Endangered Species Act and Sound Science
Excerpted from Congressional Research Services report RL32992
Updated September 27, 2007
Eugene H. Buck and M. Lynne Corn
Specialists in Nautral Resources Policy Resources,
Science, and Industry Division
Pamela Baldwin and Kristina Alexander
Legislative Attorneys
American Law Division
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The adequacy of the science supporting implementation of the Endangered Species Act (ESA) is receiving increased congressional attention. While some critics accuse agencies responsible for implementing the ESA of using “junk science,” others counter that decisions that should rest on science are instead being dictated by political concerns.
Under the ESA, certain species of plants and animals (both vertebrate and invertebrate) are listed as either endangered or threatened according to assessments of the risk of their extinction. Once a species is listed, powerful legal tools are available to protect the species and its habitat. Efforts to list, protect, and recover threatened or endangered species under the ESA can be controversial. Some of this controversy stems from the substantive provisions of this law, which can affect the use of both federal and nonfederal lands. The scientific underpinnings of decisions under the ESA are especially important, given their importance for species and their possible impacts on land use and development.
The Fish and Wildlife Service in the Department of the Interior and the National Marine Fisheries Service in the Department of Commerce administer the ESA, and each agency has policies and requirements to ensure the integrity and objectivity of the science that underlies ESA decisions. More recently, the Information Quality Act (IQA or Data Quality Act) also imposes general requirements and has resulted in agency changes to carry out the goals of that act to maximize the quality, objectivity, utility, and integrity of information disseminated by the agencies.
In several situations, economic and social disputes have resulted from actions taken to list, protect, and recover species under the ESA. Critics in some of these disputes assert that the science supporting ESA actions is insufficiently rigorous. Others assert that in some instances decisions were political rather than scientific. Controversy has arisen over what might be the essential elements of “sound science” in the ESA process and whether the ESA might benefit from clarification of how science is to be used in its implementation. The courts have had occasion to review the use of science by the agencies, which generally must show their decisions were not arbitrary and rest on credible science. For some purposes, even if that science considered imperfect or incomplete, but still the best available, it may be used.
Several bills affecting science as used in the ESA have been introduced in recent Congresses, but to date none have been enacted. Legislative activity in the 109th Congress is summarized in CRS Report RL33468, The Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and Difficult Choices.
This report provides a context for evaluating legislative proposals through examples of how science has been used in selected cases, a discussion of the nature and role of science in general, and its role in the ESA process in particular, together with general and agency information quality requirements and policies, and a review of how the courts have viewed agency use of science. This report will be updated as events warrant.
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[edit] Actions in the 111th Congress
[edit] Introduced Bills
- S.724. A bill to amend the Endangered Species Act of 1973 to temporarily prohibit the Secretary of the Interior from considering global climate change as a natural or man-made factor in determining whether a species is a threatened or endangered species. Without the cooperation of other countries, the United States cannot reverse global climate change to ensure the recovery of species that are listed as threatened or endangered species on the list of threatened species or the list of endangered species published under section 4(c)(1) of the Endangered Species Act of 1973.
- Sponsor: Sen. John Barrasso (R-WY)
- Introduced: March 26th, 2009
- Status: Referred to Committee
- H.J. Res. 18. Providing for congressional disapproval of the rule submitted by the Department of the Interior and the Department of Commerce under chapter 8 of title 5, United States Code, relating to interagency cooperation under the Endangered Species Act of 1973 Disapproves and nullifies the rule submitted by the Departments of the Interior and Commerce relating to interagency cooperation under the Endangered Species Act.
- Sponsor: Rep. Nick Rahall (D-WV)
- Introduced: January 15th, 2009
- Status: Referred to House Committee on Natural Resources
[edit] Endangered Species Act in the News
- The North Atlantic right whales recently gave birth to 39 new calves. This is an important development for the species because the right whales are currently on the endangered species list, with around only 400 currently in existence. Scientists and researchers came to observe and to track the right whales. It was noted that the birth rate for right whales has been increasing since 2001. [1]
- The report, "The U.S. State of the Birds," was released on March 19, 2009 and stated that one third of America's species of birds are endangered. It said that "the population of grassland birds had declined by 40 percent and birds in arid lands by 30 percent. It estimated that 39 percent of bird species that depend on American coastal waters were in decline." [2]
- President Obama's Interior Secretary Ken Salazar made a decision on March 6, 2009 to not overturn Bush's removal of the gray wolf from the endangered species list.
