Bloomberg Law
March 3, 2020, 9:00 AM

INSIGHT: Trump ‘Secret Science Rule’ Would Set Environmental Law Back Decades

Shawn Collins
Shawn Collins
The Collins Law Firm

For 30 years, the human carcinogen ethylene oxide escaped into the air from a factory less than a mile from public schools, playing fields, and thousands of homes.

No one in the community near Chicago knew about the colorless, odorless gas they’d been breathing, and the polluter never bothered to tell them. Unsuspecting families didn’t learn until too late that the gas could be a link to the breast and blood cancers blooming in the neighborhoods of Willowbrook, Ill.

In the summer of 2018, the Agency for Toxic Disease Registry (ATSDR) finally told the families that a medical sterilization company, Sterigenics, had been venting ethylene oxide into their community since 1984. ATSDR also told them that the chemical was 30 times more likely to cause cancer than previously reported.

A community-wide spasm of anger erupted. Cancer survivors and the families of those whose lives had been claimed by the disease demanded answers from the company and public officials. And they called attorneys. Within a year, they had filed 85 lawsuits claiming their cancers had been caused by ethylene oxide exposure in Willowbrook. Those suits await judgment in state court. More are expected.

In 2019, in response to community outrage, and multiplying lawsuits, Sterigenics shuttered its plant and left town.

Although ATSDR’s revelation to Willowbrook was belated, it was nonetheless a public service, based on years of EPA review of ethylene oxide exposure in health reports. It was also an example of science serving people, warning them about a danger that ATSDR literally labeled a “public health hazard.”

Science Under Siege

Today, science in service of those most threatened by toxic chemicals is under siege from the Trump administration. The former industry executives now in charge of Trump’s EPA hope to enact a rule they euphemistically, and falsely, call the “Strengthening Transparency in Regulatory Science Rule” (Secret Science Rule).

In truth, the point of the Secret Science Rule is not to make science more transparent, but to do away with it altogether. The steady drumbeat of studies proving industrial chemicals dangerous cancer-causers is a drag on the pollution industry’s profit-making.

Scientists use anonymized data supplied by millions of Americans exposed to suspected toxic chemicals to create, in effect, large laboratories, and reach reliable conclusions about chemical dangers. These studies have protected public health since President Richard Nixon established the EPA in 1972.

The EPA and other government officials use their conclusions to identify the levels of chemical exposures dangerous to humans. The process, although historically slow and vulnerable to the intrusion of politics, has nonetheless saved millions of lives here and abroad, through its insistence on cleaner air and water.

Protecting patient data—including sensitive medical information—ensures sufficient numbers of participants needed to achieve credible results. Without anonymity, the studies would not exist.

That polluters would wish these studies did not exist is hardly surprising. But the thought that our government would grant their wish had been unthinkable. Then Trump put these very industries in change of deciding whether science could be trusted to determine the dangers of industrial chemicals. The Secret Science Rule is how they would disqualify science they don’t like.

The rule prohibits the government from declaring a chemical dangerous by use of a study whose participants are anonymous. Most craven of all, the rule would be retroactive. That means that, no matter how long the EPA has listed ethylene oxide as a human cancer-causer, if the studies the EPA used to reach that conclusion relied on privacy-protected data (they all do), those studies can be declared unusable.

In short: If today’s pollution industry doesn’t like the science that historically forced it to cut air and water pollution—and in the process cause less cancer, brain damage, and asthma in children—it could declare the science illegitimate and keep it secret from the vulnerable public.

Scientist, Public Health Officials Oppose

Career scientists and public health officials overwhelmingly oppose the Secret Science Rule, but their voices and devotion to disciplined scientific inquiry are no longer welcome in Trump’s government.

I work in a courtroom where polluters who destroy lives and health are held accountable. But on its best day, that process is reactive. By the time a case comes to court, the plaintiff’s health was already threatened, damaged, or destroyed. The great thing about studies warning of a chemical’s dangers is that they offer the best hope of protecting health and life, so that there is never an injury for which to hold anyone accountable.

Cancer is especially destructive when its victim is a child. Most of us will do anything to keep carcinogens from our children’s air, water, and food supply. Now is exactly the wrong time for those in charge of children’s health to enthusiastically pretend into non-existence the time-honored science that protects it.

The pre-Trump EPA and ATSDR used data from thousands of study participants who had been exposed to ethylene oxide to reach new conclusions about its extraordinary threats and warn the families of Willowbrook. Under the Secret Science Rule, however, those warnings will be mocked and replaced with dangerously false assurances either that ethylene oxide is safe or that there simply is “insufficient science” to prevent companies like Sterigenics from belching it out all over the next Willowbrook.

The Secret Science Rule, and particularly its retroactive application, would hurtle us back into our ugly environmental past—air and waters choked with smog and soot and lakes on fire, layered with a glaze of petroleum. It would create hundreds more Willowbrooks with families living unaware under toxic skies. Haven’t we learned that we want no part of that?

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Shawn Collins, partner and founder of the Collins Law Firm, is a Chicago-based environmental and toxic torts lawyer who represents plaintiffs against polluters. He has filed 25 lawsuits against Sterigenics.

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