Taking a Hard Look at Agency Science: Can the Courts Ever Succeed?

Clark, Sara A.
May 2009
Ecology Law Quarterly;2009, Vol. 36 Issue 2, p317
Academic Journal
In managing the nation's forests, the Forest Service relies on complex scientific information to make decisions about timber harvesting, wildlife habitat, recreational opportunities, and other activities. Courts have struggled to find the proper level of deference owed to the agency in making such decisions, in part because of the difficulties that science poses to the court. Judges are hesitant to overrule decisions based on the perceived scientific expertise of administrative agencies. However, the Forest Service faces constraints in its structure, mission, and culture that tend to bias agency decision making toward resource extraction. In Lands Council v. McNair, an en banc panel of the Ninth Circuit forcefully returns the court to a highly deferential standard of review. This Note argues that this highly deferential standard may encourage the Forest Service to engage in a "science charade," where the agency disguises policy judgments as scientific decisions, in order to avoid both stringent judicial review and political accountability. Such a charade has negative implications for the agency, the courts, the environment, and the public has a whole.


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