April 28, 2005

Science underlies all environmental rule-making and policy. Federal agencies routinely use science to make policy decisions determining how much arsenic is acceptable in our drinking water, the amount of pesticides residuals on the food we eat and the degree to which a superfund site's cleanup standards meet acceptable cancer risks. Inherently, science-based decision making, however, invariably involves technical judgment calls. In some cases, the science may be abundant and sufficiently clear-cut that it leads to only one rational result. In a variety of circumstances, however, and for a number of reasons—some political and some pragmatic—agencies are often forced to promulgate environmental policies and regulations based on incomplete science.

Historically, agencies have not been required to open the scientific methods used to develop environmental regulations to the public.[1] In the last decade, however, as the internet and other technology and data collection procedures have steadily developed, the public is increasingly demanding greater transparency and objectivity from agencies engaged in developing environmental regulations. Given the contentious nature of environmental rulemaking, it only seems natural that Congress would develop legislation governing the manner in which federal agencies disclose scientific information shared with the public.

In 2001, Congress passed the Information Quality Law ("The Data Quality Act" or "Act") to ensure the "quality, objectivity, utility, and integrity" of all information disseminated by federal agencies.[2] The Act achieves this goal by requiring each federal agency to issue internal guidelines concerning the sharing of "information disseminated" by the agency with the public.[3] Furthermore, the Act requires each agency to establish "administrative mechanisms" under which affected persons can apply to the agency for correction of information the agency maintains and disseminates.[4]

Initially, a high degree of legal uncertainty regarding the Act's scope and application brought sharp academic criticism.[5] Even though many of the Act's critics, pointing to flaws inherent in risk assessment models,[6] generally favor increasing scientific objectivity, they object to the Act on policy grounds because of the drain the Act could have on administrative resources. Critics argue that the Act's reproducibility requirements put an unnecessary, unfunded procedural burden on agencies to double-check their work. Some contend that the Act, if construed broadly, could affect administrative rulemakings in a manner similar to the way the Supreme Court's Daubert v. Merrill Dow Pharmaceuticals[7] decision affected toxic torts.[8] Proponents allege the Act's merits outweigh its costs and that, in the long-run, the Act will provide a useful means of good government reform. For proponents, the Act establishes a long-awaited means to bring an important public check on the objectivity of a previously closed-door rulemaking process.

This editorial explores the Data Quality Act's criticisms, acclaims, and academic observations. The editorial argues that the Act represents sound policy to the extent that important decisions by federal agencies will be more fair—to both environmentalists and industry alike—because good science benefits everyone. Further, this paper argues that many of the uncertainties surrounding the Act are the result of its youthful vintage. Today, four years after the Act's enactment, however, it has begun to take on more defined role. Part I of this editorial analyzes the Act's statutory framework and the Office of Management and Budget's regulations implementing the Act. Part II examines three of the Act's ambiguities regarding its scope, its application rulemaking, and whether its terms support a private judicial right of action. Part III concludes.

I. Overview of The Data Quality Act and Its

Implementing Regulations

The Act[9] consists of three primary components: (1) it vests the White House's Office of Management and Budget ("OMB") with direct authority to supervise the manner and quality of scientific information shared by all agencies with the public and requires OMB to develop binding guidelines governing the quality of information disseminated by federal agencies;[10] (2) it requires each agency to develop its own protocol for ensuring the accuracy of scientific information dispersed to the public;[11] and (3) it creates an administrative procedure for private parties to apply for corrections of allegedly imprecise or questionable scientific data circulated by federal agencies.[12]

The White House's Office of Management and Budget ("OMB") administers Act's implementation. The Act requires OMB to administer the "number and nature of complaints received by agencies regarding the accuracy of information disseminated by the agency."[13] The Act requires OMB to establish "policy and procedural" guidelines for federal agencies; to oversee each agency's respective implementation of their own guidelines; and to supervise the status of each agencies handling of each private party's application for correction.[14] In 2001, OMB's regulations implementing the Act were published by its Office of Information and Regulatory Affairs.

Congress vested OMB with significant discretion to interpret the Act.[15] Despite the Act's purportedly broad scope, affecting all administrative agencies, the entire act contains only nineteen lines of text and its accompanying Congressional record is bereft of any pertinent legislative history.[16] OMB's regulations implementing the Act are thereby fortified under traditional principles of administrative law because of the tremendous statutory gaps left by Congress when it passed the legislation.[17] Accordingly, under Chevron v. NRDC,[18] OMB's regulations are tantamount to legislation.

