Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review

By Travis O. Brandon

Recent empirical studies have shown that public participation is an essential part of the listing process of the Endangered Species Act (“ESA”) because it provides the wildlife agencies with valuable scientific information regarding candidate species and forces agencies to make politically unpopular decisions to protect species standing in the way of development interests. However, the crucial agency-forcing mechanism of public participation is lacking in the interagency consultation process in section 7 of the ESA, one of the most important provisions by which the ESA’s protections for listed species are enforced. This Article explains how the absence of public input through a notice-and-comment procedure in the section 7 consultation process creates a chain of structural asymmetries that predictably skew section 7 decisions in favor of regulated parties and against environmental interests. Because of these structural asymmetries, section 7 is the only provision of the ESA where the “availability” of the “best available science” is an essential evidentiary issue. Examining several recent significant section 7 cases, this Article shows that courts have failed to grapple with the structural differences between section 7 and other parts of the ESA, leading to an inconsistent and improper application of the “best available science” standard in section 7. This Article argues that in order to address the structural asymmetries in the section 7 process, courts should be less deferential toward agency scientific analysis in section 7 decisions, and should be more willing to admit extra-record scientific evidence to challenge the adequacy of agency scientific decisions. Finally, the Article argues in favor of introducing a notice-and-comment procedure in a subset of significant section 7 decisions.

Cite as: Travis O. Brandon, Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review, 39 Harv. Envtl. L. Rev. 311 (2015).

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