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December 18, 2020

Environmental, Natural Resources, & Energy Law Blog

Best Scientific Data Available: Federal funding leaves gaps in research that puts species and critical habitat at risk of being left out of critical protections - Mikalah Singer

Introduction

More than 32,000 species are threatened with extinction, and that number only represents 27% of all assessed species including 26% of mammals and 24% of birds.[1] To be considered an “assessed species” there are five criteria that need to be looked at: population reduction, restricted geographic range, small population size and decline, very small or restricted population, and extinction probability analysis.[2] Those criteria are required to be able to categorize a species with a label about their vulnerability. Of these species, only those that are listed under statutes like the Endangered Species Act in the United States have legal protections. The issue is that in order for a species to be listed, scientific data needs to reflect the need for said species to be listed. With so many potentially vulnerable species not having enough information or not having up-to-date information about their habitats and populations, how can these legal tools be adequate protective measures? But how can we remedy this flaw? Federal funding and grants for research should be focused on basic research of species with little information rather than specific and small research questions on species we already have ample information on.

There are a number of statues in the United States that lists species to be covered and protected. These statutes include the Endangered Species Act, the Marine Mammal Protection Act, and the Migratory Bird Treaty Act. The most prominent and important for the discussion to follow is the Endangered Species Act.

The Endangered Species Act (ESA)[3] provides a framework for the conservation and protection of both “endangered” and “threatened” species and their habitats. These actions make the ESA key in both domestic and international conservation of animals. While the ESA helps guide protections within the United States for the listed species, it also helps meet the United States’ responsibilities under the Conservation on International Trade of Endangered Species of Wild Fauna and Flora (CITES).

The ESA defines “endangered” as a species determined to being danger of extinction throughout all or a significant portion of its range.[4] “Threatened” species as defined by the Act is a species likely to become endangered within the foreseeable future throughout all or a significant portion of its range.[5] Additionally, the ESA states that land necessary for the survival of the species should be designated as critical habitat, and this includes land that is presently occupied by the listed species and land that is important for its continued and future existence.[6]

Section 4 of the ESA sets the listing criteria. The Secretary of the Interior, acting through the U.S. Fish & Wildlife Service (USFWS) can list species.[7] Private citizens also have the power to petition to list or change the status of a species.[8]

The USFWS is not only responsible for listing individual species to receive the protections of the ESA. Critical habitat is also determined by the USFWS through identifying specific areas that “contain the physical or biological features essential to [a species’] conservation.”[9] The species listed are based on the best scientific data available.[10] Generally the critical habitat must be listed at the same time as the species.[11]

Final designations on both species and critical habitat are made on the best scientific data available.[12] There problem is that a species listing depends on that science, but if there is no science available or not enough science available, a species will not be listed even if it may need it. There are other holes in listing designations in that the USFWS also takes into consideration probable economic and other impacts of a critical habitat designation,[13] but those are besides the issue that if we are not expanding on the science available to encompass species that are less charismatic or less easy to study then some potentially vulnerable species may be left out of important protections.

 

Best available scientific research?

Listing based on the best available science for vulnerable, threatened, and endangered species sounds great until the science does not meet up with the reality of biodiversity issues. The International Union for Conservation of Nature’s Red List of Threatened Species is one of the world’s most comprehensive sources of information on species conservation globally.[14] The Red list acts as more than just a list providing information, but a tool that helps support conservation and policy efforts that are paramount to protecting biodiversity.[15] The list includes information about species including their range, population size, habitat and ecology, use and/or trade, threats, and conservation actions that can be used by others tasked with making conservation decisions.[16]

The Red List divides species into a number of categories intended to be widely understood.[17] The categories are Not Evaluated, Data Deficient, Least Concern, Near Threatened, Vulnerable, Endangered, Critically Endangered, Extinct in the Wild, and Extinct. The key concerning categories are Not Evaluated and Data Deficient.[18] Not Evaluated is rather self-explanatory in that it covers the nearly 75% of species which have yet to be researched enough to receive an actual listing.[19] Species are listed as Data Deficient when there is “inadequate information to make a direct, or indirect, assessment of its risk of extinction based on its distribution and/or population status.”[20] Although species in this category may be considered well studied in terms of its biology, there has not been enough research and appropriate data reflecting the abundance and distribution of the species.[21]

Although many species are able to be classified currently, continued monitoring and assessment of all species is the only way to make sure that each assessment is up-to-date and current. Additional limitations of current research and the Red List include bias towards terrestrial animals in certain forest ecosystems and the incompleteness of taxonomic groups.[22]

The IUCN Red list informs decisions in multilateral environmental agreements including CITES and the Convention on Migratory Species.[23] The ESA includes a “best available science” mandate that requires agencies use the best science available to guide decisions. The Red List strives to have data available on all global species, and it is a fair assumption that the Red List is used.

