Urban Lehner wrote a great article (WLJ, June 17) describing scientific advances in medicine and cancer and asks how much trust farmers and ranchers have in science. I expect farmers and ranchers have good trust in agricultural science which has resulted in great improvements in production, but not as much in government environmental science, particularly wildlife science.
Wildlife regulations, especially Endangered Species Act (ESA) regulations, impact livestock, timber, mining and oil operations with restrictions on land use, water and controlling predators. These regulations are supposed to be based on the best available science, but the federal government scientists essentially dictate what science is best. Government scientists decided the northern spotted owl is a subspecies and endangered with extinction because of logging. Government scientists decided polar bears are endangered with extinction because of climate change. Government scientists decided that different subspecies and populations of wolves are endangered with extinction because of small population numbers in some areas. Government scientists decided that roads in Alaska North Slope oil fields negatively impact caribou.
Counter arguments to these decisions by legitimate scientists have been dismissed, overruled or ignored. The government scientists are supported by the courts with what is known as “Chevron deference” to their interpretation of the science, simply because they are the federal government. Chevron deference required that courts accept a government agency’s science and interpretation of laws if it was reasonable. Not correct, just reasonable. I described this in my book, Wildlife, War and God, Liberty, in 2019:
“However, ideas, information, and science not in agreement with the government bureaucracy are, in my experience, often dismissed or ignored resulting in what I believe is a government monopoly of the science and information used with the ESA and other environmental issues…For example, with the ESA, the U.S. Fish and Wildlife Service (FWS)…write proposed rules and species status reviews, choose peer reviewers, accept of dismiss peer reviewer comments, accept or dismiss public comments, and write final rules to designate endangered species. The only recourse for challenging such designations is to sue in court. However, FWS…apparently have unlimited funds for legal challenges and receive ‘deference’ in court as the experts with the correct science simply because they are the federal government.
“Federal courts defer to an agency’s interpretation of a stature or regulation, called Chevron deference of Auer deference, referring to court cases. This has been considered delegation of legislative duties to the executive branch and violates the constitutional separation of powers. Justice A. Scalia described this practice as tyranny in a water pollution case (Scalia 2013).”
The good news, consistent with Justice Scalia’s sentiment, is that a recent Supreme Court decision changes this prejudiced system. On June 28, the Supreme Court ruled that a 1984 decision that created the Chevron deference doctrine was invalid.
The Supreme Court decision is really good. Now, if a federal biologist says sage grouse are endangered with extinction based on models, and other scientists point out the model is a speculative prediction, or if a federal biologist says the northern spotted owl is a subspecies, and other scientists point out that subspecies are not scientifically rigorous, all of the science must be considered. I suppose this will make it harder for judges to decide which science to use. At least government scientists won’t have a monopoly on science anymore.
An idea to complement the cancellation of Chevron deference is to institute state government co-authority on ESA and other federal regulatory decisions. If this was implemented, state governors and/or legislatures must approve federal regulations for them to be enacted in a state. For example, if the governor of Arizona disagrees with the federal ESA listing of the Mexican wolf as an endangered species, it would not be a federal endangered species and the state would retain wildlife management authority. This is, of course, consistent with the 10th Amendment to the U.S. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. ”Although the 10th Amendment is clear, the ESA is justified as a federal law under the Interstate Commerce Clause, which I think is inappropriate.
Getting state co-authority on the ESA would be very controversial because of the huge environmental group industry which has great influence on policy. Regardless, the cancellation of Chevron deference means you can now expect to have legitimate science considered in wildlife agency decisions and court cases. This will still require diligence and persistence to challenge government agency science. Perhaps the USDA, county Extension agents, and land grant university agriculture and forestry scientists can be enlisted to help provide good science on wildlife and other environmental issues.— Dr. Matt Cronin
(Matthew Cronin was a research professor at the University of Alaska and is now at Northwest Biology Company LLC in Bozeman, MT. He can be reached at croninm@aol.com. A full list of references can be found at wlj.net)
