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Article Excerpt
Introduction and Background
Recent years have seen a substantial increase in concern about the condition of U.S. living marine resources, accompanied by a surge of litigation against NOAA's National Marine Fisheries Service (NMFS). Since the mid 1990's, litigation against NMFS has risen tenfold, and the agency's early record of success in defending its actions has dropped dramatically to below 50% (NAPA, 2002). Recreational and commercial fishermen once initiated more than half the cases, but environmental group filings have increased markedly in recent years. Litigation by other plaintiffs, such as states, tribes, and nonfishing industrial groups, has increased as well (NAPA, 2002). Lawsuits brought under the National Environmental Policy Act (NEPA) (1), the Endangered Species Act (ESA), and the Regulatory Flexibility Act (RFA) have increased markedly, along with a smaller increase in lawsuits brought under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA).
In response, NMFS has undertaken a series of initiatives designed to reduce litigation losses on process issues. For example, NMFS now employs regional NEPA coordinators who work to 1) ensure national and regional consistency, 2) facilitate early, active participation of NMFS and the fishery management councils in the NEPA process, 3) coordinate NEPA training programs, and 4) provide advice on environmental compliance. (2) It has also conducted a number of internal reviews, consultations, workshops, and strategy sessions aimed at improving its management and budget processes. (3) Nevertheless, given that "adversarial legalism" (4) (Kagan, 2001) is the prevailing paradigm for conflict resolution in the United States, we can expect that stakeholders will continue to use litigation as a blunt yet effective instrument for influencing the system.
Whether litigation is ultimately beneficial to the fisheries management process is a matter of strongly diverging opinion (Panelists, 2001). On one hand, some agency employees contend that excessive litigation inhibits effective management by diverting scarce resources, allowing scientifically inexpert judges to manage fisheries, polarizing participants, and hindering collaborative and innovative approaches. On the other hand, environmental plaintiffs argue that lawsuits are the only way for them to gain a meaningful voice in an industry-dominated fishery management council system and to ensure that NMFS complies with the law (Panelists, 2001).
Although the agency's attorneys manage the nuts and bolts of responding to these lawsuits, agency scientists and managers are also affected by this litigious climate. (5) Environmental laws often mandate scientifically-based regulatory decisions, and thus play a major role in defining the agency's research agenda. But although science is clearly a necessary component of the regulatory decision process, it is often not sufficient by itself. Environmental regulatory issues tend to be "trans-scientific" (Weinberg, 1972): they raise questions that cannot be answered solely by recourse to science, because of intractable scientific uncertainty and difficulties in translating legal requirements into concrete scientific standards. Agencies must address these mixed questions of science and law by relying on scientifically informed expert professional judgment in accordance with a reasonable interpretation of legal requirements (Jasanoff, 1990). In other words, agency scientists and managers must learn to work at the interface of science and law to assist in the production of legally robust environmental documents.
This paper uses the term "forensic fisheries management" to refer to issues at the boundary of law and science in the fisheries context. (6) Although the term "forensic" conjures up images of criminal investigations, the term has a much broader application. Forensic science is simply the application of science to the law; "It]he problems for the field have been set by the law's demands for peculiar sorts of knowledge" (Mashaw, 2003). Thus, the term "forensic fisheries science" refers specifically to the science questions that are asked and answered primarily for the purpose of meeting the agency's legal requirements.
Agency scientists are tasked with addressing these forensic fishery science questions by conducting research and providing data to develop management decisions that comply with legal mandates. Yet they labor with the uncomfortable knowledge that, in the event of a lawsuit, lawyers and judges will scrutinize their work for legal shortcomings. Legal requirements may seem especially arcane to scientists and managers, whose professional expertise lies in science rather than law. It would, of course, be both unreasonable and unnecessary to expect scientists and managers to undertake rigorous legal training. However, it may be highly beneficial for them to join the ongoing conversation among the legal community on issues surrounding the application of science to the law. Such discussions could serve a boundary-spanning function by improving communications among scientists, managers, and legal counsel, thereby allowing agency personnel to work more effectively towards the common goal of producing legally compliant environmental documents. This paper seeks to serve as a starting point for such discussions with its selected review of recent legal literature containing useful theories and concepts regarding the intersection of law and science in the regulatory agency context.
Literature Review
My initial literature search encompassed both legal and fishery science periodical databases. However, it quickly became apparent that articles containing the targeted subject matter appeared almost exclusively in the legal literature. In other words, it seems that lawyers are writing about scientists, but not vice versa. And because legal periodicals are rarely indexed on science-oriented databases, it is unlikely that scientists would encounter such articles in their regular professional activities. The unique format of law review articles may pose an additional barrier to interdisciplinary learning. Law review articles are written with an audience of lawyers in mind. They tend to be extremely lengthy, heavily footnoted, and freighted with legal concepts and terminology. This is unfortunate, because the legal literature contains many instructive insights regarding the science-law interface. Accordingly, this review of the legal literature was written with regulatory scientists in mind.
This paper does not attempt to describe the comprehensive realm of literature on the interface of science and law. Rather, it provides a selection of recent materials, primarily from the legal and policy literature, chosen for their relevance and utility in helping scientists understand key issues and concepts in U.S. forensic fisheries management. Articles focusing primarily on international fisheries issues (7), fishery science, and tools for fishery management were excluded. In addition, the sizeable body of literature concerning the admissibility of scientific expert testimony at trial is only briefly discussed because it is rarely at issue in NMFS fishery cases. (8) The selected literature is broadly organized under two related categories: 1) legal-institutional and 2) sociocultural, with subcategories under each. Because the issues are so tightly interwoven, these subcategories are not entirely discrete; however, the subcategories should assist the reader in parsing the literature.
