Decisions to list a species as “threatened” or “endangered” under the Endangered Species Act are to be made “solely on the basis of the best scientific and commercial data available.”  16 U.S.C. 1533(b)(1)(A).  Decisions to list species are governed by the Administrative Procedures Act, in addition to the “best available science” standard of the ESA.  Judicial review under the APA has two components: (1) the “hard look” review under the arbitrary and capricious standard; and (2) the Chevrondeference.  The arbitrary and capricious standard was set forth in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), and that standard is violated when:

[t]he agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

The Chevron deference was established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and requires that when a statute is ambiguous about the method of implementation, the court must defer to any reasonable interpretation made by the relevant agency.

The combination of these two standards has made it historically difficult for plaintiffs to challenge listing actions under the ESA, but it appears as though a shift may be occurring.  Within a four-day period in July, a federal district court and the House of Representatives expressed a desire for more accurate data to be used in listing decisions. 

On July 25, 2014, U.S. District Court (Alaska) Judge Ralph R. Beistline vacated a National Marine Fisheries Service rule that declared a bearded seal population “threatened” under the Endangered Species Act.  Judge Beistline’s ruling stated that the Service’s listing was based upon speculation and is not supported by evidence.

In 2008, the Center for Biological Diversity petitioned the NMFS to list the bearded seals and other animals as threatened or endangered due to impending threats from climate change and sea-ice loss.  This petition required the Service to conduct a status review that ultimately led to its rule declaring the seals threatened.  The suit was brought by Alaska Oil & Gas Association, a trade group representing 15 oil and gas companies operating within Alaska and the American Petroleum Institute.  That was consolidated with a suit brought by the State of Alaska and another brought by North Slope Borough and other northern Alaska communities.  The complaints alleged that the rule was arbitrary and capricious because it was based on weak scientific evidence of threats  to the seals’ habitat projected into the distant future.   The court agreed: “Under the facts in this case, forecasting more than 50 years into the future is simply too speculative and remote to support a determination that the bearded seal is in danger of becoming extinct.”

NMFS admitted that the Bearded Seal population is currently at healthy levels, but decided to list the seals as threatened due to projections of future threats to its population.  In a footnote, Judge Beistline addressed the issue of using projections to determine current status of species:

This Court is not holding that the use of projections that extend out more than 50 years is impermissible in all cases.  The Court’s holding today is limited to the facts presented in the record before it, i.e., than an unknown, unquantifiable population reduction, which is not expected to occur until nearly 100 years in the future, is too remote and speculative to support a listing as threatened.  If it were to hold otherwise, such a holding could logically render every species in the arctic and sub-arctic areas potentially “threatened.”

On July 29, 2014, the U.S. House of Representatives passed the 21stCentury Endangered Species Transparency Act (H.R. 4315) by a vote of 233-190.  If passed into law, this bill would require data used by federal agencies for ESA listing decision to be made publicly available and accessible through the internet.  It would further require the federal government to disclose to affected states data prior to an ESA listing decision and require the “best available scientific and commercial data” used by the federal government to incorporate data provided by states, tribes, and local county governments.

If the Transparency Act passes the Senate and is signed into law, it would encourage widespread sharing of scientific data, support additional research on issues affecting listing decisions, and result in more rigorous vetting of data used by the Agencies.