Endangered species and the roles of science and policy

By Jonathan Adler
PERC Senior Fellow

At a congressional hearing last week, 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.

Originally posted at The Volokh Conspiracy.

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Jonathan Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He is a prolific scholar, publishing on such topics as regulatory takings, water marketing, fisheries management, and the judicial limits of federal environmental regulation.He is the author, editor...
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