Prescribing the Right Dose of Peer Review for the Endangered Species Act

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 398. Prescribing the Right Dose of Peer Review for the Endangered Species Act

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J.B. Ruhl*

Prescribing the Right Dose of Peer Review for the Endangered Species Act

TABLE OF CONTENTS

I. Introduction ...................................................... 399
II. The Medicine: What Is Regulatory Peer Review and
Why Do It? ....................................................... 407
III. The Patient: The ESA Context for Regulatory Peer
Review(fn1)..................................................... 412
IV. The Dangers of Peer Review Overdose............................... 417
A. Overselling Peer Review to the Public: The OMB
Peer Review Guidance .......................................... 420
B. Using Peer Review to Smother Agencies: The ESA
"Sound Science" Bills ......................................... 422
C. Rigging Peer Review to Validate Decisions: The ESA
Peer Review Policy ............................................ 425
V. A Prescription for Useful Regulatory Peer Review .................. 428
VI. Conclusion ....................................................... 430

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I. INTRODUCTION

Environmental law stands out among all fields of law as the one most concerned with the physical world around us. This distinction is both a great appeal and a heavy burden. If environmental law has done anything in the epistemological sense, it has taught us how little we know about the physical world and, even more so, how little we know about how to improve the physical world through law. Alas, environmental law seems puny and confused compared to its intended beneficiary, and we have made many mistakes as it has developed. The history of water management offers no shortage of examples in that respect.

Lately, however, we hear much about science coming to the rescue of environmental law. The socalled "sound science" movement claims to be able to improve decisionmaking under environmental lawto make it more rational and objective by infusing the field with more and better practice of science.(fn2) Of course, I am not about to argue against sound science,(fn3) whatever it means, as it is a loaded term that

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almost begs a fight. Who is for unsound science? Not Ibut I am for a sound approach to sound science. Maybe sound science is good for environmental law, but we all know that too much of a good thing can be bad. So, I ask, could sound science, depending on how it is dosed out to environmental law, be counterproductive?

I am by no means the first to ask this question, or to suggest as I do, that the answer is yes.(fn4) But I wish to focus on the one component of sound science that is most often held out as the panacea by some and the problem by others: peer review. To be more precise, what I examine here is whether scientificstyle peer review, depending on how it is dosed out, could be counterproductive for environmental law.

The use of peer review as a component of regulatory procedure has not received much discrete attention in environmental law literature,(fn5) but it is truly the sleeping dog of the "sound science" movement. Understanding this concept requires some background on science and administrative law. The "sound science" movement, as its name suggests, advocates that environmental law decisions be based principally on scientific information and conclusions that have been derived through the rigorous, unbiased practice of science. Science is generally regarded as a formalized system for gathering and evaluating information about the world in which prescribed methods of observation, communication, informed criticism, and response must

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be carefully followed.(fn6) If these steps work for science, so goes the argument, they should work for environmental law as well.

One difficulty the "sound science" movement faces, however, is that many of the methodological components of science are already firmly embedded in environmental law through basic standards of administrative law prescribed under the Administrative Procedure Act ("APA").(fn7) A scientist would be accused of practicing unsound science in research if he or she declared that relevant data was ignored or altered in reaching the research conclusion simply because the data did not support the conclusion.(fn8) Likewise, an agency would be chastised for doing the same in reaching the decision of a rulemaking or an adjudicationthat conduct would be arbitrary and capricious, such that any court acting on judicial review of the decision would know to strike it down as a violation of the APA.(fn9) A court would not need to employ the principles of sound science to get to such a ruling.

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Indeed, even statutespecific references to using science in regulatory contexts add little, if anything, to this feature of administrative law. For example, although the Endangered Species Act ("ESA")(fn10) ominously requires that many decisions called for under the statute be based on the "best scientific data available,"(fn11) there is no evidence that this standard has made a bit of difference in terms of how agency decisions are examined in judicial review settings.(fn12) Courts do not implement the ESA standard in ways that add anything beyond the demands that are already placed on the decisionmaker under the APA.

The "sound science" movement thus has a difficult time articulating exactly what it seeks when it comes to methodological matters such as data quality, because many of the sound practices of science already are required of agencies in some degree or another. What is sound science supposed to add? To be sure, one can envision requiring that agencies take additional steps to assure the public about such matters as data qualityin essence, enforcing sound science by mandating more science procedurebut it is simply not the case that the substantive demand for data quality is something new that the "sound science" movement brings to the table for environmental law.

By contrast, peer review is a practice of science that is neither specifically required by most environmental laws, nor generally required through the default administrative law doctrines of the APA. Peer review is generally described as a scientifically rigorous review and critique of a study' methods, results, and findings that is conducted by others in the relevant field who have the requisite training and expertise, who have no pecuniary or other disqualifying bias with respect to the topic, and who are independent of the persons who performed the study.(fn13) Public participation in regulatory decisions through notice

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and comment in rulemakings or representation in adjudicatory proceedings does not serve this role, as it does not screen out biased members of the public and is not limited to experts.(fn14) Judicial review of agency decisions does not ensure the same level of expertise that can be provided in peer review, and in any event judges must adhere to the review standards of the APA, not those of scientific peer review.(fn15) Peer review, in other words, is the one thing the "sound science" movement has that administrative law does not already demand.

Peer review is a practice most strongly associated with scientific journal publication decisions, where it has been in use for over 300 years and widely employed for over 200 years, but it also applies in a wide array of settings, including, most prominently, grantfunding decisions and faculty and student evaluations.(fn16) Within science, peer review is widely considered "essential to the integrity of scientific and scholarly communication."(fn17) For many scientists, indeed, peer review "does not merely reflect the scientific method, it is the scientific method."(fn18)

The "sound science" movement thus holds out peer review as an immutable component of environmental decisionmaking through the following syllogism:

Premise 1: The practice of sound science is an essential component of many decisions required by environmental law.

Premise 2: Peer review is an essential component of the practice of sound science.

Conclusion: Therefore, peer review is an essential component of those environmental law decisions for which sound science is an essential component.

The Bush Administration certainly acts as if this is an ironclad proposition, proposing that federal agencies broadly employ more rigorous peer review in their decisionmaking processes.(fn19) Indeed, on its

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surface this argument appears unassailableif peer review is part of sound science, which it is, and sound science is part of environmental decisionmaking in many instances, which it is, ought not peer review be a part of environmental decisionmaking? But the answer is: not necessarily.

What the argument fails to reveal is that, even with respect to environmental decisions for which sound science is an essential component, sound science is not the only essential component. This is because science, even sound science, usually does not lead to compelling answers about the questions posed in environmental law. Indeed, it frequently leads in no particular direction at all.(fn20) Sound science could produce a mountain of relevant data of the highest quality and still provide no clues as to what to do for purposes of the environmental law decision. In at least those cases something else will be needed in order to reach decisions, such as sound judgment by agency decisionmakers, sound procedures for weighing alternatives, sound methods of providing public information and soliciting public views, and even sound politics. Even when science does produce robust results, in many valueladen societal decisionmaking contexts scientific findings simply are not all that matter. In short, "decisionmaking is often driven by a variety of nonscientific, adversarial, and stakeholder dynamics. Thus, even though science helps inform choices, it...