Bringing the Endangered Species Act in to the 21st Century Through Increased Data Transparency

Commentary

Bringing the Endangered Species Act in to the 21st Century Through Increased Data Transparency

A recent Washington Post story addresses what has long been a problem for those impacted by the Endangered Species Act: a lack of transparency for data used by federal regulatory agencies to make decision about listing and protecting species under the Act. While the Post story does not address the lack of transparency for the peer review process, such as that used in some agency actions under the Act, the issues raised in the story are equally applicable to this problem.

According to the Post story:

[I]n science, a result is supposed to be verifiable by a subsequent experiment. An irreproducible result is inherently squishy.

And so there’s a movement afoot, and building momentum rapidly. Roughly four centuries after the invention of the scientific method, the leaders of the scientific community are recalibrating their requirements, pushing for the sharing of data and greater experimental transparency.

Top-tier journals, such as Science and Nature, have announced new guidelines for the research they publish.

“We need to go back to basics,” said Ritu Dhand, the editorial director of the Nature group of journals. “We need to train our students over what is okay and what is not okay, and not assume that they know.”

The Post story adds:

Reproducibility is a core scientific principle. A result that can’t be reproduced is not necessarily erroneous: Perhaps there were simply variables in the experiment that no one detected or accounted for. Still, science sets high standards for itself, and if experimental results can’t be reproduced, it’s hard to know what to make of them.

The Post story focuses heavily on the Center for Open Science, a non-profit company based in Charlottesville, Virginia, which produces software that allows scientists to share and post data in an open and transparent format. According to the story:

“The whole point of science, the way we know something, is not that I trust Isaac Newton because I think he was a great guy. The whole point is that I can do it myself,” said Brian Nosek, the founder of a start-up in Charlottesville, Va., called the Center for Open Science. “Show me the data, show me the process, show me the method, and then if I want to, I can reproduce it.”

Nosek and other reformers talk about “publication bias.” Positive results get reported, negative results ignored. Someone reading a journal article may never know about all the similar experiments that came to naught.

There’s a natural tendency to tidy up the experiment, and make the result prettier and less ambiguous, Nosek said. Call it airbrushed science.

“What is able to get published is positive, innovative, novel, and it’s really clean and beautiful. But most research in the laboratory doesn’t look like that,” Nosek says. “We are incentivized to make our research more beautiful than it is.”

The problems identified in the Post story are very applicable to problems with how the Endangered Species Act is implemented; specifically how federal agencies privilege science and expert opinion, as well as skew the peer review process in favor of research and opinions that agree with agency actions. A recent report released by the House Resources Committee documents a number of troubling examples of these problems.

One example is the listing by the U.S. Fish and Wildlife Service of the Gierisch mallow, a species of plant that lives in the Arizona Strip, an area of largely federal land in northern Arizona and southern Utah where gypsum mining occurs. According to the report:

On August 13, 2013, the FWS finalized an endangered listing for the mallow. The FWS remarked in the final rule designating critical habitat for the mallow that the “peer reviewers generally concurred with our methods and conclusions” in the final rule to designate critical habitat. However, the FWS’ statement could not be verified by Committee Majority oversight staff’s review of the published comments on the mallow. Indeed, of the 23 public comments received by the FWS, only two comments could be clearly identified as peer reviews, and one of those was anonymous.

The only clearly identifiable peer reviewer was Lee Hughes, a former ecologist with the U.S. Bureau of Land Management. Dr. Hughes’ work was cited 20 times in the proposed rule, and 29 times in the final rule. Primarily, the FWS relied upon unpublished studies Dr. Hughes had conducted from 2005 to 2012, which surveyed the plants in the Arizona Strip, to justify the range of the Gierisch mallow and to establish critical habitat boundaries.

In his peer review comments, Dr. Hughes critically concluded the rule was premature, stating that the “rule has been precipitated by a lawsuit and not a well thought out observation over a lot of years of the plant and man’s operation in its habitat, which this kind of action requires.” He further noted that “man induced threats just have not materialized for the listed plant populations on the [Arizona] Strip” and that “a lot of misspent effort is put in to preventing imaginary threats, and the real threats are discovered later.” The FWS did not address Dr. Hughes’ statements about the timeliness of the rule, or his concerns about the FWS’ identified threats, in its final rule.

It is difficult to ascertain who the other peer reviewers were and what their specific comments were or how the FWS addressed them, because the FWS did not identify the peer reviewers in the final rule, and none of the other public comments posted on Regulations.gov were identified as coming from peer reviewers.

Given the apparent pervasiveness of the problems identified in the House Resources Committee report, any meaningful solution must be legislative because the regulatory agencies cannot be expected to fix these problems on their own. One legislative approach is HR 4315, which passed the U.S. House in the July 2014 (but would have to be reintroduced, as a new Congress, the 114th, commenced in January 2015). According to the Resources Committee, HR 4315 would:

  • Require data used by federal agencies for ESA listing decisions to be made publicly available and accessible through the Internet, while respecting state data privacy laws and private property. (Sec. 2 reflects the text of H.R. 4315 as reported)

  • Require the federal government to disclose to affected states data used prior to an ESA listing decision and it would require the “best available scientific and commercial data” used by the federal government to incorporate data provided by states, tribes, and local county governments. (Sec. 3 reflects the text of H.R. 4317)

Given that the Center for Open Science provides a sophisticated, ready-made, free-of-charge online platform for data sharing and transparency, federal agencies could easily implement measures to make their decision making processes open, transparent and available for all to see. It is high time the growing movement in the scientific community for greater transparency and data sharing also be applied to federal regulatory agencies, including those that implement the Endangered Species Act.

Brian Seasholes is a former research fellow with Reason Foundation.