Scientific and political integrity in environmental policy

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1601-1653

  Doremus, Holly ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 50049134599     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (255)

1. See generally Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 ENVTL. L. 397, 405-09 (2004) (describing many points at which the Endangered Species Act and its implementing regulations invoke science). Other federal laws requiring use of the best available science at many points include the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1421h (2000), and the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (2000). Numerous other federal laws expressly mandate use of the best available scientific information in specific contexts. See, e.g., 14 U.S.C. § 676(a)(3) (Supp. V 2005) (requiring the Secretary of Transportation to use the best scientific information available in establishing standards for the length of time an individual may serve on watch at Coast Guard search-and-rescue centers); 15 U.S.C. § 2643(d)(7) (2000) (requiring EPA to use the best available scientific evidence to help the public understand the risks of asbestos in building materials and removal of those materials); 16 U.S.C. § 460ss-2(b)(2) (2000) (requiring the Klamath Fishery Management Council to use the best scientific information available in the development of harvest recommendations); id. § 839b(h)(6) (requiring the Pacific Northwest Power and Conservation Planning Council to use the best available scientific knowledge to develop a program to protect fish and wildlife while ensuring an adequate power supply); id. § 3311(c)(3) (requiring the Salmon and Steelhead Advisory Commission to use the best scientific information available in the development of recommendations for a management structure for salmon and steelhead fisheries); id. § 3638 (requiring the Pacific Salmon Commission to use the best scientific information available in regulating salmon fisheries); id. § 4711(a)(2) (requiring the Secretary of Transportation to use the best scientific information available in the development of guidelines and regulations for preventing the introduction of invasive species through ballast water); id. § 4722(e)(1) (requiring the Aquatic Nuisance Species Task Force to use the best available science when choosing federal efforts to control aquatic nuisance species); id. § 4905(a)(3) (requiring the Secretary of the Interior to use the best scientific information available in creating a list of exotic wild birds that may be imported to the United States); id. § 5104(a)(2) (requiring the Atlantic States Marine Fisheries Commission to use the best scientific information available in the development of standards for the preparation of Atlantic coastal-fishery management plans); 20 U.S.C. § 80q-9(a)(1) (2000) (requiring the Smithsonian Institution to use the best available scientific documentation in conjunction with historical information to determine the origin of Indian remains and funerary objects); 33 U.S.C. § 2102 (2000) (requiring the Army Corps of Engineers to use the best scientific information available to determine the location and construction of artificial reefs); 42 U.S.C. § 300g-1(b)(3) (2000) (requiring EPA to set drinking-water standards according to the best available peer-reviewed science).
2. David Adelman has articulated a similar thought in a slightly different way, noting "the difficult balancing that is required to protect the integrity of science while ensuring transparency and political accountability." David E. Adelman, Scientific Activism and Restraint, 79 NOTRE DAME L. REV. 497, 505 (2004).
3. See, e.g., JEANNE NIENABER CLARKE & DANIEL MCCOOL, STAKING OUT THE TERRAIN: POWER AND PERFORMANCE AMONG NATURAL RESOURCES AGENCIES 63 (1996) (detailing criticisms of the Reagan Administration for its alleged transformation of the Forest Service into a tree-farming operation); ASHLEY L. SCHIFF, FIRE AND WATER: SCIENTIFIC HERESY IN THE FOREST 1-14 (1962) (discussing the government's limited research and selective disclosure of results during the early twentieth century). See generally PAUL W. HIRT, A CONSPIRACY OF OPTIMISM: MANAGEMENT OF THE NATIONAL FORESTS SINCE WORLD WAR TWO (1994) (critiquing the role played by the Forest Service during the period beginning after World War II and running through the early nineties); TODD WILKINSON, SCIENCE UNDER SIEGE: THE POLITICIANS' WAR ON NATURE AND TRUTH (1998) (recounting the stories of eight scientists who blew the whistle on various federal agencies for abusing and manipulating science to further political agendas).
4. See generally COMM. ON OVERSIGHT AND GOV'T REFORM, U.S. HOUSE OF REPRESENTATIVES, 110TH CONG., POLITICAL INTERFERENCE WITH CLIMATE CHANGE SCIENCE UNDER THE BUSH ADMINISTRATION (2007) [hereinafter POLITICAL INTERFERENCE] (reporting the findings of the Committee's sixteen-month investigation into the Bush Administration's alleged interference with government climate-change science and concluding that the Administration engaged in systematic manipulation of science in an effort to mislead policy makers); CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE (2005) (criticizing the Bush Administration for continuing and increasing the intensity of a Republican agenda that disregards and manipulates science in order to achieve various policy objectives); SETH SHULMAN, UNDERMINING SCIENCE: SUPPRESSION AND DISTORTION IN THE BUSH ADMINISTRATION (2007) (criticizing the Bush Administration's treatment of scientific data and evidence concerning issues such as climate change, AIDS, forestry, endangered species, stem-cell research, and more); UNION OF CONCERNED SCIENTISTS, SCIENTIFIC INTEGRITY IN POLICY MAKING: A FURTHER INVESTIGATION OF THE BUSH ADMINISTRATION'S MISUSE OF SCIENCE (2004) (accusing the Bush Administration of undermining the integrity of scientific analysis at federal agencies and of undermining the integrity of science advisory councils by applying a political litmus test to appointees); UNION OF CONCERNED SCIENTISTS, SCIENTIFIC INTEGRITY IN POLICY MAKING: AN INVESTIGATION INTO THE BUSH ADMINISTRATION'S MISUSE OF SCIENCE (2004) (decrying the Bush Administration for its abuse of science by suppressing and distorting research and by appointing underqualified and biased persons to important positions); Kathleen M. Rest & Michael H. Halpern, Politics and the Erosion of Federal Scientific Capacity: Restoring Scientific Capacity to Public Health Science, 97 AM. J. PUB. HEALTH 1939 (2007) (accusing the Bush Administration of manipulating science on a broad range of issues, including global warming, international health, endangered species, lead poisoning, mercury emissions, condoms, and mining).
5. Press Release, U.S. Dep't of the Interior, MacDonald Named Deputy Assistant Secretary (May 3, 2004), available at http://www.doi.gov/news/ 040503b.
6. OFFICE OF INSPECTOR GEN., DEP'T OF THE INTERIOR, REPORT OF INVESTIGATION, JULIE MACDONALD, DEPUTY ASSISTANT SECRETARY, FISH, WILDLIFE AND PARKS 2 (2007) [hereinafter MACDONALD REPORT].
7. Id. at 4.
8. Id.
9. Id.
10. Id. at 7.
11. Id. at 12.
12. Id. at 15.
13. Id. at 2.
14. Id.
15. Mike Ferullo, Official Says Misconduct Casts 'Cloud' Over Scientific Integrity of Interior Program, 38 Env't Rep. (BNA) 1685 (Aug. 3, 2007).
16. Mike Taugher, Feds Verify Official's Bias in Delisting, CONTRA COSTA TIMES, Nov. 28, 2007, at A1.
17. Mike Ferullo & Linda Roeder, Fish and Wildlife Service Announces Review of Decisions Influenced by Former Official, 38 Env't Rep. (BNA) 1628 (July 27, 2007).
18. Letter from Kenneth Stansell, Acting Dir., U.S. Fish & Wildlife Serv., to Rep. Nick J. Rahall II, Chairman, Comm. on Natural Res. U.S. House of Representatives 2 (Nov. 23, 2007), available at http://www.fws.gov/ endangered/pdfs/macdonald/rahallsigned.pdf.
19. Michael Milstein, Endangered Species Questions Expand, PORTLAND OREGONIAN, Dec. 1, 2007, at A1.
20. E.g., Bob Egelko, Feds Sued Over Millions of Acres for 13 Species, S.F. CHRON., Dec. 20, 2007, at B1; Press Release, Ctr. for Biological Diversity, Environmentalists Challenge Political Interference with 55 Endangered Species in 28 States, Seek to Restore 8.7 Million Acres of Habitat Across the Country (Aug. 28, 2007), available at http://www. biologicaldiversity.org/news/press_releases/interference-08-28-2007.html. The Center for Biological Diversity has also filed a separate lawsuit seeking information about MacDonald's participation in endangered-species decision making. Matthew Daly, Conservationists Sue U.S., S. FLA. SUN-SENTINEL, Dec. 28, 2007, at A2.
21. W. Watersheds Project v. U.S. Forest Serv., 535 F. Supp. 1173, 1183-85 (D. Idaho 2007).
22. See 16 U.S.C. § 1533(b)(1)(A) (2000) (requiring the Secretary of the Interior to make determinations about endangered species "solely on the basis of the best scientific and commercial data available").
23. W. Watersheds Project, 535 F. Supp. at 1187 (quoting MACDONALD REPORT, supra note 6, at 12).
24. MACDONALD REPORT, supra note 6, at 16.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id. at 4.
30. Id. at 5-6.
31. Id. at 8.
32. Id. at 9.
33. Id. at 12.
34. For a detailed discussion of the scientific and nonscientific aspects of the problem of identifying units of conservation concern, see Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029, 1088-1112 (1997) (examining the difficulty of defining the term "species" in the ESA).
