The directive from Congress that the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) must base their decisions on the “best scientific and commercial data available” under section 7 of the federal Endangered Species Act (ESA) has inarguably contributed to the conservation of imperiled species. The California condor, the gray wolf, and the bald eagle are all examples of this.
Unfortunately, the federal wildlife agencies predictably drift from value-neutral assessment of the status of species and the effects of human activity on those species to assumptions in line with the precautionary principle, when confronted with substantive uncertainties regarding the ecologies of listed species and the environments that they inhabit. The essence of that principle as applied to listed species in the context of section 7 consultation is the notion that one should draw all inferences in a manner that tends to underestimate the distribution and abundance of a species, overestimate the effects of proposed federal actions on a species, and, even, underestimate the effects of measures intended to yield benefits for the species.
Recently, the United States Court of Appeals for the D.C. Circuit issued a precedent-setting ESA decision setting aside a biological opinion regarding the effects of the lobster fishery on the North Atlantic right whale. The court held that the NMFS erred by adopting a presumption in favor of the species when engaging in interagency consultation under section 7 of the ESA. The Court of Appeals opined that such a presumption is not required by the ESA, as NMFS argued in the challenged right whale biological opinion. Further, the court pointed out such a presumption can distort the decision-making process. In the San Francisco Estuary, the federal wildlife agencies should take note of the decision because it highlights the potential for reliance on the precautionary principal to lead to suboptimal societal and conservation outcomes. As noted below, resource optimization provides a superior alternative to the precautionary principle.
NMFS issued the right whale biological opinion in 2021, analyzing the effects of several fisheries along the East Coast on listed species, including effects of the lobster fishery on the right whale. The right whale population, which had been on an upward trajectory for decades, took a turn for the worse starting around 2010 and continued for more than a decade. Making the task more challenging is the limited data on the sources of right whale mortality.
In this context, NMFS explained that when analyzing the effects of the lobster fishery on the right whale, it resolved uncertainties in favor of the species. In other words, the agency gave the benefit of the doubt to the species. The Court of Appeals rejected that approach, reasoning that the role of the consulting agency under section 7 is to provide expert assistance by making predictions about the effects of the proposed action on the listed species using the best available scientific information. Said the court “nothing in § 7 requires ‘distorting the decision-making process by overemphasizing highly speculative harms’ whenever the available data is wanting.”
The court went on to explain the shortcomings of the approach taken by NMFS, stating:
“The presumption in favor of the species is… a blunt tool. The presumption significantly expands the Service’s veto power, prevents the agency from paying attention to the advantages and the disadvantages of the action, and invites the unnecessary economic dislocation wrought by worst-case thinking. A presumption also ignores that worst-case scenarios lie on all sides… The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations. Nor are humans the only casualties of worst case thinking: A presumption in favor of one protected species may jeopardize another.”
The Court of Appeals clearly found that it is impermissible to exercise the precautionary principle when implementing the ESA.
In theory, the precautionary principle is appealing because it seems to favor species we are seeking to conserve. But exercised in real-world practice, it frequently can lead to misguided policy and suboptimal outcomes. The Court of Appeals was rightly focused on whether the precautionary principle is mandated by the ESA as a matter of law or whether NMFS should be afforded deference to adopt such a principle in practice, even if the ESA does not mandate it.
In the San Francisco Estuary and adjacent areas of California, we can see that the court’s legal ruling comports with sound public policy and scientific considerations that weigh against haphazard application of the precautionary principle when making decisions with respect to ESA listed species.
One such consideration is that decisions made in reliance on the precautionary principle, rather than the best available scientific data, analyses, and practices, may yield illusory benefits for one life stage of a listed species while having adverse consequences on another life stage of that same listed species. For example, insistence in high spring flows to steelhead — in the form of multiple pulse flows — in coastal streams in central and southern California may increase the potential for temperature- or dryback-related mortality in the summer. The timing of flows in systems with finite water availability is not just an issue for steelhead. In California it also has the potential to lead to misguided decisions that harm rather than help other native fish, such as Chinook salmon and delta smelt, if the precautionary principle is employed in lieu of a rigorous, structured decision-making process informed by the best available scientific information.
A second reason to avoid making conservation determinations based on the precautionary principle is that such decisions may provide a hoped-for benefit for one listed species but cause concrete harm to another. In the San Francisco Estuary, that scenario has played out over the past decade plus. USFWS has required a fall outflow action in “above normal” and “wet” water years. The action demands higher freshwater flows through the Estuary ostensibly to increase the quantity and quality of delta smelt habitat. But the conservation benefits are uncertain. In fact, multiple studies indicate that no benefits attend the action. As a National Academies panel opined shortly after the fall outflow action was first implemented, “[t]he weak statistical relationship between the location of X2 [(a proxy for outflow)] and the size of the smelt population makes the justification for this action difficult to understand.” Further, the action necessitates reservoir releases in the fall that reduce stored water available for release in the winter and spring to benefit endangered Sacramento River winter-run Chinook salmon.
A third reason is that decisions to take management action based on the precautionary principle that have uncertain, even speculative, benefits can result in material societal harms. For example, aggressive limitations on operation of Central Valley Project and State Water Project pumps in the south Sacramento-San Joaquin Delta during periods of elevated turbidity to protect delta smelt can significantly reduce water supplies. The “precautionary” assumption behind these limits is that turbidity is a reliable surrogate for high-quality delta smelt habitat, therefore the presence of delta smelt. But the best available data indicate that, in January in years with especially high through-Delta flows, delta smelt are mostly located in the northern portion of the estuary, far from the export pumps. Further, a USFWS research team found that the first flush through the Delta (and accompanying increase in turbidity) does not immediately trigger dispersion by delta smelt that would expose the population to losses due to entrainment. In January of this year, with through-Delta flows at historic high levels, water exports were highly constrained due to elevated levels of turbidity at significant economic cost, with attending social consequences.
A pernicious consequence of the precautionary principle is that it can lead the wildlife agencies and resource managers to misidentify limiting factors on listed species, not only resulting in actions such as those described above that cause harm to listed species and society, but also failing to address the actual threats to the conservation of such species. The paramount takeaways from the Court of Appeals decision are that USFWS and NMFS must “use the best scientific and commercial data available” when making determinations under section 7 of the ESA and are precluded from reliance on the precautionary principle to supplant or supplement that express statutory obligation.
This change need not hamper the conservation efforts of federal wildlife agencies. When the best scientific and commercial data available do not alone provide sufficient guidance to wildlife agency decision-makers, there is a widely accepted alternative to the “precautionary principle.” Resource optimization is based on the pragmatic perspective that resources are limited, and their use should be optimized. It is akin to cost-benefit analysis, which has been embraced by both Democratic and Republican administrations and noted scholars and practitioners including Cass Sunstein and John Graham. Agency use of structured decision-making can and will facilitate resource optimization, particularly where it is done in a rigorous and transparent manner and subjected to independent scientific review.
In the San Francisco Estuary, there are some signs federal agency decision-making may be moving in that direction. Perhaps the Court of Appeals decision will accelerate that much-needed trend. The precautionary principle has led to misguided decision-making for the last few decades. It has not contributed to the conservation of the Estuary’s native fish but has cost Californians billions of dollars. A shift away from the precautionary principle and toward resource optimization, facilitated by structured decision-making, would be legally defensible, improve public policy, and better incorporate reliable scientific information into agency decisions.
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