Column: The consent decree and the absence of science
By MIKE BERRY
years ago, three environmental activist organizations -- the Southern
Environmental Law Center, the Audubon Society, and Defenders of
Wildlife -- sued the National Park Service and convinced a federal
judge to sign a consent decree that converted the most popular and
frequented sections of the Cape Hatteras National Seashore Recreational
Area into mile after mile of “Bird Use Area.”
public was given no opportunity to comment on the poorly crafted
environmental management provisions of the consent decree. The
provisions were slapped together in a period of about three weeks in
April of 2008, behind closed doors, with no independent technical input
predicted, the consequence of this environmental decision without
public involvement is disastrous.
bird species, none of which are endangered, have forced thousands of
hard-working, tax-paying citizens and visitors from around the world
into now much overcrowded sections of the seashore, threatening to
overrun the carrying capacity of those ecosystems.
There is no
statistically significant environmental benefit.
interest lawyers and activists often referred to National Park Service
annual resource reports in their self-promoting press releases and
periodic presentations to the federal judge overseeing the consent
decree. They use the reports to make claims that the public
access restrictions in the consent decree, which they crafted and
imposed without review upon the public, are resulting in “highest ever”
bird and turtle observations.
no time in five courtroom conferences over the past four years has the
federal judge, Terrence Boyle, or, for that matter, anyone, questioned
the validity of these reports or taken a hard look at environmental
activists’ claims. Based on the observed friendly dialogue
between the judge and the activists, they seem to be the type of claims
the federal judge wants to hear.
fact the bird and turtle numbers that the environmental activists’
lawyers refer to come from annual National Park Service reports that
are not consistent with the Presidential Directive for Science
Integrity and Department of Interior and National Park Service policies
for scientific transparency and review.
of the annual reports related to the consent decree for 2008, 2009,
2010, and 2011 were ever peer-reviewed or validated by competent,
independent science advisors in open public forum or openly discussed
by interested parties. The reports do not indicate an author
federal scientist who takes responsibility for the validity of the
data. The public does not know who– by name, affiliation, and
technical qualifications– made the observations and recorded the data.
The public has no knowledge of chain of custody or quality assurance of
the data. The public does not know who
wrote the reports. Previously in 2007, such annual bird reports were
co-authored by Audubon Society members. Simply put, the public cannot
get at the facts and verify claims.
in any annual report does the National Park Service claim a
cause-and-effect relationship between overly restrictive closures
provided by the consent decree and bird and turtle production.
lawyers or the National Park Service cannot demonstrate or prove that
the reproductive success of birds and turtles was improved under the
overly restrictive provisions of the consent decree anymore than would
have occurred had the provisions of the publically reviewed Interim
Protected Species Management Plan been allowed to move forward for four
recent court testimony, without qualification, the seashore
superintendent, Mike Murray, said about birds and turtles, “the trend
is up.” Again, something the judge wants to hear.
turtles, production and sightings during the years of the consent
decree were up all along the Atlantic Coast, not just the region
governed by the consent decree.
birds, natural processes and variability alone could produce such a
statistically insignificant one- or two-year “up trend” for a very
small number of birds in previous years. In fact, for one
species, the so called “trend” is down.
technical provisions of the consent decree have been the basis for the
selective trapping and killing of bird predators. Aggressive
predator control during the years of the consent decree is altering the
ecosystem significantly. Food chain manipulation is one way to promote
unnatural bird production.
and activities such as surf fishing are the basis of the local economy.
Visitors do not come to places that deny access. Millions of dollars of
revenue, and many jobs have been lost to villages of Hatteras and
Ocracoke islands that depend on access to the seashore.
there is much community and public outrage directed at the National
Park Service that could be avoided by adaptive management decisions
based on science.
consent decree case illustrates that far too often there is a misuse
and misrepresentation of science to achieve political objectives. That
is clearly the case with the science claims made by environmental
activists and that have been accepted in their totality, without review
or verification by the federal judge issuing the consent decree.
and the law are interdependent. As Supreme Court Justice Stephen G.
Breyer said in 1998, “The practice of science depends upon sound law…
It is equally true, that the law itself increasingly needs access to
are not scientists and avoid ruling on science. Sometimes, but not
often, they use pretrial conferences to narrow the scientific issues in
dispute, pretrial hearings where potential experts are subject to
examination by the court, and the appointment of specially trained “law
clerks” or scientific “special masters.”
general, federal judges look to the implementing agencies, such as the
National Park Service and the U.S. Geological Survey to provide the
scientific basis for regulations. Over the past 40 years, federal
agencies have adopted formal peer review policies to ensure they comply
with the “Hard Look Doctrine.” Courts expect those agencies
take a “hard look” at the science and not be informal or sloppy in
their treatment of fact.
the case of the access-restrictive provisions of the consent decree,
have now been absorbed into a promulgated ORV management plan, the
National Park Service refuses to take a hard, objective look at the
review to determine the validity of the so-called “scientific fact”
never occurred during the consent decree proceedings of the
four years. As a result, the public lost access to the
its national seashore.
so called USGS Protocols continue to be touted as “best available
science” in the development of the final ORV management plan for the
Cape Hatteras Seashore Recreational Area.
importantly, for the development of the final ORV management plan,
there is no indication that NPS ever plans to revisit the USGS
Protocols and the science basis for closure boundaries and buffers for
following speaks volumes as to the lack of formality and serious
purpose of the USGS Protocols currently used as the excuse for beach
is no public record that the protocols, which have been the source of
closures, have been officially peer reviewed following USGS peer review
There is no
public file, docket, or documentation of peer review questions,
comments, or author response.
is no indication that the protocols were ever published in a
peer-reviewed journal or publication or ever referred to as what they
are -- management guidelines and opinions as opposed to in-depth
having any kind of conflict of interest association, whether through
membership, collegial associations, funding, or grants must disclose
the relationship. Some authors and reviewers of the protocols were
members and associates of the organizations now using the protocols to
restrict public access to the beaches of the national park, a fact
never disclosed openly and not in compliance with USGS peer review
federal court and National Park Service have failed to ensure a valid
science basis to a regulation that restricts public access to the
national seashore. Such government inaction in responding to
politically powerful special interests will only further public outrage
and distrust of government.
Michael A. Berry served as any Army officer in Vietnam in the
1960s. After returning to civilian life, he earned a
Public Health and worked in the U.S. Environmental Protection Agency,
where, as a senior manager and scientist, he served as the Deputy
Director of National Center for Environmental Assessment at Research
Triangle Park, N.C. During his 28-year career with EPA, he had
extensive interactions with environmental organizations, local
governments, the federal courts, U.S. Congress, universities worldwide,
and institutions, such as the National Academy of Sciences, the World
Health Organization, and the North Atlantic Treaty Organization. For
more than 20 years, Dr. Berry taught public health, environmental
science, and business and environment courses at the University of
North Carolina. He is currently a writer and part-time
consultant, specializing in the evaluation of environmental quality and
human health effects, environmental management strategies and policy.
You can read more of his writing at http://dr-mike-berry.com)