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April 19, 2012

The EPA's Faulty Science Can Be Stopped
By John
Dale Dunn & Steve Milloy

United States Environmental Protection Agency
(EPA)-sponsored and funded "human health effects science" research is
unreliable and makes irresponsible and outrageous claims about how air
pollution causes thousands of deaths.  Then the EPA claims that it
can prevent those deaths with its latest set of regulations of
emissions.  This junk science can be challenged effectively, legally,
and politically, as described below.

The science misconduct is the result of the
politicization of public health science, something Eisenhower warned about
in his farewell speech
in 1961.  There are political, judicial, and administrative solutions
to this perfidy.

First, what is the junk
science?

Judging Science: Scientific Knowledge and
the Federal Courts ( MIT press, 1995), by Peter Huber, Ph.D., J.D.
and Ken Foster, Ph.D. -- written two years after the Supreme Court
decision in Daubert v. Merrell Dow 509 U.S. 579
(1993), is a comprehensive and thorough book on junk science and
legal solutions to prevent junk evidence.  The book also explains
Daubert evidentiary
dicta, discussed in a previous essay.
We also discussed the Reference Manual on Scientific Evidence
(RSME) (1994, 2000,
and 2011),
published by the Federal Judicial Center, intended to educate judges on
their Daubert duty to be gatekeepers for reliable scientific
evidence in the courtroom.

Fallacious thinking makes EPA research in human
health effects science unreliable, forsaking the most important
responsibility of a scientist: be your own most severe critic, and retain
a skeptical attitude about your ideas and theories.  The key is
to test your hypothesis -- your theory.  If it can't be tested,
it isn't science.

The scientific method is based on skeptical
experimentation that looks for reliable evidence.  Fallacies of
scientific inquiry include confusing temporal with causal
relationships (post hoc, propter hoc fallacy); reporting results
that are within normal range of events (noise) or projecting observations
of a specific event and projecting it to a general rule without good
evidence (inductive error); and relying on a theory by an authority, by
consensus, or by popularity without proper evidentiary
challenge.

Another fallacy is denigration and rejection of
opposing, even minority  viewpoints without proper testing and
evaluation, or asserting that a pile of weak studies makes for strong
evidence, and relying on quantity rather than quality of evidence -- as
the good investigators will say, the weakest link measures the strength of
the chain of evidence.

Less well-understood fallacies of scientific
inquiry are intentional or negligent deception by misuse of relative risk
as absolute risk and the more common deceit, misuse of the words
"statistical significance" to imply good evidence.  Statistical
significance is a statistical test that does not address the reliability
of the evidence -- just whether the study avoids excess randomness
errors.

Some EPA research scientists fail in their
professional ethics because they have become propagandists and have
succumbed to many of these biases and fallacies.

Well-paid researchers for the EPA junk
science project

Some examples of individuals who corrupt the EPA
human health effects science research:

Arden Pope, Ph.D. (study
in 1995) and Douglas Dockery, Ph.D. (study
in 1993) started the corruption by use of weak associations as proof of
causation.  The Pope and Dockery Group (they were co-authors in
their studies) showed small associations and pushed the bounds of
credibility so much that the Clean Air Scientific Advisory Committee
(CASAC) of the United States Environmental Protections Agency (EPA),
chaired by Roger McClellan, DVM, rejected the studies and advised Carol
Browner, the EPA administrator, not to push new ozone and small particle
regulations.  Browner, a true believer, ignored the advice or the
CASAC and many others and pushed the new regulations.  Pope and
Dockery continue to enjoy fame and success as mavens of air pollution
research.

Daniel Krewski, Ph.D. headed
a large group whose research
showed no air pollution human health effect in California, but they
pushed ahead, hiding the results and ignoring the same findings by James
Enstrom from UCLA
.

Michael Jerrett, Ph.D., a
University of California member of the air pollution researcher club
sponsored by the EPA, admitted in a symposium conducted by the
California Air Resources Board on February 26, 2010 that he couldn't
find an air pollution effect in California,
but less than a year later he tortured the data to show a minor "association."

Dr. Jerrett's flawed data dredge, which included
as co-authors many of the
leading
lights in the air pollution research club, costing more than 750,000
dollars, was adopted by and then used by the California Air Resources
Board to justify more draconian state air pollution
regulations.

Jon Samet, M.S., M.D.
succeeded Roger McClellan as the CASAC chair.  McClellan and the
protesting CASAC members were, after the battle in the '90s, eliminated,
and others were appointed to the CASAC who were more sympathetic to
aggressive regulatory activity without regard to the reliability of the
human health science claims.  CASAC Chair Jon Samet approves
aggressive air pollution regulatory activity on weak research results
and is personally committed to the view that there is no threshold for
safety of air pollutants.
His assertions for no threshold contradict his own research, published
in 2000,
that showed no negative human health effects for ozone, the ozone
precursors nitrous and sulfur oxides, carbon monoxide.  Dr. Samet
found a weak association for particle pollution that was no better than
the Pope and Dockery weak associations.

Does it
matter?

Associations reported in the EPA air pollution
research are so small that they do not meet the requirements to prove
anything in an observational study, since the uncertainties of the
methods cannot be overcome by small associations, but no
matter.

The biological plausibility of air pollutants
causing deaths is not established in any reasonable and reliable way,
but no matter.

Millions of dollars are granted to researchers
to repeat and magnify the EPA research with the same methods and
unreliable science, but no matter.

