The Volokh Conspiracy

Last Thursday, at a congressional hearing, Assistant U.S. Fish and Wildlife Service Director Gary Frazer said that the Interior Department’s Office of Science Integrity would conduct an independent evaluation of the work of FWS biologists accused by a federal judge of being dishonest with the court and acting in ‘”bad faith.”  As the Los Angeles Times reports, Frazer said the FWS stands behind the work of its scientists but the Department will seek an independent assessment from outside experts nonetheless.

Frazer’s comments were delivered at a House Science Committee Subcommittee on Oversight and Investigations hearing on “The Endangered Species Act: Reviewing the Nexus of Science and Policy” at which I was also a witness. In my testimony, I focused on the broader issue of how science is and should be used in under the ESA, and made three basic points.

First, it is important to ferret out genuine instances of scientific misconduct or science politicization.  At the same time, it is essential to recognize that science merely informs, and does not dictate, policy. Species conservation is not – and cannot be – a wholly scientific exercise. Whether a given species is at risk of extinction may be a scientific question, but what to do about it is not. The likelihood that habitat loss or the introduction of an invasive species will compromise a species chance of survival in the wild is a question that can be answered by science. On the other hand, what conservation measures should be adopted to address such threats, and at what cost, are policy questions. Science can – indeed, must – inform such inquiries, but science alone does not tell us what to do. Insofar as debates over conservation policy are dressed up as scientific disputes — or instances of science abuse — we hamper our ability to assess competing policy options and pursue optimal conservation strategies.

Second, the structure of the ESA both undermines our ability to base conservation decisions on the best possible scientific information and creates substantial incentives to manipulate science so as to influence policy outcomes. The former occurs because the ESA makes the presence of endangered or threatened species a liability to private landowners. As a consequence, private landowners are often reluctant to allow government or other researchers to conduct surveys or engage in other species-related research on their land. This means the ESA makes it more difficult to know which species are most in need of help and where they are.

The ESA creates incentives for interest groups and others to try and manipulate science because certain science-based determinations, such as whether a species is “endangered,” are triggers for non-discretionary regulatory measures. This means that if an interest group wants to influence regulatory outcomes, it is in their interest to try and influence the initial scientific determination. This explains why there is so much controversy and conflict over species listing decisions. The Act itself turns what should be primarily a scientific inquiry — whether the best available science indicates that a species meets a given definition of what it means to be endangered or threatened — into a high stakes proxy battle over regulatory policy. This is not good for science, and further complicates the quest for optimal conservation measures.

For those interested, my full testimony is here. Portions of my testimony are based on my chapter in Rebuilding the Ark. An archived webcast and the written statements of the other witnesses should be available here, as are pictures from the hearing.

Today a federal judge threw out portions of the federal government’s plan to protect several fish species, including some salmon and steelhead in California, under the Endangered Species Act for the second time.
The Fresno Bee reports:

U.S. District Judge Oliver Wanger invalidated parts of the U.S. National Marine Fisheries Service’s so-called biological opinion, calling the plan “arbitrary, capricious, and unlawful.”

Wanger still held that pumping operations negatively impact the fish and adversely modify their critical habitat, but his decision means the agency will rewrite its plan again.

In the 279-page decision, Wanger wrote that some of the agency’s analyses relied on “equivocal or bad science” and didn’t clearly demonstrate why the measures it imposed were essential.

The opinion is quite critical of the scientists who helped develop the federal government’s biological opinion. [For those who don't want to wade through the entire opinion (I sure didn't), the concluding summary is posted here.]  But the opinion in this case is nothing compared to what the judge reportedly said from the bench about the federal government’s biological opinion for delta smelt after the federal government sought to stay the judge’s injunction against some of its protective measures. E&E News (subscription required) reports:

“I have never seen anything like what has been placed before this court by these two witnesses,” U.S. District Judge Oliver Wanger said in his ruling on the smelt case, according to a transcript obtained by E&ENews PM. “The only inference that the court can draw is that it is an attempt to mislead and to deceive the court.”

Wanger did not use the term “scientific misconduct,” or “lying,” but he used nearly every other adjective that describes deception by scientists as he built the record in his ruling for a finding of “bad faith.” He called their testimony “false,” “outrageous,” “incredible,” “unworthy of belief” and more. . . .

Wanger called a Fish and Wildlife Service scientist who had testified in the case a “zealot” who did not let facts get in the way of her goals.

“She may be a good scientist. She may be honest, but she has not been honest with this court,” he said.

He called a Bureau of Reclamation scientist “untrustworthy as a witness.”

