Sunday, August 14, 2011

Government Regulatory Process: Filled with Secrecy, Speculation, and Contradiction

History tells us that listing a critter as an endangered species does little for the species and can do a great deal of harm to the local economies—the spotted owl and the delta smelt are two oft-cited cases. But there is not a big body of evidence showing how the listing decisions were made. It was just assumed that the species plight warranted protection. But that was before the listing proposal for the dunes sagebrush lizard threatened a large segment of U.S. domestic oil production and the economies of Southeastern New Mexico and West Texas. Rallies in opposition to the listing have drawn hundreds of irate citizens, hearings on the matter have had overflow crowds, and the public register has pages and pages of public comment. Both ABC and Fox News have done stories on the lizard

Acting on the outrage of his constituents and using his law enforcement background, New Mexico State Representative Dennis Kintigh gathered a group of independent scientists—several from area universities—who have spent the last several months reviewing the science underlying the listing. Their report was released in a public meeting on Monday, August 15, in Artesia, New Mexico, in a roundtable format with the scientists available for questions.

Combining Kintigh’s FBI skills with the scientists’ expertise, the team is exposing fatal flaws in the proposed rule that should bring every previous listing, and the entire process, into question.

(Story continues below...)

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One of the biggest concerns is the supposedly independent peer review of the science on which the proposed rule is based. The Federal Register states: “It is the policy of the services to incorporate independent peer review in listing and recovery activities.” To the average citizen, the underlying science may appear to have independent peer review as five different universities are listed as offering review—however, no names of the individuals or their qualifications are provided. The anonymous peer review process is routine in scientific journals, but in such settings, there is an established and trusted editorial board and reviewers are required to disclose any conflicts of interest. But in Endangered Species Act (ESA) listings, the public should be appalled by the shroud of secrecy. This decision involves public money and has a large potential for direct economic impact on the surrounding communities, and, to a lesser extent, the whole country. At the least, peer review needs to be transparent. Better yet would be a process where advocates from each side can clash openly before independent decision makers.

Due to the Kintigh investigation, it has been discovered that at least two of the “independent” reviewers have conflicts of interest: Dr. Lauren Chan and Dr. Howard Snell—they wrote the foundational studies for the proposal. Is it likely that someone who wrote the study could review the rule and question the accuracy of his or her own work? We can assume that the complimentary reviews were from Chan and Snell.

The unattributed peer reviews of the ESA listing proposal provided online have devastating criticisms from Texas A & M University, questioning the sampling process and finding many unwarranted conclusions. However, nowhere are these criticisms addressed.

In researching the process, it was discovered that for ESA, the U.S. Fish and Wildlife Service (FWS) doesn’t go through what the science community would call “peer review.”  They have an “internal peer review”—FWS checks over FWS’s own work. The agency does not disclose the identity of the report writer or the “peer reviewers.” 

We, as citizens, also do not know who wrote the proposed rule—though investigation indicates that it was written by FWS staffer Debra Hill—meaning she has no accountability. Additionally, her husband is the author of some of the research—which brings into question her ability to be independent.

Whoever wrote the proposed rule clearly wanted the lizard listed as the document is filled with contradiction and speculation—but it was issued anyway. In the proposed listing it states: “We do not know the magnitude or imminence of the direct or indirect impacts of competition and climate change on the status of the species at this time. However, we consider exposure to oil and gas pollutants to be a threat to the species throughout its range, both now and continuing into the foreseeable future.” Wait, you, the unknown author, are willing to destroy the regional economy based on “we do not know” and “we consider”? In other cases, the word “likely” is used to describe a population reduction. Elsewhere it is stated that the species is “persisting.” “Could,” “can,” “we believe”…

One example of the contradictions within the listing rule is in reference to the pipelines found in the habitat area and used in oil and gas activities. The concluding comments of the pipeline section say that pipelines are a “significant threat,” but earlier it states: “It is not known how dunes sagebrush lizards utilize pipelines.” Additionally, one of the studies the rule is based on indicates that the lizards like pipelines and service roads: “…pipeline cuts and sand roads serve as preferred habitat…”

The report released on Monday has these comments in the closing: “The committee was surprised by the contradictions the data presented. There is a clear lack of an unequivocal sense about the actual range of the species and habitats preferred. There is surprising information that anthropogenic activities may well enhance habitat preferred by the species. Other examples of inadequate reporting or outright error can be found in the body of the committee report.”

How would you feel if your family lost the farm because the needed water was diverted to save the smelt, or your livelihood was taken away because of the spotted owl, and you discovered that, like the dunes sagebrush lizard, the ESA listing was based on secrecy, speculation, and contradiction? It is imperative that the process be brought out into the open.

As the climategate scandal exposed the secrecy, speculation, and contradiction in the manmade climate change research that precluded opposing viewpoints from being considered, the Kintigh investigation should change the entire ESA process from now on.

In short, the proposed rule plays on fear, uncertainty, and doubt and fails to scientifically show that the lizard is endangered or is negatively impacted by human activity.

Marita Noon is the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life. Combining energy, news, politics, and, the environment through public events, speaking engagements, and media, the organizations’ combined efforts serve as America’s voice for energy.