The Battle over Endangered Species Act Methodology

Article excerpt

I.   INTRODUCTION
II.  GENERAL FRAMEWORKS FOR DECIDING HOW TO DECIDE
     A. Level of Confidence Freework
     B. Hypothesis Statement Framework
     C. Error Aversion Framework
III. ESA DECISION NODES
IV.  THREE COMPETING MODELS OF ESA METHODOLOGY
     A. The Professional Judgment Method-- Working With the "Best
        Scientific Data Available"
     B. The Scientific Method--Emphasis on "Best Scientific Data ... "
     C. The Precautionary Principle Method--Emphasis on "Best ... Data
        Available"
V.   HARMONIZING THE THREE METHODOLOGIES
VI.  CONCLUSION

I. INTRODUCTION

The substantive contours of the Endangered Species Act (ESA) (1) have been largely worked out for quite some time. Congress, now virtually inert when it comes to environmental law reform, has not touched the ESA in any meaningful way for over two decades. (2) Likewise, with the exception of the Habitat Conservation Plan permit program under section 10 of the statute, (3) neither of the agencies authorized to implement the ESA has engaged in substantive legislative rulemaking for many years. With so little movement on the statutory and regulatory fronts, by the early 1990s the courts had settled most of the substantive interpretation questions. The political reality is that the substantive law of the ESA is not likely to budge for the foreseeable future. Nevertheless, litigation under the ESA and calls for statutory reform abound, seeming to increase in volume and intensity with each passing year.

One source of this burgeoning wave of litigation and lobbying is a battle over ESA methodology--the principles and rules of organization for the inquiry processes necessary for making decisions required under the statute. (4) The ESA requires the Secretary of the interior, who acts through the Fish and Wildlife Service (FWS), and the Secretary of Commerce, who acts through the National Marine Fisheries Service (NMFS), to make various decisions about the status and protection of animal and plant species. (5) In suits brought by citizens alleging FWS or NMFS has failed to meet its statutory mandates, (6) courts have been willing, almost eager, to find FWS and NMFS at fault for procedural errors, such as missing decision deadlines, (7) but until recently it was unusual for courts to find that the agencies had made substantive errors in their decisions about the status and protection of species. The conventional rules of judicial review tilt the balance decidedly in favor of the agencies in litigation challenging the substantive merit of the agencies' decisions. (8) This judicial deference, plus the fact that the substantive statutory and regulatory context was locked in place, made it far more likely than not that FWS and NMFS decisions would be upheld on the merits. (9)

This aura of immunity carried the agencies well into the 1990s before it began to crumble. Starting in the mid-1990s, opponents of FWS and NMFS decisions from both the industry and the environmental camps realized that the methodological contours of the ESA were not nearly as settled as their substantive kin. It was quite clear, for example, what substantive factors the agencies had to consider in order to designate the "critical habitat" of a species protected under the ESA. (10) However, it was far less clear at the time just exactly how the agency was supposed to consider those factors--how to collect the evidence, how to evaluate the evidence, how to weigh the evidence, and how to reach a conclusion. Quite obviously, methodological rules of this sort can have a profound impact on substantive decision outcomes. The fact that they were not clearly worked out under the ESA, therefore, presented stakeholders an opportunity to influence substantive decision-making outcomes without having to alter the substance of the law or challenge the substantive merits of discrete agency decisions. Thus, the debate began in the late 1990s and has been going strong since then, reflecting the realization industry and environmental interests must have made--that how these methodological rules develop could revolutionize the ESA for decades to come. …