Animal Law Review

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Recently in Texas, the dunes sagebrush lizard—a tiny, little-known reptile living in the sparse brush and dunes of the oil and gas fields—sparked a heated discussion and criticism over the listing process under the Endangered Species Act (ESA). This six-year battle ended with the withdrawal of a proposed rule to list the lizard and resulted in numerous criticisms about the role and use of scientific data throughout the process. Under the ESA, the United States Fish & Wildlife Service (FWS) is required to consider the best available scientific data when deciding whether to list a species. However, there is no direct legislative history explaining this standard. Because existing scientific data on “stressors” in the environment is typically limited and inadequate, this data gap leads to uncertainty, which unquestionably leads to difficult decision making by the regulatory agencies. Although a review of past listing designations confirms that FWS is not only utilizing sound science, but more often than not, is making sound decisions based on that science, many policy makers are still criticizing the use of science in decision-making processes and are pitting science against economics. This Article advocates for a more systematic, transparent application of science in the decision-making process: a well-defined “weight of evidence” approach that will foster structured deliberations, hypothesis testing, and the necessary clarity and transparency that will benefit all parties involved.



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