The purposes, effects, and future of the Endangered Species Act's best available science mandate.

• Author: Doremus, Holly

1. INTRODUCTION II. THE BEST AVAILABLE SCIENCE MANDATE A. Overview of the Endangered Species Act B. The Best Available Science Mandate: Statutory and Regulatory Requirements for Consideration of Science and Observation of Scientific Norms 1. Statutory Requirements 2. Implementing Regulations and Policies III. A BRIEF TAXONOMY OF STANDARDS FOR SCIENTIFIC DATA A. Research Science: Replication and Review B. Courtroom Science: Relevance and Reliability C. Regulatory Science: "Sound Science, " Precautionary Principle, or Agency Discretion? IV. THE FUNCTIONS OF THE ESA's BEST AVAILABLE SCIENCE MANDATE A. The Intent Behind the Best Available Science Mandate B. The Effects of the Best Available Science Mandate in Practice 1. Substantive Decision Making a. Why Science is Net Enough b. Why the Best Available Science Mandate Plays Only a Limited Substantive Role 2. Public Trust and Political Accountability 3. Altering the Terms of Judicial Review 4. Changing the Decision-Making Process V. MAKING THE BEST OF THE BEST AVAILABLE SCIENCE MANDATE A. Openly Acknowledge the Limits of Science B. Increase the Knowledge Base C. Build Public Trust VI. CONCLUSION I. INTRODUCTION

   Depending upon who is telling the story, the Endangered Species Act (ESA) (1) is either the "pit bull of environmental laws" (2) or a political fig leaf providing cover for business as usual. (3) Those differing views are mirrored by opinions about the scientific underpinnings of the Act and its implementation. Environmentalists insist that political considerations lead the United States Fish & Wildlife Service and NOAA Fisheries, the two federal agencies responsible for implementing the ESA, to ignore science in favor of development, while the regulated community sees precisely the opposite problem. (4)

   Both supporters and opponents of the ESA are intent on gaining the scientific high ground. In part, that desire undoubtedly stems from the Act itself, which requires that a number of key decisions rest upon the best available scientific information. (5) But it goes deeper than that. Scientific victory seems to hold the key to political victory. Both sides seem convinced that public opinion turns on whether, and to what extent, science supports the decisions of the agencies responsible for implementing the ESA.

   There is good reason to think that this assumption is accurate. As a society, we hunger for objective, rule-based decision making, especially when the decision pits human interests against those of another species. We worry that decisions lacking a firm, objective basis may be arbitrary, wholly "political," wholly dependent upon the whims of the particular decision maker, or made on the basis of improper motivations. We look to "science" to provide the objectivity we crave. The demand for strong scientific support of ESA decisions will only grow in the future, as the costs of conservation measures become higher and more apparent. (6)

   Science, however, is not as objective or neutral a basis for decisions as we might hope. In recent years, the uncertainties and gaps in the supposedly "scientific" decision making of the ESA have become increasingly apparent, and increasingly the source of controversy and contention. (7) At the same time, several reviews have strongly endorsed the use of science in making decisions under the ESA. (8) That juxtaposition suggests that different observers are looking for different things from the use of science in these decisions. The controversies raise important questions about how science is actually being used, what we are seeking from science, what we are actually getting from it, and what we should realistically expect.

   Needless to say, ESA implementation is not the only context in which these issues arise. While the Bush Administration was trumpeting the value of increased peer review to improve the science of regulatory decisions, (9) Congressman Henry Waxman (D-Cal.) issued a report excoriating the Administration's manipulation of science in a variety of contexts, including health, agricultural, environmental and natural resources, and defense policy. (10) But the ESA embodies an unusually strong legislative commitment to science as a foundation for policy, and it has been at the center of a series of very public controversies about the use of science. It therefore offers an excellent case study of the use of science in environmental policy.

