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.