35. Crisis of Confidence: The Political Influence of the Bush Administration on Agency Science and Decision-Making: Oversight Hearing Before the H. Comm. on Natural Resources, 110th Cong. 105 (2007) [hereinafter Political Influence Oversight Hearing] (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA).
36. NAT'L RESEARCH COUNCIL, SCIENTIFIC EVALUATION OF BIOLOGICAL OPINIONS ON ENDANGERED AND THREATENED FISHES IN THE KLAMATH BASIN: INTERIM REPORT 27 (2002). For a detailed discussion of the Klamath water conflicts, see generally HOLLY DOREMUS & A. DAN TARLOCK, WATER WAR IN THE KLAMATH BASIN: MACHO LAW, COMBAT BIOLOGY, AND DIRTY POLITICS (2008).
37. Political Influence Oversight Hearing, supra note 35, at 104 (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA).
38. Id. at 105.
39. Id. at 106; see also Lissa James, Fisheries Agency Rewards a Loyal Bureaucrat, HIGH COUNTRY NEWS, Dec. 20, 2004, http://www.hcn.org/servlets/hcn.Article?article_id=15193 (discussing Lecky's background with NOAA).
40. Political Influence Oversight Hearing, supra note 35, at 106 (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA).
41. Id.
42. Id.
43. In fact, Kelly received an award for his work on the biological opinion. Id.
44. Pub. L. No. 101-12, 103 Stat. 16 (codified as amended in scattered sections of 5 U.S.C.). The Act protects federal employees against adverse personnel actions for disclosures they reasonably believe show a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or a substantial danger to public health or safety. 5 U.S.C. § 2302(b)(8) (2000).
45. The Office of Special Counsel is the federal office charged with protecting federal employees against "prohibited personnel practices, especially reprisal for whistleblowing." Introduction to the OSC, http://www.osc.gov/intro.htm (last updated Nov. 9, 2006). A federal employee who has suffered an adverse personnel action can file an administrative complaint with the Office of Special Counsel, which then investigates. 5 U.S.C. §§ 1213(c)(2)(A), 1214(a)(1)(A) (2000). If the Office finds evidence of a retaliatory personnel action, it recommends a remedy. Id. § 1214(b)(2)(B). If the agency declines to institute that remedy, the Office seeks corrective action from the Merit Systems Protection Board. Id. § 1214(b)(2)(C). If the Office of Special Counsel decides not to pursue the claim, the whistle-blower in some instances can file an appeal directly to the Merit Systems Protection Board on her own behalf. Id. § 1214(a)(3).
46. Political Influence Oversight Hearing, supra note 35, at 107 (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA).
47. See, e.g., Terry Morehead Dworkin, SOX and Whistleblowing, 105 MICH. L. REV. 1757, 1766-67 (2007) (noting the limited success of the Whistleblower Protection Act); Mary Kreiner Ramirez, Blowing the Whistle on Whistleblower Protection: A Tale of Reform Versus Power, 76 U. CIN. L. REV. 183, 199-219 (2007) (elaborating on some of the shortcomings of whistle-blower protection under the Sarbanes-Oxley Act of 2002); Marci Alboher Nusbaum, Devine Intervention, LEGAL AFF., Nov.-Dec. 2002, at 48, 52 (discussing the need to improve the Whistleblower Protection Act); Eugene Russo, The Plight of the Whistleblower, SCIENTIST, Jan. 17, 2005, at 39 (detailing the repercussions that whistle-blowers often encounter and the particular challenges that scientists face).
48. The Office of Special Counsel informed Kelly that it could not determine that there was a substantial likelihood that NMFS had violated the law with its biological opinion. Laura Paskus, Sound Science Goes Sour, HIGH COUNTRY NEWS, June 23, 2003, http://www.hcn.org/servlets/hcn. PrintableArticle?article_id=14052. Kelly's attorney, Dan Meyer of the nonprofit group Public Employees for Environmental Responsibility, described Kelly as "a model Whistleblower." Id. However, it is unclear from the press coverage of his case whether he in fact ever suffered any employment consequences as a result of his disclosures.
49. Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005).
50. Laura Paskus & Mike Kelly, Scientific Principle: Klamath Whistleblower Throws in the Towel, HIGH COUNTRY NEWS, July 19, 2004, http://www.hcn.org/servlets/hcn.Article? article _id=14863.
51. Political Influence Oversight Hearing, supra note 35, at 105 (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA).
52. See id. at 107 (explaining how dangerous the decision to refuse to change flow levels could be for certain endangered fish).
53. Andrew C. Revkin, NASA Expert Criticizes Bush on Global Warming, N.Y. TIMES, Oct. 26, 2004, at A22. O'Keefe denied the charge. Id.
54. Andrew C. Revkin, Climate Expert Says NASA Tries to Silence Him, N.Y. TIMES, Jan. 29, 2006, at A1.
55. Id.
56. Allegations of Political Interference with Government Climate Change Science: Hearing Before the H. Comm. on Oversight and Gov't Reform, 110th Cong. 318 (2007) [hereinafter Climate Change Hearings] (statement of George C. Deutsch, III).
57. Id.
58. See id. Deutsch resigned in February 2006 after it came to light that his resume inaccurately stated that he held a college degree when at the time he was one class short of graduation. Id. at 319; Andrew C. Revkin, A Young Bush Appointee Resigns His Post at NASA, N.Y. TIMES, Feb. 8, 2006, at A13.
59. TAREK MAASSARANI, GOV'T A CCOUNTABILITY PROJECT, REDACTING THE SCIENCE OF CLIMATE CHANGE: AN INVESTIGATIVE AND SYNTHESIS REPORT 1 (2007) [hereinafter GAP REPORT], available at http://www.whistleblower.org/doc/2007/Final%203. 28%20Redacting%20Climate%20Science%20Report.pdf. The GAP Report did find a handful of minor incidents, such as attempts to force agency scientists to remove the term "global warming" from the titles of articles submitted to peer-reviewed journals. Id. at 64-67.
60. Id. at 1. A report subsequently issued by the House Committee on Oversight and Government Reform echoed many of the GAP Report's conclusions. POLITICAL INTERFERENCE, supra note 4, at 33 (concluding that a sixteen-month investigation revealed a "systematic White House effort to censor climate scientists by controlling their access to the press and editing testimony to Congress").
61. GAP REPORT, supra note 59, at 2.
62. Id. at 8.
63. Id. at 9.
64. Id. at 10-11.
65. See id. at 26 (noting that delays were typically about twenty-four hours, but could be up to five or six days on politically sensitive topics); id. at 33 (quoting one reporter as saying that it was sometimes easier to contact university co-authors "due to the roadblocks that government PR folks can and do create").
66. See id. at 17 (noting that "climate change-related questions...were first to be handed to senior political administrators"). The GAP Report notes that on the issue of causes of the highly active 2005 hurricane season, journalists were referred specifically to scientists who espoused the "natural variability" explanation preferred by the Administration. Id. at 77-80.
67. Id. at 11.
68. See id. (concluding that requiring scientists to speak as representatives of the agency "preempt[ed] the 'personal views' exception").
69. Id. at 41.
70. Id. at 45.
71. Juliet Eilperin, Sen. Boxer Seeks Answers on Redacted Testimony, WASH. POST, Oct. 25, 2007, at A2. The assertion that heat-related illness would likely increase in the Midwest and Northeast was also removed. Id. Nonetheless, Gerberding (herself a political appointee, but also a medical doctor and professor of medicine) said that the edits did not undermine the message of her testimony, which she characterized as "frank and candid." Id.
72. Climate Change Hearings, supra note 56, at 324 (statement of Philip Cooney, former Chief of Staff, White House Council on Environmental Quality). Until 2001, he had worked at the American Petroleum Institute as a lobbyist and as their climate team leader. Id.
73. GAP REPORT, supra note 59, at 47; Andrew C. Revkin, Bush Aide Edited Climate Reports, N.Y. TIMES, June 8,2005, at A1.
74. A former senior associate of the U.S. Climate Change Science Program, Rick Piltz, later described them to a congressional committee in these terms: "They had the aggregate effect of creating an enhanced manufactured sense of fundamental scientific uncertainty about global warming, of toning language about observed warming and impacts, of basically discarding any idea that climate models were useful and deleting language about the observed or projected impacts of climate change." Climate Change Hearings, supra note 56, at 116 (statement of Rick Piltz).
75. GAP REPORT, supra note 59, at 47. White House nonscientists also heavily edited the climate-change section of a draft EPA state-of-the-environment report, to the point that EPA decided to delete the section entirely rather than publish it in a form that no longer accurately represented the available scientific information. Id. at 59.
76. Sheila Kaplan, Great Lakes Danger Zones?, CTR. FOR PUB. INTEGRITY, http://www.publicintegrity.org/GreatLakes/ index.htm (explaining how Christopher de Rosa claimed he was retaliated against for leaking the linked report).
77. The IJC is a bilateral U.S.-Canadian body that "prevents and resolves disputes between the United States of America and Canada under the 1909 Boundary Waters Treaty and pursues the common good of both countries as an independent and objective advisor to the two governments." International Joint Commission - Home, http://www.ijc.org/en/home/main_accueil.htm (last updated Apr. 16,2008).
