In Pursuit of Sound Science – The Information Quality Act and the ESA

Under the Endangered Species Act (ESA), certain species of plants and animals 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. 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 (FWS) 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), passed as a rider to a 2001 appropriations bill, required the President’s Office of Management and Budget (OMB) to establish guidelines for federal agencies to maximize the quality, objectivity, utility, and integrity of information that they disseminate to the public. OMB’s guidelines were promulgated in 2002, and, in addition to requiring federal agencies to adopt their own IQA rules, they require agencies that disseminate “influential” information to provide a “high degree of transparency about data and methods to facilitate reproducibility of such information by qualified third parties.”

FWS adopted both OMB’s IQA Guidelines and Final Information Quality Bulletin for Peer Review, in addition to creating further agency-specific IQA Guidelines. These documents used collectively provide definition to the FWS as to what scientific data and information must be used in the development of ESA decisions, including ESA Section 7 consultations. The IQA requires Section 7 consultations to be subject to the most rigorous standards described in the IQA Guidelines because they are highly influential scientific assessments. In applying the IQA Guidelines to development of a Section 7 consultation agencies must harmonize the two statutes and ensure that the ESA is not implemented haphazardly and that the best available scientific data is the basis of the opinion.

The IQA has been rightfully used to thwart agencies’ reliance on clearly flawed data. In response to an IQA challenge filed by Public Employees for Environmental Responsibility (PEER), the Fish and Wildlife Service (FWS) was forced to acknowledge it had consistently relied on flawed habitat and population data concerning the habits of the highly endangered Florida panther. Unfortunately, while the FWS admitted the data was flawed, they also announced that no agency decision or biological review would be reexamined as a result of PEER’s ostensibly “successful” IQA challenge.  Consequently, the agencies continue to ignore the IQA and its guidelines, undermining the IQA’s objective of ensuring the soundness of the science used in important decision-making.

In a case of first impression, The Brenda Davis Law Group is representing the Family Farm Alliance in seeking to have the Eastern District Court of California review whether FWS applied the IQA and its implementing guidelines to a Section 7 consultation on the effects of the operation of pumping facilities in the Bay-Delta on the threatened delta smelt (Hypomesus transpacificus) and its designated critical habitat. We will update as the litigation develops …

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About bwdlg

Environmental Law
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