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May|June 2004
Sucker Punch By Chris Mooney
Locked Out By Kate Andrias

Sucker Punch


By Chris Mooney

STRETCHING FROM SOUTHERN OREGON through northern California to the Pacific, the Klamath River Basin is home to several different endangered or threatened fish, one group of angry farmers, and a burgeoning legal movement that threatens the most important environmental law in the country.

Water management issues in the Klamath region have long been contentious, and they came to a head during a drought in 2001. In the face of severe shortages in the basin, the U.S. Bureau of Reclamation held back irrigation water usually channeled to more than 200,000 acres of agricultural land in order to protect a silver-bellied bottom-dwelling fish called the shortnose sucker, the related Lost River sucker, and a genetically distinct variety of the coho salmon. This marked the first time the Endangered Species Act has triggered the massive cutoff of water from a federal reclamation project. The move left many farmers devastated, some even bankrupt, and triggered intense anger over the government's decision to elevate the concerns of ichthyoids over those of human beings. At one point, a hundred Klamath irrigators engaged in civil disobedience, breaking through a chain-link fence to throw open a water valve. Some environmental activists involved in the Klamath dispute received death threats.

Angry landowners, obscure species—this may sound like a typical Endangered Species Act dispute. But since the 2001 crisis, the Klamath battle has taken a new turn. At the request of the Department of the Interior, the National Research Council of the National Academies of Sciences recently completed a two-part scientific review of the Reclamation Bureau's decision, concluding that, in some respects, there wasn't clear scientific evidence that withholding water would help the fish.

Agricultural interests and their political allies now hold up the Klamath debacle as proof that shoddy science is behind many Endangered Species Act decisions. Backed by the Bush Administration, these critics hope to add so-called "sound science" provisions to the ESA, requiring that both the listing of species and actions taken to protect them be based on certain specific data gathering and analysis techniques. Republican representative Greg Walden of Oregon, whose district includes Klamath County, has introduced legislation to this effect in Congress.

The ESA hasn't been significantly amended since 1982. But there have been an increasing number of science-based legal challenges to agency decisions under the ESA in the last decade, and explicit "sound science" laws could open up a brand new legal battleground—which is probably the true objective of their proponents. Despite its name, the "sound science" campaign has been pointedly criticized by an array of scientific experts, including some members of the National Research Council's Klamath committee. In response to allegations that the bureau's decision had a foundation in "junk science," two scientists from the panel recently countered that "we credited federal biologists for using the best information they had available at the time." In other words, the NRC review was misinterpreted.

So who's right here—the scientists or the "sound science" advocates? A close look at the "sound science" proposals, as well as what actually happened in the Klamath River Basin in 2001, exposes the hollowness of this reform agenda. The Endangered Species Act may not be perfect, and there may well be grounds for some technical reforms. But the "sound science" movement seeks something else entirely: to torpedo the law under the guise of saving it.

PASSED ALMOST UNANIMOUSLY BY CONGRESS in 1973—the boom days of the green movement—the Endangered Species Act was deliberately written to be tougher than two previous laws that had failed to curb extinctions. Originally, the act embodied Congress's activist desire to prevent the loss of any species. As a report of the House Merchant Marine and Fisheries Committee (which was charged with writing the legislation) put it at the time: "Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structure of plants which may yet be discovered, much less analyzed? ... Sheer self-interest impels us to be cautious." Elsewhere, the committee wrote of endangered species that the "value of their genetic heritage" was, "quite literally, incalculable."

Citing such comments, the U.S. Supreme Court described the ESA as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" in the landmark 1978 case Tennessee Valley Authority v. Hill. In fact, the law turned out to be a bit more "comprehensive" than many in Congress had apparently realized. In the TVA case, the court notoriously ruled that the nearly finished Tellico Dam project had to be permanently halted to protect a tiny fish called the snail darter—in other words, preserving species trumped all other priorities. Congress quickly reined in the ESA with amendments, like one requiring that economic factors be considered as possible grounds for exempting a project from the ESA, and it provided an explicit ESA exemption so that work on the dam could continue.

