CRS report on ESA and Sound Science - Part 3

Continuing with the CRS RL32992, this section talks about the “Judicial Interpretation of the Use of Science under the ESA” portion of the report.

Litigation has been commonly used in settling endangered species disputes. Sometimes, environmental groups got the upper hand in this process, e.g. Washington Environmental Council vs. Sutherland for the protection of the spotted owl habitat. Other times, endangered species are not that ‘lucky’ as in the National Association of Home Builders’ challenge in delisting the Cactus Ferruginous Pygmy-Owl.

Judicial review may set aside an agency’s decision if it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law”. Usually, courts respect the agency’s expertise especially in scientific matters that are the specialties of the agency. However, a court will rule against an agency if the court finds that “the agency decision is not reasoned and the agency fails to articulate a rational relation between the facts found and the decision made”.

Regarding the use of “best data available”, the court can only use the ‘best’ information available in decision making, and cannot order the agency to collect the missing data. By the same token, the agency’s decisions must rely only on the most ‘superior’ and current scientific data available. Otherwise, the agency’s decisions fail the statutory requirement of the ESA.

The court did not interpret the “best scientific and commercial data available” as “a standard of absolute certainty”. In other words, the agency can act according to the best science available at the time even the science will be proved wrong later. This interpretation allows the agency to act even there are uncertainties, and can avoid any costly irreversible damages due to inaction.

In addition, agency’s decision cannot base on mere speculation, and the scope of the regulation must be appropriate to the problem.

All these judicial interpretations regarding the use of science are reasonable and logical, in my opinion. Major challenges come when the reasoning are applied on a case-by-case basis.