II. The Act's Key Provisions

This part addresses several of the Act's key provisions, including the Act's scope, and its substantive and procedural mandate for applicable agencies. This part also provides several of the Act's chief criticisms.

i. Scope

The Act applies "to the sharing by Federal Agencies of . . . information disseminated by Federal agencies."[19] Recent Congressional action has made it clear that the Act applies to every federal agency. The definition of "dissemination," however, is not so clear. Under OMB guidelines, "dissemination" is defined in the negative, and excludes "distribution limited to government employees . . . intra- or inter-agency use or sharing of government information . . . and responses to requests for agency records . . . or distribution limited to correspondence with individuals or persons, press releases, archival records, public filings, subpoenas, or adjudicative." [20] The regulation otherwise encompasses all else.

To date, the Act has been used in a variety of ways. The act has been used to challenge a plan by the Army Corps of Engineers' for the operation of the Missouri River,[21] to uncover information underlying a public health effort by the National Heart, Lung and Blood Institute to raise awareness about sodium,[22] and to correct information regarding health exposures to atrazine, a cancer causing chemical component of fertilizers.[23] Because the Act has been used primarily by industry interests, some environmentalists have boycotted using the Act because they feel that it inherently favors industry. This blanket assertion, or boycott, is based on flawed logic because, as this editorial argues, the Act treats neither interest favorably over the other.

The OMB guidelines consider that an agency "disseminates" information during rulemaking, and require that agencies consider applications for corrections pertaining to rulemakings prior to issuing a rule. Sidney Shapiro, a chief critic of the Act, contends that OMB's interpretation that "dissemination" includes rulemakings is clearly inconsistent with Congress' intent.[24] Shapiro argues "Congress could not have meant the [Act] to apply to rulemaking because the requirement that an agency establish an "administrative mechanism" to hear information quality complaints is entirely superfluous or redundant."[25] This argument is persuasive for several reasons: First, the Notice of Proposed Rulemaking ("NPR") procedure inheres its own "administrative mechanism" to vet arguably scientifically unsound rules; second, if agencies are forced to address each application for corrections in a piecemeal fashion, the already dogged rulemaking process could very well become irreparably bogged; and third, the NPR venue is more effective for complainants because it provides judicial recourse for an agency's failure to respond to meritorious allegations that its data is not objective which, as discussed infra, the Data Quality Act does not.[26]

ii. Accuracy of Information

OMB's guidelines specify that information disseminated by federal agencies must be potentially reproducible. Generally, OMB's regulations require that all information governed by the Act to satisfy two principle elements: objectivity requirements, incorporating presentation and reliability elements; and transparency requirements, relating to disclosures of the "methods to facilitate the reproducibility of such information by qualified third parties."[27]

The guidelines specify that scientific information disseminated by agencies is "capable of being substantially reproduced, subject to a degree of imprecision."[28] The degree of imprecision permitted by OMB's guidelines correlates to the impacts of such information.[29] Under OMB's guidelines, for example, information determined to have a higher influence is required to undergo a more stringent reproducibility test that standard, routine information.[30] OMB's guidelines set forth a three-tiered value system based on the impact each scientific data set will have on the private sector.[31] Routine information, for example, must be presented in a "clear and unbiased manner" and it must be reliable.[32] Influential information must have a "high degree of transparency" and a "sound statistic[al]" basis.[33] The critical distinction between influential information and routine information, however, is that all information likely to have a "substantial impact on important public policies or important private sector decisions," must be potentially reproducible.[34] Peer reviews would have to be reliable, independent and transparent.[35]

Critics contend that OMB's regulations requiring "reproducibility" of scientific data over-reach the scope of the Act.[36] They argue that OMB's reproducibility standards—that are nowhere present in the Act's express terms—place an unreasonable burden on agencies to determine when independent peer review is required.