Legal and Institutional Issues Governing the Integration Of Scientific Information in the Policymaking Process
Complex and Contradictory Statutory Mandates
Perhaps the most obvious and commonly cited problem is the difficulty of managing marine resources under multiple and sometimes contradictory statutory mandates (Heinz Center, 2000; Fletcher, 2002; Halpern, 2002; NAPA, 2002; Pew Oceans Commission, 2003; Christie, 2004; U.S. Commission on Ocean Policy, 2004). The NMFS must simultaneously manage sustainable fisheries and conserve protected species under the statutory framework defined by the MSFCMA, ESA, NEPA, the Marine Mammal Protection Act (MMPA), and other applicable laws. Each of these laws arose in response to different problems, and accordingly they have different statutory mandates and different mechanisms for accomplishing their objectives. The twin goals of managing for sustainable fisheries and conserving protected species are not mutually exclusive; however, unifying the current statutory framework could make the job easier.
Ecosystem-based management could serve as a useful organizing concept for statutory reform. The ESA and other resource management laws were not expressly designed with ecosystem management in mind, and these laws may not provide an adequate framework for taking into account all facts and values pertinent to solving broad complex resource management dilemmas (Flournoy, 1994). Craig (2002) advocates expressly incorporating ecosystem management and restoration principles and to actively pursue restoration goals based on historical ocean productivity. But while NMFS is not expressly precluded from incorporating ecosystem management principles into the decision-making process, the lack of an express statutory mandate institutionalizing management at an ecosystem level means that such attempts will tend to remain fragmentary and procedural (Keiter, 1994).
Macpherson (2001) argues that the 1996 amendments to the MSFCMA and NMFS interpretive guidelines provide some statutory basis for managing fisheries using ecosystem principles by increasing information, facilitating consideration of interrelated impacts, and improving managers' ability to learn from experience. However, at this time there is no statutory mandate favoring ecosystem management over other approaches.
The passage of the Oceans Act of 2000, which established the U.S. Commission on Ocean Policy "to make recommendations for coordinated and comprehensive national ocean policy," has renewed calls to overhaul and integrate the current fragmented marine resource management regime (Heinz Center, 2000; Fletcher, 2002; Halpern, 2002; NAPA, 2002; Pew Oceans Commission, 2003; Christie, 2004; U.S. Commission on Ocean Policy, 2004). Perhaps the recently released report from the U.S. Commission on Ocean Policy (2004) will spark a legislative response.
The "Science Charade"
However helpful a well-integrated suite of ocean management laws might be, the integration of science, law, and policy in resource management will always present thorny challenges. One of the most important recurring ideas in the legal literature is the realization that complex environmental problems invariably present mixed questions of science and policy, and that ignoring this fact presents regulatory pitfalls.
Using the example of toxic risk standard setting at the Environmental Protection Agency (EPA), Wagner (1995, 1999) argues that agencies intentionally or unintentionally exaggerate the contributions made by science to avoid accountability for the underlying policy decisions--a phenomenon she calls "the science charade." Toxic risk problems are trans-scientific; because science cannot establish definitive quantitative standards for protecting human health from toxic risks, policy considerations must fill the gaps left by scientific uncertainty. There are powerful political, legal, and institutional incentives for agencies to conceal policy choices under a veneer of science.
For example, the public insists on near absolute safety from toxic risk while also demanding a strong economy and reduced governmental regulations. This creates strong political pressure on agencies to disguise the unavoidable policy choices as purely scientific. Individuals may also intentionally engage in the science charade to retain personal control over the policy and research agenda. Congress also perpetuates the science charade by promulgating laws that put too much emphasis on scientific data in the mistaken belief that science alone can provide the solution to environmental problems. It is politically appealing to pass responsibility for making politically unpopular decisions to the agencies and to assume that "sound science" will resolve controversies in an objective manner. Scientific uncertainty allows legislators to impede environmental programs by insisting that more or better studies are needed.
Wagner argues that the science charade creates substantial costs in the form of complicated and ineffective laws, delays in implementation, damage to democratic values, and demoralized agency personnel, and that regulatory reform efforts will not be successful unless they address it directly. Some options include: educating legislators and their staffs about the science charade; having Congress state policy choices explicitly in the text of legislation or requiring agencies to disclose their policy decisions; delegating toxic standard-setting to an administrative task force composed of scientists and policymakers from academia, government, and stakeholders; or amending the Administrative Procedures Act (APA) to require agencies to explicitly separate science from policy.
The science charade and its consequences can arguably be observed in any science-policy issue plagued with high levels of scientific uncertainty. Doremus (1997) examines the science charade in ESA implementation to explain why better science doesn't always lead to better policy. The ESA requires that the threshold decision to add a species to the endangered or threatened list be made "solely on the basis of the best available scientific information." But science alone cannot answer all the relevant questions, such as what risk of extinction society should tolerate. Agencies are thus forced to pretend that their decisions were based solely on science without reference to policy judgments. Consequently, agencies have an incentive to conceal the true bases for their decisions. Calls for "better science" only serve to reinforce the science charade. Doremus (1997) concludes that ESA critics should focus on the process by which listing decisions are made and communicated to the public. Congress should separate the scientific aspects of listing determinations from the value judgments, either making those decisions itself...
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