78. Kaplan, supra note 76. As of February 2008, the report has not been officially released. Id.
79. Id.; see also Kari Lyderson, Delay of Report is Blamed on Politics, WASH. POST, Feb. 18, 2008, at A3 (quoting an Ontario biologist who believed that the delay was politically motivated).
80. Kaplan, supra note 76; Lyderson, supra note 79, at A3.
81. Lyderson, supra note 79, at A3 (quoting CDC spokesperson Glen Nowak).
82. Kaplan, supra note 76.
83. Id.; Lyderson, supra note 79, at A3; Letter from Bart Gordon, Chairman, Comm. on Sci. & Tech., U.S. House of Representatives, to Julie Gerberding, Dir., Ctrs. for Disease Control & Prevention 1 (Feb. 6, 2008), available at http://democrats.science.house.gov/Media/File/ AdminLetters/bg_bm_nl_toDr.Gerberding_Whistleblower_ATSDR_2.7.08.pdf.
84. Kristin Shrader-Frechette, Measurement Problems and Florida Panther Models, 3 SOUTHEASTERN NATURALIST 37, 38 (2004).
85. Native Fish and Wildlife, Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967).
86. Shrader-Frechette, supra note 84, at 38.
87. JOHN KOSTYACK & KAREN HILL, NAT'L WILDLIFE FED'N & FLA. PANTHER SOC'Y, DISCREDITING A DECADE OF PANTHER SCIENCE: IMPLICATIONS OF THE SCIENTIFIC REVIEW TEAM REPORT 7 (2004), available at http://www.nwf.org/nwfwebadmin/binaryVault/ Discrediting%20a%20Decade%20of%20Panther%20Science.pdf.
88. Section 7 of the ESA mandates that all federal agencies ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or adversely modify a designated critical habitat. 16 U.S.C. § 1536(a)(2) (2000). This requirement is implemented through a procedure known as "consultation," in which the agency describes its plans to FWS, which determines whether they will have an impermissible effect on listed species. See generally 50 C.F.R. pt. 402 (2007) (providing regulations for interagency cooperation under the Endangered Species Act). If FWS issues a jeopardy opinion at the close of that process, it must suggest "reasonable and prudent alternatives" to the proposed action that would avoid jeopardy. 16 U.S.C. § 1536(b)(3)(A). A high proportion of development proposals in south Florida are subject to the § 7 consultation requirement because the landscape is dotted with wetlands which cannot be filled without obtaining a permit from the U.S. Army Corps of Engineers under Clean Water Act § 404. See 33 U.S.C. § 1344 (2000) (providing rules for issuing permits for dredged or fill material in navigable waters).
89. JOHN KOSTYACK & KAREN HILL, NAT'L WILDLIFE FED'N & FLA. PANTHER SOC'Y, GIVING AWAY THE STORE: FACING MOUNTING SCIENTIFIC CRITICISM, THE FEDERAL GOVERNMENT CONTINUES TO APPROVE DEVELOPMENT IN THE PANTHER'S LAST REMAINING HABITATS 5 (2005), available at http://www.panthersociety.org/science/GivingAwayTheStore2005.pdf.
90. See Liza Gross, Why Not the Best? How Science Failed the Florida Panther, 3 PLOS BIOLOGY 1525, 1526 (2005) (noting that Maehr left the FWC in 1994 to work on his Ph.D.); Faculty Profile of Dave Maehr, Dep't of Forestry, Univ. of Ky., http://www.ca.uky.edu/forestry/maehr.php (last modified Dec. 22, 2006) (describing Maehr's position as an associate professor of conservation biology).
91. KOSTYACK & HILL, supra note 89, at 4 (describing Maehr as a consultant to developers); Gross, supra note 90, at 1527 (explaining that Maehr developed the PHEM while working as a consultant for Lee County, Florida).
92. David S. Maehr & Jonathan P. Deason, Wide-Ranging Carnivores and Development Permits: Constructing a Multi-scale Model to Evaluate Impacts on the Florida Panther, 3 CLEAN TECH. & ENVTL. POL'Y 398 (2002), available at http://www.springerlink.com/ content/8hxujhuxmeqx3cd4/fulltext.pdf.
93. KOSTYACK & HILL, supra note 89, at 15.
94. PAUL BEIER ET AL., FLA. FISH & WILDLIFE CONSERVATION COMM'N, AN ANALYSIS OF SCIENTIFIC LITERATURE RELATED TO THE FLORIDA PANTHER, FINAL REPORT 14 (2003) [hereinafter BEIER ET AL., ANALYSIS OF SCIENTIFIC LITERATURE], available at http://oak.ucc.nau.edu/pbl/publications.htm. The team followed its report with two articles in the peer-reviewed literature. Paul Beier et al., Evaluating Scientific Inferences About the Florida Panther, 70 J. WILDLIFE MGMT. 236 (2006) [hereinafter Beier et al., Evaluating Scientific Inferences]; Michael J. Conroy et al., Improving the Use of Science in Conservation: Lessons from the Florida Panther, 70 J. WILDLIFE MGMT. 1 (2006). Two key assumptions the reviewers found insufficiently supported were that the Florida panther preferred forest habitat and that it was reluctant to cross unforested areas of 90 meters or more. BEIER ET AL., ANALYSIS OF SCIENTIFIC LITERATURE, supra, at 10. The preference for forests was supported only by a single radiotelemetry study, which the reviewers concluded was seriously flawed. Id. at 7, 9. The article gave the impression that it was based on the tracking of forty-one panthers; in fact only data from twenty-three panthers had been used and the elimination of data from the other eighteen tagged panthers was not even acknowledged, much less explained. Id. at 8. Furthermore, the methodology was systematically biased in a way that would tend to overestimate the importance of forest habitat. Beier et al., Evaluating Scientific Inferences, supra, at 240-41. The claim that panthers are reluctant to cross open areas was simply repeated in the article that set out the model, but when traced back, the article cited in support of this claim did not actually support it. Id. at 241-42. Although the article did report that some 96% of panther locations were within 90 meters of forest cover, more than 99% of the observations were made during the day, at a time when panthers are not very active. Id. at 242. The lack of nighttime telemetry data was not a deliberate attempt to skew the findings-it is impractical to track collared animals from airplanes at night. See David S. Maehr et al., Shopping Centers as Panther Habitat: Inferring Animal Locations from Models, 9(2) ECOLOGY & SOC'Y 9 (2004), available at http://www.ecologyandsociety.org/vol9/iss2/art9 (citing "[e]quipment limitations and safety issues"). GPS-equipped collars have only recently become available. See id. (describing the ongoing, first generation of research into panther habitats using GPS-equipped collars). There are other strong criticisms of Maehr's model. See, e.g., E. Jane Comiskey et al., Panthers and Forests in South Florida: An Ecological Perspective, CONSERVATION ECOLOGY 6(1): 18, June 28, 2002, at 13-16, available at http://www.ecologyandsociety.org/vol6/iss1/art18/ print.pdf (noting that the Maehr model's use of daytime telemetry data overrepresented the importance of forest cover to panther habitats); Shrader-Frechette, supra note 84, at 38 (claiming there are seven errors in the Maehr model).
95. Beier et al., Evaluating Scientific Inferences, supra note 94, at 242.
96. Gross, supra note 90, at 1528.
97. E. Jane Comiskey et al., Evaluating Impacts to Florida Panther Habitat: How Porous is the Umbrella?, 2 SOUTHEASTERN NATURALIST 51 (2004).
98. 44 U.S.C. § 3516(2000).
99. Complaint of Eller & PEER Pursuant to the Data Quality Act of 2000 at 19, Eller v. Dep't of the Interior (U.S. Dep't of the Interior, U.S. Fish & Wildlife Serv., May 4, 2004), available at http://www.fws.gov/ informationquality/topics/FY2004/Florida%20Panther/Complaint%204%20May%202004. pdf.
100. KOSTYACK & HILL, supra note 89, at 14; Letter from Thomas O. Melius, Assistant Dir. of External Affairs, Fish & Wildlife Serv., to Jeff Ruch, Executive Dir., Pub. Employees for Envtl. Responsibility & Andrew C. Eller Jr. 3 (July 7, 2004), available at http://www.fws.gov/informationquality/topics/FY2004/Florida%20Panther/ Response%207%20July%202004.pdf.
101. Appeal of Andrew Eller and Public Employees for Environmental Responsibility (PEER) Pursuant to the Data Quality Act of 2000 at 4, Eller v. Dep't of Interior (U.S. Dep't of the Interior, U.S. Fish & Wildlife Serv., July 28, 2004), available at http://www.fws.gov/informationquality/ topics/FY2004/Florida%20Panther/Challenge%2028%20July%202004.PDF.
102. Nat'1 Wildlife Fed'n v. Norton, 332 F. Supp. 2d 170, 180 (D.D.C. 2004).
103. Letter from Steve Williams, Dir., Fish & Wildlife Serv., to Jeff Ruch, Executive Dir., Pub. Employees for Envtl. Responsibility 1 (Mar. 16, 2005), available at http://www.fws.gov/informationquality/topics/FY2004/ Florida%20Panther/Final_Appeal_March_16_2005.pdf.
