William Perry Pendley
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.


William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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