ESA Reform - "Sound Science"
  And the Law of Unintended Consequences

Copyright 2002, by Mark Edward Vande Pol This article first appeared in the July 1, 2002 issue of eco-logic online.


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Introduction

The history of the Endangered Species Act (ESA) abounds with horror stories recounting clear abuses of power under the color of law. Many who initially supported the ESA have come to question whether it still reflects its original intent. Others argue that the requirements to consider economic and cultural impacts of regulatory measures pursuant to NEPA (National Environmental Policy Act) are being ignored. Few will dispute that outright fraud has no place in the protection of the environment. Less understood is that undue caution taken to protect a species can have destructive environmental consequences. Witness the case of the Spotted Owl. Not only was it not nearly as scarce as was represented when it was listed, the protections it has enjoyed have played a large role in the fuel loads we now see being consumed across the West. Such stand-replacing conflagrations on a massive scale are obviously destructive to spotted owl habitat.

The need for technical integrity in the listing process has led some conservative Congressional Representatives to call for reforming the Endangered Species Act: requiring a standard of "Sound Science" for evidence supporting prospective listings. These leaders are to be applauded for their concern, responsiveness, and good intentions. Unfortunately, because of the motivational structure of the system that applies the law, many of the proposals will likely have unintended and destructive side effects. This article will argue that such efforts will make the situation worse for both private property owners and the environment. They are in fact efforts to use limited tools to solve the wrong problem.

What could be wrong with "sound science"? Arenít we all for that?

When one considers the pattern, from the dubious listing of "Southern" Coho Salmon as "Endangered", to the equally suspect planted samples of lynx hair for "lab tests," it becomes obvious that technical integrity is no longer the primary objective of many agency personnel. There is a developing culture within these agencies that they are responsible as individuals to provide environmental protection by the means they deem necessary. Where did these people learn such subjective standards of professional conduct?

Government-funded science education, especially in colleges and universities.

Consider each of the following suggested reforms to the ESA in that unpleasant light.

Analysis

Field tested data and peer review: To determine whether a species should be listed, the government "shall give greater weight to any scientific or commercial study or other information that has been field-tested or peer-reviewed."

"Field testing" and "peer review" are not necessarily the best methods for testing the validity of scientific data. There are other criteria (such as concurrent validation) that can yield more reliable information at lower cost. Sometimes data are better weighted for discounted risk rather than trying to gain statistical certainty, particularly when the sample size is small or the risk associated with delay is critical. One could otherwise break the property owner with the cost of analysis before the peer review is complete or lose a species unnecessarily.

"Greater weight" implies that academic reviewers are inherently less fallible than property owners or other experts without academic credentials. Unfortunately, the motives of the academic peerage are increasingly suspect. First, almost all of their income is derived from government or foundation grantors, the same people with much to gain from listing species. Second, the professorate can look forward to years of grant money to "study the problem" as long as the species stays listed. Third, the academic peerage has no accountability for an errant listing, indeed, it is a career opportunity. All of these motives are destructive to technical objectivity. Considering the brainwashing going on in our universities, this situation is only going to get worse.

So, Peter Moyle et al. may have given the Klamath farmers a stay of execution, but what really happened is that they are studying a means to create an ironclad case that reflects the interests and priorities of the scientists who write the report. If you read Dr. Moyleís writings, you might not be exultant at that prospect.

Finally, big corporations love this sort of idea because they can afford the personnel to shuffle the paper and buy civic deference with legal muscle or political lobbying. This kind of measure kills their competition because of the cost of compliance.

Background information on species: Petitions to list a species would include the species "current known and historic ranges," "population estimates and trends," and a demonstration that alleged decline in a species is "beyond the normal fluctuations for the species."

Sounds reasonable, doesnít it? Who determines "known and historic ranges" or "normal fluctuations"? These specialists operate in VERY narrow circles and depend upon other peers to review their work (you should have seen the pressure a certain icthyological archaeologist underwent when he gave me data showing zero salmon bones in 77,000 samples from Indian shell middens, proving that coho salmon were not native to the Central Coast of California (Natural Process Endnote #215)). So even with peer review, there is still no motive to temper subjective interpretation of the data to prevent errant listings because there is no accountability for that error. There is still no financial recourse for the injured party if the listing turns out to be negligent.

Inviting data from all sources: The government is required to "acknowledge receipt of data regarding the status of a species collected by an owner of land."

