Do Republicans Care About State Rights? Not With California's Drought.

Don't judge this congressional legislation by its title. H.R. 3964, the Sacramento San Joaquin Valley Emergency Water Delivery Act, only sounds as if it will offer a responsible, mitigatory fix to the climate-driven drought wracking California's Central Valley.

It is in fact a deeply cynical bill into which its House Republican sponsors have jammed a series of egregious assaults on the Golden State's constitutionally protected sovereignty.

But don't take my word for it. Read Attorney General Kamala Harris' denunciation of the predatory elements of the bill that California Republicans and House Speaker John Boehner rammed through Congress last week; it passed 229-191 (with Valley Democrats voting Aye).

The Nays should have won on constitutional grounds, Harris asserts. Not only would H.R. 3964 "abrogate long-standing provisions of California law designed to protect the State's natural resources and violate settled constitutional principles of state sovereignty," she wrote in the first paragraph of her February 4 letter, it would also "imperil the State's traditional authority to manage its natural resources without providing any meaningful emergency drought relief for the people of California."

With this as her warm up, Harris then unleashed a scathing indictment of a GOP-sanctioned federal overreach, enumerating her case blow by blow:

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  • QUOTE: "First, the legislation would mandate that the CVP [California Valley Project] and the SWP [State Water Project] operate to fixed water quality standards for the Sacramento-San Joaquin Delta developed almost twenty years ago, and would preclude state authorities from altering such standards."
    TRANSLATION: Republicans want to roll back negotiated water-delivery and endangered species settlements to 1994, reviving thereby the Bay-Delta Accord of that year which contained no enforcement policies. This retrogressive strategy would also conveniently negate two decades of frontline scientific research that is the basis for subsequent regulations controlling when and what quantities of water can be pumped out of the state-water systems.
  • QUOTE:"Second, the legislation would prohibit the SWRCB [State Water Resources Control Board] and the DFW [Department of Fish and Wildlife] from exercising their state law responsibilities to protect fishery resources and public trust values, not only as to CVP and SWP operations, but as to all holders of appropriative water rights in California."
    TRANSLATION: HR 3964 would gut state regulatory authority over the environment, override decades of state and federal water case law that all manner of courts have legitimized, and elevate what are known as junior water rights over those of other, more senior users. It would act like a giant wrecking ball, demolishing years of painstaking negotiations that have resolved many of the state's most complicated environmental issues (which is exactly what its promoters want).
  • QUOTE:"Third, the legislation would overturn settled principles of cooperative federalism by vacating the San Joaquin River Restoration Settlement Act [2009] and banning the application of State fishery protections to the San Joaquin River operations of the Friant Unit of the CVP."
    TRANSLATION: Goodbye fish. Goodbye native fisheries. Goodbye tribal fishing and water rights. Hello lawsuits.

The Attorney General's blunt brief concludes on an even tougher note: H.R. 3964 violates the principles of state sovereignty that the U.S. Supreme Court has repeatedly and unambiguously affirmed. Worse, "Congressional passage of H.R. 3964 would have, in effect, unconstitutionally 'dragooned' state officers 'into administering federal law.'" That this unconstitutional infringement, and its related power grab, should come from Republicans, who routinely thump their chests in support of "states' rights," is simply astonishing.

Then again, maybe it's not, for this whole process is a farce. The House GOP knew in advance that H.R. 3964 would never get through the U.S. Senate and if by chance it did that the president would veto it. They also knew this when they introduced the same bill in 2011 and 2012. Why the repeat?

Senator Barbara Boxer suggested that divisiveness is the goal: "At a time when we should be bringing people together," she confirmed, "House Republicans have instead introduced another divisive, unfair and discredited proposal designed to score political points instead of addressing this unprecedented drought."

Her senior colleague, Dianne Feinstein, often a very good friend of Central Valley Big Ag, was as appalled by the Republicans' ongoing shenanigans: "This bill is disingenuous, it is irresponsible and it is dangerous. I truly hope Valley farmers speak out against this ugly example of politics as usual and demand that Valley Republicans quit the games and fulfill their responsibilities as legislators."

Yet it is their love of such bankrupt gamesmanship that reminds us once again how arid GOP water politics are, how destructive the party's means and ends, how little it wants to govern. The extremity of this drought is entirely of the Republicans' own making.

About the Author

Char Miller is the Director and W.M. Keck Professor of Environmental Analysis at Pomona College, and author of numerous books, including "Public Lands, Public Debates: A Century of Controversy"
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