Washington DC – Today, the Subcommittee on Investigations and Oversight held a hearing to highlight how science is used in policy decisions that are made under the Endangered Species Act (ESA). Numerous judicial disputes over ESA-related actions underscore the challenges in weighing best available science against other policy considerations, often under short deadlines.
Commenting upon the few species that have recovered as a result of the ESA, Subcommittee Chairman Paul Broun (R-GA) said, “In terms of effectiveness, I believe it would be hard to argue that the law has been anything but an abject failure. As a tool for advancing other special interest policy goals, it has certainly been very influential, but I’m not sure that was the Act’s original intent.”
Although the ESA is designed to protect species, its application is most visible when federally imposed plans to protect and recover a species restrict the actions of private citizens and other entities. For example, landowners may not be able to use their property in a manner they had planned and farmers may not be able to use as much of a river’s water as they need. Since takings claims are rarely successful, the science used to make ESA decisions is critical.
“The Endangered Species Act (ESA) is one of the most influential and far-reaching environmental laws this nation has ever passed,” Broun said. Since its passage in 1974, it has been the subject of considerable debate – not only about its impact on our nation’s economy, but also about its ultimate effectiveness. Of the roughly 2,000 species listed as endangered or threatened, only about one percent have actually recovered. Chairman Broun noted, “Everyone wants to save species from extinction, but honest people can have an honest debate about the most efficient and effective way to do so.”
Testifying today, former Assistant Secretary for Fish and Wildlife and Parks in the U.S. Department of the Interior, The Honorable Craig Manson, said that “Although not intended by the drafters, implementation of the ESA has become a win-lose adversarial process…The politicization of the ESA began at its inception and has carried on through every Administration and Congress since then.” Manson continued, “When scientists and policymakers don't understand each other, then chaos and strife will reign in their relationships. The ESA exists at the confluence of science, law, and policy. It is not a purely scientific decision scheme.”
Further highlighting how “debates over conservation policy are often dressed up as debates over conservation science,” Mr. Jonathan Adler, Professor at the Case Western Reserve University School of Law, said that “[b]iological research is necessary to inform species conservation decisions. But species conservation is not – and cannot be – a wholly scientific exercise.” Mr. Adler continued, “Whether a given species is at risk of extinction may be a scientific question, but what to do about it is not.”
Witnesses highlighted recent events at the Department of Interior that have called into question how science informs policy related to the ESA. On September 16, 2011 U.S. District Court Judge Oliver Wanger of California sharply criticized the work and testimony concerning the Delta Smelt Biological Opinion by two Federal scientists, one from the Fish and Wildlife Service (FWS) and one from the Bureau of Reclamation. Commenting upon the FWS scientist, Judge Wanger stated “I find her testimony to be that of a zealot.” In further comments about the Bureau of Reclamation scientist, he stated “…the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science.” Mr. Gary Frazer, Assistant Director , Endangered Species, U.S. Fish and Wildlife Service, announced that the “Department has instructed the scientific integrity officers of the Service and the Bureau of Reclamation to retain independent experts to evaluate the allegations made by Judge Wanger.”
After outlining several concerns with recent ESA listings in Alaska, Mr. Douglas Vincent-Lang, Special Assistant at the Alaska Department of Fish and Game, said that “the ESA is being used by federal agencies to gain control over landscapes and seascapes, rather than to arrest species extinction.” Vincent-Lang continued, stating that ESA “grants states a place at the table in all Endangered Species Act decisions, including the application of science in these decisions. Unfortunately, states are not being given equal deference on science during the implementation of the Act.”
The following witnesses testified before the Committee:
Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law
Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
The Honorable Craig Manson, General Counsel, Westlands Water District
Mr. Douglas Vincent-Lang, Special Assistant, Alaska Department of Fish and Game
Dr. Neal Wilkins, Director, Institute of Renewable Natural Resources, Texas A&M University
Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists