- The Washington Times - Sunday, January 19, 2003

By February 2003, the U.S. Fish and Wildlife Service must decide whether the California Spotted Owl is to be classified as "endangered," or "threatened." Will it base its decision on sound science? Or will environmental politics determine the outcome?
Much as we would like to believe that environmental decisions are simply based on science, far too often this is not the case. In fact, there have been an increasing number of cases over the past decade in which faulty science has been used to justify poor environmental decisions.
So prevalent have such cases become that it increasingly appears to be too much to ask of government environmental scientists to put their personal values aside in the interest of producing the best, most reliable information. This leaves the courts to determine whether the science underlying environmental policy is sound; something they can do only if that science is subject to meaningful outside peer review and thoroughly scrutinized in the courtroom.
A notorious example occurred in 1992, when the Wetsel-Oviatt Lumber Co. was the highest bidder on a sale of Bald Mountain timber from the Eldorado National Forest in California. Like all U.S. Forest Service timber sales, this one had passed an extensive environmental impact analysis and approval process. Yet, Wetsel-Oviatt was denied the award of the sale. The reason: Studies performed by Forest Service wildlife biologists claimed that harvesting would cause unacceptable damage to wildlife habitat.
Wetsel-Oviatt disputed the findings, filed a bid protest lawsuit, and after a four-year court battle, ultimately prevailed. The U.S. Court of Federal Claims found the evidence marshaled by the Forest Service lacked any rational basis in scientific fact and appeared biased by the "personal predilections" of government officials.
Had the court not granted attorneys for Wetsel-Oviatt thorough discovery of the administrative record, including access to the underlying data used by government scientists, the subterfuge never would have been uncovered. Even more important, had Forest Service scientists made their underlying data and methodology available for public scrutiny and outside peer review, the flaws in their science might very well have been revealed without litigation.
In a recent Endangered Species Act case, the National Marine Fisheries Service, for purposes of declaring the coho salmon an endangered species, tried to separate legal consideration of hatchery-spawned cohos from that of cohos spawned naturally. Knowing it would be difficult to convince anyone that a species that can be replicated in hatcheries was "endangered," the service wanted the courts to make a distinction between virtually identical fish. The move was rejected as arbitrary and capricious, having no scientific basis. Again, the court, while respecting agency discretion, saw no reason not to allow litigants, where necessary, to closely scrutinize the work done by agency scientists.
In another case last year, two government scientists submitted samples of hair from the endangered Canada Lynx as part of a survey being conducted by state and federal agencies. The samples were falsely labeled as coming from Washington state forests, when in fact they were laboratory samples. The hoax was discovered, and the ensuing scandal served to illustrate the dangers with the management of millions of acres potentially at stake of failing to ensure that environmental decisions are above suspicion of bias.
Courts and agencies have the tools they need to ensure that sound science underlies environmental decisions. The U.S. Supreme Court, in Daubert vs. Merrill Dow Pharmaceuticals Inc., has endorsed the "gatekeeping" function of federal judges to screen out expert testimony based on unsound science, and call for outside peer review. And the U.S. Office of Management and Budget has issued new guidelines that allow court challenges of information that doesn't comply with rigorous scientific standards.
It remains to be seen whether judges will take up these tools, or whether politics will continue to trump science on environmental issues.

Gary G. Stevens is a founding partner in the National Resource Law Group of the D.C. law firm Saltman & Stevens.

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