May 16, 2012

Are the courts diminishing the role of science in land use planning with the "bibliography rule"?

By Brian T. Hodges Senior Attorney

On June 5, the Supreme Court of Washington will decide whether to take on PLF’s Olympic Stewardship Foundation case.  The Court’s decision could have major ramifications for the applicability of science in the land use planning process.

The OSF case asks whether Jefferson County adopted illegal “channel migration zone” rules that require property owners to retain 100% of the vegetation on their riparian property as a condition on any new development permit.  The county’s decision to impose the retention standard was not fully explained, and extremely suspect in light of the county’s science, which concluded that vegetation retention would be the least effective method for protecting property from the risk of migrating river channels.  Nevertheless, the Court of Appeals held that nothing in the law requires the county to document its reasons for departing from the recommendations of its scientific studies.  The county only needed to demonstrate that it consulted the studies during the regulatory process by providing citations.

That can’t be right.  Unless the government is required to explain how the science relates to its chosen regulations—and why the government may have departed from that science—any rule mandating that scientific data be included in the planning process is reduced to an instruction that merely requires the government to produce a “bibliography” of the studies it says it referenced.  As we argue in the OSF petition for review, this adulterated view of the role of science in planning cannot be what the legislature intended when it directed counties to consider “best available science” in developing critical areas regulations.

Indeed, the courts have dealt with this question of science before.  In two cases, Concerned Friends of Ferry County and the HEAL case that Brian T. Hodges wrote about in his post yesterday, the courts emphasized regulations should be based on the best available science, in order to avoid unnecessary restrictions on the use of private property.  In another case called Swinomish Indian Tribal Community, the court held that if government regulations depart from the recommendations contained in relevant scientific literature, then the government is obligated to document why it adopted its preferred regulatory standard.

If not reviewed and reversed, the Court of Appeals’ opinion in OSF could lead local governments to adopt regulations that bear no resemblance to circumstances “on the ground.”  For example, our petition notes that one of the studies contained in Jefferson County’s scientific record concluded that the presence of bank armoring would eliminate the risk of channel migration.  Yet the county’s adopted regulations still require vegetation retention—a presumptively ineffective regulatory tool for stopping erosion—on properties that are already protected with armoring.  Why was this regulation adopted?  We don’t know because the county has not explained it.  This is the kind of situation that could be avoided if the courts interpret the law to require that local governments explain the connection between their regulatory decisions and the scientific record.

One broader point should be made here.  Science need not always dictate policy.  There may be compelling reasons to avoid strict—sometimes blind—adherence to scientific recommendations.  The need to curtail interferences with individual rights or economic activity is often a good reason for carefully balancing science and policy.  But because policymaking is a complex endeavor, the law should require the government to explain its regulatory choices, whether regulations adhere to scientific recommendations, depart from those recommendations, or chart a different course altogether.

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