“And I will note that he is a government agent,” Wanger said. “And the United States, as a sovereign, has a duty not only in dealing with the court, but in dealing with the public to always speak the truth, whether it’s good or bad.” . . .

“Protecting endangered species is crucially important,” Wanger said. “But when it overwhelms us to the point that we lose objectivity, we lose honesty, we’re all in a lot of trouble. Serious, serious trouble.”

Despite these conclusions, Judge Wanger still upheld large portions of the government’s plan.  Here is another link to the transcript, and here and here are some more background on the judge’s prior finding in the delta smelt case.

UPDATE: In my original post I accidentally conflated the judge’s opinion in one case — involving the biological opinion for salmon, steelhead, and other fish species — and the judge’s comments in another case, involving the biological opinion for the delta smelt.  I’ve revised the post to correct this error.

Wind power provides substantial environmental benefits, not the least of which is that it produces electricity without emitting greenhouse gases or traditional air pollutants.  It can also be useful source of distributed power.  But (like anything else) it also has its drawbacks, such as its unsuitability for baseload power and (as some environmentalists are increasingly realizing) the threat it poses to birds.  The federal government estimates wind power kills almost one-half million birds per year — a number that will dramatically increase if wind power expands in accord with the federal government’s plans. Those areas best for wind production are often those areas that pose the greatest risk to birds.

Today’s Washington Post reports on a Fish & Wildlife Service investigation of the deaths of several golden eagles at a California wind farm.

Over nearly 30 years, none of the nation’s 500 wind farms, where 35,000 wind turbines operate mostly on private land, have been prosecuted for killing birds, although long-standing laws protect eagles and a host of migrating birds.

If the ongoing investigation by the Fish and Wildlife Service’s law enforcement division results in a prosecution at Pine Tree, it will be a first. The conservancy wants stronger regulations and penalties for the wind industry, but the government has so far responded only with voluntary guidelines.

The story also notes that the guidelines have been watered down to accommodate industry complaints. The LA Times has more here.

Biodiversity loss may be a serious environmental problem (I certainly believe it is), but scientists have had a hard time figuring out how many species are disappearing and how fast. One difficulty is the lack of consensus on how many species there are in the first place. Approximately 1.2 million species have been identified, but conventional (and often poorly substantiated) estimates of the total number of extant species have ranged from 3 to 100 million species. But researchers may be closing in on a more reliable estimate. A new study in PLoS BIology estimates the number of species at approximately 8.7 million. As the Washington Post reports, the new study is getting positive reviews, as it represents the most rigorous effort to estimate species numbers based upon what is known about cataloged species to date. As a consequence, this estimate should displace some of the speculative (and unfounded) numbers that have been thrown around in the past.

James L. Huffman, former Dean of the Lewis & Clark Law School, examines the federal government’s flagging efforts to save the endangered spotted owl in the Pacific Northwest.

Despite a 90% cutback in harvesting on federal lands (which constitute 46% of Oregon and Washington combined), the population of spotted owls continues to decline, as do rural communities that once prospered across the Northwest. In some areas, spotted owls are vanishing at a rate of 9% per year, while on average the rate is 3%. . . .

The final Revised Recovery Plan, issued on June 30, calls for expanding protections for owls beyond the nearly six million acres currently set aside. Ironically, it also calls for the “removal”—i.e., shooting—of hundreds of barred owls, a larger and more adaptable rival of the spotted owl that competes for prey and nesting sites, and sometimes breeds with the spotted owl.

How much will it cost to implement this plan? The Fish and Wildlife Service says the species could be rejuvenated over the next 30 years at a cost of about $127 million. But that money will do little if anything to rejuvenate the depressed rural communities of the Northwest where still more timber land will be off limits to harvesting.

The key point is that the species could be rejuvenated, but that does not mean it will be. The owl’s continued decline has confounded many experts and there’s really bery little reason to think the new plans will outperform the old.

This is a pattern we see all too often with the Endangered Species Act — regulatory measures are imposed with uncertain if any ecological benefit. The ESA has sometimes kept species from falling over the brink of extinction, but has done precious little to achieve its stated goal of species recovery. Residents of depressed timber communities may want ESA reform because of the Act’s tremendous costs, but there’s also ample reason to want ESA reform because of its environmental ineffectiveness.

For some of my ideas about ESA reform, see here.

A new paper in Nature has sparked a firestorm of debate over species extinction rates. The paper, by two ecologists, shows how the use of the species-area curve produces inflated projections of species extinction rates. As an accompanying article in Nature explains:

The most common method of predicting extinction rates relies on the species–area curve, the mathematical relationship showing that larger areas tend to contain greater numbers of species.