104. Eugene Russo, The Plight of the Whistleblower, SCIENTIST, Jan. 17, 2005, at 39-40.
105. Gross, supra note 90, at 1528.
106. The only public explanation of the settlement was the following statement, posted on an FWS Web site: "Mr. Eller and the U.S. Fish & Wildlife Service have jointly come to an agreement that is in the best interest of both parties and that does not admit any liability or wrongdoing on the part of either party." Press Release, U.S. Fish & Wildlife Serv., Joint Statement of Andrew Eller and the U.S. Fish & Wildlife Service (June 29, 2005), available at http://www.fws.gov/southeast/news/2005/r05-057.html.
107. Press Release, Pub. Employees for Envtl. Responsibility, Interior Official Responsible for Scientific Fraud Promoted (Feb. 1, 2006), available at http://www.peer.org/news/news_id.php?row_id=637.
108. See, e.g., Deborah E. Barnes & Lisa Bero, Industry-Funded Research and Conflict of Interest: An Analysis of Research Sponsored by the Tobacco Industry through the Center for Indoor Air Research, 21 J. HEALTH POL. POL'Y & L. 515, 516-17 (1996) (noting concerns about skewed scientific review in many areas, including studies about the effects of smoking, certain pharmaceuticals, and asbestos); Thomas O. McGarity, Beyond Buckman: Wrongful Manipulation of the Regulatory Process in the Law of Torts, 41 WASHBURN L.J. 549, 562 (2002) (noting that regulated industries can manipulate regulating agencies by hiring scientific consultants to refute adverse scientific studies); Wendy Wagner & David Michaels, Equal Treatment for Regulatory Science: Extending the Controls Governing the Quality of Public Research to Private Research, 30 AM. J.L. & MED. 119, 120 (2004) (mentioning that regulated industries that fund scientific research regarding their industry have strong incentives to influence the outcomes).
109. Ransom A. Myers & Boris Worm, Rapid Worldwide Depletion of Predatory Fish Communities, 423 NATURE 280, 282 (2003).
110. Press Release, SeaWeb, Cover Study of Nature Provides Startling New Evidence that Only 10% of All Large Fish are Left in Global Ocean (May 14, 2003), available at http://ram.biology.dal.ca/∼myers/depletion/docs/ MyersWormFinalPR.pdf. SeaWeb describes itself as "a communications-based nonprofit organization that uses social marketing techniques to advance ocean conservation." SeaWeb-About SeaWeb, http://seaweb.org/about.php.
111. Myers & Worm, supra note 109, at 282.
112. See id. at 282-83 (arguing that managers need to consider the potential ecosystem effects of fisheries, be aware of the possibility of local extinctions, pay more attention to the sustainability of fishing practices, and "attempt restoration on a global scale").
113. Press Release, SeaWeb, supra note 110, at 3.
114. See Tom Polacheck, Tuna Longline Catch Rates in the Indian Ocean: Did Industrial Fishing Result in a 90% Rapid Decline in the Abundance of Large Predatory Species?, 30 MARINE POL'Y 470, 471 (2006) (mentioning the many interviews and stories in the print news media that the Myers and Worm article generated).
115. Global Overfishing and International Fisheries Management: Hearing Before S. Comm. On Commerce, Sci., and Transp., 108th Cong. (2003).
116. See, e.g., John Hampton et al., Decline of Pacific Tuna Populations Exaggerated?, 434 NATURE E1, E1 (2005) (stating that the biomass and fishing impacts are in fact much less severe than the Myers and Worm article suggests); Polacheck, supra note 114, at 471 (noting that Myers and Worm's reliance on catch-rate data likely skewed their results); Carl Walters, Folly and Fantasy in the Analysis of Spatial Catch Rate Data, 60 CANADIAN J. FISHERIES & AQUATIC SCI. 1433, 1433-34 (2003) (arguing that Myers and Worm misused catch-rate data in a way that placed inordinate weight on heavily fished cells but not on others). The critics were careful to note that their concerns with the Myers article should not be taken to suggest that there were no problems with the status of large predatory fish. See, e.g., Polacheck, supra note 114, at 481 (emphasizing that serious concerns exist regarding the status of many stocks currently being fished).
117. Nature refused to publish a letter submitted by a group of tuna experts critical of the Myers article because, according to the editors, it did not "take our knowledge forward in some discernible way." Polacheck, supra note 114, at 480 (quoting Joint Inst. for Marine & Atmospheric Research, Changes in the Biomass of Large Pelagic Predators, http://www.soest.hawaii.edu/PFRP/large_pelagic_predators.html (last updated May 21, 2004)). Eventually, the letter was published solely as an online communication, long after the original article. Hampton et al., supra note 116, at E1.
118. It is clear that critiques and rebuttals in the scientific literature are not always effective, or at least not quickly effective. "Even after the rebuttals are published, the original papers continue to be cited by scientists and referred to by policy makers as if they are fact." Michael Sissenwine, Comment, Environmental Science, Environmentalism and Governance, 34 ENVTL. CONSERVATION 90, 90 (2007).
119. Polacheck, supra note 114, at 479.
120. Id.
121. Ray Hilborn, Faith-Based Fisheries, 31 FISHERIES 554, 554 (2006).
122. Id. at 555.
123. Roger A. Pielke, Jr., When Scientists Politicize Science: Mating Sense of Controversy Over The Skeptical Environmentalist, 7 ENVTL. SCI. & POL'Y 405, 405 (2004).
124. Id. at 405-06.
125. See David Luban, Integrity: Its Causes and Cures, 72 FORDHAM L. REV. 279, 298-99 (2003). ("The low road to integrity is simply not the same as the high road, and bending your principles to rationalize your actions is not the same as bringing your actions into conformity with your principles.").
126. See David P. Hamilton, Can OSI Withstand a Scientific Backlash?, 253 SCIENCE 1084, 1084 (1991) (explaining the creation of the Office of Scientific Integrity); Chris B. Pascal, The History and Future of the Office of Research Integrity: Scientific Misconduct and Beyond, 5 SCI. & ENGINEERING ETHICS 183 (1999) (explaining the origin, early years, current successes and failures, and future of the Office of Research Integrity).
127. COMM. ON ASSESSING INTEGRITY IN RESEARCH ENV'TS, NAT'L RESEARCH COUNCIL, INTEGRITY IN SCIENTIFIC RESEARCH: CREATING AN ENVIRONMENT THAT PROMOTES RESPONSIBLE CONDUCT 1 (2002) [hereinafter INTEGRITY IN SCIENCE] ("The public will support science only if it can trust the scientists and the institutions that conduct research.").
128. Federal Policy on Research Misconduct, 65 Fed. Reg. 76,260 (Dec. 6, 2000). The policy is codified at 10 C.F.R. § 733.1 (2007) (as it applies to the Department of Energy); 14 C.F.R. § 1275.101 (2007) (as it applies to NASA); 42 C.F.R. § 93.103 (2007) (as it applies to the Public Health Service); and 45 C.F.R. § 689.1 (2007) (as it applies to the National Science Foundation).
129. 65 Fed. Reg. at 76,262.
130. Id.
131. Id. at 76,260, 76,262.
132. See, e.g., 42 C.F.R. § 93.407 (describing administrative sanctions that can be imposed on Public Health Service grantees). Loss of eligibility for federal funding can terminate a scientific career. See Dan L. Burk, Research Misconduct: Deviance, Due Process, and the Disestablishment of Science, 3 GEO. MASON INDEP. L. REV. 305, 322 (1995) ("Given the dependence of researchers on federal funding, and the expectation of universities and other institutions that scientists will find their own funding, debarment is tantamount to excluding a scientist from practicing her profession for the period of the sanction.").
133. The False Claims Act permits recovery by the United States, on its own behalf or through the intervention of a relator, of money fraudulently obtained from the United States. 31 U.S.C. § 3729 (2000); see, e.g., Lorelei Ritchie de Larena, The Price of Progress: Are Universities Adding to the Cost? 43 HOUS. L. REV. 1373, 1404-08 (2007); Bratislav Stankovic, Pulp Fiction: Reflections on Scientific Misconduct, 2004 WIS. L. REV. 975, 995-1001; Nisan A. Steinberg, Regulation of Scientific Misconduct in Federally Funded Research, 10 S. CAL. INTERDISC. L.J. 39, 84-87 (2000) (all discussing the details of several False Claims Act suits based on research misconduct). See generally Burk, supra note 132, at 324-27; Christopher P. Perzan, Research and Relators: The False Claims Act and Scientific Misconduct, 70 WASH. U. L.Q. 639, 655-63 (1992) (both discussing the suitability of qui tam actions in this context).
134. See Burk, supra note 132, at 322-23 (describing a variety
135. 42 C.F.R. § 93.300(c).
136. 42 C.F.R. §§ 93.300(a), (b), 93.304-93.316.
