The EPA's Unreliable Science
United States Environmental Protection Agency (EPA) research on human heath effects of air pollution consistently violates the rules of science and is not admissible in a federal court under the rules of Daubert v. Merrell Dow 509 U.S. 579 (1993). In a previous essay, we discussed the criticisms of EPA policy making and science by Congressman Barton, and here we will discuss how the case of Daubert provides the legal basis for challenging inappropriate and unreliable EPA human effects on public health science.
The whole EPA Air Pollution Regulatory Regime impacting industries and business and energy on small particles, ozone, ozone precursors, mercury, lead, and other air pollutants is a scientific lie, inadmissible when properly challenged in a federal court. The problem is data-torturing, which produces weak associations that don't prove anything.
The Daubert majority opinion, written by Justice Blackmun, discarded the old rule of "generally accepted" for scientific testimony and evidence, from the 1923 case of Frye v. United States 293 F. 1013 (D.C. Cir. 1923) and adopted new, more rigorous tests for admissibility of science testimony and evidence, under Federal Rules of Evidence (1975).
Federal Rule of Evidence 702. Testimony by Experts -- If scientific, technical, or other specialized knowledge will assist the Trier of Fact to understand the evidence or to determine a fact in issue (Rule 104 test) A witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Blackmun provided an erudite discussion in his written opinion on the philosophy of science, with a strong dose of the theories of a respected philosopher of science, Karl Popper. Popper insisted on evidence and testing of theories, advocated for deductive science (test rules and theories for proof by evidence), and condemned the inductive scientific method as uncertain and too easily influenced by bias (observations used to develop theories or rules).
Blackmun wrote on the law for the benefit of federal judges:
- Trial judges were the gatekeepers to assure that reliable science was admitted as evidence.
- Scientific testimony and other scientific evidence had to be consistent with everyday good scientific practice.
- The science would be assessed generally as follows:
a. The general acceptance rule of Frye did not survive the new Federal Rules of Evidence.
b. Knowledge is more than subjective belief or unsupported speculation; it must be supported by evidence and proven methods.
c. An expert witness is permitted wide latitude under the federal rules of evidence to offer opinions, including those that are not based on firsthand knowledge or observation.
d. Under Federal Rule of Evidence 104, a federal trial judge must determine the threshold question of whether the evidence is relevant and material to the case and will assist the trier of fact.
Blackmun continued that if the threshold test of Rule 104 is satisfied, then:
In applying the rules of Daubert the judge must assess the admissibility of the scientific evidence and testimony on the basis of 4 tests under Federal Rule of Evidence 702 on Testimony of Experts.
- Whether the theory or technique can be and has been tested.
- Whether the theory or technique has been subjected to peer review and publication, but this test is not dispositive, only additive.
- Whether the technique or method has a known or potential rate of error.
- Acceptance of the theory or technique within a relevant scientific community of scholars.
Law professor Michael Fenner wrote a helpful, in-depth review of the Daubert opinion. Judging Science by Kenneth Foster and Peter Huber (MIT Press 1995) also reviews and analyzes Daubert, the rules of evidence, and the problems of fallacious and misguided scientific misconduct.
Daubert and the scientific research activities of the EPA
EPA researchers currently harvest (count) deaths on the days when death rates are higher than the average, and they find "associations" of those deaths to air pollution increases with some non-scientific, arbitrary lag period of time -- measured in days, so they can claim, with no real scientific basis, a toxicity of the air for that "association." Current ambient air pollution does not and cannot produce sudden deaths, so the research is fundamentally flawed, and lag times of days are nonsensical. Undaunted and compelled to push, the EPA researchers then multiply their basic error by projecting deaths to the whole society of 300 million-plus people. This nonsense is in violation of generally accepted principles of good science as described by Justice Blackmun in Daubert and explained in detail by experts in the Reference Manual on Scientific Evidence (2nd ed. 2000, 3rd ed. 2011).
The Administrative Procedure Act:
Allows a successful challenge of Agency conduct when that action is arbitrary (without good reason) and capricious (on a whim and with good reason). Violating scientific rules like the ones that are clearly outlined in the Reference Manual on Scientific Evidence, commissioned and published by the Federal Judicial Center to educate judges on science, would certainly raise the question of irrationality that is the fundamental issue for claiming that an agency has acted in an arbitrary and capricious manner.
The courts have been very lenient with the EPA on the violations of scientific rules and provided many opportunities for agencies to violate the rules of science, so legislative actions may be necessary to force better science and policymaking at the EPA. Daubert and the Reference Manual guidelines can be used to restore sanity and objectivity to the EPA regulatory activities. No longer would these be regulations for political purposes -- just regulations for proven public health and environmental problems.
The EPA is guilty of Cargo Cult Science, described by Nobel Laureate Richard Feynman -- i.e., pursuing a project of sham science that misuses government funding. Eisenhower warned of this same concept in his farewell speech.
H.L. Mencken said the goal of practical politics was to keep the populous alarmed so they will be clamorous to be led to safety. The EPA is hard at work on a crisis or scare a day based on unreliable science. The use of the Reference Manual on Scientific Evidence and the evidentiary rules of Daubert would force and assure proper congressional oversight, resulting in reliable EPA science in the public interest.
-John Dale Dunn, M.D., J.D. and Steve Milloy MHS, J.D., LLM