Researchers typically extrapolate backwards from this curve to calculate how many extinctions can be expected from a given amount of habitat loss. But that is inaccurate, say the study authors, because the area that must be removed to cause extinction is always larger than the area needed to encounter a species for the first time.

“Extrapolating backwards makes a hidden assumption that any loss of population, regardless of how small, commits a species to extinction — which is not reasonable,” says Stephen Hubbell, a theoretical ecologist at the University of California, Los Angeles, and co-author of the paper.

As you might expect, the paper has sparked substantial criticism and debate, as noted in Greenwire and on Dot Earth, even though there have been concerns about the reliability of the species-area curve for some time. One reason for the intense debate is the well-intentioned fear that research of this sort will dampen concerns about biodiversity loss. If, as the study suggests, expected extinction rates are far lower than conventional estimates, will this lessen the urgency of biodiversity conservation? Perhaps, but that would not justify relying upon erroneous extinction estimates. Moreover, even if projected species extinction is only half of conventional estimates, it is still a serious concern.

Yesterday I appeared on NPR’s Dianne Rehm Show to discuss the Endangered Species Act.  The show was prompted by Congressional passage of a budget rider removing gray wolves in the northern Rockies from the endangered species list.   This was the first time Congress ordered a species delisted, and prompted complaints that Congress was intruding into science’s domain.  Such complaints have some merit — it would have been preferable for Congress to enact a rider removing the wolves’ regulatory protections than altering their endangered status — but they also fail to acknowledge how the structure of the ESA puts science in the crosshairs.

Listing a species as “endangered” or “threatened” under the ESA triggers a host of regulatory protections.  The Act’s prohibitions kick in automatically, so landowners and others take actions that could harm listed species at their own risk.   Both as written and as interpreted by the courts, the ESA affords the Fish & Wildlife Service with relatively little discretion.  Further, the Act authorizes private enforcement through citizen suits, which can further ties the FWS’s hands.  This structure was intended to ensure vigorous protection and prevent agency shirking, but it has also encouraged the politicization of species science and discouraged reliance on non-regulatory conservation strategies.

Congress delisted the wolf less because members doubted the scientific justification for the wolves’ listing than because relevant constituencies objected to the regulatory constraints imposed by the wolves’ endangered status.  Yet the Act does not give the FWS much ability to regulate less, or rely upon non-regulatory conservation strategies, so opponents focus on whether a species should be listed at all.  By the same token, activist groups seeking to trigger extensive regulatory controls seek to have species listed so as to force the government’s hand.  In passing the wolf rider, Congress simply followed the lead of those interest groups that fight over listing decisions so as to alter the incidence of species regulation.

Whether gray wolves merit regulatory protection in the northern Rockies is a question of policy, not science.  It is a question of what we should or should not do, not a question of what is.   Scientific research can (and should) inform this decision.  It is useful to know how many wolves there are, whether  the population is stable and has a critical mass, what sorts of things disrupt or degrade wolf habitat, and so on.  There are also judgments to be made about the costs and consequences of different conservation strategies.  Science may illuminate the extent of the trade-offs, but it cannot tell us which option to choose.

Because  whether to regulate on wolves’ behalf is a question of policy, it is precisely the sort Congress should make.  But it is also a decision Congress should make candidly, as a policy decision.  Neither supporters or opponents of the relevant regulatory measures should hide behind the science — nor should the ESA.  The scientific judgment that a species is in danger of extinction should be separate from the policy judgment of what to do about it, yet the ESA’s structure precludes such an approach.  Environmentalists fear, with some justification, that decoupling regulatory controls from the listing decision would result in a significant loss of protection for some species.  Yet as I explain in my contribution to my forthcoming book, Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, imposing prescriptive regulations does not always help conserve endangered species, and in some cases likely does more harm than good.  Listing alone does not improve a species status, and yet millions are spent fighting over listing decisions in an effort to influence listing decisions.  This is not a rational way to conserve endangered species.

The Fish and Wildlife Service claims it is overwhelmed by requests to list additional species as “endangered” or “threatened” under the Endangered Species Act. The NYT reports:

The federal Fish and Wildlife Service is in emergency triage mode as it struggles with an avalanche of petitions and lawsuits over the endangered species list, the chief tool for protecting plants and animals facing extinction in the United States. Over the last four years, a few environmental groups have requested that more than 1,230 species be listed, compared with the previous 12 years in which annual requests averaged only 20 species.

