if alcohol was illegal, and therefore even sipping hard cider became against the US constitution for a while. Did it improve our society? No. It made people disrespect the law. It made crooks prosper and hurt good people.
Such “unintended consequences” are especially seen among a Free People, however even in cultures ruled by brute force people find ways to slip around the laws. When certain Moslem cultures closed down all taverns, and punished anyone caught drinking very harshly, what occurred was that all the taverns were replaced by coffee shops, and men drank coffee that could melt your teeth. There are old writings where Ottoman clerics bewail the bad influence such coffee shops were having on society.
While we need some laws against things like murder, for the most part people become more spiritual when they are this thing called “happy.” And, while happiness is a very great mystery to us all, it is more likely to be seen among Free People than people who are bullied.

bruce

well done.

John

Be careful about using hormesis as your main line of attack on mercury regulations. It may apply in this case, it may apply in many other cases, but maybe not. There is a stronger line of attack.
Willie Soon’s article on Monday reviews the excellent research in the Seychelles Islands, where the women on the coast who eat fish have about 10 times the mercury in their bodies than does the average woman in the US. The EPA rejected these articles, and instead used other research, which was tainted, to come up with the notion that tiny increments of methylmercury, in women who have 10 times less mercury than those in the Seychelles, will harm the IQ of a growing fetus. If anyone wants to know why EPA’s favored research was tainted, ask, and I’ll post about it.
But let us assume that EPA is right, just for the sake of argument. How much harm would be alleviated by the 90% reduction in utility mercury emissions that EPA has ordered under the MACT rule?
EPA actually tells us the answer in their Regulatory Impact Analysis (RIA) for the MACT rule. The answer is that a grand total of 512 IQ points, across the country, distributed across 240,000 children, is gained for the $11 billion dollar rule. EPA calculates that this comes out to 2/1,000 of an IQ point per child. The valuation of the added 512 IQ points, based upon increased lifetime earnings, is between half a million and about six million dollars annually.
You can find these figures in this link:
http://www.epa.gov/ttn/ecas/regdata/RIAs/ToxicsRuleRIA.pdf
From page 5-2:
“The first analysis (Section 5.2.1) estimates benefits from avoided IQ loss under various regulatory scenarios for all recreational freshwater anglers in the 48 contiguous U.S. states. The average effect on individual avoided IQ loss in 2016 is 0.00209 IQ points, with total nationwide benefits estimated between $0.5 and $6.1 million.“
You might ask, how is it possible for EPA to say that there are massive benefits from this rule, if the reason the rule was promulgated — mainly reduction of mercury emissions — has such tiny benefits?
The answer is that when you reduce mercury, you also reduce emissions of sulfur dioxide, which turns into sulfates over hours and days. EPA claims that sulfate kills you — they’ve been claiming this for over two decades, starting from when there was almost no research on tiny airborne particles — and that each death, whether by days or months or years, is valued at about $9.5 million each.
Despite all you have heard for decades from the Sierra Club and EPA, sulfate is likely benign. It isn’t biologically active, which distinguishes sulfate from many other tiny particulates. A 39 page review article of all the toxicology of sulfates in 2003, by R Schlesinger and F Cassee, found no adverse impacts. That article is called: ATMOSPHERIC SECONDARY INORGANIC PARTICULATE MATTER: THE TOXICOLOGICAL PERSPECTIVE AS A BASIS FOR HEALTH EFFECTS RISK ASSESSMENT. It is behind a paywall at Inhalation Toxicology, unfortunately.

Owen in GA

I would think the ninth circuit would get tired of the US Supreme Court overturning their decisions and start using actual jurisprudence. Of all the appellate courts, the ninth is the most overturned. If I were a judge on one of the other circuits and a case came before me similar to one ruled on by the ninth, I would read their ruling so that I would know what not to argue in the decision. They occasionally get the low hanging fruit right (cases that probably should never have been brought to them in the first place – but some of the lower courts out there are worse.) People wonder why businesses are fleeing the west coast, rule of law might be part of it. Would you want to set up shop in an area where your legal costs are going to be through the roof because every litigation winds up at the Supreme Court?(after working through all the whacked out lower courts and getting bogus decisions – lawyers getting rich at every level).

ferdberple

All things in moderation.