137. INTEGRITY IN SCIENCE, supra note 127, at 4.
138. SUSAN HAACK, DEFENDING SCIENCE- WITHIN REASON: BETWEEN SCIENTISM AND CYNICISM 97 (2003).
139. For a slightly different view of scientific integrity, see Gerald Holton, Candor and Integrity in Science, 145 SYNTHESE 277, 284-90 (2005). Holton lists four principles of scientific integrity, including: (1) trying "to get it right at all costs, sparing no effort"; (2) trying "to be a scientist first, a specialist second"; (3) recognizing that "[s]cience is, and should be, part of the total world view of our time" and that this is "a vision [one] should imaginatively explore, defend, and contribute to"; and (4) "the last and most demanding of the principles of integrity: the special obligation scientists have to exercise sound citizenship." Id. at 284, 286, 288, 290.
140. See, e.g., Deborah M. Hussey Freeland, Maieusis Through a Gated Membrane: "Getting the Science Right" in Public Decisionmaking, 26 STAN. ENVTL. L.J. 373, 382 (2007) ("[T]he scientific method, the practice of ensuring that results are reproducible, and the peer review process are all designed to wash the subjective perspective of the scientist out of the process of science, so that in the ideal limit, only nature remains to speak for itself").
141. See, e.g., David E. Adelman, The Art of the Unsolvable: Locating the Vital Center of Science for Environmental Law and Policy, 37 ENVTL. L. 935, 957-58 (2007) (noting the special concerns about objectivity in the face of highly uncertain or incomplete evidence that underlie conflicts about the science that informs environmental policy).
142. Freeland, supra note 140, at 383.
143. See HAACK, supra note 138, at 94-98 (arguing that scientific inquiry is not categorically different from other types of empirical inquiry).
144. For example, a review of the intelligence leading up to the Iraq War describes the role of intelligence analysts in terms that could just as easily be applied to policy-relevant science: "Analysts must assess the available information and place it in context. They must clearly and concisely communicate the information they have, the information they need, the conclusions they draw from the data, and their doubts about the credibility of the information or the validity of their conclusions." COMM'N ON THE INTELLIGENCE CAPABILITIES OF THE U.S. REGARDING WEAPONS OF MASS DESTRUCTION, REPORT TO THE PRESIDENT OF THE UNITED STATES 416 (2005), available at http://www.wmd.gov/report/wmd_report.pdf.
145. 42 U.S.C. §§ 4321-4347 (2000).
146. 40 C.F.R. § 1502.24 (2007).
147. Id.
148. Implementation of Procedural Provisions, 43 Fed. Reg. 55,978, 55,980 (Nov. 29, 1978). The independent-evaluation regulation is codified at 40 C.F.R. § 1506.5(a) (2007).
149. See, e.g., Lands Council v. Powell, 395 F.3d 1019, 1032 (9th Cir. 2005) ("NEPA...requires up-front disclosures of relevant shortcomings in the data or models.").
150. DEP'T OF THE INTERIOR, GPRA STRATEGIC PLAN FISCAL YEAR 2007-2012 32, available at http://www.doi.gov/ppp/Strategic%20Plan%20FY07-12/strat_plan_fy2007_2012.pdf.
151. Id.
152. U.S. GEOLOGICAL SURVEY MANUAL, 500.25-SCIENTIFIC INTEGRITY, para. 7, http://www.usgs.gov/ usgs-manual/500/500-25.html.
153. Reed F. Noss, Values Are a Good Thing in Conservation Biology, 21 CONSERVATION BIOLOGY 18, 18(2007).
154. See, e.g., David H. Wright, Letter, The Advocacy and Science Divide, 21 CONSERVATION BIOLOGY 901, 901 (2007) (arguing that advocacy in favor of development is more pervasive in the scientific community than advocacy in favor of conservation); supra section II(C)(I) (discussing the Florida panther-habitat model).
155. See supra subpart II(A).
156. Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1162 (D. Or. 2001).
157. Craig Welch, Salmon Panel Goes Public in Dispute Over Hatchery Fish, SEATTLE TIMES, Mar. 26,2004, at B1.
158. Ransom A. Myers et al., Hatcheries and Endangered Salmon, 303 SCIENCE 1980, 1980 (2004); Welch, supra note 157, at B1.
159. Myers et al., supra note 158, at 1980.
160. See, e.g., Timothy Egan, Shift on Salmon Reignites Fight on Species Law, N.Y. TIMES, May 9, 2004, at A1 (quoting Myers as saying, "This is a direct political decision, made by political people to go against the science."); Kenneth R. Weiss, Action to Protect Salmon Urged: Scientists Say Their Advice Was Dropped from a Report to the U.S. Fisheries Service, L.A. TIMES, Mar. 26, 2004, at B1 (quoting various panel members who were upset that their findings were not afforded weight in the decision-making process); Welch, supra note 157, at B1 (quoting panel chair Robert Paine as saying, "[w]e felt our report was being censored").
161. See Myers et al., supra note 158, at 1980 (criticizing the Alsea Valley decision on the basis that it could have the devastating consequence that "[w]ild salmon could decline or go extinct while only hatchery fish persist").
162. Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1158 (D. Or. 2001).
163. See Holly Doremus, Restoring Endangered Species: The Importance of Being Wild, 23 HARV. ENVTL. L. REV. 1, 10-15 (1999) (explaining that the goal of the Endangered Species Act is the recovery of wild species).
164. See, e.g., Doremus, supra note 34, at 1035-36 (explaining that endangered-species legislation is often written in scientific terms, but many regulatory decisions call for both policy and scientific judgments). Scientists were recently charged with the task of developing a policy for maintaining the "biological integrity" and "environmental health" of national wildlife refuges. Brian Czech, Letter, The Advocacy and Science Divide, 21 CONSERVATION BIOLOGY 902, 902 (2007). Those management standards are mandated by the National Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. § 668dd(a)(4)(B) (2000).
165. Noss, supra note 153, at 20.
166. See id. at 19 ("If credible scientists go on record in support of a particular course of action, then that action may be more assured than if the scientists simply say to policy makers 'here are the facts, you choose the action.'").
167. See Jeffrey M. Jones, Low Trust in Federal Government Rivals Watergate Era Levels, GALLUP NEWS SERVICE, Sept. 26, 2007, http://www.gallup.com/poll/28795/Low-Trust-Federal-Government-Rivals- Watergate-Era-Levels.aspx (summarizing the results of a September 2007 poll of Americans regarding their trust of elected leaders).
168. My use of the term is distinct from Ronald Dworkin's. In Law's Empire, Dworkin speaks of political integrity as the obligation of the state to act on a consistent set of principles, implemented by legislatures enacting laws that are holistically coherent and judges enforcing the law as a coherent whole. RONALD DWORKIN, LAW'S EMPIRE 165-67 (1986). My use of the term is more practical and pragmatic, and closer to that of Justice Souter, who listed "the capacity of this democracy to represent its constituents and the confidence of its citizens in their capacity to govern themselves" as the elements of political integrity. FEC v. Wis. Right to Life, 127 S. Ct. 2652, 2689 (2007) (Souter, J., dissenting). I use the term political integrity to refer to the type of conduct by agency personnel that maximizes both the fidelity of government to the will of the people and the people's confidence in government.
169. See Sidney A. Shapiro & Rena I. Steinzor, The People 's Agent: Executive Branch Secrecy and Accountability in an Age of Terrorism, 69 LAW & CONTEMP. PROBS. 99, 102-05 (2006) (applying agency theory to the public's relationship with the federal government and identifying agency costs in the implementation of legislation by the Executive).
170. See Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 HARV. ENVTL. L. REV. 297, 300-11 (1999) (documenting the damaging effects of widespread slippage in the implementation of environmental legislation).
171. Some observers view many legislative decisions about agency structure and administrative procedures as attempts to tighten control over bureaucratic agents. See, e.g., Terry M. Moe, Political Control and the Power of the Agent, 22 J.L. ECON. & ORG. 1, 3-4 (2005) (surveying the scholarship on the mechanisms employed by legislatures to regulate bureaucrats).
172. See, e.g., Clean Air Act, 42 U.S.C. § 7412(b)(1) (2000) (listing 189 hazardous air pollutants for which EPA must set emission standards).
173. See, e.g., id. § 7409 (directing EPA to set national ambient-air-quality standards that, in the judgment of the Administrator, are "requisite to protect the public health" and "allow an adequate margin of safety"); 43 U.S.C. §§ 1702(c), 1712(c) (2000) (directing the Bureau of Land Management to manage lands under its supervision under the "principles of multiple use," defined as the management of the lands and their resources "so that they are utilized in the combination that will best meet the present and future needs of the American people").