 

Why this is relevant

Scientific data is integral to the success of the ESA because the data is used to support or reject a species for protections under the Act. Without science showing that a species is in need of being listed.[24] It is difficult enough to track accurate changes of population of well-known species, and even more difficult for rare species. These rare species that likely need the protections statutes like the ESA could offer may not be able to gain the scientific support since time and resources may not be available to engage in surveys or species monitoring.[25]

The IUCN Red List is regularly cited by scientific journals for peer-reviewed literature.[26] Additionally, the IUCN notes that downloads to the Red List’s data from the website reveal that academics from research institutions worldwide use the IUCN’s data for research purposes daily.[27] The Red List is even used to help policymakers with environmental impact assessments (EIAs). EIAs are used to help inform decision-makers of potential consequences of implementing certain proposed projects.[28]

The USFWS developed the Species Status Assessment (SSA) framework to help deliver foundational science to inform ESA decisions. According to the USFWS webpage about the SSA, the SSA should be a “single source for species’ biological information needed for all ESA decisions.”[29] The development of an SSA involved the compilation of the “best available information” on the species life history, habitat, and taxonomy.

More research and species we know little about could help the ESA protect some of the most vulnerable species. There are a number of issues with the ESA’s science mandate including that acquiring data for proposed species after their initial proposal is costly and time-consuming.

A practical issue with using scientific data for the listing of species it that some proposed species do not have a lot of available data and acquiring more data is costly and time-consuming.[30] In 2005 Wilcove and Master found that the U.S. government’s implementation of the ESA is problematic due to providing minimal protections for imperiled species.[31] For example, “29 species and 13 subspecies went extinct while being considered for listing from 1973-1995.[32] Notably, many of the species that ended up becoming extinct already had tiny populations sizes at the time listing was proposed[33] and some could have been saved had listing been more rapid.[34]

More available and up-to-date scientific data on vulnerable or rare species could limit the amount of time between species being proposed for listing and actually being listed. The protections afford by the ESA including the recovery plans may be able to prevent future extinctions of species, but the time and cost it takes to obtain the research may be the death sentence for some species.

Additionally, current research shows that the most at risk species and habitats are already the least studied. A study from the University of Connecticut found that the regions that are at the greatest risk for species extinction are also the least studied.[35] While there is federal funding for wildlife conservation projects, these funds typically go towards research on charismatic species. In 2018, $50 million in grants from the Department of the Interior went to support state wildlife conservation projects to help recover species before they are listed on the ESA. Oregon planned to use some of this money for species monitoring. The species to be monitored closely? Black bears, bobcats, and mule deer. Species that already have researchers across the country working on them.[36] Just this year the Department of the Interior announced grants of more than $22 million to big game winter range research. The minimal funding already granted to wildlife research is continuously spent on the same species without consideration of new and undiscovered species.

Although in theory the SSA sounds great, it still relies on the science available and that neglects potentially vulnerable species without the science available. Furthermore the science available on vulnerable species that has driven research on many charismatic animals may not be as sound as previously thought. A study published in August 2020 found that herbivores are at the highest risk of extinction among mammals, birds, and reptiles which disputes the previous thought that predators suffer a higher risk of extinction.[37] As long as research keeps focusing on the same species and with the potentially incorrect mindset that some species are more vulnerable than others—whether it be large scale monitoring projects or smaller individually funded projects on specific species like the muscle physiology of black bears, other species will be left out of protections.

The use of “best science available” is flawed because the best science available is not protecting the species that are the rarest. The notion of best science available is only possible because some species are more accessible, and unfortunately for those species that are rare, their rareness is not only limiting their population to begin with but also limiting their ability to gain crucial protections.

 

What should we do about it

Funding bodies such as the USFWS need to start prioritizing novel basic research on species with little research already on them. Right now the USFWS does not offer any grant programs dedicated to researching or discovering unknown or novel species. The grant programs focus only on implementing projects that have already been approved on the research that exists.[38] Developing a grant that is dedicated to studying habitats and species that currently have little information could go far in rounding out the available research available. Adding a grant dedicated to looking for rare or undiscovered species would provide more of a drawn for scientists to look at species they may normally not be interested in. With the support of a grant to research small invertebrates rather than large game animals, we could start building the “best available” research on other species that could benefit from protections offered by the ESA. Limited funding already places burdens of which species to research and focus on scientists.[39] The introduction of a grant dedicated to looking at species that typically are not of interest to researchers may prevent some from falling through the cracks.

A research emphasis placed on less charismatic species in order to prevent insects and fungi from becoming extinct due to less interested in their well-being. The poor allocation of money is going to result in certain species going extinct right under our noses while we conduct another analysis of the same large game population again.[40] Each species plays a paramount role in biological diversity success and certain species should not be ignored because there is less public outcry to save them.

 

[1] The IUCN Red List of Threatened Species, IUCN, https://www.iucnredlist.org/ (last visited Dec. 9, 2020).

[2] Summary of the Five Criteria (A-E) Used to Evaluate if a Taxon Belongs in an IUCN Red List Threatened Category (Critically Endangered, Endangered, Vulnerable), IUCN, https://www.iucnredlist.org/resources/summary-sheet (last visited Dec. 9, 2020).

[3] The Endangered Species Act of 1973, 16 U.S.C §§ 1531-1544. Available at: https://www.fws.gov/endangered/esa-library/pdf/ESAall.pdf.

