Rachel's #825: Ending Regulation, Pt. 2

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Rachel's #825: Ending Regulation, Pt. 2

Thu, 8 Sep 2005 08:39:21 -0600

 

 

 

 

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RACHEL'S ENVIRONMENT & HEALTH NEWS #825

http://www.rachel.org

September 1, 2005

 

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Part 2:

ENDING GOVERNMENT REGULATION BY MANUFACTURING DOUBT

 

By Peter Montague

 

Continuing from Rachel's #824: Smokers started calling

cigarettes " coffin nails " in the 1920s. Almost 40 years later,

science caught up to popular knowledge: In 1956, the U.S.

Surgeon General concluded cigarettes cause lung cancer. To

prevent regulation of cigarettes, tobacco corporations adopted

a strategy of casting doubt on the scientific studies showing

harm. Today it is no secret that many industrial chemicals are

killing tens of thousands of workers and ordinary citizens each

year, making many more sick, altering the sexual behavior of

wildlife, and generally wreaking havoc with human health and

the natural environment. In response, the chemical industry has

honed and sharpened the " manufacture doubt " strategy,

essentially paralyzing the U.S. regulatory system.

 

The Data Quality Act

 

In December, 2000, a two-sentence law called the " Data Quality

Act " was slipped into the 712-page government spending bill,

without benefit of public hearings or Congressional debate. The

law was written by James J. Tozzi, a consultant to the tobacco

and chemical industries,[1] and he says it was intended to

" regulate the regulators. " [2] President Clinton signed it

into law, and it took effect in October 2002. On its face, the

Data Quality Act appears to serve a worthy purpose: it requires

government to set standards for the quality of scientific

information and statistics used and disseminated by government.

It requires government to create procedures " ensuring and

maximizing the quality, objectivity, utility and integrity " of

scientific information and data. Surely, good data is a goal

everyone can support.

 

However the business community recognizes the real importance

of the Data Quality Act, which is to give industry an unlimited

license to cast doubt on the integrity of government data, and

thereby paralyze regulation indefinitely. " This is the biggest

sleeper there is in the regulatory area and will have an impact

so far beyond anything people can imagine, " says William L.

Kovacs, vice president for environment, technology, and

regulatory affairs of the United States Chamber of

Commerce.[3]

 

The Data Quality Act is overseen by the Office of Management

and Budget (OMB), a political agency whose directors are

appointed by the White House. As the law has evolved, it has

increasingly politicized science within the federal government

because every agency of government must now develop procedures

and definitions of science that satisfy OMB guidelines. OMB now

has a powerful role in distinguishing " sound science " from " junk

science. "

 

In the case of atrazine, the second-most popular weed-killer in

the U.S., the industry argued that, under the Data Quality Act,

EPA (U.S. Environmental Protection Agency) had no right to

regulate atrazine as a hormone-disrupting chemical because EPA

had not defined a single procedure for determining hormone

disruption, and therefore studies of hormone disruption are not

" reproducible, " and therefore not " reliable, " as required by

the Data Quality Act.

 

In the old days scientists knew what " reproducible " meant -- it

meant that an experiment's design and methods had to be

described in sufficient detail to allow another scientist to

reproduce the experiment. It never meant that everyone had to

agree that there was only one way to study a problem. But the

Data Quality Act seems to have changed that because EPA

accepted the atrazine industry's argument and concluded that

endocrine [hormone] disruption cannot be considered " a

legitimate regulatory endpoint at this time " -- meaning

chemicals cannot be regulated in the U.S. just because they

turn boys into girls. After a ten-year regulatory battle,

atrazine was allowed to remain on the market, and industry had

gained a powerful new way of undercutting all future

regulations.

 

But the power of the Data Quality Act does not stop there.

Using the Data Quality Act, OMB has now established an

unprecedented government-wide " peer review " system for all

data that might be used to support a regulation. The fact that

a study has appeared in a peer-reviewed journal is no longer

sufficient for it to be used for regulatory purposes.[4,5]

Additional scrutiny is now required, thus expanding the reach

of the Data Quality Act and the authority of OMB to influence

government use of scientific information.

 

But the power of the Data Quality Act does not stop there.

Recently, Jim Tozzi's industry group, the Center for

Regulatory Effectiveness, wrote letters to every member of the

American Association of University Professors, and to the World

Health Organization, warning them that the industry group

intended to challenge any research sent to the U.S. government

that does not meet the standards defined under the Data Quality

Act. To an individual researcher, the prospect of a lengthy

scientific dispute with a combative and well-heeled industry

group might seem daunting, to say the least. Could such a

threat have a chilling effect on what scientific studies get

considered by federal regulators? You bet it could.