Myrrh

Gosh, a judge said that..
How many of these judges actually know the Constitution? I only ask because Obama claims to be an expert, teaching it and all that, but doesn’t even understand it’s basic premise.
http://funreviews.net/uploads/1/obamapainting.jpg
from http://funreviews.net/publish/news_alerts/Painting_Portrays_Obama_Trashing_Constitution.php where you can order a copy
A couple of examples from
http://tucsoncitizen.com/morgue/2008/10/30/101091-thomas-obama-marx-and-trashing-the-constitution/
“A complete restructuring of society is what Obama advocated in a 2001 interview on a Chicago public radio station.
According to Politico.com, in that interview, Obama – “reflecting on the Warren Court’s successes and failures in helping to usher-in civil rights – said, ‘I think where it succeeded was to vest formal rights in previously dispossessed peoples.’ ”
He has it backward. The Creator already endowed African-American people with these rights, which is precisely the argument powerfully made by Martin Luther King Jr.
Any rights that are “vested” in people by other people may be removed by the same or future people. Endowed rights are “unalienable” and what America did was to finally recognize those rights.
The distinction is crucial ..”

“Obama thought the Warren Court should have “broken free” from the constraints placed on the Constitution and the courts by the Founding Fathers. This is remarkable hubris.
Obama said the Constitution mostly “says what the states can’t do to you . . . what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf.” That’s because the Constitution is about liberty and protecting citizens from oppressive and invasive government.
This is scary stuff. That it is only now surfacing is another reminder of the poor job the mainstream media have done in vetting Obama.”
This was written before the election – which Constitution did Obama swear to uphold, the real one or his own, the one someone must have taught him and which he then taught?
Obama doesn’t know the Constitution. How many judges do? There was a quote a while back from a judge saying the Constitution was whatever he ruled it to be.

Pittzer

But isn’t this a “dissenting opinion”? Meaning we lost the case to green judges? I’m happy to see at least one judge on the notoriously activist 9th circuit understands his role. However, it doesn’t amount to a hill of beans at this point.

David S

I doubt that mercury or arsenic or other toxins are beneficial at any level but on the other hand at very low exposures they are probably not harmful either.

Myrrh

http://bibowen.hubpages.com/hub/Hughes-Hubris
Hughes’ Hubris: Is the Constitution “What the Judges Say it is”?
“But any written document, like a contract, is subject to interpretation. So, how about the Constitution? How should it be interpreted? Former Chief Justice Charles Evans Hughes provides a modern answer to that question. Hughes once stated in a speech in 1907 that “we are under a Constitution, but the Constitution is what the judges say it is…” Today, though Hughes is dead, he leads the chorus of jurists and judicial activists that seek societal change and desire the sanction of the Constitution to do it.
Well, is Hughes right? Is the Constitution whatever the judges say it is? Does the Constitution have no meaning independent of the jurists who interpret it? If so, get ready because if the Supremes are the voice of the Constitution, then we no longer live under the rule of law—we have government by tribunal. If the Constitution is whatever the judges say it is, then they can make it say whatever they want. “Up” becomes “down” under Hughes’ constitution.”
“The Constitution has a meaning that is independent of the judges and attorneys who mull over it and that meaning is rooted in the historical intent of the drafters of the document. If the American people and their representatives believe that some features of the document are outdated or simply mistaken, then the people and their representatives can lawfully amend it. But let’s not have any amending via judicial decisions where justices make the Constitution say whatever they want it to say.”
Judges are not politically accountable, as Judge Milan Smith says, but surely they have then to be personally accountable?
That’s how it was under the old Brehon Law in Ireland – a judge was personally liable for his decision. If shown to be a bad decision he had to pay recompense for it.
“Those not so attached lived simply on the fees of their profession, and many eminent brehons became wealthy. The legal rules, as set forth in the Law Books, were commonly very complicated and mixed up with a variety of’ technical terms; and many forms had to be gone through and many circumstances taken into account, all legally essential: so that no outsider could hope to master their intricacies. The brehon had to be very careful; for he was himself liable for damages, besides forfeiting his fee, if he delivered a false or unjust judgement.”
From: http://www.alia.ie/tirnanog/sochis/iv.html
A judge making laws for an ideology which has wrecked thousands of peoples lives and destroyed industries … how much does he owe?

