Supreme Court to look at science and politics

In my experience, there have been lots of controversies where the issue is about what scientific information was considered by an agency but was suppressed or ignored by an administrator, often for allegedly political reasons.  It’s not unusual for the results of litigation to turn on documents that show an agency decision being arbitrary and capricious (violating the Administrative Procedure Act) because it is not supported by the record.  But do those kinds of documents have to be available to the public, and what if they weren’t?  The Supreme Court will be addressing such questions in U. S. Fish and Wildlife Service v. Sierra Club.  The case involves the Freedom of Information Act, and its requirement to make government records available subject to exceptions that may cause harm, in particular protection of an agency’s “deliberative process.”  (This exception generally lines up with requirements for what must be in an agency’s administrative record for a decision.)

The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.

When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.

The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.

While this article doesn’t talk about it, the major federal environmental statutes have requirements to use the “best science,” including the Endangered Species Act involved in this case, but also NEPA and the Forest Service Planning Regulations.  Agencies must prove they have done this by “showing their work.”  This includes disclosing contrary science, and providing the rationale for not relying on it.  It seems to me that any changes in the use of science or how it is viewed would be relevant to this requirement and must be explained to the public.  This is probably why there are comments like these on this case:

Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”

Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.

Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.

Here’s what the government would like us to believe (according to the apparently pro-government-secrecy advocates the Pacific Legal Foundation):

“And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”

Consultation with whom, I wonder.  Since the Supreme Court agreed to review the case, the assumption is they would like to reverse in favor of the government.  The Sierra Club may decide to fold, also because FOIA has been amended since this case was filed to restrict the use of this FOIA exemption and promote greater disclosure.

18 thoughts on “Supreme Court to look at science and politics”

  1. Over the past 3.5 years, we have seen a dramatic increase in a “sanitizing” of the administrative record in record review cases. Gone are email exchanges, draft documents, marked-up documents, and other evidence of agency decision making. Instead, essentially we have been told to “trust us” and that the agency’s final decision emerged fully formed, without any internal agency deliberation. Certainly not transparent government decision making. One has to ask: what are they hiding?

  2. Susan, I don’t know what’s going on now, but the very same litigation people on the agency side are running things and I would guess that they are doing what they have always done.

    It seems unlikely to me (although not impossible) that there would a) be a concerted effort to change the way administrative records are produced (without someone leaking this change; unless it was not in writing) and b) that this change was implemented successfully throughout the different Regions of the Forest Service.

    I’d like to hear from someone perhaps currently working or more recently retired who has insight on this.

    • No, this is a very new approach to the administrative record than prior administrations, D and R. I’ve been practicing for 20 years and DOJ has never taken this myopic view of what the “administrative record” is. The dramatic increase in litigation over the content of the record reflect this, including this Supreme Court case we’re discussing.

      I’m also curious if there are recently retired DOJ counsel on the Smokey Wire who can speak to this from their perspective. I have heard confirmation of my perception from DOJ counsel who jumped ship from the Sessions DOJ and into plaintiff-side conservation work, but its possible they are a minority.

      • My experience (which is obviously not as extensive as yours) was that OGC were the folks that I had most contact with, and DOJ were mostly different people (for each case) I didn’t know on phone calls. I will try to reach out to (the few) retired folks I know from OGC.

  3. Jon, I think that this is simply a case of the deliberative process exclusion from FOIA (which I was always told not to use, as we might need it someday and if we abused it it would be gone, and besides it looks bad, if I remember OGC’s advice), and not so much about “science”.

    In the quote Rohlf says :”Agencies “overrule their scientists and other experts”. Perhaps Professor Rohlf has never worked in a field where scientists and other experts disagree with each other? Suppose two government lawyers disagree (which I have seen many times). If someone above them picks one opinion over the other (which they obviously have to do to proceed) have they “overruled their expert opinion?” Maybe these folks see scientists’ opinions as more monolithic than my own experience.

    Examples from my EIS experience… a botanist and silviculturist don’t agree about invasive plants (they are both plant experts), a fish bio and hydrologist about water stuff… And interagency specialist disagreements.. shouldn’t use the BLM guy’s air quality model and so on. And the more agencies involved, the more experts, and the greater likelihood of disagreement and someone being overruled.

    Of course, I realize that ESA is different that way.

  4. I was the regional FOIA coordinator for Region 6 for a couple of years and then carried this albatross to some degree for the rest of my career so I paid attention to what was going on. The normal course of events with a new administration was to adopt a new “policy” on withholding deliberative documents. The D’s would make the default “release unless you can show harm,” (and the understanding was you had to make an exceptional case), while the Rs would say “presume harm” from releasing these documents. I believe I saw this at least once in writing, but it may have often just been “understood.”

    My point about the science is that the requirements to show you have used the best available science means that any actual disagreements about science must be disclosed, and the record must be clear about how and why they were resolved. Anything done to meet this requirement can not be considered to cause “harm” to the deliberative process and should not be exempt from disclosure under FOIA.