 

But the power of the Data Quality Act does not stop there. Jim

Tozzi says he believes the Data Quality Act will give industry

a potent new weapon in court against government regulators:

" 'With a government-set yardstick for quality,' Mr. Tozzi said,

'critics of regulations can now build more convincing cases

showing that an agency was arbitrary and capricious in its

choice of data.' Until now, such suits have generally

failed. " [3]

 

Industry is now developing a new legal tactic based on the Data

Quality Act. They are challenging government use of particular

scientific studies under the law, and if their challenge is

rejected, they are suing in court. Chris Mooney, author of the

new book, " The Republican War on Science " (ISBN 0465046754)

wrote recently, " Whether companies can sue agencies that reject

their 'data quality' complaints, thereby dragging individual

studies into the courtroom, is the legal question at the core

of the Salt Institute and Chamber of Commerce lawsuit. If the

judge in the case writes a precedent-setting opinion, and if

higher courts agree, a brand-new body of law could emerge,

consisting largely of corporate lawsuits against scientific

analyses. " [5]

 

Ultimately the purpose of all these tactics is to paralyze

government regulators by manufacturing uncertainty and doubt.

Writing recently in Scientific American, David Michaels

observes that, " Emphasizing uncertainty on behalf of big

business has become a big business in itself. " [6] Michaels told

a Texas reporter, " corporations and others who manufacture

dangerous products and pollutants have realized that by adding

manufactured uncertainty to the equation, they can essentially

stop the regulatory process from moving forward. " [7]

 

Michaels was assistant secretary for environment, safety and

health in the U.S. Department of Energy (DOE) during the

Clinton Administration. In his Scientific American article,

titled, " Doubt is Their Product, " Michaels describes how the

DOE tightened regulations 10-fold to protect federal nuclear

workers from exposure to the highly toxic metal, beryllium. And

he describes how, in 1998, the Occupational Safety and Health

Administration (OSHA) -- the agency charged with protecting the

health and safety of private-sector workers -- declared its

intention to adopt the new, stricter standard. But three years

later OSHA abandoned its effort to enact stricter beryllium

regulations

 

Michaels describes the OSHA problem this way:

 

" Out of the almost 3,000 chemicals produced in large quantities

(more than one million pounds annually), OSHA enforces exposure

limits for fewer than 500. In the past 10 years the agency has

issued new standards for a grand total of two chemicals; the

vast majority of the others are still 'regulated' by voluntary

standards set before 1971, when the newly created agency

adopted them uncritically and unchanged. New science has had no

impact on them. I conclude that successive OSHA administrators

have simply recognized that establishing new standards is so

time- and labor-intensive, and will inevitably call forth such

orchestrated opposition from industry, that it is not worth

expending the agency's limited resources on the effort. " [6]

 

In other words, corporations have now succeeded in getting

themselves " regulated " by a set of laws and rules that

effectively paralyze government regulators. Regulation of

chemicals has effectively ended. The regulatory system now

regulates not industry but environmentalists, in the sense that

it narrowly defines and restricts the responses that they can

make to corporate harms. By channeling environmentalist

responses into industry-defined activities, the regulatory

system makes environmentalists entirely predictable and

therefore manageable.

 

But all is not lost. Industry's strategy for ending government

regulation has an Achilles' heel. The whole strategy rests on

the assumption that, when the science is uncertain, we should

proceed with " business as usual " until harm can be proven to a

scientific certainty. The precautionary principle turns this

assumption on its head, saying, " When the science is uncertain,

but there is evidence of harm, we have a duty to take

precautionary action to prevent harm. " If the precautionary

principle were adopted, industry's elaborate strategy for

paralyzing government would crumble.

 

Could this be why the chemical industry and the Bush

administration have mounted a coordinated campaign to

discredit, demonize, and derail the precautionary principle?

You think?

 

Writing the precautionary principle into local laws -- and

perhaps more importantly into corporate charters -- would

fundamentally change the balance of power between people and

money. What a worthy fight this is!

 

[To keep abreast of developments with the precautionary

principle, start your own free subscription to our new Rachel's

Precaution Reporter by sending a blank E-mail to

join-rpr-html. In response, you will receive an

E-mail asking you to confirm that you want to .]

 

--Peter Montague

 

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[1] Andrew Schneider, " EPA warning on asbestos is under

attack, " St. Louis (Mo.) Post Dispatch Oct. 26, 2003. [CHECK

DATE]

 

[2] Adrianne Appel, " Federal 'Junk Science' Rule Draws Fire, "

Boston Globe Dec. 23, 2003, pg. C4.

 

[3] Andrew C. Revkin, " Law Revises Standards for Scientific

Study, " New York Times March 21, 2002.

 

[4] Jocelyn Kaiser, " How Much Are Human Lives and Health

Worth? " Science Vol. 299 (March 21, 2003), pgs. 1836-1837.

 

[5] Chris Mooney, " Op-Ed: Interrogations, " New York Times

August 31, 2005.

 

[6] David Michaels, " Doubt is Their Product, " Scientific

American Vol. 292, No. 6 (June 1, 2005), pgs. 96-101.

 

[7] Jeff Nesmith, " New product for U.S. industry: 'manufactured

doubt', " Austin (Tex.) Statesman June 26, 2005.

 

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