March 10, 2010
California's Toxic Air Scare MachineBy John Dale Dunn MD JD
The California Air Resources Board (CARB) of the California Environmental Protection Agency (Cal EPA) sponsored a full-day scientific discussion and debate on February 26, 2010 at the California EPA hearing room in Sacramento. The unprecedented public meeting was held because of public outcry against the latest CARB air pollution regulations. Usually California Environmental laws and regulations are passed with little debate, after an inevitable scientific review process with written public comments that are received and filed but have no impact on agency actions.
CARB has an annual budget of 1.2 billion dollars, 90% of it supplied by fine and penalty income from California business and industry. CARB and its allies in the media and the environmental movement are used to having their way.
Not this time, not yet, and that's the story to tell.
Norman "Skip" Brown is an enthusiastic hunter and fisherman, native Sacramento boy, son and successor, owner, and operator of Delta Construction Company, Inc., a 67-year-old street and highway construction company. He loves his home state and wants it to prosper, but his company is on hard economic times, like many other companies in California. For Skip, CARB is making things worse because they hate diesel engines -- just hate them -- and only diesel engines can make big equipment run.
During the '90s and early part of this century, Skip volunteered for his industry and tried to work with CARB to achieve an accommodation between environmental goals and economic reality. He often found that agency officials did not understand business, and when he explained that business assets and business plans could be destroyed by regulations, compliance costs, fines, or penalties that would reduce inventory, equipment, bonding, and credit capacity -- and ultimately, competitiveness -- agency officials had no concern, and they even suggested that he just raise his prices.
Brown decided that CARB was not willing to be cooperative, and if he didn't work to stop CARB excesses, then his California dream would become a nightmare.
James Enstrom, southern California native, earned a Ph.D. in elementary particle nuclear physics at Stanford, then received postdoctoral training in epidemiology and a Masters in Public Health from UCLA. He began his career in 1974 as an epidemiologist (population researcher) at the Jonsson Cancer Center of UCLA. Enstrom had a special interest in healthy lifestyle effects like those of the Mormons, and he cooperated on the American Cancer Society (ACS) studies of a big cohort (group) of Americans.
In 2005, Enstrom published his results of a robust and current (50,000 people, 1973-2002) study on the effects of small particle air pollution in California. He found (here) no premature death effect in California from small particle air pollution. California's air pollution of the '50s and '60s has declined for thirty years, and Enstrom was also familiar with the improvement in air quality and the conundrum of increasing rates of asthma that was being misrepresented by CARB.
When CARB announced another round of onerous small particle air regulations in 2008, Enstrom's concern was that CARB was out of control and ignoring the science. Enstrom concluded that he had to become a public advocate for sensible science and prevent CARB from causing great harm to California's people and economy, which would involve economic hardship and shortened life expectancy. Enstrom became a physicist/epidemiologist who was also a concerned citizen of the Golden State.
Enstrom, Brown, and I met for the first time in late June of 2008 at a symposium on CARB malfeasance in San Diego. Enstrom brought colleagues to talk about epidemiology and how CARB air pollution science was misguided and pushed inappropriate and excessive air rules and regulations. I was there to talk about human health issues and legal strategies. Skip Brown came to tell his story of CARB tyranny and hostility to the business and industry community.
The CARB Toxic Air Machine Project of 2007-2008
First, In 2007, the CARB Scientific Review Panel "Solicitation" and review process was set up, involving six "independent" but paid reviewers well known to, and allies of, CARB. Then CARB staff released in May of 2008 a draft report and proposed regulatory regime, claiming that air pollution caused premature deaths in California. A public comment period began, and the CARB business-as-usual process ran into vigorous critiques (here) submitted by Enstrom and other distinguished public health scientists and engineers in July of 2008.
Criticisms of the CARB Draft Report included:
CARB staff minimized the critiques and issued in October of 2008 a final report that was the same as the preliminary draft report of May 2008. CARB staff admitted that they didn't show the critiques to the Expert Panel or request an expert response to the public comments. In December of 2008, Enstrom and three senior and prominent California Ph.D. experts directly contacted CARB board members to urge rejection of the 2008 report. The four also wrote a public letter to CARB to recommend that CARB reassess the report and delay any decision on air pollution and diesel regulations.
