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In Conversation Attorney Trent Orr: California's Dusty Dilemma

Staff Attorney Trent Orr.
Chris Jordan-Bloch / Eathjustice
Trent Orr joined Earthjustice's California regional office in 2008. He has practiced before the federal and state courts in California and the U.S. Supreme Court.

The western United States is in the midst of a record-breaking drought. Earthjustice Staff Attorney Trent Orr discusses California’s dusty dilemma, the tiny but ecologically mighty delta smelt, and whether you should swear off drinking almond milk for good. This interview was conducted in May 2015.

How did your childhood influence your work in environmental law?

During the summer in the small Illinois town where I grew up, my brother and I would hop on our bikes and pedal along behind a city pickup that released large plumes of DDT laden fog meant to abate mosquitoes. I later learned why I shouldn’t have been doing that.

Rachel Carson’s book, Silent Spring, made me aware of the real problems that come with the use of these toxic chemicals.

What has been your biggest win at Earthjustice, and what’s been the most challenging?

My biggest win is probably the delta smelt litigation that knocked out a bad opinion by the Fish and Wildlife Service that wrongly concluded that the massive water projects in California have no effect on this fish.

A delta smelt.
Dale Kolke / California Department of Water Resources
The delta smelt grows to no more than three inches in length. The Supreme Court’s decision in 2015 protects not only the smelt, but also the larger ecosystem dependent on an adequate flow of fresh water through the Sacramento-San Joaquin Delta.

The smelt was listed under the Endangered Species Act as threatened because there already isn’t enough water flowing through the Delta where it lives, but water agencies and big agriculture wanted to take even more water. We challenged that attempt to take more water while ignoring the peril it posed to the smelt’s survival, and we won.

But, following the preparation of a new agency opinion that offered real protections for the delta smelt, in the midst of the current drought, the government agencies that we convinced to protect both the delta smelt and threatened salmon species are doing everything they can to avoid complying with their own protective requirements.

We’re now trying to figure out how to pressure these agencies to actually enforce the hard-won protections for these fish.

What happens if the smelt become extinct?

The smelt’s extinction would not be a cause for even the most cynical farmer to rejoice because there are other listed species that also depend upon adequate fresh water flows through the Delta. This includes salmon, the backbone of California’s valuable fishing industry, which is also hurting in the drought.

"We simply don’t know when any given species’ extinction might cause an ecosystem to crash—so we are wise to protect them all."

Paul Ehrlich has compared the peril from species’ extinctions to rivets popping out of an airplane. The plane may keep flying if a single rivet goes, but what happens when another one pops and another and another? At some point you lose the rivet that causes the plane to crash. We simply don’t know when any given species’ extinction might cause an ecosystem to crash—so we are wise to protect them all.

The Bay-Delta in California.
Paul Hames / California Department of Water Resources
Freshwater flows through the Delta support valuable fisheries and provide irrigation for Delta farmers and drinking water for millions of Californians.

The Endangered Species Act is one of the strongest environmental laws. It actually gives teeth to species’ protection—and gives us leverage to require more environmentally sound water management in California, which will help restore the entire Delta ecosystem.

That the smelt is now on the brink of extinction underscores the extent to which poor water management has degraded this ecosystem.

Governor Brown issued mandatory water reductions just this past April. What took him so long?

I suppose the short answer is “hope springs eternal.” He declared a drought emergency in January 2014, but we are losing our water supplies faster than we’re gaining more water from precipitation.

The new regulations in urban areas make a lot of sense; we shouldn’t be watering golf courses, cemeteries, and lawns when we’re seriously concerned about whether there’s enough water for public health and safety and a healthy environment.

However, the governor’s order didn’t deal with agriculture, which uses 80 percent of our developed water. Right now in the Central Valley there is a battle over who can put the deepest straw into groundwater. Even the farmers will admit that isn’t sustainable, but without regulation the incentive is to drill and take as much as you possibly can. That’s why it’s important for Earthjustice and our allies to be involved.

The new regulations also didn’t address the issue of using water for fracking and oil development, and, especially when we’re trying to reduce use of fossil fuels to avoid further climate change, we should be reducing that use of water. The oil industry is also injecting polluted water into drinkable aquifers, rendering them useless for drinking water.

All of this casts serious doubt on whether the governor’s orders to address the drought are adequate.

How can consumers help save water?

There need to be some radical changes that go far beyond just what an individual person can do. For example, there are two massive water projects that send water to agriculture in the southern Central Valley, a semi-arid region.

Many would argue that area shouldn’t be irrigated at all because of toxic chemicals in the soil. There are fields there that have been abandoned because decades of irrigation have brought chemicals like selenium and arsenic to the surface, making the soil toxic.

In addition, we need to change the current approach to growing crops in California, which has encouraged farmers to plant crops like almond trees because they are a very lucrative crop. But almond trees require a constant supply of water, and a lot of it.

"Consumers cutting back on almonds wouldn’t be a bad thing—but the real solution is going to have to come at a higher level."

When you’re growing with subsidized water under a contract that says you may not always get that water, especially if there’s a drought, it is not a wise decision to plant a crop that’s highly water intensive. I think that consumers cutting back on almonds wouldn’t be a bad thing—but the real solution is going to have to come at a higher level.

It’s time that the state goes far beyond what Gov. Brown has done and seriously think about how we allocate water.

Agriculture accounts for only a couple of percentage points of the state’s economy, so it’s not as if California would grind to a halt if we decided to quit irrigating arid regions and allocate those water resources to sustainable uses.

The economy is a subset of the environment, not the other way around. If you don’t have a healthy environment, you are not, ultimately, going to have a healthy economy.

Published in the Summer 2015 issue of the Earthjustice Quarterly Magazine.

HELP US FIGHT TO SAVE OUR MOST PRECIOUS RESOURCE—WATER

We can’t let special interest bills destroy this remarkable ecosystem under a false banner of “drought relief.”

Earthjustice attorneys have worked successfully to establish, enforce, and strengthen protections for the Bay-Delta and its native species for more than two decades.

And today, our legal team continues the fight to ensure that we do not hand over a disproportionate share of California's real wealth—its water—to any industry for a fraction of its value. Join the fight