Some environmental groups argue that vastly expanded listings are needed as evidence mounts that the world is entering an era of mass extinctions related to destruction of habitat, climate and other changes. Such threats require a focus on entire ecosystems, they say, rather than individual species.

Fish and Wildlife Service officials say the barrage has paralyzed the listing process. Last month, the agency asked Congress to intervene and impose a limit on the number of species it must consider for protection, setting the stage for a showdown.

As Greenwire reported previously, the Administration would like Congressional appropriators to cap the amount of money the FWS can spend on listing new species each year.

Limiting what FWS spends on new listings could free up resources to devote toward conservation, but it’s at most a band-aid on a larger problem. As I discuss in my brief contribution to an NYT “Room for Debate” exchange on the Endangered Species Act, the law itself has failings that limit its effectiveness as a conservation tool. It may be wasteful for the agency to devote an ever-larger share of its budget to listing new species, but the larger question is whether the Act itself encourages effective conservation — and there are reasons to doubt it does, as I explain in this essay which will be a chapter in a forthcoming book on ESA reform.

The American Bird Conservancy has renewed concerns that wind power development could threaten several bird species, according to this report. (HT: NYT Green Blog)

Officials with American Bird Conservancy . . . cited data from the U.S. Fish and Wildlife Service that estimates 400,000 birds of various species are killed by turbine blades annually.

The conservation group’s concerns come as state and national officials push to expand wind energy development in the coming years.

“Golden eagles, whooping cranes and greater sage-grouse are likely to be among the birds most affected by poorly planned and sited wind projects,” said Kelly Fuller, a spokeswoman for the conservancy.

“Unless the government acts now to require that the wind industry respect basic wildlife safeguards, these three species will be at ever greater risk.”

Such concerns aren’t new.  (I wrote a piece for the Weekly Standard about such concerns over ten years ago). Nor do these concerns mean wind power is a bad idea.  They are nonetheless a good reminder that there is no “perfect” source of power, and even the “greenest” alternative energy sources have their environmental downsides.

Politico reports that the Obama Administration is defending the Bush Administration’s decision to list the polar bear as a “threatened” species, rather than “endangered” species, under the Endangered Species Act (ESA).  As I discussed in this series of posts, environmentalist groups petitioned to have the polar bear listed as an endangered species due to the warming of its arctic habitat.  Such a listing could open the door to using the ESA as yet another regulatory weapon against activities that contribute to greenhouse gas emissions.   Although the Obama Administration has moved aggressively to utilize the Clean Air Act to impose regulations controlling greenhouse gas emissions, it does not appear as eager to deploy the ESA as well.

The Center for Biological Diversity has filed a notice of intent to sue the Environmental Protection Agency for authorizing the use of chemical dispersants to faciliate the cleanup of oil from the Deepwater Horizon accident in the Gulf of Mexico.  According to a CBD attorney, “The fact that no one in the federal government ever required that these chemicals be proven safe for this sort of use before they were set loose on the environment is inexcusable.”  CBD fears that use of the dispersant chemicals could increase the threats faced by some Gulf species.  More from BLT here.

The Washington Post reports that the U.S. will support a proposal to list Atlantic bluefin tuna on Appendix I of the Convention on International Trade in Endangered Species.  This would have the effect of prohibiting all international trade in this valued fish.  A single prized specimen has sold for as much as $175,000 in Japan.

Despite international regulatory efforts under the International Commission for the Conservation of Atlantic Tunas, the number of bluefin tuna has continued to decline.  Will a CITES Appendix I listing make a difference?  Perhaps, but I’m skeptical.  CITES has not been particularly effective at conserving highly valued terrestrial species, which can benefit from conservation-through-use and sustainable utilization strategies, and property-based fishery management systems have proven far more effective than regulatory alternatives.  It may be more difficult to apply such strategies to a wide-ranging marine species.  Nonetheless, I question whether CITES-based trade restrictions would be more effective than an enforceable quota regime, such as that discussed here. Trade restrictions could also inhibit the development of aquaculture in threatened species, and recent technological advances make it easier to adopt property-based conservation strategies than in the past.

“This is a case about bats, wind turbines, and two federal polices, one favoring protection of endangered species and the other encouraging development of renewable energy resources.”  So begins a federal district court opinion halting expansion of a wind farm in West Virginia because of likely harm to endangered Indiana bats. The project must obtain an incidental take permit from the U.S. Fish & Wildlife Service if it is to proceed. Washington Post coverage here.