174. For an excellent explanation of the factors that may promote and combat the capture of environmental-regulatory agencies, see Matthew D. Zinn, Policing Environmental Regulatory Enforcement: Cooperation, Capture, and Citizen Suits, 21 STAN. ENVTL. L.J. 81, 111-13, 132-37 (2002). Enforcement efforts may be particularly subject to slippage because of capture. Id. at 126. Citizen-suit provisions have been included in most environmental statutes to address precisely that problem. See Robert L. Glicksman, The Value of Agency-Forcing Citizen Suits to Enforce Nondiscretionary Duties, 10 WIDENER L. REV. 353, 354-58 (2004) (discussing citizen-suit provisions in the Clean Air Act, Clean Water Act, and Solid Waste Disposal Act). Citizen suits have been an important part of the environmental-law story from the outset, but they have a number of limitations, notably that they require significant resources, face judicial barriers such as standing doctrines, and can be precluded by even mild government enforcement efforts. See, e.g., 42 U.S.C. § 7604 (allowing for citizen suits under Clean Air Act, but requiring provision of sixty days notice to the Administrator, to the state in which the violation occurs, and to any alleged violator before commencing suit, and allowing for either side to recover attorney fees); Pound v. Airosol Co., 440 F. Supp. 2d 1241, 1247 (D. Kan. 2006) (noting a split among other circuits as to whether an award of attorney fees is appropriate if a citizen suit brought under the Clean Air Act is for the purpose of financial gain rather than the purpose of the statute, and denying attorney fees in such a case); ROBERT FISCHMAN, THE NATIONAL WILDLIFE REFUGES: COORDINATING A CONSERVATION SYSTEM THROUGH LAW 17, 18 (noting that with respect to actions brought under the Administrative Procedure Act, "[constitutional principles of 'standing' that limit courts to a reactive role of simply responding to a particular dispute require that a citizen bringing a suit demonstrate concrete injury caused by the agency action," and further that "[i]n public land law, courts almost always defer to agency determinations when the agency record displays a reasonable consideration of facts and arguments").
175. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-44 (1984).
176. In a different kind of principal-agent problem, empirical studies suggest that Chevron does little to limit the effect that the ideologies of reviewing judges have on decisions. See Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 825-26 (2006) (finding a strong correlation between the ideological predispositions of Supreme Court justices and their tendency to approve agency decisions under Chevron); see also Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation and the Chevron Doctrine in Environmental Law, 79 U. COLO. L. REV. (forthcoming 2008), available at http://ssrn.com/abstract=996955 (confirming the findings that judges vote in their perceived ideological direction).
177. Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983).
178. See, e.g., Lisa Schultz Bressman, Deference and Democracy, 75 GEO. WASH. L. REV. 761, 781-82 (2007) ("[Presidential control means that there will be less worry about whether or to what extent regulatory policy actually reflects the will of the people or the preferences of their chosen representatives.").
179. Id. at 782; see also Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217, 1233-34 (2006) (challenging the notion that the president is accountable to a broad electoral base).
180. See Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2321 (2006) ("The combination of deference and the veto is especially insidious-it means that a President can interpret a vague statute to give himself additional powers, receive deference in that interpretation from courts, and then lock that decision into place by brandishing the veto. This ratchet-and-lock scheme makes it almost impossible to rein in executive power.").
181. Although George W. Bush did not originate the signing statement, he has issued many more than his predecessors. Peter L. Strauss, Overseer or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 719 n. 107 (2007); see also Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307, 316-21 (2007) (analyzing and categorizing George W. Bush's frequent use of signing statements); Charlie Savage, Introduction: The Last Word? The Constitutional Implications of Presidential Signing Statements, 16 WM. & MARY BILL RTS. J. 1, 2 (2007) ("Bush ha[s] used signing statements to target more than 1,100 distinct sections of bills-nearly double the roughly 600 such laws challenged by all previous Presidents in American history combined.").
182. As just one example, President Bush issued an Executive Order in January 2007 requiring that agency regulatory policy officers be presidential appointees, and that those officers or the head of the agency approve the commencement of any rulemaking. Exec. Order No. 13,422, 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007). The aggressive consolidation of power in the Bush White House has triggered an outpouring of legal scholarship about the extent and boundaries of presidential power. E.g., Michael P. Alien, George W. Bush and the Nature of Executive Authority, 72 BROOK. L. REV. 871 (2007) (exploring the judiciary's proper role in responding to the Administration's attempts to expand the scope of executive power); Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559 (2007) (examining how internal processes and standards can enhance the quality of Executive Branch decisionmaking); Symposium, The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power, 115 YALE L.J. 2215 (2006) (introducing a symposium issue addressing the proper role and reach of executives at all levels of government). It has also sparked comment from other perspectives. For example, New York University Professor of Public Service Paul Light has commented on the unusually tight coordination of this Administration: "I don't think anyone has met an administrative control structure like the Bush administration has put into place. The White House intends for federal employees to feel the presence of appointees." Stephen Barr, Appointees Everywhere, but Try to Count Them, WASH. POST, Oct. 17, 2004, at C2.
183. See, e.g., Cheney v. U.S. Dist. Court, 542 U.S. 367, 373 (2004) (reviewing whether the Bush Administration's National Energy Policy Development Group had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act); Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 489, 491-92 (2007) (noting the reputation of the Bush Administration for secrecy and listing several recent controversies in which the Administration claimed executive privilege); Gia B. Lee, The President's Secrets, 76 GEO. WASH. L. REV. 197, 198 (2008) (discussing the Bush Administration's pattern of resistance to disclosure of information); Dean Scott, Boxer Repeats Call for Testimony Details After White House Cites Executive Privilege, 38 Env't Rep. (BNA) 2393 (Nov. 9, 2007) (noting that the White House claimed executive privilege in response to a congressional request for details on the editing of testimony by the Director of the Centers for Disease Control and Prevention at a Senate committee hearing on climate change).
184. There are a number of examples of the George W. Bush Administration's engaging in self-interested political dealing, bypassing conventional procedures, and even apparently violating the law to do so. For example, at the Department of Justice, U.S. Attorneys were removed from their posts because they refused to use their positions to further the Administration's partisan political agenda and, even more troubling, applicants for supposedly nonpolitical entry-level positions were screened on the basis of their political affiliations. See, e.g., Keith Ferine, Restoring Faith in 'Main Justice', CONG. Q. WKLY., Sept. 3, 2007, at 2508, 2509 (reporting on a congressional investigation that found Department of Justice aides used political considerations when deciding which prosecutors to fire, and a former White House liaison used political considerations when hiring people for career positions). At the State Department, the inspector general-who is supposed to be the politically independent Department watchdog-resigned in the face of allegations that he blocked fraud investigations by his office for partisan purposes. Paul Richter, State Department Watchdog Resigns Amid Allegations, L.A. TIMES, Dec. 8, 2007, at A13. Several other inspectors general have left office in recent months under similar clouds. See Danielle Knight, Investigating the Investigators, U.S. NEWS & WORLD REP., Dec. 31, 2007, at 23, 23-24 (describing various institutional controversies and investigations, which at the time of publication had already led to the resignations of State Department Inspector General Howard "Cookie" Krongard and Smithsonian Secretary Lawrence Small). In May 2007, a Special Counsel investigation concluded that the head of the General Services Administration had "engag[ed] in the most pernicious of political activity" by asking political appointees at a meeting how they could help Republican candidates; this was a violation of the Hatch Act, which limits the political activities of Executive Branch employees. Robert O'Harrow, Jr., Bush Asked to Discipline GSA Chief in Hatch Act Inquiry, WASH. POST, June 12, 2007, at A7.
185. See, e.g., Robert L. Glicksman, From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy, 41 WAKE FOREST L. REV. 719, 774 (2006) (noting the Administration's failure to protect wilderness areas from road construction and timber harvesting); Richard J. Lazarus, A Different Kind of "Republican Moment" in Environmental Law, 87 MINN. L. REV. 999, 1006 (2003) (noting the Administration's efforts to reverse environmental initiatives put forth in the 1990s); John D. Leshy, Natural Resources Policy in the Bush (II) Administration: An Outsider's Somewhat Jaundiced Assessment, 14 DUKE ENVTL. L. & POL'Y F. 347, 350 (2004) (noting the Bush Administration's abandonment of the Clinton Administration's "roadless rule," which protected national forest land); Martin Nie, Governing the Tongass: National Forest Conflict and Political Decision Making, 36 ENVTL. L. 385, 463-64 (2006) (discussing the Administration's environmental-litigation strategies); Patrick Parenteau, Anything Industry Wants: Environmental Policy Under Bush II, 14 DUKE ENVTL. L. & POL'Y F. 363, 366 (2004) (noting the Administration's refusal to believe evidence of global warming); Kirsten Uchitel, PECE and Cooperative Conservation: Innovation or Subversion Under the Endangered Species Act?, 26 J. LAND RESOURCES & ENVTL. L. 233, 262-63 (2006) (arguing that the policy of "cooperative conservation" demonstrates the Administration's hostility toward the Endangered Species Act).
186. See Johnsen, supra note 182, at 1591 (arguing that the Executive's refusal to enforce a statute is the most suspect context for acting on its own legal views).
187. Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 440-43 (1989).
188. See Doremus, supra note 1, at 435 ("By shifting power toward agency scientists, the best available science mandate may well help to counter the tendency of agencies to make politically easy decisions inconsistent with the law's purposes.").
189. 16 U.S.C. § 1533(b)(1)(A) (2000).
190. Doremus, supra note 34, at 1054; see H.R. REP. NO. 97-567, at 11-12 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2811-12 (noting the decline in the pace of listing species that resulted from the economic-analysis requirement).
