Transparency and the Endangered Species Act

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Transparency can be defined as the right and/or the ability to examine how and why a policy is made. The U.S. Fish and Wildlife Service, the federal agency responsible for the Endangered Species Act, has argued that the agency is focused on making its endangered species policy work transparent. The debate over transparency in Endangered Species Act decisions have focused on whether the agency's work has achieved this goal of policy transparency.

Background

The Endangered Species Act requires that listing decisions be based on "the best scientific and commercial data available." The federal government does not make all the scientific information on endangered species available to the public but publishes reports that summarize current scientific data.

The U.S. Fish and Wildlife Service has argued that its official guidelines make the agency's work more transparent. These guidelines require peer review for final regulatory decisions, including the decision to list a species as endangered or threatened. Peer review is an evaluation of an individual's work by others in the same profession or occupation. During the peer review process, scientists examine the interpretations and analyses drawn by other scientists from scientific data. The goal of peer review is to ensure the credibility of scientific conclusions as much as possible.

Peer review

The U.S. Fish and Wildlife Service requires a formal peer review of all influential scientific information. This is information that "the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions." A decision to list a species as endangered or threatened is considered influential.

Initial peer reviewers within the U.S. Fish and Wildlife Service can be selected to review the scientific information prepared by their colleagues about a potentially endangered species; some initial reviewers include federal scientists outside the Fish and Wildlife Service. These initial reviews are considered by the agency to be informal and are focused on preparing early drafts of scientific papers. Under federal law, initial reviews are not required but are recommended by agency staff.

A formal, mandatory peer review focuses on completed scientific documents and papers, such as a proposal to list a species. The Fish and Wildlife Service must select "the best, most qualified reviewers with expertise in the subject areas where the review will be focused." The reviewers must be outside and independent of the agency and often include experts from academic and scientific institutions, federal and state agencies, and/or the private sector. Each reviewer submits a report examining and critiquing a proposal's scientific data and conclusions. Fish and Wildlife Service staff will then review and respond to issues raised in the reviews. If peer reviews contain conflicting views, federal scientists may choose one view over another in order to meet a statutory deadline.

The service's guidelines state, "The usefulness of such reviews depends on when the Service submits such material for review." There is no requirement to set up a formal peer review at any particular date. However, the Endangered Species Act contains statutory deadlines for certain decisions. For example, within 12 months of receiving a petition to list a species, the Fish and Wildlife Service must respond to and provide a scientific review of the petition's scientific conclusions.

Examples of ESA decisions

The Fish and Wildlife Service's peer-review process is designed to expose scientific research to an impartial and independent review, though the process is imperfect and not always transparent. Some critics of the government's peer-review process have argued that a lack of public exposure to all technical scientific data used in Endangered Species Act (ESA) decisions prevents independent scientists from reproducing and testing the results of other scientists. In addition, some critics have argued that financial incentives, such as federal grants, may influence how some research is used to change policy. Sometimes the identity or affiliations of a peer reviewer are not disclosed to the public, or peer reviewers may be rejected for reasons outside of their scientific qualifications, as some environmental groups have alleged. Below are some examples of the issues surrounding transparency, peer review, and the Endangered Species Act.

Grant-funded research

The New Mexico meadow jumping mouse

Scientists receive federal and/or private grants to study certain species. In some Endangered Species Act (ESA) decisions, grant-funded research helped change federal policy. Critics of the ESA argue that a conflict of interest could arise from the use of grant-funded research where an individual or organization might be guided more by financial interests, including continued employment, if a species is listed as endangered or threatened.

Below are some examples from the U.S. House Committee on Natural Resources's majority staff report on grant-funded research and listing decisions under the ESA. The report, prepared by Republican staff members who are critical of the ESA in general, characterized the U.S. Fish and Wildlife Service's policies as inadequate "to ensure that potential peer reviewers undergo a screening to identify possible conflicts of interest or impartiality," pointing to the following examples:

Use of federally funded research
Before the Fish and Wildlife Service listed the New Mexico meadow jumping mouse as an endangered species in June 2014, the agency sought peer review from specialists in mouse ecology with objective qualifications. Three peer reviewers studied the proposed listing of the mouse; two of the reviewers were responsible for more than 30 individual documents, which appeared frequently in the research supporting the species' listing.