CO2 Skeptic
jeff 5778

Legislative authority was outsourced to regulators a long time ago. Both parties are guilty. Regulations can be passed without the scrutiny of the legislative process. Legislators can avoid guilt by blaming regulators while at the same time advocating that they keep their seat in order to keep an eye on the regulators. It’s a great game and we lose every time.

CO2 Skeptic
M Courtney

After the release of Methyl Mercury in Minimata the concern over Mercury contamination of water was clearly rational.
However, the dosage of mercury that causes harm is not so clear cut.
The reason for the ambiguity being the belief that mercury is concentrated an aqautic life until it is stored in fish fat. This is then eaten by people at high concentrations. Which is very bad, obviously.
Yet, despite the theory being taught in textbooks, I have seen no evidence that mercury does accumulate in fish.
Does anyone have the evidence?

Grey Lensman

If it was a dissenting voice, it means judgement went with the eco loons and no matter how powerful the dissent, it means nothing.
Allowing that this is a very difficult article to understand
As an aside , test message as nobody seems to be posting!

Matt Skaggs

To quote Gavin Schmidt, “hyperbole much?”

ferdberple

Water is toxic to the body in large volumes, and can kill if you drink too much. However, it is both beneficial and necessary in smaller volumes. The same is generally true of most substances. There is an optimum dose, above and below this dose the effect is harmful. Small amounts of UV radiation are beneficial. Large amounts will kill.
For example, food. Too much food and too little food both result in poor health and ultimately death. The body requires trace minerals. Without these the body develops cravings for food. Obesity can result from eating foods grow in mineral poor soils.
There is a growing body of evidence that allergies may be the result of super clean environments, that the body requires exposure to a moderately hostile environment. Otherwise, the body’s defenses turn inward, looking for something to attack. Auto-immune disease is one result.
Perfection is the enemy of good. The cost of producing a good environment is low. The cost of producing a perfect environment is astronomically high. In seeking to create a perfect environment we become slaves to the cost.
Where is the benefit in creating an environment that is so clean that improvement saves only 1 life, if thousands of lives are ruined in the process?

mrmethane

Smothered by green tape. Now part of my verbal arsenal, thank you!

You can’t help but feel that bureaucratic organisations like the EPA, are in effect drawing up green regulations, which in reality should have been the result of legislation but they know Congress would never pass such laws.
It’s government by an unelected body and it looks like the judiciary is beginning to put its foot down on it.
Pointman

Jim Clarke

“Ninth Circuit’s eco-forays are unconstitutional says dissenting judge”
Of course they are! Do we really need a dissenting judge to say it in order for us to realize it?
I heard a long term congressman admit (after his retirement) that most of the laws past by congress since the onset of the Great Depression are unconstitutional, or at least extra-constitutional.
Again…of course they are! Most of the laws have been rationalized with the “promote the general welfare” clause in the preamble to the Constitution. In order to do that, they needed to change the meaning of the word ‘promote’ to mean ‘provide’, and the word ‘general’ to mean ‘individual’ or ‘group’. In other words…the US government runs with the mandate to “provide the individual and group welfare”; a collectivist ideal that must have the Founding Fathers spinning in their graves! Politicians and judges, with the consent of the masses (who prefer free-stuff over free-dom), have made the constitution irrelevant, which will soon lead to the downfall of this nation.
Predicting climate change is very complicated. There is a lot that we don’t know. But we have many examples of how to destroy an economy, a nation and the spirit of the people. We know how that happens. The US, and the West in general, are certainly on that road.
Alan Caruba’s phrase: “The Earth is fine. Save yourself!” is becoming more poignant every day.

ferdberple

The sad part about this article is that the judge’s comments were the dissenting opinion. The majority opinion held otherwise. Bureaucrats, funded by taxpayer money, or increasingly by funds borrowed in the taxpayer’s name are ultimately driving the bus we are riding in, and they are immune to the damage caused by their actions, because the government cannot go out of business, no matter how poorly it is run.
The smaller the government, less bureaucrats making regulations, the lower the taxes, the better the economy functions. When things aren’t going well in business, you need to lay off workers. Why not apply this logic to government? When the economy is in the toilet, when government isn’t doing its job, cut the government. Lay off the public sector, cut costs, free up the economy and let people get back to work.

