Good Science, “Best Science” & The Law

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the courts consistently disregard better science information when it is provided, and rule in favor of half-baked and outdated “best science available” instead?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.

Other opinions?

Bob

33 Comments

  1. Bob, I think the problem is, “industry” is not the instigator of the legal battles, except maybe AFRC’s RESPONSES to the long term effects of litigation through their lawsuits. But the precedents being deferred to were set in enviro-government battles in which a fair number of the government folks were complicit. The only role the industry was able to play was friend-of-court, because they did not jump in at the start and establish equivalent standing.

  2. Non-lawyers once again fumbling legal issues.

    It’s the agencies, not the courts, that are required to consider the best available science (NFMA), or use high quality information and accurate scientific analysis. (NEPA 40 CFR 1500.1(b)).

    The job of the courts is to ensure that the agency followed these requirements of NFMA and NEPA, while also deferring to the agency on matters within their expertise, UNLESS the agency’s analysis is “arbitrary and capricious” defined as: : (1) the agency entirely failed to consider an important aspect of the issue; (2) the agency offered an explanation for its decision that was counter to the evidence before it; (3) the agency relied on factors that Congress did not intend for it to consider; or (4) the agency’s decision is so implausible that it could not be ascribed to the product of agency expertise.

    • To clarify – my comment about “fumbling” was directed as BobZ’s statement that “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?”

      As a “basic question” this seemed to misunderstand the role of the courts in record review cases under the APA, which I attempted to clarify. And, this is a pattern I have observed on this blog with a vocal few having strong (but largely uninformed) opinions about how the law works.

      • Tree: It was a rhetorical question that was answered by the linked article; and in the summary; and in the following answer — “because they have to.” That was the point of the post and why I said your response was redundant. Regarding who — in your opinion, of course — is “uniformed” on this blog now that we have “fumbling” out of the way, comes back to my original point: who are you — exactly — to make such judgments? My opinion, from what I’ve read, is that you fit this description pretty darn close yourself. If you’re going to throw stones, then you shouldn’t be hiding in the shadows when you do it. That’s my main point.

  3. Tree: So now you are an expert on the law, too? I thought you were an expert ecologist, according to your previous statements. Hard to accept any credence to what you say given your anonymity, though. And I’m sure the courts will be paying close attention to what you think their jobs are. How about fewer lectures or more daylight? One or the other? No one trusts the opinions of someone hiding behind something when they make pronouncements. Better to ask questions and making knowing comments if there is an actual reason for your anonymity. Or go back to talking to your television.

    • Bob, you seem to have no problem accepting the anonymous opinions of “Stump” on this site. While I too don’t really care for anonymous posters, and I have no idea who Tree is, I do think Tree brought up some incredibly substantive and relevant information above. How about you tackle that, instead of his nom de plume? After all, you made this post and ended it by asking for “other opinions.”

      It’s the agencies, not the courts, that are required to consider the best available science (NFMA), or use high quality information and accurate scientific analysis. (NEPA 40 CFR 1500.1(b)).

      The job of the courts is to ensure that the agency followed these requirements of NFMA and NEPA, while also deferring to the agency on matters within their expertise, UNLESS the agency’s analysis is “arbitrary and capricious” defined as: : (1) the agency entirely failed to consider an important aspect of the issue; (2) the agency offered an explanation for its decision that was counter to the evidence before it; (3) the agency relied on factors that Congress did not intend for it to consider; or (4) the agency’s decision is so implausible that it could not be ascribed to the product of agency expertise.

      • Matt: Maybe you missed the Comment when I asked stump flat-out who he was. As we both know, though, sometimes there are good reasons for people to be anonymous — usually related to their job. However, I draw the line when people use their deception to make ad hominem attacks on others (remember “Smokey”?), presume an air of authority and mock or lecture others when they have not stated their own credentials (case in point), or to engage in “insider” chit-chat (not a problem on this blog because most of us clearly identify ourselves and have low tolerance for mindless babble). stump, however, does none of the above, is respectful and often humorous, and often makes his points by relating stories about what he does and where he does it. As one result, I think we could both produce a fairly good picture of who stump is, where he lives, and what he does for a living — and have to resort to a lot more guesswork when it comes to Tree. My personal position is to reply to very few anonymous posters, but make exceptions when I think they need some daylight (case in point) or have something genuine and worthwhile to consider (stump, JZ, and a few others).

        So far as the quote is concerned, I have no idea why Tree has the authority to begin a statement with comments such as: “The job of the courts is to ensure that the agency followed these requirements of NFMA and NEPA . . .” Who is he to say what the “job of the courts is,” because, well, who is he in the first place? Where does he get the authority to make such judgments? Same with his authoritative comments on science issues. Now if Guy or Jon made such a statement, I’d be far more willing to accept it at face value, and maybe even respond if the topic were of interest to me.