191. For a discussion of the extent to which the interpretation of incomplete scientific evidence and the policy judgments made on the basis of that evidence depend upon the identity of the decision maker, see Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 ECOLOGY L.Q. 249, 278-82 (2005).
192. Agency missions can be useful recruiting tools, particularly if agencies must compete with private-sector employers who offer higher pay and other benefits. See JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 157 (1989) ("The managers of government agencies, whose control of pecuniary rewards is much less than that of their business counterparts, presumably would have an even greater stake in making use of nonmaterial rewards."); Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 32 HARV. ENVTL. L. REV. (forthcoming 2008), available at http://ssrn.com/abstract=1090313 (arguing that the Forest Service's focus on timber production provided a clear mission for the agency that aligned well with the preferences of highly trained professionals who might otherwise have sought higher paying jobs in private industry).
193. See HERBERT KAUFMAN, THE FOREST RANGER: A STUDY IN ADMINISTRATIVE BEHAVIOR 176 (1960) ("Without realizing it, members of the Forest Service thus 'internalize' the perceptions, values, and premises of action that prevail in the bureau."). Agency missions are not an unvarnished benefit from a principal-agent perspective. They can become entrenched to the point where they put the agency at odds with updated social goals. See, e.g., Biber, supra note 192 (discussing the Forest Service's slow response to new congressional mandates that it expand its mission beyond timber production). To the extent that the president shafes the new congressional goals, the ability to impose a new agenda through political appointments can help push the agency in new directions, but the process is inevitably slow.
194. Jefferson was largely reacting to a spate of late appointments by the Adams Administration, and for the most part he tried to balance his appointments between the major parties. See PAUL P. VAN RIPER, HISTORY OF THE UNITED STATES CIVIL SERVICE 22 (1958) (describing Jefferson's doctrine that required equal division of offices between the parties).
195. Id. at 36-37.
196. Id. at 41, 41-42.
197. See ARI HOOGENBOOM, OUTLAWING THE SPOILS: A HISTORY OF THE CIVIL SERVICE REFORM MOVEMENT, 1865-83, at 209 (1961) (describing President Garfield's assassination and the background of the assassin, Charles Guiteau). See generally VAN RIPER, supra note 194, at 89-94 (arguing that the Pendleton Act's passage was spurred not only by President Garfield's assassination, but also by controversies surrounding political assessments).
198. Civil Service Reform (Pendleton) Act, ch. 27, 22 Stat. 403 (1883) (codified as amended in scattered sections of 5 U.S.C.).
199. VAN RIPER, supra note 194, at 98-100.
200. Id. at 105.
201. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2263 (2001).
202. RONALD N. JOHNSON & GARY D. LIBECAP, THE FEDERAL CIVIL SERVICE SYSTEM AND THE PROBLEM OF BUREAUCRACY: THE ECONOMICS AND POLITICS OF INSTITUTIONAL CHANGE 4 (1994).
203. Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.).
204. See 5 U.S.C. § 3131(5) (2000) (enabling the head of an agency "to reassign senior executives to best accomplish the agency's mission").
205. Compare Peter W. Schroth, Corruption and Accountability of the Civil Service in the United States, 54 AM. J. COMP. L. (SUPPLEMENT) 553, 564 (2006) (arguing that "the Senior Executive Service ... was established in a way that facilitated its politicization," with compensation and continued tenure in office subject to appraisals by political superiors), with David Barnhizer, Waking from Sustainability's "Impossible Dream": The Decisionmaking Realities of Business and Government, 18 GEO. INTL. ENVTL. L. REV. 595, 656 (2006) (noting that "[t]he very powerful and generally invisible bureaucrats of the federal government's Senior Executive Service ... quietly endure the coming and going of individual administrations while controlling the Executive Branch institutions," and describing these officials as "a core of master bureaucrats who can and do sabotage the 'best laid plans' of the fresh-faced ingénues and political contributors who receive" political appointments).
206. COMM. ON GOV'T REFORM, U.S. HOUSE OF REPRESENTATIVES, 108TH CONG., UNITED STATES GOVERNMENT: POLICY AND SUPPORTING POSITIONS (the "Plum Book") app. 1, at 215 (2004).
207. Id.
208. 5 C.F.R. § 213.3301 (2007).
209. President Bush has objected to some seemingly innocuous legislative requirements for political appointees. In 2006, for example, in the wake of the Hurricane Katrina disaster, Congress adopted a new requirement that the Administrator of the Federal Emergency Management Administration "be appointed from among individuals who have (A) a demonstrated ability in and knowledge of emergency management and homeland security; and (B) not less than 5 years of executive leadership and management experience in the public or private sector." Department of Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, § 503(c)(2), 120 Stat. 1397 (codified at 6 U.S.C. § 313). Bush promptly issued a signing statement declaring his authority to ignore that provision on the grounds that it would rule out many qualified individuals. Statement on Signing the Department of Homeland Security Appropriations Act, 2007, 42 WEEKLY COMP. PRES. DOC. 1742 (Oct. 4, 2006).
210. For arguments that the president does not have the authority to dictate decisions Congress has entrusted to Executive Branch agencies, see Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963, 966 (2001); Strauss, supra note 181, at 698. The latest flap about presidential interference involves reports that President Bush personally demanded that EPA soften its new ozone regulations on the day those regulations were to be announced. Juliet Eilperin, Ozone Rules Weakened at Bush 's Behest, WASH. POST, Mar. 14, 2008, at A1.
211. See, e.g., supra notes 53-60 and accompanying text.
212. In an April 2007 poll conducted by the Washington Post, ABC News, and Stanford University, 84% of respondents believed that global temperatures were increasing. Washington Post-ABC News Poll: Environment Trends, WASHINGTONPOST.COM, Apr. 20, 2007, http://www.washingtonpost. com/wp-srv/nation/polls/postpoll_environment_042007.html. However, more than half the respondents (56%) thought there was significant disagreement among scientists about whether it was occurring. Id. Interestingly, levels of trust in what scientists say about the environment were not extraordinarily high: only 5% trusted scientists completely, 27% trusted them a lot, and 43% trusted them a moderate amount. Id.
213. Such suspicions exist within the political branches, or at least they provide an excuse for discounting scientific evidence. See, e.g., Climate Change Hearings, supra note 56, at 245 (statement of Rep. Darrell Issa) (stating that he is "concerned that many scientists are increasingly engaging in political advocacy and that some issues of science have become increasingly partisan as some politicians sense that there is a political gain to be found on issues like stem cell, teaching evolution, and climate change").
214. See id. at 250 (statement of Philip Cooney, former Chief of Staff, White House Council on Environmental Quality) (explaining that he "offered [his] comments in good faith reliance on what [he] understood to be authoritative and current views of the state of scientific knowledge, and for no other purpose").
215. See supra note 3 and accompanying text.
216. See Kagan, supra note 201, at 2275-81 (tracing efforts to assert presidential control in agency decision making, from the more subtle attempts made by President Nixon to the more open strategies adopted by President Reagan).
217. The importance of role separation has been pointed out in other contexts where dispassionate analysis must precede policy choices. See, e.g., Johnsen, supra note 182, at 1562 (advocating independent legal analysis within the Executive Branch); Patricia M. Wald, Analysts and Policymakers: A Confusion of Roles, 17 STAN. L. & POL'Y REV. 241, 256-72 (2006) (exploring confusion surrounding the roles of intelligence analysts and policy makers).
218. Philip Cooney, for one, was quite frank about his view of his role. See Climate Change Hearings, supra note 56, at 24, 43-44 (statement of Philip Cooney, former Chief of Staff, White House Council on Environmental Quality) (describing how he participated in the review processes to align Executive Branch reports with administration policies, and stating, "When I came to the White House, my loyalties - my sole loyalties - were to the President and his administration.").
219. See supra subpart II(A).
220. See supra note 56 and accompanying text.
221. See supra notes 72-75 and accompanying text.
222. Even the conservative Wall Street Journal objected to the Bush Administration's practice of imposing political litmus tests on appointees to scientific advisory boards. See Sharon Begley, Now, Science Panelists Are Picked for Ideology Rather Than Expertise, WALL ST. J., Dec. 6, 2002, at B1 ("It goes without saying that every administration is entitled to appoint people who share its values and political views. But those appointees belong in policy jobs, not on panels charged with assessing science.").
223. See supra notes 44-48 and accompanying text.
224. Federal Employee Protection of Disclosures Act, S. 274, 110th Cong. (2007); Whistleblower Protection Enhancement Act of 2007, H.R. 985, 110th Cong. (2007).
225. H.R. 985 § 13(a). The Senate version has no comparable provision.
226. See Russo, supra note 47, at 39-40 (describing the particular challenges faced by whistleblowing scientists and other employees). The story of Andrew Eller, surely one of the more sympathetic scientific whistle-blowers imaginable, is an instructive, cautionary tale. See supra subpart II(C).
227. See Eli Kintisch, House OKs Whistleblower Bill, 315 SCIENCE 1649, 1649 (2007) (recounting a hypothetical, extreme interpretation of the law "in which an incorrect weather forecast could be labeled an abuse of authority because it contained false information").
