Weird Science
Review and Oulook
Copyright 2000 Wall Street Journal
April 12, 2000
The 30th anniversary of Earth Day is about to sprout, and putting our
ear to the ground, what we hear is that this one will be remembered for
whether ABC News allowed the world to see Leonardo DiCaprio interview Bill
Clinton about the state of the environment. Various complainers have
objected that this exercise isn't sufficiently serious. Well, in the spirit
of the age, we say, let the show go on!
As if the official stewards of environmentalism hadn't stopped worrying
a long time ago about whether they were being rigorously serious. Want an
example? Try Chlorine Chemistry Council and Chemical Manufacturers
Association v. Environmental Protection Agency, Natural Resources Defense
Council et al. It doesn't get any better than this.
This federal appeals court decision against the EPA came down about a
fortnight ago, but was one of those trees that occasionally falls in the
empty forest of Washington, and so no one's heard of it. They should. Its
essence is that the EPA set out to put limits on a certain chemical in
ground water, asked a scientific panel to establish a safe level, took the
panel's recommendation and threw it away, then set the limit at zero. The
three-judge panel laughed this out of court. So what difference does it
make whether Leonardo DiCaprio or the head of the EPA interviews the
President?
The U.S. Court of Appeals for the D.C. Circuit ruled that the EPA
ignored its responsibility to use the "best available" evidence in
implementing the Safe Drinking Water Act. At issue was how much chloroform
could remain in drinking water. It's a byproduct of the process that
disinfects 98% of U.S. drinking water, and while "chloroform" sounds scary,
we all have to agree that it isn't the tooth fairy who kills the bacteria
in drinking water. At issue was the tolerable safe level.
The EPA had commissioned peer-reviewed studies by an independent science
advisory group, which found certain levels of the compound wouldn't be
carcinogenic or toxic. The EPA agreed with the science advisors'
conclusion. And when the rule-making moment arrived, EPA shoved all this
effort aside and set the chemical's level at zero.
Hauled into court, EPA argued that a zero tolerance standard was merely
a "prudential step." The court said this "novel, even politically charged,
outcome" didn't relieve EPA of its duty to obey the law.
The agency tried to defend itself with the why-take-chances argument,
popularized by the ozone-layer tribes. The court replied: "EPA cannot
reject the 'best available' evidence simply because of the possibility of
contradiction in the future by evidence unavailable at the time of action
-- a possibility that will always be present." This is a statement of such
common sense as to be almost disorienting in the context of modern
politics.
Finally, the EPA said this was just "interim" risk management, which the
court called a pointless "semantic somersault."
All pretty amusing -- so long as your livelihood doesn't fall under the
sway of an agency endowed with a big legal club. Eventually, though, the
darker message works its way all through the policy and political
community: Why should anyone let a little thing like what science knows, or
can know, get in the way of utopian goals? Just wave them into the law.
We suppose not too many people are going to fall on their swords for the
Chlorine Chemistry Council (one reason, of course, that we maintain a
judicial system). But the experience here suggests why what happens to
these people can in time redound to, say, a crown jewel like the U.S.
biotechnology industry, and the science beneath it.
The EPA has been attempting for six years to extend its authority over
genetically engineered crop plants. Two scientific reports already had
concluded that the products were safe. Now comes a third such report from
the National Academy of Sciences, reaching the same conclusion about the
inherent safety of the science of bio-engineering, but then suggesting a
strong EPA regulatory rule. The reaction to all this was fascinating.
The pro-regulatory recommendation startled scientists in 11 professional
societies, who had wanted most of the rule set aside. But Friends of the
Earth and various Naderite satellites denounced the Academy's report as
largely the product of people "on the payroll of the biotech industry."
It's hard to escape the conclusion that this current NAS panel thought it
was issuing the solomonic judgment that the science of bio-engineering is
safe, but that in a world in which modern Europe displays medieval fears of
biotech, it makes sense to bring the science under the imprimatur of the
EPA.
Good luck. Superstition and phobia have obviously become popular
avocations in a time when people have nothing very serious to worry about.
This fact is well understood by environmental radicals and federal
bureaucrats determined to do what they want to do with the industries and
science that answer to them.
The less developed world hears sermons all the time on how a serious
country needs a rule of law. The chlorine industry, of all people, just
produced a clean little lesson in federal appellate court on why this still
holds true. We hope the biotech scientists who expect to keep doing science
show as much courage the morning they wake up to find someone stamping
"zero risk" on their work.
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