        • Congress has provided for judicial review of final agency decisions, including those related to NFMA and NEPA, through the Administrative Procedure Act. So, Congress, our elected body, has already said the job of the courts when undertaking such review is to ensure that the agency followed the requirements of NFMA and NEPA. The APA includes the “arbitrary and capricious” standard of review TreeC123 mentioned.

          Tree isn’t making things up, nor does he need to be a legal expert or authority to discuss the role of agencies and courts. Google Scholar gives free access to most court opinions, including those reviewing NFMA and NEPA compliance, and that routinely include the language Tree referenced.

          • John: Tree is just repeating things covered in detail in the article I posted. And he’s calling someone a “fumbler.” And he’s anonymous. Have you read Magee 2008? I’d be interested in your opinion.

            • Tree just explained his “fumbling” statement.

              I quickly perused the Magee article. I’m aware the Ninth Circuit’s 2008 Lands Council v. McNair en banc decision re-emphasized the highly deferential nature of judicial review of agency decisions.

              Tree is right though – the courts defer to the agencies, which are required to consider the best available science (NFMA) or use high quality scientific information (NEPA). This level of deference is what keeps courts from second-guessing the science and information used by agencies.

              Your post indicates you feel the level of deference has kept the timber industry from getting high quality information considered by courts. “Enviros” sometimes feel that exact same way about agency deference.

              • John: Thanks for reading the article and for your feedback. I’ve answered Tree separately and my perspective remains the same in those regards. I’m actually quite pleased that you think enviros (we can call them whatever makes you feel comfortable) have similar feelings as I do on this matter — agency deference is not always a good thing. My thought is that the laws that take people to court in the first place over scientific issues — most notably ESA and EPA — are “half-baked and outdated” and in need of significant revision. By “half-baked” I mean “based on theory that is wide open to legitimate challenges.”

                It is obvious that neither industry nor enviros are happy when agencies disagree with them — and then the disagreements are upheld. Can we also agree that most of these disputes involve the quality of science that is being used? I’ll put in another comment that has a link to Moghissi’s thoughts on that topic, but I’m also interested in yours.

                  • Larry: Can you follow the links to the last comment I made on this post and let me know your thoughts? It probably still comes down to a “lumpers” and “splitters” argument at some level, but one that can be addressed in public without the need of judges upholding agency “best” scientists in court because of regulations. True transparency and modern Internet communications — quite the potential!

                    • I did read most of the interview with Dr. Moghissi, and was impressed with his proposals and recommendations, along with his ironclad credibility. He seems to accurately address all the issues about Best Available Science and the need for true Independent Peer Review. All too often, today’s peer review is a dogpile of scientist-friends, buttering each other’s bread with ideological values and axes to grind. I was looking for key quotes to use as examples for reading the article but, there were just too dang many! No matter what your views are, please read the interview and bring along your open minds, as well as your skepticism to process the truths he is bringing to the table. Too many scientists use and hide their non-scientific mindsets, to further their personal agendas, and transparency is needed to sort out what is BAS and what is not.

                    • Thanks, Larry: Very much appreciate your comments. Yep, Moghissi is eminently quotable! Glad you agree with what he has to say. If Congress would only listen, the EPA and ESA could be transformed in a very positive way, and much courtroom drama and related hardship could be avoided. In my opinion.

    • TreeC123 accurately stated the high level of deference courts give agencies and the standard of review courts apply to questions of NFMA and NEPA compliance.

      I agree with Matthew that the actual content of any comment should be the focus of replies, not a commenter’s credibility based on her or his anonymity. The comment policy for this blog says, “Some people use aliases on this blog; no comments ‘outing’ them will be allowed.” This indicates anonymous comments are both expected and acceptable on this blog. Commenters should not be bullied or their comments dismissed simply because they choose to be anonymous for personal or professional reasons. I’d suggest the comment policy be strengthened in that regard.

  4. John: I am not against anonymous posters, such as stump, JZ, or — just today — Matt V. I think the bullies are those who use their anonymity to attack others or to presume an air of authority, and will continue to call them out on those scores. I agree with Tree’s statement, too, and in fact just posted on that very topic during the past 48 hours. I just get tired of his condescending statements and lectures — he seems to be a lot smarter than the rest of us, but doesn’t offer a clue as to how that came to be, or why we should pay attention to what he proclaims.

  5. But, Bob, can’t we just for a second pay attention to what Tree wrote?

    It’s the agencies, not the courts, that are required to consider the best available science (NFMA), or use high quality information and accurate scientific analysis. (NEPA 40 CFR 1500.1(b)).

