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| Lowering Gov't Regulation by
Raising Doubt (2) |
| Chemical pollution is a major
menace to public health, but the industry is
fighting back |
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Peter Montague
(internews)  |
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Published 2005-09-14
16:11 (KST) |
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[This
is the second of a two-part series. -
Ed.]
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 10-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!
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[1]
Andrew Schneider, "EPA warning on asbestos is
under attack," St. Louis (Mo.) Post Dispatch Oct.
26, 2003.
[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.
Peter Montague is executive
director of the New Brunswick, New Jersey-based
Environmental Research Foundation, and editor of
Rachel's Environment and Health
News.
This article by Rachel.org
is reprinted with
permission. | |
| ©2005 OhmyNews |
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If George W. Bush did not tell the
truth about his reasons for going to war with
Iraq, should the U.S. Congress impeach
him? |
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