This is apparently the third in a sequence, following my last post on this topic: http://forestpolicypub.com/2013/09/27/osu-forestry-saving-our-planet-by-letting-us-forests-burn-and-rot/
It refers to an article that Guy Knudsen suggested to me during an earlier discussion on this blog that continued via email. That article, “Legal Implications of Forest Management Science in National Environmental Policy Act Analyses,” by Jerry Magee (2008), can be found here: http://www.esipri.org/Library/Magee_2008.pdf
This is the slightly edited version of an email I sent out yesterday evening to Mike Newton and a brief selection of representatives from Oregon Department of Forestry, Associated Oregon Loggers, Oregon Forest Industries Council, Oregon Senate, “Best Available Science” author Alan Moghissi, Environmental Sciences Independent Peer Review Institute (ESIPRI) and one or two others — nine in all:
The basic question is: “Why do the courts consistently disregard better science information when it is provided, and rule in favor of half-baked and outdated “best science available” instead? Especially when the “best science” is obviously biased?” The surprising answer is: “Because the law says they have to.” I had no idea this was the case until I read this article and discussed it with someone who really knew their stuff — an actual forest scientist-lawyer.
Here are some quotes from the attachment that summarize its contents:
From the Abstract: “Scientific analysis has primarily fallen within the “issues of fact” realm of disputes, where the courts grant substantial deference to the informed discretion of the responsible agencies.”
From the body: “As with any field, forest management research and studies may produce conflicting results, giving rise to scientific disagreement and uncertainty. These science-related issues, as well as concerns over the accuracy or credibility of agency-sponsored research and studies or the agency’s interpretation of those studies, have led to challenges to forest management decisions purporting to rely on current science or on understanding of forest ecosystem responses to management actions.” (p. 218)
“Even more on point with respect to NEPA and matters of scientific controversy are some earlier Ninth Circuit opinions, which “observe . . . that ‘NEPA does not require that we decide whether an [EIS] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology.’” (p. 219)
From the Conclusion: “Those challenging forest management decisions may view the subjects of these recent Ninth Circuit cases as particularly egregious examples of slipshod science falling short of congressional intent as interpreted through the accurate scientific analysis provisions of the CEQ regulations. But earlier deferential rulings concluded that “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” (p. 227)
The public record is very clear — in legal actions involving the timber industry in Oregon and environmental organizations during the past 20 years, the timber industry has lost at nearly every turn, often being painted as greedy, antiquated, or even malicious in the process. This is despite the industry often having much better information and better arguments to bolster their positions that those provided by the environmentalists.
From my perspective, the problem seems to be that the courts are all but required to follow the edicts of government scientists rather than actual “best available science” as described by Dr. Alan Moghissi and others. If this perspective is correct, then this is probably a problem for Congress, and not the courts, where too much time and money has been spent to no apparent avail for more than two decades. It is exactly why ESIPRI was formed — to put science back into the hands of scientists (and maybe particularly scientists not funded by agencies), forest managers, and citizens and out of the courts, where it is being ignored or abused.