Still, the ESA continues to be labeled the "pit bull" of environmental laws and it remains the weapon of choice for pro-environment litigants, who have used it for purposes extending far beyond protecting critters. For example, in the well-known case of the spotted owl 15 years ago, the bird served as a kind of legal surrogate for another environmental aim: protecting Pacific Northwestern old-growth forests where the owls live. "It's the most effective, substantive law that we've got for helping out the biota," says Holly Doremus, an ESA expert who teaches law at the University of California-Davis.

That may explain why since 1973, as environmental issues have become far more fiercely contested, the ESA has made so many enemies. The law ties the hands of developers, loggers, ranchers, farmers, and federal agencies—anyone whose designs on a particular plot of land or other habitat are hampered by the creatures residing there. There have been many attempts over the years to dismantle or undermine the act. During the heady days of Newt Gingrich's tenure as speaker of the house, Republicans crusaded vigorously for reforms that would have stripped the ESA of much of its potency, leading to pitched battles with environmental activists (dubbed "waffle-stomping socialists out to destroy the Constitution" by one Republican ESA reformer, Alaska's Don Young). The current secretary of the interior, Gale Norton, once even argued in her previous job as Colorado attorney general that the ESA was unconstitutional.

ALTHOUGH THOSE PEOPLE DIRECTLY restricted or harmed by the law have often self-interestedly disputed the scientific basis of decisions made under the ESA, the concerted "sound science" push is relatively new and has gathered momentum only over the past few years. The strategy, advanced by many of the same political actors who have argued in the past for all but repealing the ESA, turns on a seemingly earnest desire to improve the law's implementation, which everyone agrees would grind to a halt without good scientific analysis.

Scientific exhortations run throughout the ESA. The text of the act repeatedly states that actions taken—such as species listings, critical habitat designations, and moves to protect listed species—must be based on "the best scientific and commercial data available." Historically, most evidence suggests that agencies have been true to this part of the law. In a 1995 report examining whether the ESA was "soundly based in science," the National Research Council didn't uncover "any major scientific issue that seriously hinders the implementation of the act." Similarly, a 1996 report by the Ecological Society of America noted that government scientists charged with ESA implementation "generally try to use the best scientific information and methods available." Failures on this front, the report continued, are "generally due to inadequate budgets and overworked staff."

Even studies requested by "sound science" proponents haven't backed up their concerns. A 2003 report from the General Accounting Office concluded that Fish and Wildlife Service listing decisions were "generally based on the best available science." The report was requested by several Congressional Republicans, including Californian Richard Pombo, who co-authored a book entitled This Land Is Our Land denouncing the ESA .

So why are "sound science" proponents trying to remedy a nonexistent crisis?

A look at the leading "sound science" bill, Greg Walden's "Sound Science for Endangered Species Act Planning Act of 2003," helps clear up the mystery. In addition to requiring that agencies considering action under the ESA use the best "scientific and commercial data available," the bill mandates that they give precedence to "empirical," "field-tested," or "peer reviewed" data over other kinds of information. The law also requires that listing decisions be supported by "field data."

This may seem innocuous, but scientists read the language as a stealthy attempt to ban one of the most reliable techniques they have for understanding the vulnerability of species: population modeling, which projects current data into the future and is thus neither exclusively empirical nor field-tested (though the initial data has to come from the field). "When they start saying, 'you've got to give preference just to "field-tested," "peer reviewed," ' that is a total misrepresentation of how science goes," said Gordon Orians, a biologist at the University of Washington in Seattle who chaired the National Academies' Board on Environmental Studies and Toxicology when it empanelled the Klamath review committee. "If you're going to say, 'we can't use models,' you might as well shut down the scientific enterprise," Orians continued.

He added that because endangered species are so rare, it's hard to collect enough data on them to publish in the peer reviewed scientific literature. In other words, Walden's "sound science" proposal seems crafted to rule out precisely the sorts of information needed to protect a species before it's too late.