    The job of the courts is to ensure that the agency followed these requirements of NFMA and NEPA, while also deferring to the agency on matters within their expertise, UNLESS the agency’s analysis is “arbitrary and capricious” defined as: : (1) the agency entirely failed to consider an important aspect of the issue; (2) the agency offered an explanation for its decision that was counter to the evidence before it; (3) the agency relied on factors that Congress did not intend for it to consider; or (4) the agency’s decision is so implausible that it could not be ascribed to the product of agency expertise.

    Do you have a response to this very substantive and relevant comment from Tree, Bob? You never seem to want to answer any of Tree’s substance, only focus on his anonymous nature (which Sharon, the owner/moderator of this blog has said is allowed…and even encouraged). The fact that Tree could be a guy, or a girl, or white, or black, or live in Denver, of live in Drain, really doesn’t matter one bit in the context of what Tree wrote, does it?

  6. Matt: I’ve stated my position several times on this and why I (try to) draw the line at substantive discussions with most anonymous people. Look at his opening line: “Non-lawyers once again fumbling legal issues.” Is he a lawyer, to make that judgment? Is he calling me a “fumbler,” or is he referring to someone else? Plus, if he actually read the article he would see that this topic was covered in spades and he is just being redundant. And condescending. Plus insulting. Why mess?

    • Ok, Bob, so you have addressed and provided some of your thoughts about Tree’s opening statement of opinion, “Non-lawyers once again fumbling legal issues.” Great, good for you.

      Now, how about you address and provide some of your thoughts about the substance of Tree’s comment, which to me appears to directly go to the heart of your post, and respond to your invitation for “Other Opinions.”

      It’s the agencies, not the courts, that are required to consider the best available science (NFMA), or use high quality information and accurate scientific analysis. (NEPA 40 CFR 1500.1(b)).

      The job of the courts is to ensure that the agency followed these requirements of NFMA and NEPA, while also deferring to the agency on matters within their expertise, UNLESS the agency’s analysis is “arbitrary and capricious” defined as: : (1) the agency entirely failed to consider an important aspect of the issue; (2) the agency offered an explanation for its decision that was counter to the evidence before it; (3) the agency relied on factors that Congress did not intend for it to consider; or (4) the agency’s decision is so implausible that it could not be ascribed to the product of agency expertise.

  7. Matt: In addition to Tree, maybe you should read the link to Magee 2008 that I posted. And stop telling me I need to address anything. I’ve made my position clear several times already and now I’m drawing the line on being pestered on the topic as well. Isn’t that the very thing that got you upset with Gil?

  8. This is a follow-up post to a discussion with John Persell on this string regarding the court’s deference to the “best science” provided by agencies. It links to work I have been involved in during the past three years that provides what I believe to be an alternative solution to many of the courtroom battles over ESA and EPA of the last quarter-century. It also links to an unfinished website as the parent Environmental Sciences Independent Peer Review Institute (ESIPRI) has lost two Board members in 2013 to serious illness (including the sudden and unexpected death of one of their spouses) and has also had — as with many 501 c(3) nonprofits — difficulty in securing necessary operating funds during these depressed economic times.

    The background story, including Dr. Alan Moghissi’s efforts with Congress, appears here:

    http://www.esipri.org/Library/Evergreen_2012.pdf

    For those with an interest in this type of approach, I would recommend reading pages 1, 8-12, and C-2 to C-4 (9 total pages) as an introduction and overview:

    http://www.esipri.org/Guidelines/ESIPRI_Guidelines_20130618.pdf (pp. 1, 8-12)

    http://www.esipri.org/Guidelines/Appendices/C_Reconciliation_Report.pdf (pp. C-2 – C-4)

    Does an approach of this nature make sense to other participants on this blog? I would be very interested in any comments people might make regarding this strategy — even from anonymous sources (“blind peer review”)!

    Thanks in advance to anyone who tackles it. We were hoping to have the website up and running by this summer at the latest, but health problems and financial shortcomings have resulted in delays.

  9. Bob

    Thank you for this: pages 6-13 @ http://www.esipri.org/Library/Evergreen_2012.pdf
    Dr. Alan Moghiss is a remarkably knowledgeable individual – There wasn’t a thing that he said, in Evergreen’s interview, that I disagreed with. I find the article very affirming to my belief set gathered over a lifetime.

    Without trying to get deep into the other two links, it appears that they are simply an extension of the scientific method as it was drilled into my head beginning in high school. Good work, I wish you the best in your efforts to establish a truly independent, unbiased peer review organization.

