Junk science lives on after its death

William Perry Pendley
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Posted: Jul 05, 2006 12:33 PM
In January 1993, in the last days in office of the man who campaigned as the "kinder" and "gentler" "environmental president," President George H.W. Bush's Environmental Protection Agency (EPA), under the leadership of William Reilly, the man who called property rights a "quaint anachronism," issued a report categorizing secondhand smoke as a known human carcinogen responsible for 3,000 non-smoker, lung cancer deaths in the United States annually. Within months, the report became the subject of a federal lawsuit.

In July 1998, a North Carolina court threw out the study given that the: "EPA publicly committed to a conclusion before research had begun; excluded industry by violating the [law's] procedural requirements; adjusted established procedure and established scientific norms to validate [its] public conclusion; and aggressively [] disseminate[d] [its] findings to establish a de facto regulatory scheme intended to restrict [tobacco] products and to influence public opinion." Plus, the EPA "disregarded information and made findings based on selective information...; deviated from its [own] risk assessment guidelines; failed to disclose important [opposition] findings and reasoning; and left significant questions without answers."

In December 2002, the U.S. Court of Appeals for the Fourth Circuit vacated the district court's ruling, not because that court's scathing indictment of the EPA report was in error, but because "the Report carries no legally binding authority... ." The district court had held that, "given the emotionally charged nature of the debate over smoking and the general public's tendency to panic at the slightest association of any product with cancer[,] [the EPA report] will have far-reaching consequences." That may be so, held the Fourth Circuit; however, such consequences are the "independent responses and choices of third parties." The district court was right; governments nationwide, citing the EPA report, rushed to adopt smoking bans.

In March 2006, Colorado became the latest when Governor Bill Owens signed into law a product of the Colorado General Assembly, the Colorado Clean Indoor Air Act. Effective today, the Act prohibits smoking in all indoor areas, with certain exemptions, including private homes and residences. Violation of the Act is a class 2 petty offense, punishable by a fine of $200 for the first violation, $300 for a second violation, and $500 for each additional violation.

The Coalition for Equal Rights, Inc., a nonprofit association of 700 businesses, and Shari Warren, owner of Spirit Keeper, a tavern in Black Forest, contend, in a lawsuit filed last month, that the Act violates rights guaranteed by the U.S. and Colorado constitutions, such as the right to equal protection and substantive due process as well as the right to be free from the deprivation of rights, privileges, and immunities and from retroactive or special legislation. For example, the Act exempts 46 licensed casinos, which generate over $772 million in annual revenue, serve millions of customers, and employ more than 8,000 Colorado residents!

The Coalition and Ms. Warren argued, in seeking a temporary restraining order (TRO) pending a trial on the merits, that Colorado must show that its casino exemption was related to its purported health concerns. Not so, ruled the federal district court that denied the TRO. Colorado did not need a health-related purpose; "any conceivable government purpose" would do. Thus, Colorado's belief that banning smoking in casinos would cost the casinos, Colorado, and communities was enough. In short, Colorado is concerned about public health only if the smoking ban does not cost the state money; that it may drive Ms. Warren's tiny tavern out of business is of concern neither to the Constitution nor to Colorado officials.

As for the junk science that started it all, smoking ban advocates need prove, not that the EPA report is accurate, but only that they believe it is accurate. Therefore, in 1993, those who sought to challenge the report's veracity could not because they had not been affected; today, those affected by the report may not challenge it because its truth is irrelevant!