By Cindy Coping
On September 16, Senator John Barrasso introduced The Endangered Species Amendments Act of 2020. The bill, S.4589, is on the right track but stops one word short of solving some major problems. If S.4589 passes, the Endangered Species Act (ESA) would still promote species listings based on faulty data. It would remain self-overruling. The ESA would still want for quality control. It would continue to violate the Constitution. All these gremlins ooze from a single word: “negative.” That word shields flawed “warranted” petition findings from judicial review. The law thereby fortifies faulty data and enshrines it in regulations. Striking the word “negative” from Section 4(b)(3)(C)(ii) would remove that pitfall from the ESA.
Since 1978, the U. S. Fish and Wildlife Service (Service) has delisted 21 species due to errors in the original listing data. The improper listings, on average, lasted 13 years. Five of the 21 critters occur in Arizona. The Hualapai Mexican vole, a hybrid non-species that cannot reproduce, remained listed for 30 years. Now consider the current 1,666 listed and 12 candidate species in the United States. How many of those listings also rely on unsound science? Lands in critical habitat designations, National Wildlife Areas and wetlands add up to an area bigger than Texas. Add to that the lands set aside for Section 7 mitigation and Section 10 permits. How much of all this land control depends on flawed data?
The ESA’s Section 4(b)(1)(A) requires the Service to make decisions “solely on the basis of the best scientific and commercial data available.” Faulty data, i.e., junk science, violates that mandate. Reckless regulatory actions destroy jobs in poor communities. Improper listing of the Cactus ferruginous pygmy owl halted construction of a school for two years and cost the Amphi School District $1MM. The unjustified listing of the Hualapai Mexican vole robbed an Arizona ranching family of more than $10,000. Congress mandated use of the best available data to avoid such pointless harm.
How does the Service choose the “best available” data? The Service seems to prefer the data that most expands its authority over people, land and water. The ESA, beyond human pride or avarice, drives that pattern of decision-making. The ESA itself drives unnecessary bureaucratic bloat.
A threatened or endangered species listing begins with a petition. A citizen or agency sends their petition to the Service. Within 30 days, the Service must publish a decision, or “finding,” on the petitioned action. The Service finds the action is “warranted,” “warranted but precluded” or “not warranted.” At this point in the rule-making process, the ESA imposes a perverse bias.
Section 4(b)(3)(C)(ii) states, “(ii) Any negative finding … shall be subject to judicial review.”
That clause allows citizen lawsuits to contest any “not warranted” or “warranted but precluded” findings. It also means no one can sue to challenge a positive, or “warranted” finding. The Service can publish regulations based entirely on bogus science without consequences. This one-sided threat of litigation incentivizes the agency to make unjustified “warranted” findings. The ESA thus forces errant “warranted” findings to advance toward improper regulations.
No one can challenge an ESA regulation until after the final rule harms them. Even then, injured parties cannot sue under the ESA. They may sue under the Administrative Procedure Act (APA).
Under the APA, plaintiffs can challenge only the Service’s rule-making process. The APA contains no provision to challenge the merits of the Service’s science. A successful lawsuit under the APA may reverse the rule, but the flawed science goes unchallenged. It will surface again in future rules. Worse, government-endorsed junk science corrupts the assumptions underlying new scientific studies. The federal rules of evidence, as they relate to scientific evidence, do not apply to the APA. No Daubert scientific evidentiary hearings can occur under the APA. Hence, both the ESA and the APA shield bogus science from judicial review. Thus, nobody can ever mount an evidentiary legal challenge to faulty data used in species listings.
The word “negative” forces the ESA to overrule itself. The ESA contains a statutory evidence mandate. Section 4(b)(1)(A) in the ESA requires agency decisions to be based “solely on the best… data.” In species listings, no one can hold the Service accountable to this mandate. Section 4(b)(3)(C)(ii) protects unscientific positive findings from litigation. Section 4(b)(3)(C)(ii) thereby protects and promotes decisions based even on the worst available data. Junk science wins.
Congress can solve these problems by striking “negative” from Section 4(b)(3)(C)(ii). Then, the ESA’s citizen lawsuit provision would apply to positive 90-day findings. Balancing the potential for litigation, regardless of the finding, would add accountability to the “best … data” mandate.
The federal rules of evidence would apply to positive findings. Plaintiffs could then challenge bad science through Daubert scientific evidentiary hearings. All citizens could hold the agency accountable for its data quality. Thus, removing the word “negative” would stop the ESA from overruling its own data quality mandate.
The ESA violates the Constitution. Imagine identical twins who live together and hold identical jobs. One wants a species listed and the other opposes the listing. The Service publishes a 90-day “warranted but precluded” finding on the listing petition. The ESA denies the sibling who opposes the listing access to the courts. It grants the sibling who supports the listing full access to the courts. These two citizens in identical situations have unequal access to justice. Unequal access to justice violates the Equal Protection clause in Section 1 of the 14th Amendment.
Removing the word “negative” from Section 4(b)(3)(C)(ii) of the ESA would grant all citizens equal access to the courts. Citizens would then have equal protection under the law. The ESA would finally honor the 14th Amendment.
In conclusion, Congress should amend S.4589 and the ESA by striking the word “negative” from Section 4(b)(3)(C). That would allow judicial review of unscientific, positive 90-day petition findings. Striking “negative” would enable legal challenges to faulty science. That tiny change would both enable and incentivize the Service to ensure sound science. It would help enforce the ESA’s “best … data” mandate. It would bring the ESA into compliance with the 14th Amendment. It would remove the conflict between the “best…data” mandate of Section 4(b)(1) (A) and Section 4(b)(3)(C)(ii), which fortifies and promotes flawed data. This simple change would prevent unjustified and unnecessary regulations.
Cindy Coping is member of the Board of Supervisors for the Pima Natural Resource Conservation District. She also serves on the Board of Directors for the Southern Arizona Cattlemen’s Protective Association.