Private data is almost always inserted into the public records of listing processes, usually to have it disappear or be ignored. Economic and cultural impacts are to be given equal weight to endangered species under NEPA and the agencies systematically ignore that too. The problem isnít the law; it is that the agencies have no intention of abiding by the spirit and intent of the law. Given the bias in items 1 & 2, what benefit does "acknowledging receipt of data" offer to the property owner when they wonít be able to afford the lawsuits necessary to recover civil damages from a falsified taking? With taxpayer supported peer review for agency science, ownersí data would be, by definition, inferior unless it was blessed by those who usually work for the listing interests.

Now consider who makes the final judgment on the listing upon receipt of this data: an agency administrator who gets to manage the remedial programs if the listing is allowed, again with no accountability for overzealous caution or adoption of measures that will assure successful recovery! In fact, the budget goes up as long as the species remains endangered. Perhaps we should be addressing Constitutional separation of powers issues instead.

Independent scientific review: establish independent review boards, and have them "review the adequacy of any scientific methodology used" to list a species.

Who is "independent" these days? I can show you a host of cases where landowners hired consultants who were working in cahoots with the agencies because more regulation means more consulting work to deal with all the rules! The real problem is structural, not legal.

Public Access: Information received proposing the listing of a species "shall be made available to the public."

When "public disclosure" these days consists of an inch-long ad buried in the back of the local paper the day before a meeting, or a thousand page CD (that can take two months to receive) full of seemingly innocuous, but loaded technical and legal terms obfuscating a hidden agenda, what does that mean? The landowners are to understand the issues and the law, show up with all their data ready, field-tested, and "reviewed" with little notice and an army against them? The landowners might never have collected data on the species in question. A perfect example is the salamander in California: No one would have collected that data because they believed (correctly) that scads of salamanders are hiding in dirt and under debris all over the place. Few understand how hard it is to get a report out of an agency when they suspect you might be an adversary (itís amazing how many "technical problems with our web-site" they suddenly develop). It's so easy to hide documents on Internet that one can "make it public" while effectively constraining access to the select few.

Conclusion

This type of bill strikes me as one of those, "But we have to do something," efforts. Unfortunately, if this reform effort succeeds, a fundamentally flawed and unconstitutional process will be cast in concrete for another decade, while we are "waiting to see" if the ESA reforms worked.

No. No matter how many reforms to the ESA we make, the fundamental problem is structural, not legal. Agency control of private property through the regulatory process distorts the motives of their personnel. Agencies can market control services to complicit NGOs acting as agents for their private grantors: tax-exempt foundations. The NGOs sue the agency to force the Congress to concede increasing power to the agency and a non-discretionary cash flow to both the agency and the NGOs. That funding allows an unconstitutional "Foundation/Activist/Bureaucrat" troika to operate as if it is an independent branch of government, no longer subject to the rule of law.

Thatís because it isnít.

With the Endangered Species Act, Congress tried to solve problems using coercive powers that exceed its Constitutional limits: delegating to the Executive Branch the power to control the use of private property. It doesnít matter if the issue is the environment, safety, or public schools, the seminal mechanism for the continued spread of incompetent, unethical, and corrupt bureaucratic fiat is Congressí violation of the Separation of Powers principle: delegating to the Executive Branch the power to legislate, police, and adjudicate rules; as if such rules werenít effectively, laws. Congress did so in large part because the problems were too complex for the legislative process and its members were ignorant of how to design systems of checks and balances that let free markets manage competing claims and intangible risks.

The private sector is the only way we as a nation will be able to produce the wealth with which to afford endangered species protection and habitat restoration. Real solutions to the ESA therefore MUST come from free enterprise at the expense of regulatory control. My book, Natural Process: That Environmental Laws May Serve the Laws of Nature, introduces means for private businesses to use validated processes to optimize private habitat management services capable of weighing competing environmental, economic, and cultural risks (obvious requirements for successful ecosystem management where the existing regulatory system has proven totally incapable). The implementing strategy is for property owner to use existing environmental laws (such as the ESA) to gradually hijack the budget for managing endangered species from destructive and dangerously incompetent agencies. A slowly depleting population of the dregs of activist and agency lawyers might then beg to get rid of the ESA.

Only through civic respect for private property rights under the blessings of Constitutionally limited government, can the United States afford to meet both its political mandate and its treaty obligations to protect rare and endangered species. Most of those treaties are unconstitutional too, but what the heck, one problem at a time. If the Congress stayed within its Constitutional limits, we might even fix that problem too.

Mark Edward Vande Pol is the author of Natural Process: That Environmental Laws May Serve the Laws of Nature. This book demonstrates why regulatory environmental control is fundamentally flawed and proposes a free-market alternative together with examples and implementing strategy. You can learn more about this book at http://www.naturalprocess.net.


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