228. See supra subpart II(A).
229. Many of these steps are also available to an Executive Branch willing to take a less aggressive position with respect to maximizing its own political power. For purposes of this Article, I assume that such self-limiting is unlikely in the current political climate, but it is certainly not impossible.
230. There is probably some constitutional limit on how far up the management ladder Congress could require that positions be filled by career civil servants, and on the qualifications which Congress could constitutionally require of political appointees. See, e.g., Strauss, supra note 181, at 721-24 (discussing varied congressional attempts - many successful - to control qualifications for and tenure of executive appointments, executive resistance to such actions, and judicial decisions partially limiting Congress's ability to do so). However, congressional discretion is surely quite broad.
231. See MACDONALD REPORT, supra note 6, at 7, 15-16 (stating that according to the California/Nevada Operations Manager, relations between his office and MacDonald improved after Hall's appointment, and detailing some attempts by Hall to intervene between field staff and MacDonald).
232. 5 C.F.R. § 213.3301 (2007).
233. Deutsch certainly seems to have been a young zealot at the time of the Hansen controversies. After his resignation, he said in an interview on a Texas A&M University radio program that NASA scientists were "out to get" Republicans, Christians, and "anybody they perceive as not sharing their agenda." Climate Change Hearings, supra note 56, at 346 (statement of George C. Deutsch, III).
234. As noted earlier, President Bush has raised constitutional objections to Congress's imposition of minor requirements on candidates for the position of FEMA director. See supra note Peter Strauss has explained why those objections are not well taken. Strauss, supra note 181, at 721-24. Whatever the validity of presidential objections to the placement of such requirements on agency heads, they can have no validity with respect to low-level Schedule C appointees. Furthermore, the Legislature has no other way to defend itself against improper Schedule C appointments since those do not require Senate confirmation.
235. See McCubbins et al., supra note 187, at 441-43 (noting that measures providing Congress with notice and an opportunity to object to agency decisions can be effective oversight measures).
236. For a description of the Dissent Channel, see Katyal, supra note 180, at 2328-29.
237. See supra note 184.
238. Julie MacDonald, for example, backed off her demands with respect to the flow needs of the Kootenai Sturgeon when FWS Director Hall insisted that she put her demands in writing. MACDONALD REPORT, supra note 6, at 16.
239. For example, former NMFS biologist Michael Kelly suggested that a lead biologist be required to cosign final biological opinions or that a "biologist's draft" be included in the record in order to limit the ability of administrators to alter the biologist's conclusions without fully explaining the reasons for the change. Political Influence Oversight Hearing, supra note 35, at 110 (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA).
240. Ctr. for Biological Diversity v. Norton, 336 F. Supp. 2d 1155, 1161 (D.N.M. 2004); Ctr. for Biological Diversity v. Norton, No. Civ. 01-409 TUC ACM, 2002 WL 32136200, at *2-4 (D. Ariz. July 24, 2002).
241. See MACDONALD REPORT, supra note 6, at 15 (reporting that even a critic of MacDonald acknowledged she had been "correct on several occasions in her challenges of field research").
242. I use quotes around this phrase to signify that I am not suggesting that agencies should have an obligation to go through some kind of formal peer-review procedure, with attendant delays. I mean only that important scientific decisions should receive some form of review by persons not already invested in their correctness. I suspect most regulatory procedures already build in opportunities for such review. However, if errors in scientific judgment continue to slip through, those procedures may need to be enhanced.
243. J.B. Ruhl & James Salzman, In Defense of Regulatory Peer Review, 84 WASH. U. L. REV. 1, 45 (2006).
244. In a series of surveys, the Union of Concerned Scientists has found that more than half of responding federal climate scientists, FDA scientists, NOAA fisheries scientists, and FWS scientists report knowing of inappropriate political interference with scientific research or analysis, and more than half of the climate scientists report personally experiencing such political interference. TIMOTHY DONAGHY ET AL., UNION OF CONCERNED SCIENTISTS, ATMOSPHERE OF PRESSURE: POLITICAL INTERFERENCE IN FEDERAL CLIMATE SCIENCE 52 (2007), available at http://www.ucsusa.org/assets/documents/scientific_integrity/Atmosphere-of- Pressure.pdf (reporting that 73% of climate scientists surveyed had perceived or personally experienced some sort of outside activity affecting climate science in the past five years and that 58% of climate scientists had personally experienced such activities in the past five years); UNION OF CONCERNED SCIENTISTS, NOAA FISHERIES SURVEY SUMMARY (2005), available at http://www.ucsusa.org/ scientific_integrity/interference/survey-political-interference-at- noaafisheries.html (last revised Aug. 25, 2006) (reporting that 58% of NOAA Fisheries scientists knew of cases "where high-level U.S. Department of Commerce administrators and appointees have inappropriately altered NOAA Fisheries determinations"); UNION OF CONCERNED SCIENTISTS, U.S. FISH AND WILDLIFE SERVICE SURVEY SUMMARY (2005), available at http://www.ucsusa.org/ scientific_integrity/interference/us-fish-wildlife- service-survey.html (last revised May 8, 2007) (reporting that 70% of staff scientists and 89% of scientist managers at the U.S. Fish and Wildlife Service knew of cases "where U.S. Department of Interior political appointees have injected themselves into Ecological Services determinations"); UNION OF CONCERNED SCIENTISTS, VOICES OF SCIENTISTS AT FDA: PROTECTING PUBLIC HEALTH DEPENDS ON INDEPENDENT SCIENCE (2006), available at http://www.ucsusa.org/assets/documents/ scientific_integrity/FDA-Survey-Brochure.pdf (reporting that 61% of FDA scientists knew of cases in which "Department of Health and Human Services or FDA political appointees have inappropriately injected themselves into FDA determinations or actions"). While these surveys do not prove that political interference is as widespread as the respondents perceive it to be, they provide very good evidence of low morale among agency technical employees.
245. Michael Kelly, for example, may have felt that he had to take on the evaluation of the legal merits of the Klamath biological opinion in part because NMFS did not follow its typical procedure of seeking review by career lawyers. See Political Influence Oversight Hearing, supra note 35, at 104-07 (statement of Michael Kelly, former Fisheries Biologist, FWS & NOAA) (reporting Kelly's criticism of the atypical, politicized process that led to the Klamath Biological Opinion).
246. For a recent discussion of the importance and difficulty of imparting a more accurate view of uncertainty and the nature of scientific understanding, see Fred Singer, Dualism, Science, and Statistics, 57 BIOSCIENCE 778, 780 (2007). Singer points out the difficulty of teaching students about uncertainties in science because instructors use the hypothetic-deductive method, which "presents] a world in which hypotheses originate with two alternatives (true or false)." Id.
247. Many academic institutions have ties to agencies that could facilitate this kind of post-hiring training. Some have already experimented with recruiting agency personnel to spend sabbaticals in academia. The University of California, Davis, for example, for about ten years had a Natural Resources Fellowship Program which offered agency personnel three- to six-month placements at the University. UC Davis Public Service Research Program, http://psrp.ucdavis.edu/about/program_history.shtml (last updated Mar. 6, 2007). With a small amount of targeted federal funding, such opportunities could easily be expanded.
248. See, e.g., Gary K. Meffe, Conservation Focus: Policy Advocacy and Conservation Science, 21 CONSERVATION BIOLOGY 11, 11 (2007) (introducing four symposium articles on the issue of advocacy by scientists in public policy).
249. Sissenwine, supra note 118, at 91.
250. See supra section III(A)(2).
251. See, e.g., Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664, 2665 (Jan. 15, 2005) ("Peer review is one of the important procedures used to ensure that the quality of published information meets the standards of the scientific and technical community.").
252. Outside peer review did, for example, eventually reveal the flaws in the panther-habitat model, but only because four dedicated reviewers were willing to devote an astonishing amount of time and effort to the job. See BEIER ET AL., ANALYSIS OF SCIENTIFIC LITERATURE, supra note 94, at 2 (noting that each member of the review team read 1,500 to 2,000 pages of primary literature for the first step in the review process); supra section II(C)(I).
253. As Hilborn points out, those virtues are not always in abundant supply among journal reviewers. Hilborn, supra note 121, at 554. They may be even scarcer among reviewers of policy decisions, particularly if those reviewers are not forcefully reminded of the political or value elements of the decisions under review. As Dan Tarlock and I have pointed out previously, for example, when the National Research Council committee convened to undertake an exhaustive (and resource-intensive) review of the biological opinions which triggered the Klamath water crisis, they may not have adequately policed their own biases. See Holly Doremus & A. Dan Tarlock, Science, Judgment and Controversy in Natural Resource Regulation, 26 PUB. LAND & RESOURCES L. REV. 1, 16 (2005) (noting the evidence that the Klamath review committee may have been affected by their views of the importance of the potential economic consequences of cutting irrigation deliveries).
254. See Lars Noah, Scientific "Republicanism ": Expert Peer Review and the Quest for Regulatory Deliberation, 49 EMORY L.J. 1033, 1059-64 (2005) (proposing that peer review be used in the regulatory context as a tool for "collaborative brainstorming").
255. See supra note 252.