OMB's reproducibility requirements may prove more difficult to implement than originally thought.[37] Agencies have struggled with the reproducibility requirement as a whole, but they have had particular difficulty determining when peer review is required. For example, the Council of Environmental Quality ("CEQ") has developed its own guidelines conforming to the Act.[38] These proposed guidelines require the agency to verify, before receiving information from another agency, whether the information provided by the other agency conforms to the Act.[39] In order for the CEQ staff to determine whether peer review is required for their own work, the proposed guidelines delineate several steps the agency must satisfy.[40] These steps include preparing a draft of the document after consulting necessary parties, including government and non-government sources, and, if necessary, "presenting the matter to higher authority."[41]

The ad-hoc analysis, exemplified by CEQ's proposed regulations, provides a good prototype for how agencies have sought to implement the Act's vague reproducibility requirements. The proposed guidelines also demonstrate how agencies have struggled to cope with the Act's less than clear terms. Because CEQ's regulations do little to precisely clarify when reproducibility is required, there remains potential for haphazard implementation of CEQ's proposed guidelines in the future. This risk lends credence to critic's allegations that OMB needs to re-examine its regulations so that agencies can develop regulations in a uniform manner.

Nevertheless, experience from the last three years of the Act's implementation has shown that private challenges to the reproducibility of information so far have largely been handled by agencies in an effective manner.[42] Agencies possess wide discretion to deny requests to correct information. While it is still too early to state conclusively how much leeway agencies will have under the OMB's guidelines, as of right now, CEQ and other agencies have not been subsumed by the reproducibility requirements. This is not to say, however, that there are not strong arguments in favor of redrawing OMB's regulations to specify in greater detail how agencies should conform their activities to the Act.

iii. Ability of Private Parties to Correct Information

The Act requires each federal agency to "establish administrative mechanisms" to handle complaints by persons wishing to challenge the accuracy of agency disseminated science.[43] OMB's guidelines grant agencies flexibility to implement time periods for agency decisions on whether and how to correct information pursuant to a request for correction.[44] The guidelines require that agencies establish an administrative appeal process to review renewed applications with the agency for information corrections if the party who filed for the original application is not satisfied with the agency's original response.[45]

Initially after the Act's passage, there was great uncertainty whether Act created a private right of action for individuals to sue agencies for alleged failures to comply with requests for correction of information. Before the Act's passage, an agency's dissemination of scientific information was not "final agency action" and therefore individuals were not able to sue agencies under the Administrative Procedure Act for alleged information infidelities.[46] When the Act passed, however, many observers feared that the Act's provisions unambiguously requiring agencies to develop strict protocols to handle science and permitting private persons to file for corrections of information with the agencies could be judicially construed as creating a private right of action.

Even though OMB has expressed no formal opinion on the matter, every United States District Court addressing whether the Act provides a private right of action, has held that the plain language of the Act precludes a private right of act for private parties to challenge an agency's decision to ignore a request for correction in federal court.[47] Both courts addressing the Act held that the Act contains no substantive standards permitting federal courts to review an agency's refusal to heed an application for correction of information.[48] In fact, the United States has taken the position that the Act does not create a private right of action in any way.[49]

Because the Act requires federal agencies to establish internal administrative procedures conforming to OMB's guidelines permitting affected persons to seek and correct disseminated information, many pundits claim the Act turns the responsibility of federal agencies to protect the pubic health on its head. [50] Opponents claim this provision of the Act favors scientific certainty over environmental precautions—human and environmental health—and corporate interests over the interests of the general public because the provision amounts to an unfunded mandate. Essentially, by requiring agencies to create additional administrative mechanisms for assuring scientific perfection, and in turn providing private complaints to stall administrative rulemakings until answered, without additional funding, the Act creates duplicitous work, which in the long run disfavors protection of public health by slowing the administrative process.[51]

III. Conclusion

When the Act initially passed and when OMB first issued its guidelines, the Data Quality Act drew a tremendous amount of criticism. To a large extent, this reaction can be attributed to the legal uncertainty regarding the Act's terms. Since courts are beginning to review several cases involving the Act, and are resolutely determining that the Act does not contain a private right of action, however, much of the uncertainty surrounding the Act is less relevant. Nevertheless, there still remains considerable confusion about how the Act applies administratively within the ninety federal agencies to which it applies. Moreover, the Act is still too young to determine the long term susceptibility[52]

Despite the growing judicial consensus foreclosing private parties from suing agencies in court, it is yet uncertain how far reaching an impact the Data Quality Act will have on environmental rulemaking.[53] The Act's implementation has shown several trends, however, that will continue to solidify many of the Act's ambiguities. As agencies determine how to handle the implementation of the Act, they will also continue to share information. As discussed earlier, in Part II supra, CEQ and several other agencies require that information received by their agency from another agency be objectively in conformity with the Act.[54] Agencies that serve as information cornerstones, like the CEQ, through its authority over NEPA's requirement that all federal activities be accompanied by an environmental impact statement, will create greater uniformity in the application of the Act across all federal agencies. Accordingly, as time passes and agencies continue to share information, the Act is certain to become more uniform.