Louis Hooffstetter

It’s sad that in the 16th century Paracelcus knew more than these judges know today:
“Dose makes the poison.”

ferdberple

And for those who say you can’t cut government, that we need the public service, that is the “too big to fail” argument the banker’s and car makers used to get trillions from Obama when he was running for office.
Ronald Regan fired all the traffic controllers in the US. That got folk’s attention. Sun Tzu used a similar approach when he taught the emperor’s concubines to march. There is no such thing as “too big to fail”. History shows time and again how the mighty have fallen.

ferdberple

David S says:
June 6, 2012 at 6:43 am
I doubt that mercury or arsenic or other toxins are beneficial at any level
===========
Here is what wiki has to say about arsenic:
Medical use
During the 18th, 19th, and 20th centuries, a number of arsenic compounds have been used as medicines, including arsphenamine (by Paul Ehrlich) and arsenic trioxide (by Thomas Fowler). Arsphenamine as well as neosalvarsan was indicated for syphilis and trypanosomiasis, but has been superseded by modern antibiotics. Arsenic trioxide has been used in a variety of ways over the past 500 years, but most commonly in the treatment of cancer. The US Food and Drug Administration in 2000 approved this compound for the treatment of patients with acute promyelocytic leukemia that is resistant to ATRA.[42] It was also used as Fowler’s solution in psoriasis.[43] Recently new research has been done in locating tumours using arsenic-74 (a positron emitter). The advantages of using this isotope instead of the previously used iodine-124 is that the signal in the PET scan is clearer as the body tends to transport iodine to the thyroid gland producing a lot of noise.[44]
In subtoxic doses, soluble arsenic compounds act as stimulants, and were once popular in small doses as medicine by people in the mid-18th century.[9

Dr. Lurtz says:
June 6, 2012 at 5:43 am
Since the EPA is now causing a reduction in tax incomes to the governments, I would suggest that the EPA will be put on a very short leash. There will be a change by both the Courts [caused by the tax hungry government] and the other legislatures to repudiate the EPA’s efforts as being too extreme.

Sarcasm duly noted, Doc — but what taxes the EPA’s actions would reduce would be more than offset by the size of the fines they’re allowed to levy. I knew a horse breeder in Hopewell, NJ, who dropped a piece of concrete culvert into a drainage ditch on his property, then packed gravel between the sides of the ditch and the pipe to have a makeshift bridge as a shortcut between two of his paddocks. EPA hit him with a $20,000 fine for “interfering with a watercourse” and tacked on an additional $10,000 per day for every day the bridge remained in place.
The double-whammy was the inspector wrote him up on a Thursday, filed the paperwork that Friday, and served him with the notification on Monday afternoon. The breeder thus accrued $50,000 in fines before he was even aware the EPA had been snooping around.

Taphonomic

David S says:
“I doubt that mercury or arsenic or other toxins are beneficial at any level but on the other hand at very low exposures they are probably not harmful either.”
Allow me to disabuse you.
Selenium. A common constitiuent of multivitains which is essential for cellular function in trace amounts, but but toxic in large amounts.

