Today, Congressman John Garamendi, a longtime opponent of the California WaterFix who served as Deputy Secretary of the Interior under President Bill Clinton, critiqued language in the Fiscal Year 2019 Interior and Environment appropriations bill that would prohibit state and federal judicial review of the Environmental Impact Statement or Environmental Impact Report for California WaterFix:
“It seems the twin tunnels’ proponents in Congress are afraid that the project would violate state and federal law and they are seeking to insulate themselves from any lawsuits to prevent delays in the project,” said Garamendi. “The reality is, they should be worried because the $17 billion project would be a disaster for the Delta ecosystem and economy.”
Garamendi continued, “Prohibiting federal or state judicial review of environmental documents on the twin tunnels sets a dangerous precedent that will have lasting and negative impacts on water laws across the nation. The federal government has a history of deferring to state water law and this provision is truly a radical assault on environmental laws by the Congress.”
“While Governor Brown and I don’t see eye to eye on the twin tunnels, I hope he will recognize the danger that this proposal presents and work with Congress to prevent it from becoming law.”
NRDC Responds: Who’s Afraid of Litigation Challenging the Delta Tunnels?
Doug Obegi writes,
“The House Interior Appropriations Committee, led by Rep. Calvert, have included a rider in the Fiscal year 2019 Interior Appropriations bill (Section 437) that would exempt the California WaterFix project from judicial review under state or federal law. This legislative rider would preempt state law as well as precluding judicial review under federal law (so much for State’s rights, eh?).
This rider wouldn’t just affect a few cases brought by environmental groups. More than 25 lawsuits have been filed challenging the permits, bond funding, and environmental review of the California WaterFix project, including challenges filed by … ”
Interior Subcommittee Rider That Attempts to Void State Litigation on Delta Tunnels Will Be Seen by Full Committee
Restore the Delta writes,
This afternoon, the Interior, Environment, and Related Agencies Subcommittee met to begin discussion on the subcommittee’s draft spending bill for fiscal year 2019, and passed a motion that would bring the bill before the full committee. The draft bill contains numerous environmentally disastrous riders, such as Section 437 which would exempt CA WaterFix from judicial review, including preempting state law to preclude litigation under state laws. In other words, it would prevent anyone with standing from suing the Delta Tunnels project.
The rider states: “SEC. 437. Notwithstanding any other provision of law, the Final Environmental Impact Report/Final Environmental Impact Statement for the Bay Delta Conservation Plan/California Water Fix (81 Fed. Reg. 96485 (Dec. 30, 2016)) and any resulting agency decision, record of decision, or similar determination shall hereafter not be subject to judicial review under any Federal or State law.”
This would affect numerous cases already filed in state and federal courts including state law claims under the California Environmental Quality Act (20 cases filed) or the California Endangered Species Act (3 cases filed), as well as litigation under the federal Endangered Species Act (2 cases filed) or NEPA (no cases yet filed because the Bureau has not yet issued a Record of Decision).
If this rider survives in committee and then passes Congress, it would eliminate legal hurdles for the Delta Tunnels and allow CA WaterFix proponents to begin construction of the project sooner with fewer legal repercussions.
Executive Director of Restore the Delta, Barbara Barrigan-Parrilla said,
“This rider sets a bad precedent for all infrastructure projects in California regardless of whether one supports or opposes the Delta Tunnels. Bypassing due process and violating state rights to progress current and future projects creates a constitutional nightmare that protects the interests of the one percent over Californians.
“Environmental groups have fought this project for so long that tunnels proponents are now attempting to rewrite the rules of the game so that they can’t lose.”
Attorney and Manager of South Delta Water Agency, John Herrick called the effort “totalitarianism,” adding,
“Although there are periodic exemptions created for some laws, the notion that a water right petition would be excluded from judicial review is just plain dishonest.”
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