[1] See Thomas O. McGarity, MTBE: A Precautionary Tale, 28 Harv. Envtl. L. Rev. 281, 319 (2004) (discussing EPA's less than certain scientific support for its decision to ban leaded gasoline).

[2] See Treasury and General Government Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554, § 515(a), 114 Stat. 2763A-125, 2763A-153 to 2763A-154 (2000) (codified at 44 U.S.C.A. § 3516 note).

[3] Pub. L. No. 106-554, § 515(b)(2)(A).

[4] Pub. L. No. 106-554, § 515(b)(2)(A), (B).

[5] The rider was drafted by Jim Tozzi, ex-director of OMB's OIRA and industry lobbyist for the Center for Regulatory Effectiveness. See James T. O'Reilly, The 411 on 515: How OIRA's Expanded Information Roles in 2002 Will Impact Rule-Making and Agency Publicity Actions, 54 Admin. L. Rev. 835, 840 n.20 (2002). Due in large part to the Act's severe brevity and the fact that Congress failed to provide any legislative history to clarify its meaning, many of the Act's pundits are deeply conflicted by specific uncertainties concerning the Act's scope, meaning and purpose.

[6] See Valerie Watnick, Risk Assessment: Obfuscation of Policy Decisions in Pesticide Regulation and the EPA's Dismantling of the Food Quality Protection Act's Safeguards for Children, 31 Ariz. St. L.J. 1315, 1334 (1999) (stating that the [quantitative risk assessment] process has been compared to a ‘tortured spy' in that you can ultimately get it to say whatever you want by altering the assumptions on which the analysis is based").

[7] See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993) (clarifying that the trial judge is to serve as a "gatekeeper" for determining the admissibility of expert evidence).

[8] See Wendy Wagner, Importing Daubert to Administrative Agencies Through the Information Quality Act, 12 J.L. & Pol'y 589.

[9] The IQA, amending the Paperwork Reduction Act, states in its entirety:
(a) In General.--The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.
(b) Content of Guidelines.—The guidelines under subsection (a) shall—
(1) apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and
(2) require that each Federal agency to which the guidelines apply--
(A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency, by not later than 1 year after the date of issuance of the guidelines under subsection (a);
(B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and
(C) report periodically to the Director—
(i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency. Pub. L. No. 106-554, § 515.

[10] See Id. § 515(a). The Act requires the White House's Office of Management and Budgets ("OMB") create guidelines for federal agencies to ensure and maximize "the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by federal agencies." Id.

[11] Id. § 515(b)(2)(A).

[12] Id. § 515(b)(2)(B).

[13] Id. § 515(a).

[14] Id. Under Section 515(a), OMB must "maximize the quality, objectivity, utility, and integrity of information" that is "disseminated by Federal agencies." Id.

[15] Sidney A. Shapiro, The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider, 28 Wm. & Mary Envtl. L. & Pol'y Rev. 339 at 352.

[16] See, e.g., Wagner, supra note 7 at 596, n.23. The Act passed as last minute addendum to the Paperwork Reduction Act amidst a voluminous House omnibus appropriations bill. Some even contend that "most members of Congress were unaware of the Act's content or existence." Id. (stating that "most members of Congress were unaware of the Act's content or existence").

[17] Chevron U.S.A. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 844-45 (1984). Under Chevron U.S.A. v. Natural Resource Defense Council, Inc, courts will grant substantial deference to OMB's guidelines interpreting the Act's language and filling statutory gaps.

[18] See id.

[19] Pub. L. No. 106-554, § 515(b)(1).

[20] 67 Fed. Reg. 8,452, 8,460 (IV)(b)(i)(C)(8) (Feb. 22, 2002).

[21] See analysis of Missourri River litigation at http://www.ombwatch.org/article/articleprint/2244/-1/225/.

[22] See Salt Institute v. Thompson, Civil Action No. 04-359 (2004).