The EPA presents the "evidence" of pollution
causing thousands of deaths -- though  the EPA could easily be
harvesting deaths that occur as normal death rate variations (noise) --
without any real medical investigation that shows a plausible disease or
cause of death (valid signal), but no matter.

The EPA studies are desktop exercises in death
certificate counting using lax rules for cause of death that exaggerate
deaths attributed to air pollution, but no
matter.

It won't matter until industry, business,
citizens, and the Congress and the courts start holding the EPA to
account.  Presently business, industry, and the Congress are
intimidated by the well-paid, slick, and arrogant army of EPA scientists
who have the media as their shills and don't have to answer hard questions
on the reliability of their research.  No one asks them even the
basic question: how can you be reliable when you rely on the EPA for a
living and career advancement?

Conflicts of professional interest
created by millions of dollars in research funded by the EPA and
EPA-allied entities are a serious problem that compromises public
policy-making.

Legal and Political Strategies to Stop
EPA Junk Science

The Administrative Procedure Act
provides the means to challenge EPA conduct, actions, and policy-making.
The burden of the challenge to an action or ruling or fine or
penalty is to prove that the agency was arbitrary and capricious.  A
commonsense understanding of those words entails actions taken without
good justification or rationale.  The courts have been inclined to be
lazy and deferential and allow Agency hegemony.

Jurisprudence (that's the legal scholarship)
shows that the judicial deference to and agency is limited to allowing
agency discretion in matters of ambiguous statutory provisions, described
by Justice Scalia in the Whitman v. American Trucking
case as reasonable interpretations of ambiguous statutory
provisions.

Obviously, that focused deference has nothing to
do admissibility decisions on junk science and bad science or policy that
relies on unreliable research.  That brings us back to admissibility
of scientific evidence at the trial or hearing level.  Once the
record is made, the appellate level doesn't offer a remedy for bad
evidence unless the admissibility ruling is appealed as
error.

Judges and lawyers have been intimidated by the
idea of challenging a powerful agency.  Lawyers and judges are too
often ill-equipped to frame the challenges to junk EPA science well; they
are badly advised, and they end up going back to what makes them
comfortable -- arguments on the law and economics.

But -- a big but -- judges are, and always have
been, the ones to decide what's admissible as evidence.  Even before
Daubert, you could tell whether you were getting a hometown job
in court on the basis of admissibility rulings and the attitude of the
judge about your expert.  The challenges to evidence and testimony
can be pursued regardless of whether the evidence is used to argue for or
against the agency action.  Agency discretion under the jurisprudence
of the Chevron
case does not allow bad evidence into the record, whether it's a
hearing or a trial.

The evidence must be admissible for purposes of
proving that the Agency is or is not being arbitrary or capricious, which
makes the decision on evidentiary admissibility and reliability separate
from whatever tortured idea the court might have about agency authority
and discretion.  Unreliable scientific evidence is inadmissible and
therefore cannot be used to justify inappropriate actions.  The
admissibility rulings on evidence trump some arcane idea about agency
discretion that is all tied up in the jurisprudence on Congressional
Delegation.  There is no law that the Congress has passed that
permits agencies to pursue junk science.

In the political sphere, the Congress can modify
the standards of administrative and judicial review to demand good science
and a better standard for agency conduct, with more reasonable rules on
challenges to EPA actions, similar to the rules for challenges to actions
by the Occupational Safety and Health Administration that are civil court
evidentiary preponderance of evidence burdens.

However, even without congressional help,
responsible, competent, and serious lawyers can force judges and frame
evidentiary challenges so that the judges will be required to make clear
rulings on admissibility of scientific evidence and even require that the
court provide a rationale for the ruling.  A bad ruling is a
reversible error; a good ruling will nurture good science in the
courtroom, the job of conscientious judges, and the responsibility of
lawyers.  No lawyer but a pettifogger would admit to arguing for bad
science that violates the public trust.

In trials involving challenges to EPA actions
that interfere with property, cause compliance burdens, and enforce
onerous and harassing fines or penalties, parties certainly have been able
to provide full-throated challenges to EPA evidentiary submissions, so at
the administrative hearing stage, it would be just as appropriate to
challenge the scientific basis of EPA conduct, even if it would force
judges or magistrates to be more active, stop acting like potted plants,
and start doing their job -- gate-keeping for good scientific
evidence.

Changing the EPA agenda means challenging
inadequate and unreliable EPA science and demanding reliable and skeptical
science in the public interest.  It can be done politically and
legally by proper use of modifications of law and statutes -- even
modification of the Administrative Procedure Act, properly conducted
administrative hearings, evidentiary challenges in any number of different
forums, and political and legal and political action to modify statutory
requirements for agency conduct and to clarify proper process for
challenges of agency actions.  It can be done if parties in disputes
do it right, if lawyers do their jobs, and if politicians work hard to
force better rules for sensible agency conduct and fairer rules for
citizen challenges of agency decisions and actions.

The EPA can be forced to be more reasonable in
its regulatory actions and regimes.  It can be done if citizens,
politicians, lawyers, and judges have the fortitude -- it's always about
the fortitude.

That will bring the heat for the EPA and its
well-paid and arrogant research army.

Who knows what might develop from such a
thing?

-John Dale Dunn, M.D., J.D. & Steve Milloy, MHS, J.D.,
LLM

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