Hoser

EPA have established regulations for mercury levels in water that are based on likely effects on sensitive species. Studies of plants, vertebrates, and invertebrates were used to establish the acute and chronic exposure levels allowed. These levels are not fixed, but also depend on the hardness of the water [1]. The concept is Ca2+ and Mg2+ can displace Hg2+ in sites of mercury biouptake in the body of organisms.
Judges have gone off the rails on water flow through the Delta as well. Native species have adapted to salt water invading the Delta durning low flow months of September and October after the snow has melted in the Sierra Nevada, so there is no runoff, and before the rain starts. The fact is, dams release water during the summer and already reduce the salinity of water in the Delta beyond natural flow levels in dry summer-fall months as shown by Kratzer and Shelton, Fig 5 [2]. The USGS recognize this effect as shown by Ingebritsen and Ikehara in a figure on page 92 [3], in which current and historical salinity comparisons are shown for wet and dry years.
The real problem with the Delta is it is no longer a natural structure, but has been re-engineered for over 100 years. It has already lost its biodiversity. It could be restored to historical condition, or it could be used as a water conveyance system, but probably not both. The policy imposed by judges is not based on good science, and requires us to waste water in violation of state law. We are supposed to maintain the “co-equal goals” of environment and water supply. That’s like air-conditioning your house with the windows open.
The Delta is an estuary, and naturally is brackish at times. Salt water used to intrude beyond Sacramento in the summer. It makes little sense to use the Delta as a water conveyance if we have to worry about non-native species or irrationally worry about the survival of native species clearly adapted already to life in a Delta having variable salinity. We need an alternate conveyance system to move water around the Delta to the pumps of the state and federal projects. It is not clear how much longer the 500,000 acres under cultivation in the Delta can be used. They are not sinking, but actually are decomposing. The peet soil is reverting to CO2 resulting in island elevation drops of at least 2.5 cm per year, and historically much higher [3].
Judicial intervention was supposedly necessary to save the native smelt, and other species. It protected the interests of Delta farmers and Southern California water consumers, but destroyed the economy in the west San Joaquin Valley. 300,000 acres of the Westlands Water District were sacrificed, including orchards that take years to grow. Water supply problems stemming from bad court rulings based on poor science continue to impact agriculture in California and harm our economy [4].
1) http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm
2) http://www.sjrdotmdl.org/concept_model/phys-chem_model/documents/300001211.pdf
3) http://pubs.usgs.gov/circ/circ1182/pdf/11Delta.pdf
4) http://westernfarmpress.com/irrigation/water-allowance-cut-choking-california-rebound

Doug Proctor

For the medical and eco-green fraterneties to accept the reality of “hormetic” effects would mean the review of ALL low-dosage regulations and ALL legal findings of wrong, including their financial assessments or penalties, that resulted from applying a “linear, no-threshold” principle (as explained on previous WUWT blogs).
If we thought the climate wars have been something, the Hormetic Effects wars would be Shock and Awe.
No saying I disagree, but just saying anyone who proposes a threshold of harm will be accused of determining the cost of a human life, of promoting genocide, of promoting Profits Over People, Big Business Over The Individual, of Evil Over Good.
But what a transformation we would have! This is one social revolution I could get behind. We’d even end up with a review of Spanking Your Child vs Letting Him Get Away With Murder.

ferdberple

Bill Tuttle says:
June 6, 2012 at 8:13 am
taxes the EPA’s actions would reduce would be more than offset by the size of the fines they’re allowed to levy.
========
Unless they are adding value, those fines represent money removed from the economy, and typically spend on less productive activities. Someone, somewhere will see reduced orders and thus reduced jobs. These reduced jobs mean fewer order and fewer jobs for other suppliers, which continues in a vicious circle.
Eventually the economy grinds to a halt as there is no incentive to do anything. Rather, there is a huge incentive to do nothing out of fear of attracting further fines. Eventually people give up and move, which is what happened in Europe where large portions of the the population left to travel to the “new world”.

ferdberple

Sodium and chlorine are both toxic, yet essential to humans. Many other toxic elements are used to make the human body. Without them we die.

John from CA

…and what do you do when the EPA intentionally seeks to con the public into thinking a regulation is about Mercury when it isn’t?
The Obama administration’s EPA is about to kill 180,000 to 215,000 jobs by 2015 with GDP losses totaling as much as $112 billion and with additional total household disposable income losses of as much as $71 billion to implement an EPA regulation that is already regulated by other parts of the Clean Air Act.
The EPA named the regulation “Mercury and Toxics Standards” but the regulation has nothing to do with reductions in mercury emissions. EPA admits the benefits of the rule are 99.996 percent related to particulate matter which is already regulated by other parts of the Clean Air Act. 
The economy doesn’t stand a chance with Obama and his administration but there is some hope that Congress will finally govern the EPA.
Talking Points from IECA
http://www.ieca-us.com/wp-content/uploads/Talking-Points_Inhofe-Resolution.pdf

Rob G.

