Conservation, Regulation…and Uncertainty PART TWO
By Russell Juelg
The Pinelands Commission implements its threatened and endangered (T&E) plant protection rule as if it were written,
“No development shall be carried out by any person unless, in the judgment of the staff, there is a low probability of T&E plant populations occurring on the proposed development site, and, with respect to any T&E plant populations that do happen to be discovered, it is designed to avoid irreversible adverse impacts on their survival.”
There is probably no feasible alternative to this approach, but it does direct our attention to the vague concept of “low probability.” How low does the probability have to be, in order for the Commission staff to be satisfied that it is indeed low enough to allow the development to go forward?
Before we tackle that question, however, we need to consider what may be involved in the phrase, “in the judgment of the staff.”
The Pinelands Commission is a body of fifteen people. It delegates the responsibility of analyzing development applications to its staff. At least nineteen members of the staff are regularly involved in this aspect of Commission activity.
If the staff indicates it believes, with respect to a private development proposal, that T&E plants probably don’t occur on a piece of land, barring any other complications, the executive director authorizes the development. If the staff indicates it believes with respect to a public development, that T&E plants probably don’t occur on a piece of land, barring any other complications, the executive director recommends to the Commission that it be authorized. The Commissioners decide with a vote whether to allow public development. With exceedingly rare exceptions, the commissioners vote in concert with the recommendation of the staff.
This may seem straightforward enough, but the process is anything but simple. The staff has to “believe” something.
Consider, first, that it is impossible, strictly speaking, for a group of people to believe something. Belief is something that happens within an individual mind. It may be possible for me to believe the same thing you believe, but we each do it individually.
Especially in the case of complex, non-specific propositions, such as the belief that T&E plants probably don’t occur on a piece of land, it is impossible for an individual, within a given group of people, to believe the exact same thing believed by any other individual in the group. For example, each person, due to various personal contingencies (education and intelligence level, predispositions, reasoning powers, knowledge bank, time spent thinking) will have his or her own unique appraisal of that proposition.
There’s a very practical application to this seemingly arcane distinction. When the Commission staff indicates it “believes” T&E plants probably don’t occur on a site, it doesn’t really tell us what any particular person involved in the process actually believes. And it doesn’t even mean that the staff’s “belief” is the result of a scientific process that we can review and analyze.
All it really means, in most cases, is that the executive director has decided to rely on the judgment of the director of regulatory programs. The director of regulatory programs, in turn, has decided to rely on the judgment of one or more of his subordinates. These folks, in turn, have decided to accept the results of some kind of investigation conducted by the developer’s consultant—so long as it doesn’t appreciably conflict with their own judgments, which are presumably always based on some additional investigation and reasoning.
More than likely, on any given large project, the consultant has decided to rely on the judgment of one or more of his or her employees. The employees have offered their own judgments—the results of some kind of investigation mingled with their own individual reasoning.
The point is that, when we say, “the Commission staff ‘believes’ that T&E plants probably don’t occur on the project site,” all we are really saying is that the executive director is willing to express confidence in this process and act accordingly. Each individual involved believes whatever he or she may believe, based on each individual way of reasoning about the various kinds of evidence he or she has encountered.
It is important to notice that this process may quite possibly yield reliable conclusions, at least part of the time, possibly even most of the time. There is nothing necessarily wrong with any of this. On the other hand, there nothing necessarily right with it either. There is no standard method. It is not science.
In best-case scenarios, all may be well. In some, perhaps even most cases, the process may involve rigorous studies. It may be cooperative and collaborative, and it may involve careful investigation by qualified people of high integrity with good intentions. But, the conclusion is, in the final analysis, the product of a variable group of individuals following a non-standardized, non-scientific process, encountering information and reasoning about it.
It is not scientific research. Any different group of similarly qualified people, studying the exact same situation, would be liable to reach very different conclusions.
The Pinelands Commission, as a whole, is evidently satisfied with this process. But, should the public be satisfied with it? We’ll take up that question in PART THREE.