[23] In the most widely criticized application for correction filed by a manufacturer of an herbicide, Atrazine, the EPA was forced to reconsider a study finding a causal connection between hormonal changes in frogs and Atrazine exposure. Originally, EPA intended to use the study as a basis for denying the product's recertification. The applicants argued, however, that EPA's dissemination of this information was invalid under the Act because the agency had not yet promulgated standardized tests for measuring endocrine disruption effects. Petitioner's position, in effect, was the first challenge under the Act whether agencies can state policy positions based on newly discovered science without before formally evaluating the underlying methodologies of such discoveries. In the end, EPA re-certified Atrazine for nation-wide use. Rick Weiss, ‘Data Quality' Law is Nemesis of Regulation, Wash. Post Aug. 16, 2004, at A01.

[24] See Shapiro, supra note 15 at 364.

[25] Id.

[26] Id.

[27] See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republican, 67 Fed. Reg. 8,452, 8,459 §V(3), V(3)(a)(ii) (proposed Feb. 22, 2002).

[28] 67 Fed. Reg. at 8,459 §V(10) (emphasis added). The guidelines state that "[w]ith respect to analytic results, ‘capable of being substantially reproduced' means that independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to a detectable degree of imprecision or error." 67 Fed. Reg. at 8,459 §V(10). This last phrase, permitting a "detectable degree of error," fails to add much clarity.

[29] 67 Fed. Reg. at 8,459 §V(10) (stating that "[f]or information judged to have more important impacts, the degree of imprecision that is tolerated is reduced").

[30] 67 Fed. Reg. at 8,459 §V(10).

[31] 67 Fed. Reg. at 8,459 §V(3)(a).

[32] 67 Fed. Reg. at 8,459 §V(3)(a).

[33] Information is influential if it "will have or does have a clear and substantial impact on important public policies or important private sector decisions." 67 Fed. Reg. at 8,460 §V(9). Lastly, the guidelines echo the high information reporting requirements pertaining to risk information already required under the Safe Drinking Water Act.[33] 67 Fed. Reg. at 8,460 §V(3)(b)(ii)(C).

[34] 67 Fed. Reg. at 8,460 §V(3)(b)(ii)(A). Peer review plays an important role in determining the objectivity of studies or information. If routine information is subjected to peer-review it is "presumed to be of sufficient quality." 67 Fed. Reg. at 8,460 §V(3)(b)(ii)(A).

[35] Proposed Bulletin on Peer Review and Information Quality, 68 Fed. Reg. 54,023 (2003).

[36] Cf. Shapiro, supra note 15.

[37] Alan Charles Raul & Julie Zampa Dwyer, "Regulatory Daubert": A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles into Administrative Law, 66 Law & Contemp. Probs. 7, 8 (2003).

[38] Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information, 67 Fed. Reg. 35, 814.

[39] 67 Fed. Reg. at 35, 814.

[40] 67 Fed. Reg. at 35, 815.

[41] 67 Fed. Reg. at 35, 815.

[42] Thirty-nine Data Quality Act petitions have been filed since the Act's inception. The bulk of these petitions have been filed with EPA, and many challenge very important, controversial policy decisions. While many of these petitions were served on agencies by private individuals, rather than nonprofits, the statistics report to Congress by OMB do not indicate that agencies have been overly burdened by the regulations. See Rick Weiss, ‘Data Quality' Law is Nemesis of Regulation, Wash. Post Aug. 16, 2004, at A01.

[43] Pub. L. No. 106-554, § 515(b)(2)(B).

[44] 67 Fed. Reg. 8,452, 8,459 (III)(3)(i)-(b)(i)(C)(8).

[45] 67 Fed. Reg. at 8,459 (III)(3)(ii).

[46] As discussed infra, judicial review is severely limited by the Administrative Procedure Act and Chevron v. NRDC and its progeny, particularly where it is clear that Congress intended to give specific discretion to agencies to promulgate a given rule or report. See Administrative Procedure Act, 5 U.S.C. §§ 701—708; Chevron U.S.A. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984).

[47] See Salt Institute v. Thompson, Civil Action No. 04-359 (2004); In re Operation of Missouri River System Litigation, 277 F. Supp.2d 1378 (J.P.M.L. 2003).

[48] See, e.g., Salt Institute v. Thompson, Civil Action No. 04-359 (2004).

[49] Id.