Federal courts are supposed to look at the constitutionality of the rules, whether or not they are sweeping does not make it illegal. If any state wants to regulate whatever though proper democratic means satisfying the constitutional requirements, they should be allowed to do so. Of course 9 th circuit tend to be liberal in their rulings, but the Supreme Court itself (with a conservative majority) authorized EPA to regulate CO2 emissions, when the EPA under the Bush administration claimed they do not have the power.
Willie Soon is an astrophysicist, not an expert of mercury toxicity. Unlike the claim in this article, human mercury emissions are not dwarfed by natural emissions. Seychelles Islands study only shows that some nutrients in certain fish has more beneficial effects than the adverse effects of mercury – does not show mercury is harmless.
I guess subjecting people to VX, serin or hydrogen cyanide gas is a beneficial things under the hormesis theory.

pat

It is about time someone called these addled tyrants out. Being an appellate Judge does something to the minds that is not good. Not ever having to be held accountable, they assume a posture and attitude of self-righteous omniscience. They are easily influenced by praise and adulation, which the elite environmentalists plentifully provide when the ‘right’ decision is made.

Gail Combs

Myrrh says: @ June 6, 2012 at 6:45 am
….Well, is Hughes right? Is the Constitution whatever the judges say it is? Does the Constitution have no meaning independent of the jurists who interpret it? If so, get ready because if the Supremes are the voice of the Constitution, then we no longer live under the rule of law—we have government by tribunal. If the Constitution is whatever the judges say it is, then they can make it say whatever they want. “Up” becomes “down” under Hughes’ constitution.” …..
___________________________________
Myrrh the Constitution and the Rule of Law went out the window when President Franklin Roosevelt proposed the infamous “court-packing” scheme when the Supreme Court was declaring much of the New Deal unconstitutional. Soon after his court-packing scheme went down to defeat, Justice Roberts voted with the other side in the watershed case of West Coast Hotel vs. Parrish in 1937. that case upholds the constitutionality of minimum wage interfering with the rights of contract law.
Even PBS says The attempt to influence the Supreme Court was one of the worst episodes of Roosevelt’s presidential career. For the first time since his election, FDR had been publicly humiliated… Still FDR managed to “Pack the Court” anyway. During his twelve years in office, President Franklin D. Roosevelt appointed eight new members of the Supreme Court. Roosevelt appointee William O. Douglas did not retire til 1975 so FDR’s “Court Packing has had a LONG reach. By 1942 when another critical case, Wickard v. Filburn came before the Supreme Court, FDR had already appointed seven of the eight new members. link
Wickard v. Filburn is the case that has given the US government so much more power. Power NOT given in the Actual Constitution.

Roscoe Filburn… exceeded his acreage allotment for that planting season under the Agricultural Adjustment Act of 1938….Mr. Filburn challenged the penalty, and the entire Agricultural Adjustment Act, as a violation of the constitutional limits on Congress’s power to regulate interstate commerce.
In a landmark decision styled Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court rejected Mr. Filburn’s challenge and upheld the Agricultural Adjustment Act. Wheat grown on the Filburn farm, though consumed on the premises and never shipped out of state, sufficiently affected the national economy to permit federal regulation of Mr. Filburn’s crop and that of millions of other similarly situated farmers. For detailed analysis of the Filburn decision and its contemporary significance, see Jim Chen, Filburn’s Legacy, 52 Emory L.J. 1719 (2003), and Jim Chen, The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce, in Constitutional Law Stories (Michael C. Dorf ed., 2d ed., Foundation Press, forthcoming 2009)….
http://www.law.louisville.edu/constitution-day/gallery/roscoe-filburn

This is the critical case that allow the federal government to regulate what you do in your own home.

