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@gselist.org. In response, you will receive an
E-mail asking you to confirm that you want to subscribe.]

--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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RACHEL'S ENVIRONMENT & HEALTH NEWS
Environmental Research Foundation
P.O. Box 160
New Brunswick, N.J.  08903
Fax (732) 791-4603; E-mail: erf@rachel.org