By Karrigan Bork, Andrew L. Rypel, and Peter Moyle
Science-based decision making is key to improved conservation management and a legal mandate in the US Endangered Species Act. Thus supporters of federal efforts to increase water exports from the Central Valley Project (CVP) and State Water Project (SWP) have claimed that these efforts are based on new science. Yet unpacking those claims requires some legal analysis, a basic understanding of science, and more than a little nuanced reading.
First, some background. For a review of federal efforts to increase Delta exports, and the recent biological opinions (BiOps) released by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) approving those efforts, please see this earlier blog post. California has elected to sue the federal government over the recent BiOps, and, at the same time, California is proceeding with its own analysis of plans to change the operation of the SWP. Finally, the State Water Resources Control Board (SWRCB) is updating the state’s Bay Delta Plan, which addresses water quality and quantity in the Delta. The SWRCB has adopted a new plan for the San Joaquin River watershed, and is in the process of adopting a plan for the Sacramento River watershed. However, adoption and implementation efforts appear to be on hold while the Newsom Administration attempts to negotiate voluntary agreements with water users and environmental groups. The voluntary agreements might ultimately replace (or be integrated into) a comprehensive Bay Delta Plan update. There are many moving parts, but one thing tying all these efforts together is the proponents’ claim that their approach is mandated by the best science.
Supporters of the federal plan in particular seek to wrap the effort in the mantle of science. On the media call for the roll out of the new BiOps, Paul Souza, Regional Director for US Fish and Wildlife Service cited “tremendous new science now that we didn’t have a decade ago.” On the same call, Ernest Conant, Regional Director of the Mid-Pacific Region of the Bureau of Reclamation, argued that the new approach was “infused with new scientific information.” U.S. Rep. Kevin McCarthy, R-Bakersfield, told Fox News “this president has worked greatly using science, not based on politics but on science, to allow to have more of that water stay with the Californians and America.” Finally, during his remarks to Rural Stakeholders on California Water Accessibility in Bakersfield, CA, President Trump argued that the old plan was based on “old science, obsolete studies, and overbearing regulations that had not been updated in many, many years, and sometimes for decades,” promising that the new federal plans “use the latest science and most advanced technology.” The science drumbeat has played a central role in this media blitz.
The rationale for this approach is easy to understand. Policy makers frequently cloak political decisions in a scientific framework; in policy circles, this is known as the science charade (Adler 2017; Wagner 1995). The science charade lets political leaders avoid responsibility for unpopular decisions – they’re just following the science, not making hard decisions based on their own ethical considerations (Doremus 1997). The science charade also lets decision makers minimize public input on policy decisions – why should the uninformed public have a say in technical decisions (Adler 2017)? Scientists themselves sometimes embrace this approach because it affords them a measure of control over policy decisions (Adler 2017). The courts only reinforce the science charade – they are very reticent to overturn federal agency decisions that claim to be based on science, rather than policy preferences (Clark 2009).
This approach is not limited to supporters of the federal plans; everyone claims that science is on their side. But the current federal roll out is uniquely focused on claiming that new science justifies increased water exports from the Delta. Moreover, NMFS brought in new scientists to rewrite their draft BiOp last summer, after the first draft concluded the federal pumping plan was likely to drive species to extinction. This suggests some skepticism about NMFS’s claims to rely on “new science.”
Natural resource sciences are unique compared to many fields (e.g., physics). For example, the best natural resource science normally involves understanding not only the organisms of interest, but also the dynamics of their complicated ecosystems, which in turn are typically controlled by people. Indeed, most scientists are trained to view natural resource management quite broadly, e.g., as the intersection of organisms, habitat and people (Nielson 1999). Each aspect is critical and affects the other two, and managing with all three in mind presents opportunities for enhancing natural resources overall. However, management frequently goes awry when a disproportionate focus is placed on only one aspect of the problem (Sass et al. 2017). The science charade preys on the misconception that these spheres should be disconnected, suggesting we can somehow separate organisms and ecosystems from the decisions people make.
The US Endangered Species Act explicitly requires that federal decisions consider the best available science. For example, 16 U.S. Code § 1536(a)(2) requires that “each agency shall use the best scientific and commercial data available” when preparing biological opinions under the Act. This is, objectively, the right approach. Bad science leads to bad decisions. But this mandate also encourages the cloaking of policy preferences as scientific mandates (Adler 2017). Consider three aspects of the current political struggle over Delta water.
First, the roll out for the new biological opinions treats existing science as old and obsolete, claiming it is no longer the best available science. But science is not milk. It doesn’t just go bad. New science can illuminate, and the state of the art sometimes changes over time, but older science is not inherently wrong or less valuable. Science grows by building on existing ideas and knowledge, not by rejecting it outright. As Isaac Newton famously wrote, “If I have seen a little further, it is by standing on the shoulders of giants.” For example, the 2010 report “Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem” found that flow standards aimed solely at protecting fish populations in the Delta would require 75% of the unimpaired flow in the Sacramento and San Joaquin watersheds. Certainly, other water needs mean that the Delta will not get these flows, but simply dismissing this report as old science is inherently flawed.
Second, to the extent that new science requires new approaches in the Delta, existing new science indicates that restoration of the Delta will require more water to be left in the Delta, not less. The 2017 Scientific Basis Report for the SWRCB Bay Delta Plan effort noted that additional flows into the Delta, and decreased exports of water from the Delta, always benefits native biota, provided that temperature, timing, and quality targets were met. Zero new science shows that native fishes and most other native organisms in the Delta can survive on less water. Keep in mind that the Delta is one of the best studied estuarine ecosystems in the world, with continuous major research producing new and improved understanding of the ecosystem (i.e. science).
