The Services have also issued two policy statements on implementing the “best scientific and commercial data available” mandate. The first is the Notice of Interagency Cooperative Policy on Information Standards [59 Fed. Reg. 34271 (July 1, 1994)]. It applies to, among other things, decisions made in the Section 7 consultation process and states that biologists employed by the Services must evaluate all information to “ensure that any information used by the Services to implement the Act is reliable, credible, and represents the best scientific and commercial data available.” It also expresses a preference that the Services use primary and original sources of information as the basis of its recommendations.
The second policy statement is the Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities [59 Fed. Reg. 3270 (July 1, 1994)]. It provides that in making listing decisions and developing recovery plans under the ESA, the Services will seek independent peer review. It does not explicitly apply to decisions made in the Section 7 consultation process.
Neither the ESA nor its implementing regulations or policies provide detailed guidance on what is meant by “best scientific and commercial data available.” Moreover, the legislative history of the ESA does not provide any clear direction on what Congress intended by using that language. However, experts who have studied the ESA, its legislative history, and circumstances surrounding the passage of the act have stated that the “best scientific and commercial data” mandate was generally intended to “ensure objective, value-neutral decision making by specially trained experts” (Doremus 2004). As one expert has opined, “taking the best available science mandate at face value, its most obvious purpose would seem to be to ensure that agency decisions are substantially as ‘good’ as can be” (Doremus 2004). Experts who have analyzed the case law involving the use of the best-available-science mandate have concluded that the cases suggest “no consistent thread or logic” (Brennan et al. 2003). Thus, there is little guidance in the ESA, its legislative history, the Services’ rules and policies, or court cases to elaborate the meaning of the “best scientific and commercial data available” mandate in the ESA.
At least one court has held that EPA can be liable for a take under the ESA if its registration of a pesticide results in the take of a listed species [Defenders of Wildlife v Administrator, EPA, 882 F. 2d 1294 (8th Cir. 1989)]. More important for the purposes of the present report, courts have held that EPA is required to comply with the ESA Section 7 consultation process when registering or taking other regulatory actions on pesticides under FIFRA. The requirement that EPA comply with the ESA when registering pesticides under FIFRA presents a number of challenges. First, pesticides, by their very nature, are intended to harm or disrupt a living organism in some way. Pesticides intended for out-