Tuesday, January 11, 2011
Eugene H. Buck
Specialist in Natural
M. Lynne Corn
Specialist in Natural Resources Policy
The adequacy of the science supporting implementation of the Endangered Species
Act (ESA) is receiving increased congressional attention. While some
critics accuse agencies responsible for implementing the ESA of using
“junk science,” others counter that decisions that should rest on science
are instead being dictated by political concerns.
Under the ESA, certain species of plants and animals (both vertebrate and
invertebrate) are listed as either endangered or threatened according
to assessments of the risk of their extinction. Once a species is listed,
powerful legal tools are available to protect the species and its habitat.
Efforts to list, protect, and recover threatened or endangered species
under the ESA can be controversial. Some of this controversy stems from
the substantive provisions of this law, which can affect the use of both
federal and nonfederal lands. The scientific underpinnings of decisions under
the ESA are especially important, given their importance for species and
their possible impacts on land use and development.
The Fish and Wildlife Service in the Department of the Interior and the
National Marine Fisheries Service in the Department of Commerce administer
the ESA, and each agency has policies and requirements to ensure the
integrity and objectivity of the science that underlies ESA decisions. The
Information Quality Act (IQA or Data Quality Act) also imposes general
requirements and has resulted in agency changes to carry out the goals of
that act to maximize the quality, objectivity, utility, and integrity of
information disseminated by the agencies.
In several situations, economic and social disputes have resulted from actions
taken to list, protect, and recover species under the ESA. Critics in some
of these disputes assert that the science supporting ESA actions is
insufficiently rigorous. Others assert that in some instances decisions
were political rather than scientific. Controversy has arisen over what might
be the essential elements of “sound science” in the ESA process and
whether the ESA might benefit from clarification of how science is to be
used in its implementation. The courts have had occasion to review the use
of science by the agencies, which generally must show their decisions were
not arbitrary and rest on credible science. For some purposes, if that science
is the best available, even if it is considered imperfect or incomplete,
it still may be used.
Several bills affecting science as used in the ESA have been introduced in
recent Congresses, but to date none have been enacted. Legislative
activity in the 111th Congress
is summarized in CRS Report R40185, The Endangered Species Act (ESA) in
Conflicting Values and Difficult Choices, by Eugene H. Buck et al.
This report provides a context for evaluating legislative proposals through
examples of how science has been used in selected cases, a discussion of
the nature and role of science in general, and its role in the ESA process
in particular, together with general and agency information
quality requirements and policies, and a review of how the courts have
viewed agency use of science.
Date of Report: December 20, 2010
Number of Pages: 28
Order Number: RL32992
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