Third and finally, the new science claims in the biological opinions seem to focus on emerging approaches that might reconcile water use with ecosystem needs based on real time monitoring and habitat improvements. But immediate claims that this new science allows greater water exports from the Delta hides key policy decisions on acceptable extinction risks.
For example, the real time “Enhanced Delta Smelt Monitoring (EDSM)” program is supposed to allow managers to reduce pumping from the Delta when monitoring detects smelt in the area around the pumps, thus keeping smelt from being sucked into the pumps. But smelt populations are currently too low to detect, and a January 2018 independent scientific review concluded, “it is difficult to see how the EDSM currently can be used to inform water operations in near real time.” The review encouraged FWS to attempt to validate this approach, but the BiOps offer no such validation. Using this approach without showing that it works places all risk of failure on the Delta Smelt, and ultimately risks their extinction. This is a policy decision, not new science standing alone.
Similarly, the BiOps indicate habitat improvements will reduce the need for water in the Delta. As prior blog posts here have noted, better habitat improves salmon growth, which may improve salmon survivorship. Better habitat also may allow managers to reconcile human uses of the landscape with ecosystem needs. Could this approach allow managers to achieve ecosystem and species recovery targets with less water? It seems unlikely, but the BiOps depend on habitat improvement to make up for increased water exports. Even if this approach could work, it would require that suitable habitat improvements be in place before water exports increase. But most improvements mandated in the last round of BiOps are merely proposed, not complete, and most ongoing improvement projects remain unfinished and untested.
The increased pumping anticipated in the BiOps would begin well before any improvements in species numbers would result from habitat improvement. This approach assumes that additional unspecified habitat will compensate for decreased water in the short term. Success would depend entirely on protected species being lucky enough to persist under current conditions but with less water. Suggesting that the decisions expressed in the BiOps are based solely on science masks this central policy calculus, which is never explicitly revealed. However, the benefits of such an approach to Delta water users are well-documented: there is less political accountability, less public input, and more deferential court review.
What’s the solution? There’s no magic bullet to stop the science charade, but using properly vetted (i.e., peer-reviewed) science literature and independent science reviews of new rulemakings can go a long way toward ensuring true science-based policies. California’s Delta Science Program, for example, relies on an independent review panel to provide objective feedback to policymakers. Adaptive management approaches that would increase ecosystem protections if new approaches fail would better allocate risk in uncertain situations. The science community itself must also watch and safeguard how policy makers use its work. It is not enough to simply conduct and publish scientific articles – not anymore. And courts asked to review decisions that touch on science must distinguish between scientific conclusions and policy decisions that are cloaked as science.
In the near term, California agencies may soon face this challenge head on. First, as noted above, the California Department of Water Resources (DWR) is preparing an environmental analysis of its own plans to change the operation of the Delta pumps. DWR has proposed a plan that embraces some of the same approaches to science used by the federal plan. Comments from the California Department of Fish and Wildlife (CDFW) and the SWRCB to DWR have raised these concerns, but it is not yet clear how the DWR will respond and whether CDFW will ultimately grant DWR the permits it needs to proceed on the terms DWR has proposed.
Second, the SWRCB will have to approve any voluntary agreements that are developed for the Delta. The Newsom Administration is pushing hard for a suite of voluntary agreements to benefit the Delta ecosystem while also meeting water user needs. The benefits of successful voluntary agreements are tantalizing: an infusion of private funding, improved habitat, improved ecosystems, and continued availability of needed water, all done faster and with fewer lawsuits. But any agreements must ultimately comply with state environmental law, and the SWRCB will make the first determination as to whether the science supports whatever voluntary agreements the Administration can develop. The voluntary agreements appear to rely on the same habitat-for-water hopes that undergird the BiOps, and the agreements would lock in the water withdrawals before regulators know if the habitat improvements actually work. A safer approach would be to improve the habitat, and then conduct scientific studies to see if listed species actually benefit before withdrawing additional water. Failing that, the agreements should at least provide for water use reductions as a fail safe if species declines continue despite the new habitats. The best available science recognizes that nature is sometimes unpredictable and science is sometimes misread or just wrong. It requires contingency plans.
If the Administration succeeds in developing a set of voluntary agreements, and as DWR concludes its environmental analysis, look for the media blitz to emphasize that science supports their approach. It will fall to the state regulatory agencies to determine whether they are truly supported by science, or merely by a science charade.
Jonathan H. Adler, The Science Charade in Species Conservation, 24 Sup. Ct. Econ. Rev. 109, 116 (2017).
Sara. A. Clark, Taking a Hard Look at Agency Science: Can the Courts Ever Succeed?, 36 Ecol.L.Q., 317 (2009).
Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 Wash. U. L.Q. 1029, 1038 (1997)
Peter Moyle, Jeff Opperman, Amber Manfree, Eric Larson, and Joan Florshiem, Floodplains in California’s Future, Sept. 10, 2017.
Peter Moyle, Karrigan Bork, John Durand, Tien-Chieh Hung, and Andrew Rypel, Futures for Delta Smelt, Dec. 15, 2019.
Larry A. Nielsen, History of Inland Fisheries Management in North America in Inland Fisheries Management, 2nd Ed. 3 (Christopher C. Kohler and Wayne A. Hubert eds., 1999).
Greg G. Sass, Andrew L. Rypel, and Joshua D. Stafford, Inland Fisheries Habitat Management: Lessons Learned from Wildlife Ecology and a Proposal For Change, 42 Fisheries 197 (2017).
Wendy Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995).