   This Article investigates the use and effects of science in ESA implementation. Section II begins with a description of the ESA's comprehensive "best available science" mandate, followed in Section III by a brief taxonomy of science explaining what standards are applied to scientific information in other contexts. Section IV then analyzes at some length the possible intent and apparent consequences of that mandate as currently implemented. Finally, Section V offers several suggestions to improve the use of science in the ESA context. While there is little evidence that federal regulatory agencies are routinely or intentionally misusing science, those agencies are not always making the best use of science. They are not addressing openly the limitations of science and their treatment of uncertainty, they do not put enough emphasis on updating both science and the regulatory decisions that depend upon science, and their procedures are not calculated to build credibility. I offer some suggestions for improvement in each of these areas. Importantly, none of these suggestions require amendment of the ESA. That means they might realistically be tried even in the face of the legislative gridlock that has prevented ESA reauthorization since 1992.

2. THE BEST AVAILABLE SCIENCE MANDATE

   1. Overview of the Endangered Species Act

      Responsibility for ESA implementation is shared by the United States Fish & Wildlife Service (FWS) in the Department of Interior and NOAA Fisheries (11) in the Department of Commerce. (12) The great majority of listed species fall under the charge of FWS, which is responsible for terrestrial species and freshwater fish. NOAA Fisheries is responsible for fewer species, but has the highly controversial task of overseeing protection of marine species and anadromous fish, most notably salmonids. (13)

      The first step in implementing the ESA is to identify groups for protection. Species, subspecies, and distinct population segments of vertebrate species all potentially qualify for listing. (14) Species in danger of extinction throughout all or a significant portion of their range are listed as endangered. (15) Those not yet endangered but likely to become so in the foreseeable future are listed as threatened. (16) The listing process can be started by the wildlife agencies on their own initiative, or by submission of a citizen petition. (17) At the time of listing, the wildlife agencies are also supposed to designate critical habitat for the species, (18) defined as those areas requiring special protection where physical or biological features essential to the species are found. (19)

      Listing is a time-consuming, expensive, and politically controversial process. Since the ESA's inception in 1973, the growth of the protected list has been limited by the level of resources devoted to listing. At the end of 2003, for example, 1,260 domestic species were on the protected list, more than 30 had been formally proposed for listing, and 256 more were recognized as candidate species, which means they are believed to qualify for listing but the relevant wildlife agency lacks the resources to send them through the process. (20) Political pressures also frequently appear to inhibit listing. (21) The wildlife agencies rarely initiate the listing process for controversial species. At a minimum, citizen petitions are required to begin that process and frequently litigation is necessary to complete it. (22) As a result of the fiscal and political barriers to listing, most species do not reach the protected list until their populations are extremely reduced. (23)

      It is widely agreed that the inability to provide protection before the late stages of decline is a serious falling of the ESA. (24) In an attempt to address that problem, FWS during the Clinton Administration developed Candidate Conservation Agreements. Under these agreements, property owners commit to undertake specific conservation measures for the benefit of candidate species in return for assurances that they will not be subject to additional regulatory restrictions should the species be listed in the future. (25)

      Once listed, species gain the protection of two important regulatory provisions. First, section 7 requires federal agencies to ensure that actions they carry out, fund, or authorize are net likely to jeopardize the continued existence of any listed species or adversely modify its designated critical habitat. (26) Actions fail this standard if they reasonably would be expected to appreciably reduce the likelihood of both survival and recovery in the wild, (27) or appreciably diminish the value of critical habitat for both survival and recovery. (28)

      Section 7 is implemented through consultation by the action agency with the appropriate wildlife agency. Consultation culminates in production by the wildlife agency of a formal biological opinion concluding that the action is or is net likely to jeopardize the continued existence of the species or adversely modify its critical habitat. (29) Biological opinions are net legally binding on the action agency, which retains final responsibility for compliance with the mandate of section 7 and may choose to reject the wildlife agency's conclusion. (30) In practice, until recently, action agencies rarely departed from the wildlife agencies' views, which were expected to carry considerable weight with reviewing courts. (31) Recently, however, rising controversy about the science supporting biological opinions has encouraged action agencies to articulate and adhere to...