    • Thanks, Gil: I appreciate the feedback! Actually the methodology we are proposing is significantly different than the “blind” and “double-blind” methods you were likely taught. Mainly, there is full transparency and accountability here — 1) signed reviews with an opportunity (and encouragement) to subsequently address opposing viewpoints, and 2) full Internet display, with access and discussion opportunities provided to the public. Plus, there are other nuances, such as a requirement to conduct reviews in Plain English, and to paraphrase all mathematical formulas into complete sentences. Our Guidelines were initially based almost entirely on Moghissi’s methodology, but were significantly altered and refined following reviews by Sharon, Mike Newton, Moghissi, and more than a dozen other scientists, resource management professionals, and a technical writer.

  10. Bob

    Re: “Actually the methodology we are proposing is significantly different than the “blind” and “double-blind” methods you were likely taught.”
    –> Actually, there is nothing new here – It is FANTASTIC that you are all working to pull all of this together in a practical way.
    –> “full transparency and accountability” was taught when I was in High School
    –> “based almost entirely on Moghissi’s methodology, but were significantly altered and refined following reviews by Sharon …” I have read their scientific criteria and there is nothing new that I wasn’t taught in High School.

    It is sad that we can’t build on what we know and instead throw it away only later, after much wasted time and resources, to rediscover it. Not only has forest science been heaved for conjecture but the whole concept of what is scientific and what is not has been overthrown. I CONGRATULATE you all for rediscovering it and for your valiant efforts to reassert true science. But, I remind you that the same people who eviscerated science to suit their agenda are still strong and will do everything they can to discredit you and steer people away from your organization.

    My favorite of Dr. Moghissi’s quotes is something similar to the age old comment “The truth will out”. I can certainly identify with his associates who gave up fighting for true science. As I’ve said before, we might get where we need to go quicker if we just turned the EPA and the forest service over to the the uninformed and pick up the pieces after they have shredded their own credibility. It’s been a long and loosing battle. It is far from over, but the truth of the fundamental laws of science will prevail whether they are accepted or not.

  11. Gil: You must have gone to a better High School than I did! I was even being taught the value of “blind” peer review in graduate school, even though some disciplines had begun to require signed, public reviews by that time. Still, I’m pretty sure they weren’t adding Internet display and communications to the process! Page 8 describes how we hope to use Internet to teach students how to better conduct reviews, and Appendix C describes how we integrated the reviews into the final report.

    It is worth noting that the current “traditional” review process really only got started in the 1950’s in the US, which was ahead of most other countries. My contention is that the timing was concurrent to a massive increase in government spending on research (which Eisenhower warned against), as a method to track the products of such expenditures. Only one of Einstein’s (who was also still living when I was in Grade School) papers was ever sent out for review, and the story was that he became furious at someone second-guessing his work. Might not be entirely true, but indicative of how times have changed.

    • Bob

      I wasn’t intending to speak to the technology that you are utilizing. After all Al Gore hadn’t invented the internet back then. 🙂 What I was speaking to was the fundamental principles of what constitutes established science as opposed to hypothesis.

      We had 1,200 in our public high school graduating class of 1963. There were two other large high schools in the same county. That county is Arlington, Virginia. It is one of the bedroom communities of D.C. – If you think of the diamond that was originally laid out to be D.C., the part in Virginia south of the Potomac River was never included in D.C. That is Arlington which is only 25 square miles and at the time that I graduated was the third smallest county in the US. So yes, I was extremely privileged.

  12. The laws are what they are – NEPA, NFMA, ESA, and the APA which governs how courts review agency decisions under these laws – and I think this has all been laid out pretty well above (except that no one mentioned the ESA requirement to use ‘the best scientific and commercial data available’).

    Given that (and that a non-functioning Congress is not going to change the laws), the issue seems to be whether agencies use ‘poor quality’ science (Bob), or whether agency scientists have personal agendas that produce bias (Larry). It seems hard to have this kind of discussion in the abstract.

    The good news is that each agency decision must be made in a public process where alternative science can be offered, and under the APA it can’t be arbitrarily ignored. I liked the discussion of the Big Thorne Timber Sale in this blog as a specific example of how science should be considered under NEPA.

    Sharon has also suggested in another post that commodity interests are somehow handicapped in their ability to contribute scientific information to this kind of process. I’ll be interested to see where that conversation goes.

    • Jon, you said:

      “Sharon has also suggested in another post that commodity interests are somehow handicapped in their ability to contribute scientific information to this kind of process.”

      Where did I say that? I think there are processes that are open to everyone (NEPA) and processes that are not so open (ESA). But I don’t remember singling out “commodity interests”. I’m just interested in people in general being able to contribute what they think is relevant scientific information (and be clear on why they think it is relevant) and observing how that information is used.

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