- On March 3, 2009, President Obama issued a presidential memorandum reversing the "midnight regulation" changes to the Endangered Species Act. The Interior and Commerce Departments will once again be consulted regarding potential rule changes that would affect endangered species, while the Bush rules are reviewed.
- One of the first actions of the new President, Barack Obama, was to freeze Bush's action of removing the gray wolf from the endangered species list. Thus, despite Bush's efforts, the gray wolf will currently remain protected. [3]
- On January 14, 2009, President Bush announced that the gray wolf was being removed from the listing of endangered species (in Wisconsin, Minnesota, Michigan, Idaho and Montana). Environmental groups are prepared to sue if President Obama does not reverse this rule, and would probably be victorious since the "wolf population in the northern Rockies isn't large enough to be considered 'recovered.'" [4]
- As of December 16, 2008[5], a "midnight regulation" from the Bush administration, titled "Interagency Cooperation Under the Endangered Species Act," went into effect, weakening the basic tenets of the Endangered Species Act. This Interior Department rule aims to change how development projects are evaluated in relation to their effect on protected species. Previously, certain projects (such as logging, mining, and road-building) were required to go through an evaluation by scientists from the Fish and Wildlife Service to make sure that endangered species would not be harmed in the process. This independent and objective review ensured that agency interests would not interfere with environmental considerations. Instead of FWS scientists, agencies will review their own projects to decide whether the projects will be harming protected species.[6] The rule ends 35 years of required independent review by the Fish and Wildlife Service's expert biologists. According to the Bush Adminstration, this change removes a cumbersome and costly process. The new rule also prohibits agencies from considering a project's contribution to global warming when evaluating the effects on endangered species and habitats. Organizations such as the Center for Biological Diversity, Greenpeace, and the Defenders of Wildlife have attempted to block the rule but are facing fierce opposition from the business and property sector who heartily support the change.[7]
- A December 15, 2008 report has revealed that certain Interior Department officials wrongly interfered with scientific findings in regards to the Endangered Species Act, which affected many pieces of legislation and reduced protections for threatened species.
- While not directly affiliated with the Endangered Species Act, old New York subway cars are now being placed along the coastlines to act as reefs. More information can be found in articles from the coastline states beginning with New York and heading south. There is also a video from Ohio, on November 23, 3008, documenting this trend.
- Honeybees are currently on their way to becoming endangered species, which threatens the pollination of fruits and cotton. An article from KUHF radio details Texas bee keepers' requests to Congress to help their cause. Another resource for this issue is Fruitless Fall: The Collapse of the Honey Bee and the Coming Agricultural Crisis by Rowan Jacobsen.
[edit] Endnotes
- ↑ Sutter, John D. "Endangered right whales appear to be on the rebound." 3 Apr. 2009. CNN. 14 Apr. 2009 <http://www.cnn.com/2009/TECH/science/04/03/right.whale.rebound/index.html>
- ↑ Cornelia Dean. "One Third of U.S. Bird Species Endangered, Survey Finds." New York Times. March 19, 2009. http://www.nytimes.com/2009/03/20/science/earth/20bird.html
- ↑ Jim Tankersley. "Obama blocks some of Bush's last-minute environmental decisions." LA Times. January 22, 2009. http://www.latimes.com/news/printedition/asection/la-na-enviro-rules22-2009jan22,0,1410837.story
- ↑ Jim Tankersley. "Gray wolves to lose endangered status." LA Times. January 15, 2009. http://www.latimes.com/news/printedition/asection/la-na-gray-wolf-endangered15-2009jan15,0,2158060.story
- ↑ OMB Watch: http://ombwatch.org/article/blogs/entry/5494
- ↑ Felicity Barringer. "Rule Eases a Mandate Under a Law on Wildlife." New York Times. Dec 11, 2008. http://www.nytimes.com/2008/12/12/science/earth/12species.html?_r=1&ref=us
- ↑ Ibid.
