March 2008 Archives

EPA, OMB and OIRA: The Biggest Kid on the Block is Back

Flipping a Nation

The Environmental Protection Agency (EPA) recently released their revised ozone rules, which of course came out below science and public health recommendations. The agency changed the ozone levels from 84 parts per billion (ppb) to 75 ppb, whereas scientists have long agreed that only 60-70 ppb will decrease deaths and smog levels dangerous to children, the elderly, and those with asthma and respiratory disease. The press, scientists, and commentators reacted indignantly,although in fact the EPA's move surprised no one.

Industry and the Bush administration had weighed in to kill a secondary standard that EPA staff had recommended. The EPA's secondary standard would have allowed agency discretion to set temporary standards in the event of certain conditions like weather, for instance in to protect vegetation and wildlife from ozone exposure during growing seasons.

Considering the urgency of these proposals to protect humans, vegetation, and wildlife, the EPA issued a flaccid ruling. But in announcing their weak ruling, they held a full-court press conference to give EPA leaders the opportunity to beat their brave, intrepid, heroic chests. Administrator Stephen Johnson spoke of standard as, "the most health-protective eight-hour ozone decision in the nation's history".

In response, a New York Times editorial described:

"The big surprise was Mr. Johnson's proposal to rewrite the Clean Air Act to allow regulators to take costs into account when setting air quality standards. Since this would permanently devalue the role of science while strengthening the hand of industry, the proposal has no chance of success in a Democratic Congress."

Really? Why would that have no chance? The Bush administration has long been whittling away government regulation, privatizing various common assets like air, natural resources, forests and health, acting as a negligent steward for American citizens, and Congress has been quite complicit. The spin we hear about how the redistribution of national resources to private entities as a principled, constitutionally sound, economic idea, is well, a way of rewarding business with public assets. In driving for re-election, all elected public officials, especially those in Congress, get rewarded for such largess.

We can count the ways that our government ignores science. The EPA itself attempts to gut the Clean Air Act at every opportunity, for instance after Hurricane Katrina (pdf!). But to the NYT editor's point, is Johnson's cost/benefit proposal outlandish? Does it have not a chance of passing?

The EPA Saves "Living" Things: Documents

Johnson called the Clean Air Act a "living document" that needed to be "refurbished", "overhaul[ed] and enhance[ed]", "modernize[d] and upgrade[d]". There's really nothing to complain about on the face to this statement. Johnson announced his four "principles" for a Clean Air Act, including, to"allow decision-makers to consider benefits, costs, risk tradeoffs, and feasibility in making decisions about how to clean the air." The Clean Air Act was not "a relic to be displayed in the Smithsonian", he said.

The Times editor pointed out that Johnson's proposal would "cut to the very heart of the Clean Air Act", which was written to protect science from special interests by mandating rule-making based on health, not economic costs.

As we have witnessed, when the first hint of pollution regulation arises, any energy company worth its salt begins wailing about "technology not being available", about the exorbitant cost of the proposal, and about all the risks of complying when there is such scientific "uncertainty". Companies did just this when they held the nation in a decades long trance while they chanted about global warming uncertainty. Recognizing hints of recent history in his statement, and knowing how Johnson's incredulous suggestion could easily put estimates about cost and feasibility squarely in industry's park to the detriment of clean anything, we should be alarmed, perhaps leap into action and phone all our legislators.

However the NYT editor's tone sought to sooth us by calling Johnson's pronouncement a "revelatory moment", one that signaled the administration's "cry of frustration at being largely unsuccessful in undoing three decades of environmental law". Like the wolf frustrated in mid-hunt? One last guttural, spine chilling howl before giving up its prey -- and the fawn darts into a thicket of brambles just in the nick of time, a small defiant flick of its white tail?

Can we argue so optimistically, as the NYT editor did, that the Bush administration attempts have been "largely unsuccessful"? Knowing that standards should be set according to science can we be assured that, "the proposal has no chance of success in a Democratic Congress"? We love this view, can we share the optimism?

Ozone Decisions, Sunset Regulations and the Doyenne of Death

In Johnson's ozone ruling he said he followed the letter of the law and ignored "costs, net benefits and implementation challenges of more stringent standards", as required by the Act. Despite his words, scientists say that his new 75ppb standard was in deference to industry. Rogene Henderson, who chairs the Clean Air Science Advisory Committee, told Platts Energy: "I think [Johnson] is responding to the pressure of the industrial groups about the cost".

The idea that agencies need to consider the costs of clean water and air rulings on "small business" seems intuitive. But it can be manipulated to leave small businesses susceptible to lobby manipulation by groups like the National Coalition of Petroleum Retailers, who may officially represent "small business", but whose aims may appeal most strongly to huge business. For example, look at San Francisco's attempt to limit bisphenol A, and the immediate lawsuit that of course included BPA manufacturers, but also listed as parties to the suit local toy stores.