Filburn’s Legacy
Jim Chen University of Louisville – Louis D. Brandeis School of Law
Abstract:
Wickard v. Filburn, 317 U.S. 111 (1942), represented a pivotal moment in the Supreme Court’s effort to determine the scope of Congress’s power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Together with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and United States v. Darby, 312 U.S. 100 (1941), Filburn is widely thought to have marked a turning point in commerce clause jurisprudence. Under Chief Justice William Rehnquist, the Supreme Court severely undermined what had been regarded as the post-New Deal consensus on the scope of Congress’s commerce power. This reconsideration of commerce clause doctrine warrants careful reexamination of Wickard v. Filburn….
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901026

Luther Wu

Even though he Ninth Circuit Court’s rulings have no direct bearing on the good folks here in Oklahoma, that court’s rulings have added greatly to our state by sending us many ambitious and hard working folks who possess a love of liberty and have found a home here among like- minded people.
So, Thank you Ninth Circuit– keep destroying the fortunes and spirit of those in your bailiwick as you codify your socialist dreams of utopia- your best and brightest are deserting you and we welcome them with open arms.

Rob Potter

Although I am sceptical of the concept of “hormesis”, (given that what I have read does not lend itself to falsification for the most part), it is accepted biochemistry that nearly all metals are both required as co-factors for enzymes (and thus needed as minerals) and are toxic at higher levels.
Using metals in treatments (referred to above) is usually taking advantage of the toxic-level effects, but targeting specific cells. Cancer and psoriasis treatments fall into this category, as do using elemental metals as antibacterial or anti-fungal agents. Care should be taken in quoting these uses to support level of environmental exposure, however, as they are designed for short term use.
Most issues with regulatory agencies setting levels are as a result of two factors. The first is the development of assays and equipment that can detect metals or other “toxic” compounds at extremely low doses, thus contributing to the mis-perception that levels are rising either in the environment or in the human body.
The second is the requirement for the developer of a new product to secure a market share for their product. We have run out of superlatives for something being better, so now the most effective form of marketing is to scare the target audience about competing products. As soon as a manufacturer begins marketing a product with “no added XYZ” there is an implicit assumption that the competing product both has XYZ added and that XYZ is bad for you. All it then takes is some astro-turfing to create a “consumer organization” to raise concern over levels of XYZ and suddenly not only is there market demand for “no added XYZ”, but regulatory agencies can show how responsive they are by lowering permitted levels.
Call me cynical, but I have seen this work too many times to believe it is an accident.

Alcheson

Excellent article. And let’s not forget, the Obama administration and the EPA, while forcing the closing of coal fired powerplants, supposedly to reduce the already extremely low levels of environmental mercury, is forcing all of us to get rid of incandescent and install mercury filled fluorescent light bulbs in our homes. I would say this proves that its NOT about lowering mercury levels in the environment as to why the EPA is forcing the closing of the power plants,

Jim Clarke

Ferd Berble…I loved your comments, particularly:
“Perfection is the enemy of good. The cost of producing a good environment is low. The cost of producing a perfect environment is astronomically high. In seeking to create a perfect environment we become slaves to the cost.
Where is the benefit in creating an environment that is so clean that improvement saves only 1 life, if thousands of lives are ruined in the process?”
Indeed! Often in the attempt to create that perfect environment which may save one life, society not only ruins many other lives, but actually can inadvertently kill many others. Since the deaths are not DIRECTLY related to societies actions, they are not counted. DDT is the primary example. DDT can dramatically curb deaths from malaria, but Europe will not purchase food from countries that allow DDT to be used. The people there have a choice: prevent malaria or sell their food and make a living. They can’t do both. Either way they suffer and die. In the meantime, there has never been a case of even one death or illness from small amounts DDT on food.
The EPA goes to absurd levels trying to connect the actions of others to illness and death, but feel no obligation to look at the great harm their own actions have on people. I am quite sure the EPA has ’caused’ far more deaths than sulfate particles, DDT and CO2 combined!

Rob Potter says:
June 6, 2012 at 8:46 am
Although I am sceptical of the concept of “hormesis”, (given that what I have read does not lend itself to falsification for the most part), it is accepted biochemistry that nearly all metals are both required as co-factors for enzymes (and thus needed as minerals) and are toxic at higher levels.

My yuppie neighbor-across-the-street hasn’t spoken to me since I casually mentioned there’s a higher level of arsenic in his bottle of imported mineral water than the EPA allows in his tap water.
Win-win situation.