The Endangered Species Act: Reviewing the Nexus of Science and Policy

A Congressional hearing was conducted recently by the Investigations and Oversight Subcommittee of the Committee on Science, Space, and Technology.  The focus of the hearing was "The Endangered Species Act: Reviewing the Nexus of Science and Policy."  The hearing was convened, at least in part, in response to Judge Oliver Wanger's September 16, 2011, decision in the Delta smelt case, in which he made an express find of bad faith on the part of the United States Fish and Wildlife Service.

According to the Subcommittee's press release,

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.”

Among the speakers at the hearing was former Assistant Secretary for Fish and Wildlife and Parks in the U.S. Department of the Interior, The Honorable Craig Manson (currently general counsel for Westlands Water District, a client of Kronick Moskovitz Tiedemann & Girard).  Mr. Manson explained:

“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.”

The full text of Mr. Manson's testimony may be found here.

Other speakers at the hearing included:

• Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law (Testimony)
• Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service (Testimony)
• Mr. Douglas Vincent-Lang, Special Assistant, Alaska Department of Fish and Game (Testimony)
• Dr. Neal Wilkins, Director, Institute of Renewable Natural Resources, Texas A&M University (Testimony)
• Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists (Testimony)

A video of the hearing may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

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