The ESA petition process


The ESA petition process
The ESA petition process

Lot of good discussion around the black backed woodpecker recently.  Maybe everyone else is way ahead of me, but I have to admit that I wasn’t clear on how the ESA process worked (I only deal with the actual listed species).  There’s been plenty of debate today on advocacy vs. science, appropriate science  and the motivation of “petitioners”.  Hopefully this helps shed a little light on the process and how the USFWS considers science.  Thanks to John Persell for prompting me to do some more research.  The USFWS site is clunky, but here’s an overview:


12 thoughts on “The ESA petition process”

  1. Thanks for posting this, JZ. I had no real idea of what the actual steps were, either. The one that interests me the most is the peer review by “three independent species specialists.” That seems like a really minimal screening process for a determination that could cost thousands of jobs and millions or billions of dollars. I would be very curious to read the three opinions given by the spotted owls scientists and marbled murrelet scientists — and also how these experts were selected in the first place. Any help on this from any members of this blog?

    • The FWS didn’t use the 3-scientist review process for the spotted owl listing. I think that’s a procedure that post-dates the owl’s listing.

      For those interested in arcane history, the FWS originally rejected the owl’s listing based upon its misrepresentation of the views of one scientist. When that scientist disavowed FWS’s position, the agency was left without any scientist to rely upon. Thus, the federal judge threw out the agency’s anti-listing decision as arbitrary, i.e., FWS had articulated no scientific basis whatsoever.

      FWS’s court-ordered reassessment led it to list the owl. Here’s an excerpt from the court’s ruling:

      The Service’s documents also lack any expert analysis supporting its conclusion. Rather, the expert opinion is entirely to the contrary. The only reference in the Status Review to an actual opinion that the owl does not face a significant likelihood of extinction is a mischaracterization of a conclusion of Dr. Mark Boyce:

      Boyce (1987) in his analysis of the draft preferred alternative concluded that there is a low probability that the spotted owls will go extinct. He does point out that population fragmentation appears to impose the greatest risks to extinction.

      Dr. Boyce responded to the Service:

      I did not conclude that the Spotted Owl enjoys a low probability of extinction, and I would be very disappointed if efforts to preserve the Spotted Owl were in any way thwarted by a misinterpretation of something I wrote.

      Similar shenanigans occurred during the Bush administration when a political appointee censored the views of FWS scientists.

      • So, Andy are you saying that the ESA is legislation that for whatever reason legitimizes technocracy?

        In that biological scientists decide what needs to happen in terms of policy?

          • But did we consciously give wildlife biologists control over “public and private land use” in the same way we give (doctors, medical researchers?) control over approval of drugs and medical devices? Don’t they, in some cases, actually have to factor in the costs compared to the medical benefits? or are there two different kinds of approvals..??

            • The ESA does not give wildlife biologists control over land uses.

              The Act requires the Secretary of Interior (or Commerce for marine critters) to make species listing decisions “solely on the basis of the best scientific and commercial data available.” These data are used to address whether, based upon consideration of the following factors, a species is in danger of becoming extinct (endangered) or likely to become an endangered species in the foreseeable future (threatened):

              (A) the present or threatened destruction, modification, or curtailment of its habitat or range;
              (B) overutilization for commercial, recreational, scientific, or educational purposes;
              (C) disease or predation;
              (D) the inadequacy of existing regulatory mechanisms; or
              (E) other natural or manmade factors affecting its continued existence.

              What the Act requires of the Secretary, as explained by Judge Zilly in the spotted owl case, is that FWS have an “expert analysis supporting its conclusions.” That analysis has to “establish a rational connection between the evidence presented and the Service’s decision.”

              Listing is a rule-making process, which requires the agency to create a record, including submissions from the public, on which its decision is based. Contained within that record must be the “best scientific and commercial data available.” FWS has to explain how it uses these data to evaluate the five listing criteria.

              Like much of our world, this decision-making process requires judgment. It is not a rote exercise that can be reduced to a computer program. Among other things, the decision-maker has to consider the reliability of the different data sources, the logic of the different analyses, including the reasonableness of assumptions inherent in each analysis, and the persuasiveness of different arguments.

              This is classic administrative agency decision-making. It is the same process used by FDA in drug approvals.

              It is important to note that these processes (drug approval or species listing) do not mandate that the decision-maker have any particular degree or expertise — scientific or otherwise.

            • P.S. FDA doesn’t consider cost in its approval of drugs. Only safety and effectiveness. You get to decide for yourself whether the cost of a drug is worth the benefits. Your decision is influenced by your insurance coverage, your employer’s choice of employee health benefits, your doctor’s advice, and whatever other information you care to glean.

              • OK I was skipping ahead.
                based on the listing decision, if species are endangered, then people decide what to do about it… what practices are OK in land use and what aren’t and where.. designate “critical habitat” etc..”

                I am with JZ here on being a bit on the tail end of listings and what you have to do on not seeing the process all the way through.

                OK, I think I got FDA approval mixed up with recommendations for screenings..
                Here’s a site that shows the scientific rationale for decisions from the U.S. Preventive Services Task Force

                I like how they arrayed their “levels of certainty regarding net benefit”

                Yes the difference seems to be the locus of control. The patient gets to decide which one is best given scientific recommendations. But landowners don’t get to decide about following ESA; which does make sense because it is regulatory. So exactly whose opinion counts more than others, how and how evidence is weighed and balanced seems to be a very important consideration.

                Now, in this particular area, I don’t know exactly how it works with ESA, but conceivably should be more or less like other environmental regulations; with the same process for scientific and other kinds of input….

  2. I am curious as to how public all the blue boxes are. I would think that they would all be published on the internet with space for comments and dialogue.

    I agree with Bob that three is way too light for decisions that can be so important, but opening it up to scientists and field observers would result in “the best available information.”

    Finally I remember that FWS has to do many things because of a lawsuit by CBD.. can someone explain what stage they were at on this chart and where they have to go now?

  3. Yes, I was aware of some of the pieces/parts of that flowchart, but had never understood the whole process either. I tried to engage recently on the potential wolverine listing (blue box 3) but was stymied to the point of “why bother”. I’m not a credible scientific source, regardless of my evidence or lack thereof.

    Despite being a “public” process, it would seem that the ESA game is inherently skewed in favor of the enviro lawyers and agency folks who have the time to spend digesting the rules and regs. I can understand the frustrations of folks affected by a potential listing. One could even apply the same arguement that enviro groups have used against “collaboration” when they lament about meetings being held during the week when regular “working” folks can’t particpate. There’s just too much to digest and seemingly very little that can be influenced at the local level.

    • Maybe FWS would want to contract with Sharon’s non-profit to begin listing all of the plants and animals on the ESA lists — including photos, PDF lit files, and all the blue boxes? The basic format would be a searchable database that is easy to navigate. And HS students could be hired to assemble and digitize applicable documents.

      If this is really a transparent process — or even just a scientific evaluation — significant value would be added by professional and public review via the Internet. And it would be fairly cheap to put together, and should remain as a resource for decades to come. And it could be theoretically started tomorrow, even with sequestration.


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