[50] Wendy Wagner argues that the Act creates a scientific screening process similar to the Daubert test "since it equips regulatory participants with the opportunity to file complaints for ‘correction' of information disseminated by agencies that they believe is unreliable." Wagner, supra note 7 at 590. Since the Act has the potential to exclude scientific data similar to the devastating effects of Daubert, Wagner argues that in the environmental regulatory context, the Act favors corporate interests because it effectively reverses the agency's duty to err on the side of public health and protection in favor of scientific certainty—which in several contexts is simply poor policy. If the Act becomes an evidentiary sieve though which all scientific evidence must be vetted by peer review, she argues that the Act could be more "damaging and potentially counterproductive as compared with the courts' use of Daubert." Id. at 598. Wagner posits four primary arguments supporting this premise; (1) Data Quality Act challenges are not adversarial; (2) the decision-maker is a political agency more readily subjected to political influences; (3) Data Quality Act petitions become national proclamations about the quality of science; and (4) the Act is ambiguous. Id.

The Daubert analogy presents an interesting metaphor. Although this was a significant risk when the Act was proposed, this editorial argues that the analogy is unrealistic now that we have observed two years of the Act's full implementation and now know that; (1) the Act does not provide a private right of action; and (2) even if it did, the Act vests agencies sufficient discretion to heed or deny any applicant's request for correction of information.

[51] There is some merit to this argument. Because many agencies already have mechanisms in place to vet the quality of scientific information, critics argue, the OMB's reproducibility requirements place undue administrative hurdles in an already slow administrative rule-making process. In addition, they argue the Act's provisions permitting persons to file for corrections of allegedly unsubstantiated information creates an incentive for industrial interests to challenge publicly funded science with their own privately administered tests. This, in turn, challenges publicly funded science designed to protect the general welfare with data administered by private interests and tailored to produce their own favorable results.

[52] See Shapiro supra note 15; Michelle Lacko, Data Quality Act; Prologue to Farce or Tragedy, 53 Emory L.J. 305 (2004). But see Wagner, supra note 7.

[53] Several recent cases note an interesting trend; environmentalists are winning as a result of the Act's request for correction ("RFC") provision. In a request for correction filed by the National Wildlife Federation ("NWF") and Public Employees for Environmental Responsibility ("PEER") with the Department of Interior's Fish and Wildlife Service ("FWS"), the challengers alleged that a Biological Opinion concerning a proposed siting of a new limestone quarry in central Florida was flawed, namely, because it failed to adequately ensure the activity would not "jeopardize" the existence of the endangered Florida Panther. See Public Employees for Environmental Responsibility, available at http://www.peer.org/campaigns/eller/pantherDQchallenge.pdf (providing the full argument submitted by PEER and NWF). Specifically, PEER and NWF alleged that FWS failed to account for errors in several key studies relied on by the FWS to arrive at its conclusion, namely, that the quarry is not likely to jeopardize the panther's habitat.[53] Id. PEER and NWF argued that the "cumulative effect of errors in these documents has been to . . . minimize assessments of the impacts of land use changes to panthers, and obscure population viability issues."[53] Id.

The NWF and PEER case is noteworthy because not only did the challengers win, but they also used the RFC provision in several innovative ways. First, PEER and NWF filed a complaint in federal district court alleging violations of the Endangered Species Act and contemporaneously filed an RFC filed under the Data Quality Act with the FWS.[53] Nat'l Wildlife Federation v. Norton, 332 F.Supp.2d 170, 173-4 (D.D.C. 2004). Second, the plaintiffs moved to supplement the record of the case before the D.C. District Court with the plaintiff's RFC which outlined many of the scientific errors alleged to be in the FWS biological opinion.[53] Id. at 174 n.1.Although Judge Robertson's opinion granting summary judgment in favor of the plaintiff acknowledges his inclusion of this document into the record of the case (and his opinion deals in large part with procedural errors made by the Corps and FWS in arriving at their recommendation), his opinion notes that the RFC was not admitted as a part of the Administrative Record.[53] Id.

The NWF case highlights that an RFC, if written well, could be a persuasive tool to help educate judges about complex scientific issues. In this case, the RFC bolstered the plaintiff's claim under the ESA that the FWS failed to use the best available science in reaching its "no jeopardy" conclusion. In future cases, just as it did here, the Act could provide just enough to break the tie.

[54] 67 Fed. Reg. at 35, 814 (requiring other agencies to provide assurances that information governed by the Act and supplied to CEQ be accompanied by a statement verifying the information's conformity with the Act).