[4] 16 U.S.C § 1532(6).

[5] 16 U.S.C. § 1532(20).

[6] 16 U.S.C. § 1532 (5)(A-C).

[7] 16 U.S.C. § 1533 (b)(3)(A).

[8] Id.

[9] Critical Habitat under the Endangered Species Act, United States Fish & Wildlife Service, https://www.fws.gov/southeast/endangered-species-act/critical-habitat/ (last visited Oct. 28, 2020).

[10] 16 U.S.C. § 1533 (b)(1)(B)(2).

[11] Id.

[12] Id.

[13] Id.

[14] The IUCN Red List of Threatened Species, IUCN, https://www.iucnredlist.org/ (last visited Oct. 28, 2020).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Barometer of Life, IUCN Red List, https://www.iucnredlist.org/about/barometer-of-life (last visited Oct. 28, 2020).

[23] How the Red List is Used, IUCN Red List, https://www.iucnredlist.org/about/uses (last visited Oct, 28, 2020).

[24] The Endangered Species Act and “Sound Science”, Congressional Research Service, 21 (2013), https://fas.org/sgp/crs/misc/RL32992.pdf (last visited Oct. 29, 2020).

[25] Science and the Endangered Species Act, Ballotpedia, https://ballotpedia.org/Science_and_the_Endangered_Species_Act (Last visited Oct. 29, 2020).

[26] How the Red List is Used, IUCN Red List, https://www.iucnredlist.org/about/uses (last visited Oct, 28, 2020).

[27] Id.

[28] Id.

[29] Species Status Assessment Framework, USFWS, https://www.fws.gov/endangered/improving_esa/pdf/SSA_Fact_Sheet-August_2016.pdf (last visited Dec. 9, 2020).

[30] Science and the Endangered Species Act, Ballotpedia, https://ballotpedia.org/Science_and_the_Endangered_Species_Act (Last visited Oct. 29, 2020).

[31] J. Berton C. Harris et, al., Conserving imperiled species: a comparison of the IUCN Red List and T.S. Endangered Species Act, Conservation Letters 5, 64-72 (2012) citing Wilcove, D.S. & Master L.L., How many endangered species are there in the United States?, Front Ecol. Environ. 3, 414-420 (2005).

[32] J. Berton C. Harris et, al., Conserving imperiled species: a comparison of the IUCN Red List and T.S. Endangered Species Act, Conservation Letters 5, 64-72 (2012) citing Suckling, K.F. et al., Extinction and the Endangered Species Act, Center for Biological Diversity (2004).

[33] J. Berton C. Harris et, al., Conserving imperiled species: a comparison of the IUCN Red List and T.S. Endangered Species Act, Conservation Letters 5, 64-72 (2012) citing McMillian, M. & Wilcove D.S., Gone but not forgotten: why have species protected by the Endangered Species Act become extinct?, Endangered Species Update 11, 5-6 (1994).

[34] J. Berton C. Harris et, al., Conserving imperiled species: a comparison of the IUCN Red List and T.S. Endangered Species Act, Conservation Letters 5, 64-72 (2012) citing Suckling, K.F. et al., Extinction and the Endangered Species Act, Center for Biological Diversity (2004).

[35] Regions at greatest risk for species extinction the least studied, ScienceDaily, https://www.sciencedaily.com/releases/2015/04/150430225703.htm (last visited Dec. 9, 2020).

[36] See Sandi Martin, Scientists use grants to study black bears in middle Georgia, UGA Today, https://news.psu.edu/story/473669/2017/06/30/academics/student-receives-grant-research-black-bear-impact-agriculture; Steve Harmic, Student receives grant for research into black bear impact on agriculture, Penn State News, https://news.psu.edu/story/473669/2017/06/30/academics/student-receives-grant-research-black-bear-impact-agriculture; Western Illinois University, State Grant to Fund Bobcat Research at Western Illinois University, NewsWise, newswise.com/articles/state-grant-to-fund-bobcat-research-at-western-illinois-university; Interior Announces Grants to 11 Western States for Big Game Winter Range and Migration Corridor Scientific Research, U.S. Department of the Interior, doi.gov/pressreleases/interior-announces-grants-11-western-states-big-game-winter-range-and-migration (last visited Dec. 9, 2020).

[37] Trisha B Atwood, et al., Herbivores at the highest risk of extinction among mammals, birds, and reptiles, 6 Science Advances 32 (Aug. 8, 2020).

[38] Endangered Species, Grants, USFWS, https://www.fws.gov/endangered/grants/grant-programs.html (last visited Dec. 9, 2020).

[39] Warren Cornwall, Should it be saved?, ScienceMag, https://www.sciencemag.org/news/2018/09/limited-funds-conservation-researchers-spar-over-which-species-save-and-which-let-go (last visited Dec. 9, 2020).

[40] Elizabeth Preston, Scientists like some animals better than others (hint: bears), Discover (Apr. 8, 2014), https://www.discovermagazine.com/planet-earth/scientists-like-some-animals-better-than-others-hint-bears (last visited Dec. 9, 2020).