February 2, 2012

Is "good enough" legally adequate?

By Damien M. Schiff Senior Attorney

One of the most important provisions in the Endangered Species Act is the requirement that, when the Fish and Wildlife Service determines whether to list a species or to designate its critical habitat, the agency must use the “best scientific data available.”  This standard makes sense.  After all, no one would want an agency deliberately to use inadequate or defective information, but at the same time the mere fact that better data may be available in the future doesn’t seem to be a particularly satisfying excuse for not taking any action at all.  Unfortunately, the trend in the case law has been to misinterpret and over-extend the best available data standard to turn a blind eye to obvious inadequacies in listings and critical habitat designations under the ESA.

For example, in Home Builders Association of Northern California v. United States Fish and Wildlife Service, the Ninth Circuit upheld a challenge to the 850,000-acre critical habitat designation for 15 vernal pool species.  One of the arguments that the Home Builders advanced against the designation was that it included areas that even the Service conceded did not meet the statutory standard for critical habitat.  No matter, ruled the Ninth Circuit.  “Home Builders also argues that . . . [the Service’s] procedure did not produce a designation that was sufficiently specific. . . .  Home Builders offers no alternative procedure and points to no infirmity in the procedure used except that it may not have been perfect.  Specificity does not require perfection; ESA requires only that the [Service] designate critical habitat ‘on the basis of the best scientific data available.'”

If one parses closely what the Ninth Circuit is saying, it becomes clear that the court is using the “best available data” standard as an excuse to change the relevant statutory standard.  In other words, it no longer matters that the designation does not meet the standard for critical habitat designation.  All that matters is that (1) the Service must act, and (2) it did the best job it could based on the data before it.  It doesn’t take a political science degree to conclude that the court’s ruling gives the agency a perverse incentive not to seek the best data available, precisely because doing so will impose on the agency a greater burden to discharge.  The court failed to consider entirely whether, in circumstances where the agency does not have adequate information to act in accord with the statute, it should therefore not act at all.

Allowing the best available data standard to become a cover for agency mis- or malfeasance serves neither the goals of the ESA nor good government.  Let’s hope that the courts eventually correct course.

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