One peer reviewer, who credited her research in getting the mouse listed as endangered, had received federal grants and contracts to study the species, including $128,948 from the Fish and Wildlife Service and the federal Bureau of Reclamation between 2011 and 2013. She also received $10,412 from the U.S. Bureau of Land Management in 2013. Although the mouse was listed as endangered, the research cited in the listing decision expressed "substantial areas of uncertainty" regarding the data, such as the amount of actual habitat available for the mouse. The research, however, was considered the "best available information."

In September 2014, the Fish and Wildlife Service planned to delist the Valley elderberry longhorn beetle, which is a protected insect species that inhabits California. The agency selected a private contractor called Atkins North America—an engineering and project management firm—to conduct the formal peer review and select the reviewers. In a single peer review document prepared by four reviewers, they concluded that the delisting proposal contained incomplete data. They also recommended the proposal's withdrawal.

One peer reviewer, according to the congressional report, received approximately $800,000 in grants to study the elderberry beetle, including approximately $140,000 from Sacramento County, California, $35,000 from the Fish and Wildlife Service, approximately $435,000 from the California Department of Transportation, and $190,000 from the National Fish and Wildlife Foundation, a nonprofit public charity. The reviewer's work was cited roughly 60 times in the delisting decision. According to the U.S. House Natural Resource Committee's report, "If one of the purposes of having a contractor manage the peer-review process is to have an independent, arms-length relationship between the FWS [Fish and Wildlife Service] and the peer reviewers, that did not occur here."

Selection of peer reviewers

The names and affiliations of peer reviewers researching four Texas salamander species for listing were publicly withheld, although their reviews were available. Meanwhile, the names of three reviewers of a New Mexico salamander were published.

The process of selecting peer reviewers for ESA decisions was considered "unclear" and lacking in "nationwide consistency" according to the majority report published by the U.S. House Committee on Natural Resources. The report found that each regional office in the Fish and Wildlife Service had its own peer review criteria. The service's Region 8 office, which represents California and Nevada, listed the peer reviewer's expertise and lack of any conflicts of interest as criteria for peer review. The Region 4 office, which represents 10 states in the Southeast, listed four factors: expertise, balance, independence, and lack of any conflicts of interest. Meanwhile, Region 2, which represents the Southwest, such as Arizona and New Mexico, selected its peer reviewers based on their lack of advocacy work and any conflicts of interest, their expertise, independence, and objectivity.

The report also found that the Fish and Wildlife Service was inconsistent in publishing the names of its peer reviewers. Although federal guidelines recommend the public availability of the names, affiliations, and comments of peer reviewers, the congressional report found "a lack of transparency in who served as peer reviewers for many of the FWS' [Fish and Wildlife Service's] listing determinations and what specific comments they provided." One example involved a case of several Texas salamander species. The Fish and Wildlife Service initiated two peer reviews of salamander research after an initial review generated contradictory scientific opinions. All peer review comments were posted online, but the reviewers' names and affiliations were redacted. Meanwhile, when the agency considered listing a New Mexico salamander as an endangered species, the agency did publish the names of the three reviewers who gave comments. In another example involving the proposed listing of two insect species, the agency permitted the peer reviewers to withhold their names upon request even though their comments would be made public. According to the congressional report, the inconsistency contradicts the Fish and Wildlife Service's official peer review guidelines.

Exclusion of peer reviewers
Some peer reviewers claimed to have been excluded from the process. One example involves the delisting of the gray wolf. Environmental and science groups accused the Fish and Wildlife Service of removing reviewers who disagreed with the agency's scientific conclusions. In June 2013, the agency proposed the removal of gray wolves from the federal list of protected species. The agency based its decision on the scientific conclusions of an October 2012 paper written by federal biologists.

