Science and Dissent: 'Deal with it' Says Federal Judge Dave

Last Friday, a Seattle-based US District Court (9 page Order [PDF], Judge Ricardo S. Martinez, 3/30/2007) set aside the "Aquatic Conservation Strategy" (ACS) for the Northwest Forest Plan. The set-aside itself is not of import here. Rather, the reasons for the set-aside and the implications going forward are our concern. The Court found at least two fundamental procedural problems in reviewing the Final Supplemental Environmental Impact Statement (FSEIS—associated with the Clinton-era Northwest Forest Plan). First, the Court found the FSEIS had failed to comply with the National Environmental Policy Act (NEPA) in moving from one standard to another. In the finding, the Court relied on this standard,

[W]here an agency has previously made a policy choice to conform to a particular standard, and now seeks to amend that standard, "the Agencies have an obligation under NEPA to disclose and explain on what basis they deemed the standard necessary before but assume it is not now."

Such review has implications in many fora, including any future EPA regulation of CO2 and other "Greenhouse Gases", and 100+ federal forest plans in the US.

Second, the Court found that the agencies failed to disclose dissenting scientific opinion in the body of the EIS, noting that "dissenting views of responsible scientists were neither set forth in substance, nor their import discussed, in the FSEIS. … Further, several of the … scientists' responses regarding original intent of the ACS were misrepresented in [an] appendix." The Court found, specifically:

Even if the scientists' opinions had been adequately and accurately stated and discussed, their relegation to the comment and response section of the appendix was improper under NEPA. … Disclosures and discussions must be in the body of the EIS itself. … Furthermore, within that body of the EIS, the agency must not only recite dissenting opinions, it must "analyze," "respond to" and "discuss" them. … None of that was done here.

Somehow I think we'll hear more about both concerns/finding as we continue to expand our horizons in the political/administrative/judical world we live in.