  5. Just as another example, here is how this issue played out in the Atlantic Coast Pipeline case (also before the Supreme Court, but on a different issue):

    “We were basically shut down,” says Karriker, who had authored the impact study. “The project was taken away from people at the forest level and was handled at the regional and Washington level who would go along with whatever Dominion wanted to do, up to and including changing the fact determinations I had written for several sensitive species that showed the project would impact them in a way that was not allowed by the regulations.

    It’s not clear to what extent the circuit court was aware of the internal machinations at work in the Forest Service that led to the eventual approval of the pipeline… They concluded the Forest Service “abdicated its responsibility to preserve national forest resources,” calling the agency’s disregard for deleterious effects associated with the pipeline “nothing short of remarkable.””
    (I’m not sure I understand or agree with the part of this article that talks about “opening up the mineral estate” under national parks.)

    • Perhaps someone has access to “the fact determinations I had written for several sensitive species that showed the project would impact them in a way that was not allowed by the regulations”. I wonder what regulations?

      I wonder whether if this were a solar or wind power line would it have the same degree of controversy?

      As to having the project “taken away” I think that’s interesting – it seems rational to me that if you have a national visibility project of some kind you would want to get a high-performing team to totally focus on it. Who may, of course, have different approaches and views.

  6. And my point is that those “different approaches and views” about science must be disclosed. I note that the FWS memo does not mention legal obligations related to “science.” (I also noticed that this publicly available memo says “CONFIDENTIAL AND PRIVILEGED – DO NOT RELEASE.”)

    • I think what happened was that someone leaked the memo to CBD and they posted it.
      I realize that there might be an ethical question related to leaking and posting here, but since it seemed to answer the question that Susan posed, I thought it worth posting despite its origin..

      I guess my question is “where exactly should different approaches and views be disclosed?” and “should views about “science” be treated differently than other internal disagreements?”

      • There are legal requirements that apply to science, its use and disclosure. It’s different. Here’s the main NEPA requirements in the CEQ regs for what and where:
        “40 CFR §1500.1
        (b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.
        §1502.24 Methodology and scientific accuracy.
        Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix.”
        The requirement to acknowledge conflicting science comes from the courts, probably interpretations of the “integrity” requirement.
        The Planning Regulation addresses the use and disclosure of “best available scientific information in §219.3. The Forest Service “shall document” this.
        In ESA, it’s in the law to use “the best scientific and commercial data available.”
        Agencies don’t do a good job of documenting how they meet these requirements.

  7. I wonder exactly what “scientific integrity” meant in 1978.

    I think agencies do use the “best information” in their analyses. The part that’s hard is to document why they think that this is the best information. I’m not thinking “why salmon will or will not be hurt by this project” but rather every piece of information on every aspect of the project.

    I think it’s the difference between, based on x study and y study, we determined that z.
    X study and y study say z, nevertheless b study and c study find q. And d and f study find r. Based on the sampling design of study y,and the fact that x, q and d are in a different part of the species range…we went with z.

    Plaintiffs…” but what about studies g, h, and l”? You need to explain why they are not relevant..
    And so on. Multiply this by hundreds of scientific issues per EIS. Meanwhile, as the agency redoes its analysis, more studies are published which need to be considered and documented…

    I think I understand why agencies don’t do a good job; the task is basically impossible and the acceptance of the work they do depends on a) how interested the plaintiffs are on going forward and b) random judicial decisions on its “enoughness.”

    • I think courts would be happy with anything, but often see nothing. In my experience, the typical “best practice” seems to be citing scientific literature that supports a conclusion. At least where that conclusion is challenged by public comments, there needs to be more justification.

      • Honestly, it’s not that hard and the bar is pretty low. A paragraph would be sufficient that says: “We agency considered X, Y, Z science in making our decision. Public comments suggested we consider A, B, C science. We agency looked at ABC science and believe some/none/all of it has merit for the following 3 reasons…. Our decision reflects what we agency believe to be the best available science for the following 3 reasons….”

        That’s four sentences. And while I may not agree with the agency as to the proffered rationale, under the current case law, it would nonetheless (likely) be a legal rationale. It’s also short and to the point, which I think everyone would appreciate.

        • Good outline. For contrast, here is the new Nantahala-Pisgah plan revision DEIS:
          “1.8 Best Available Scientific Information
          The 2012 planning rule requires the responsible official to use the best available scientific information to inform the development of a forest plan. Resource specialists considered what is most accurate, reliable, and relevant in their use of the best available scientific information. The best available scientific information includes the publications and other sources listed in the Literature Cited section of this Draft Environmental Impact Statement. Best available science also includes information obtained from other sources, such as participation and attendance at scientific conferences, scientific knowledge from local experts, findings from ongoing research projects, workshops and collaborations, professional knowledge and experience, and information received during public participation periods.”
          (They don’t even acknowledge that they must explain it, not just use it, but I guess this is what they consider an explanation.)


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