Prior to that, since luck comes to the well-prepared, Enstrom and Stan Young, Ph.D., a statistician from North Carolina, found that Hien Tran, lead author of the CARB report, had a bogus $1,000 Ph.D. purchased from Thornhill University, which not a university at all. The Enstrom and Brown group and their allies pointed out the phony Ph.D. to the public, but they also pursued another scandal -- that CARB had failed to rotate its Scientific Panel experts, many of whom had been in their positions for time beyond that prescribed by the law. A lawsuit was filed by Pacific Legal Foundation in the fall of 2008 with Brown as one of eight party plaintiffs to force compliance with the law after twenty years of disregard. The troubles were multiplying for CARB.
The Enstrom and Brown group kept pressing in 2008 and 2009. They pointed out how silly the CARB public relations (propaganda) apparatus was if it claimed 2,400 lives saved by the new diesel rules on page 6 of the original Tran report in 2008, here, and then in 2009 claimed that the new rules would save 24,000 lives here.
A taxpayer protest was held with speeches and demonstrations at the State Capitol on August 28, 2009, reinforced by the sound of a 220-truck convoy sponsored by the Cal Dump Truck Owners Association. The convoy circled the Capitol Building, and on cue, there was a one minute dump truck horn sounding. The convoy and the Capitol steps rally on California agency overreach with speeches were not covered by the press, but the legislators were there.
Business and industry sectors using diesel engines raised their voices. Dr. Bill Wattenberg, an engineer and influential talk show host from San Francisco's KGO, railed against CARB. Bloggers and other radio hosts joined in. Bryan Bloom, Lee Brown, and Betty Plowman and other trucking industry people were eloquent in public meetings. Jay McKeeman for the Independent Oil Marketers, logging industry organizations, Bill Davis with the Southern California Contractors, and Shelly Sullivan of the California Manufacturers and Technology Association all pressed for a CARB suspension of new rules and a sensible agency retreat from its aggressive stance.
Assemblyman Roger Niello presented a bipartisan letter with 52 signers demanding that CARB suspend the new diesel rules. Senator Dutton and Assemblyman Logue introduced bills to slow down CARB implementation plans on greenhouse gas and global warming regulations. The Governator weighed in to advocate a suspension of regulations until the economy could recover.
The Grudge Match Debate is on
The circumstances created a new ballgame on environmental regulations and rules in California. The board of CARB ordered up the debate or symposium on the air pollution science in response to the public outcry and the political realities. Friday, February 26, 2010 -- full day, no holds barred -- was set.
CARB designated three experts from the original scientific review panel: Drs. Krewski, Jarrett, and Pope, well-credentialed and also longtime friends and beneficiaries of CARB. CARB paid for them to appear, and they argued that Enstrom and the others were wrong, CARB was right, they were right, air pollution was a killer, and more regulations were imperative.
For the public critics of the CARB team: James Enstrom; Fred Lipfert, Ph.D.; Robert Phalen, Ph.D.; Roger McClellan, DVM; Suresh Moolgavkar, M.D., Ph.D; and Tom Hesterberg, Ph.D., MBA. These critics urged no more regulations and no more exaggerating the science on air pollution health effects. McClellan and Phalen are past or present expert panelists for the U.S. EPA on air pollution matters. Lipfert and Moolgavkar represent more than sixty years of experience in human health research. Moolgavkar was sponsored by an engine-manufacturing concern. Enstrom, Lipfert, Phalen, and McClellan were not sponsored. Hesterberg was en environmental issues and products official for Navistar, the successor company to International Harvester, which made my grandpa Hugh Dunn's Farmall Tractor in the '50s and now makes engines and trucks.
The debate was full-throated, and the issues were properly vetted. I was disappointed that there was not a more complete discussion of epidemiology rules on causation (see my exegesis on epidemiology and toxicology rules here), but never let the perfect be the enemy of the good.
Will CARB just get up, limp off, and do what it was planning to do all along?
Enstrom, Brown, and their allies are still committed to holding on to the California Dream.
John Dale Dunn, M.D., J.D. is an emergency physician and a policy adviser to the Heartland Institute of Chicago and the American Council on Science and Health of New York City.