- The Washington Times - Friday, June 23, 2000

The Environmental Protection Agency (EPA) ensures in many ways that our world is guarded and safe. Still, there is only so much one can do, once material priorities are being looked after. The problem is that running out of new significant risks makes it difficult to justify expanding budgets and appropriations for a perennially hungry bureaucracy. As a remedy, creative people at the EPA have long been tilting at improbable windmills searching for new risks, valiantly squired by friends in the advocacy fringes.

The basic scheme is to tweak science or to make it up into what has become known as "junk science," after an excoriating report by a blue ribbon panel set up by the EPA itself in 1992. With that, the strategy is to hijack the anxieties of a technically naive public with insinuations of risk, and then to regulate on the pretext that people are afraid. The artifice has worked for many years, largely because the courts have been deferring to a presumed authority of the agency. Of late, however, new court decisions have forced the agency to be explicit and to suffer spectacular losses in rapid sequence. The agency has responded by lashing out with more of the old strategy.

The latest EPA's assault made national news two weeks ago. The EPA is suddenly after Dursban, one of the most widely used pesticides and one of the safest by any of the standards so far advanced by the EPA itself. Dursban does not cause cancer in animals or humans, and is only toxic to the nervous system if certain doses are exceeded. Since several decades it continues to be a most valuable defense in agriculture and in the control of disease-carrying insects, of termites and other pests. Its premier status as most used reflects a wide recognition of safety and efficacy by regulators around the world, including until now the EPA.

Apparently, the agency's new spin is to invoke the 1996 Food Quality Protection Act that contemplates increasing the margins of safety as much as 10 fold if there is indication children may be more susceptible to a substances, or if credible exposure and safety data are absent and there is reason to worry. However, for Dursban there is evidence children are likely less susceptible. Credible data also speak to its safety at some 1,000 times the levels that consumers might experience. Safety is further supported by a clear understanding of the underlaying molecular mechanisms, and by the agency's recognition of the robustness of children exposure data. Why the fuss, then?

There is more. A week before the Dursban announcement, the EPA also renewed its standing assault on dioxin, threatening to enforce regulations based on what a federal court described as "absurd hypotheticals" in a prior dispute.

Dursban and dioxin may be EPA's latest show, but looming in the background are "endocrine disruptors," for which the agency profited with an appropriation worth millions of dollars. Never mind that it was raked up on the basis of a study that could not be replicated and was disavowed by its very authors. The agency got its money and has been relatively quiet on this count, lest it may backfire and fail to swell into a malignant national dread.

Dormant but not forgotten is EPA's claim connecting cancer and electromagnetic fields a business that could mean vast new moneys and powers. No one at the agency seems to care that this EPA's claim relied on a 1992 study that raised eyebrows when published, and was later found to have been fabricated, after an investigation by the Office of Research Integrity of the National Institutes of Health.

There are many more examples. Still, what is of note now is EPA's unusual agitation and double whammy of Dursban and dioxin enough to wonder whether the agency might be losing its cool, becoming dangerously reckless in the wake of resounding court debacles.

Last year, based on the flimsiest epidemiologic reports, the agency was set to enforce urban air quality standards at levels that our remotest wilderness could find difficult to meet. The agency was challenged in federal court and lost twice on appeal. The court ruled that in the absence of credible scientific evidence the agency reconstructed the law, a prerogative of Congress.

Again some two months ago the EPA was rebuffed by another federal court for trying to enforce a zero level goal for chloroform in drinking water, in the face of its own scientific conclusions that a much higher level was obviously safe enough.

Both verdicts against the agency have been influenced by a sequence of Supreme Court rulings on how significant risk is to be defined in scientific terms. In the past, under the Frie rule the courts were given ample discretion and usually deferred to the positions of official agencies in regulatory disputes. That began to change with the 1993 Daubert decision, and more recently with the 1999 Kumho decision. Both came to require that statements presented as scientific including official definitions of risk be corroborated by independent and credible scientific evidence.

Clearly, the rules of play have changed substantially, and regulatory agencies may no longer feel virtually immune from legal challenge. The EPA has particular reasons for concern. If the Dursban case should end up in court the Agency most likely would lose again, and that would be regrettable.

The EPA has an obvious and much needed role in national policy. It is a young organization still looking for a respectable image, in dire need to grow up and to understand that civic trust is not built of selfish administrative hubris.

Better to accept the fairness of the latest judicial standards, turn a new leaf, and be a responsible regulator in the public interest.

Gio Batta Gori is director of the Health Policy Center in Bethesda.

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