The "sound science" proposals also contain a double standard: There's far less emphasis on the use of better science in species de-listings, or when not taking action to protect a species in a particular case. In addition, Walden's bill would mandate that agencies planning to list species consider so-called "stakeholder" data on the species submitted by landowners, yet such data would hardly be likely to have undergone scientific peer review. The uneven playing field suggests something farther from honest ESA reform and closer to sabotage. "If you look at, in detail, what they're proposing, it can't be honest," said Orians.

"SOUND SCIENCE" PROPONENTS SEEM to think they've found a trump card in the NRC report criticizing the 2001 water withholding in the Klamath case.

The controversial actions of the Bureau of Reclamation in that case relied on the biological opinions by two other government agencies, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, which had listed the Klamath fish species as endangered or threatened. In late 2001, the NRC assembled an expert panel to assess the validity of these biological opinions—to determine, after the fact, whether the emergency actions taken during the drought were scientifically justified.

As requested, a quickly assembled 2002 interim report by the NRC committee, produced after four months, said precisely what landowners wanted to hear: that the decision to maintain higher water levels on Upper Klamath Lake and higher Klamath River flow levels lacked a "sound scientific basis." The committee couldn't find a clear link between lake water levels or river flow and the welfare of the two species of suckers or the coho salmon.

These results were widely trumpeted by farmers and by Interior Secretary Gale Norton, who quickly released a statement citing the "weaknesses" the National Academies had discovered and remarking ominously that the study "will affect our decision-making process for this year and future years."

Soon, the Klamath had become Exhibit A in the case for ESA reform. In recent testimony defending his "sound science" bill, Greg Walden said of his Klamath Basin constituents, "I challenge anyone to find a group that has been more negatively affected by the inadequacy of the science used in making decisions under the Endangered Species Act."

Yet after issuing their final report in late 2003 (as of this writing, it has not yet been published by the National Academies but can be read online), some members of the expert NRC panel lashed back at what they considered a misinterpretation of their preliminary analysis the previous year. The committee's final report explicitly repudiates the spin put out by some critics of the agencies' actions in the Klamath. As committee member J.B. Ruhl, a legal scholar at Florida State University and ESA expert, put it, "a lot of people started screaming about 'junk science' after our interim report. And they just have no appreciation of what's going on."

It's important to remember, Ruhl said, that most ESA decisions won't be reviewed as exhaustively as the Klamath decision was. The review panel had a $685,000 budget and over a year to analyze a decision that had to be made quickly. And while the Klamath committee did find that there was "not sufficient evidence to support what the agency did," Ruhl continues, "we never said what they did was a bad decision."

The distinction is crucial: In the face of scientific uncertainty and insufficient evidence, the agencies exercised their professional judgment about how best to protect endangered species. Both the interim and final Klamath reports note that there was also no good scientific evidence to support the contention that lower water levels in Upper Klamath Lake and on the river wouldn't hurt the fish, as had originally been proposed by the Bureau of Reclamation as a way to help farmers. There wasn't a lot of good evidence to go around, period, and the agencies had done the best they could have been expected to do.

That's true in numerous ESA conflicts, and it's a problem that "sound science" proponents haven't grappled with. As with the Klamath, making decisions in the face of uncertainty is the true challenge posed by the act. But "sound science" bills wouldn't fix this problem—they'd gum up the decision-making process, creating paralysis instead of better analysis.

In a soon-to-be-published article in Environmental Law, Ruhl makes a constructive suggestion. Agencies should continue to act on the basis of "professional judgment" in most cases of uncertainty, but on occasion they should do more comprehensive Klamath-style reviews to keep themselves honest. That proposal sounds both workable and well-intentioned—the opposite of "sound science." In the end, the "sound science" push is an excuse for inaction and not a scientific endeavor at all.

Chris Mooney, a Washington, D.C., freelance writer, is writing a book about the politicization of science in America.

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