In August 2013, when the agency excluded 16 wolf biologists as peer reviewers, the Center for Biological Diversity alleged the exclusion was because the scientists had signed a letter critiquing the agency's scientific conclusions. The Fish and Wildlife Service had contracted with Amec Foster Wheeler, a project management consulting firm that performs "environmental services covering air, land, and water," to select the peer reviewers. When the firm issued invitations to some of the letter's signatories, the agency rescinded the invitations because the biologists had "an affiliation with an advocacy position" in favor of keeping the gray wolf listed. The Union of Concerned Scientists said the agency had undermined "the very purpose of a peer review" by excluding scientists who were "highly qualified and respected in the field." Responding to these challenges, the Fish and Wildlife Service reopened the public comment process on its gray wolf delisting proposal in February 2014. "We are incorporating the peer review report into the public record for the proposed rulemaking, and accordingly, reopening the public comment period to provide the public with the opportunity for input," said Fish and Wildlife Service director Dan Ashe.

Unavailability of data

Federal guidelines do not require the public release of the raw scientific data used in Endangered Species Act (ESA) decisions. The studies that are publicly available usually just contain summaries of the scientific data, and the federal government is not required to release the raw data. Critics argue that this scenario allows policy decisions to be made without an independent or critical analysis of all the data. According to a former science adviser to the U.S. Department of the Interior, if the scientific data cannot be tested by other scientists, or the scientific results cannot be reproduced by other scientists, then the public cannot know whether policy decisions are based on well-tested scientific information or based solely on the opinions of a few scientists. An opinion may or may not pass more rigorous scientific review.

Meanwhile, supporters of current policy argue that requiring the publication of raw data would increase the Fish and Wildlife Service's unfunded liabilities. The data may also contain the location of some endangered species, making them vulnerable to collecting or poaching. Furthermore, scientists may be less likely to contribute their research to the federal government if their unpublished data or any data that have not been peer-reviewed were released publicly.

In response, critics argued that the public release of data would be "neither difficult, nor costly," according to a former science adviser to the U.S. Department of the Interior. The Fish and Wildlife Service could be required to archive data in online, library, and/or museum databases before the data are used to support policy decisions. Peer reviewers would then have greater access to data, which would encourage more scientific debate. To prevent the threat of poaching, narrow exceptions could be made to protect more vulnerable species while keeping the majority of scientific data publicly available.

Proposed reforms

Proposed reforms to the Endangered Species Act's peer-review process often focus on requiring the public availability of scientific data and peer reviewer information. Below are some examples of proposed reforms to the peer review process:

• Scientific data that is used by federal agencies should be publicly available. With certain data, such as the location of potentially vulnerable species, the public could be excluded from access to prevent the poaching of more vulnerable species. An online database containing different kinds of data, including data contrary to the federal government's own research, could allow more independent scientific review of important government decisions.
• The names, affiliations, qualifications, and comments of peer reviewers should be made publicly available. Additionally, peer reviewers with any financial or political conflicts of interest should be excluded from the review process or at least be disclosed publicly.
• The U.S. Fish and Wildlife Service should work with the U.S. National Academy of Sciences as well as state and local governments to establish a list of qualified peer reviewers for high-profile ESA decisions, such as the decision not list the sage grouse.
• The petition process should be reformed. The process is used by the public to petition the federal government to list certain species. The process is currently guided by legal deadlines as required by the Endangered Species Act (ESA). The government has 12 months to decide whether or not to list a species. Listing petitions should instead be subject to a priority system based on science and not a 12-month deadline. ESA decisions would be less likely to be made on insufficient scientific information if scientists spent more time on gathering and preparing research.

See also

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  Environmental policy in the U.S.

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  Energy policy in the U.S.

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  Endangered species policy in the U.S.

• Endangered Species Act
• Implementation of the Endangered Species Act
• U.S. Fish and Wildlife Service
• Endangered species