Various White House meeting records also indicate influence on the EPA from the Office of Management and Budget (OMB), and its Office of Information and Regulatory Affairs (OIRA). A series of memos between Susan Dudley, the OIRA administrator, and the EPA, detail the Administration's influence in crafting the rule (available online Over a couple of exchanges, the EPA refused to back down on the secondary standard. Then administrator Dudley issued a 'President-says-so' order March 12th: "The President has concluded that, consistent with Administration policy, added protection [Orwellian Doublespeak?] should be strengthening [more OD?] the secondary ozone standard and setting the secondary standard identical to the new primary standard..." Thus, the EPA was over-ruled.

So despite the New York Times characterization of the Bush administration's futile attempts, Susan Dudley was chosen by Bush to head the OIRA, where she has distinguished herself by attacking what she see as over-regulation, decrying the diminished role of the OIRA and OMB in overseeing the regulations that agencies enacted. In the 1990's she roundly criticized the effect of a Clinton executive order, which shifted regulation out from under executive control to independent regulatory science agencies like the EPA. Dudley said the OIRA and OMB under Clinton had been made impotent and she urgently advocated for cost benefit analysis, especially for ozone and particulate matter rules. In the anti-regulatory publication by regulation allergic Cato Institute, she chafed at how OIRA had lost its standing as the "watchdog for social welfare". (Regulation, Fall, 1997) As Reagan and H.W. Bush did before him, the current Bush administration has now spent the last 8 years pulling authority back into the executive branch. Dudley's interests are clearly aligned the administration's.

When Bush considered Susan Dudley to run OIRA, according the the Washington Post in 2006, "'Frank O'Donnell of Clean Air Watch called Dudley 'a true anti-regulatory zealot' who 'makes John Graham (previous OIRA head and Mercatus executive) look like Ralph Nader.'" In 2006 Public Citizen and OMB Watch published a report about Susan Dudley on the eve of her appointment to the OIRA, titled "The Cost Is Too High: How Susan Dudley Threatens Public Protections". The two groups argued against Dudley's appointment to the OIRA -- because her approach to regulation, they argue, was laden with "extreme-antiregulatory ideology". Public Citizen and OMB Watch went on to detail her background at the neoliberal Mercatus Center and her dedication to "embedding cost considerations in all laws that authorize agencies to protect the public, including...'safety first' laws" (like Clean Air Act).1

Of course cost/benefit calculations involve valuing health, the environment, and quality of life. When considering the cost/benefits of smog then, here's a question: what's an acceptable threshold for the number kids who are forced to stay inside on high ozone days to prevent asthma attacks? Thousands? Millions? Particular cost-of-death calculations are often seemingly arbitrary, and long-term injury or morbidity that may or may not truncate a life are treated in an even more speculative way by CBA. Moreover, the end, what does this say about how the US values its citizens, its children?

At the other end of the age spectrum, according to the OMBWatch/Public Citizen report "Dudley has supported a senior death discount that counts the lives of seniors for less than the lives of the young". While this may be standard actuarial practice, pollution is more dangerous to the elderly, which make her calculations seem savage. For the prospects of regulations protecting our welfare the report pulls no punches in painting Dudley as the doyenne of death.

What Happens in "The Catbird Seat"

The report's authors also point out that not all "costs" have the same moral and ethical value. With the government's "regulatory budgeting", they say, "industry can knowingly expose the public to grave harms, enjoy the financial benefits of failing to take the steps necessary to protect the public, and then use compliance costs -- the costs of finally doing the right thing -- as a shield against being forced to comply with new protective standards."

Then there is Dudley's advocacy for sunset regulation, which 'imposes automatic extinction to regulatory policies then puts agencies in the position of having to justify regulations'. As we can see from global warming, environmental damage accrues with indecision. By the time a piece of the Antarctic the size of seven Manhattan's drops off, well, too little has been done too late. Decades go by with corporations lobbying for quarter to quarter profits, as the ice melts.

Finally, as Public Citizen notes: "Dudley would impose "regulatory budgets": fictional budgets of industry compliance costs, with a cap. Once an agency like the EPA hits its cap, it would be forced to stop promulgating any new protective standards, no matter how great the need."

As part of its regulatory oversight OIRA invites industry to suggest changes to federal rules. The Washington Post reported that shortly into President Bush's first term, when the OMB asked for public input on which regulations should be revised or killed, Mercatus submitted 44 of the 71 proposals that the OMB received. OMB approved 15 of them according to the National Journal.

In 2002, this number increased significantly. 267 regulations were targeted, 80 from business associated organizations and a couple dozen from Mercatus. As a result, in 2001 and 2002 the Clean Air Act and the Clean Water Act were changed by proposals that benefited industry sponsors like BP Amoco, ExxonMobil and Koch Industries and other Mercatus donors.2 The Public Citizen/OMB Watch analysis predicted that when Dudley headed the OMB she "will sit in the catbird seat, overseeing the entire executive regulatory to slow, stall, weaken regulatory proposals" to the detriment of public health and the environment.

Ozone Rulings and Regulatory Agencies

Bush worked around the nervousness surrounding Dudley's nomination by appointing her during Congress's recess. Dudley then immediately began to reclaim more ground for the OIRA. Specific to the smog ruling we opened with, Dudley had long advocated against smog regulations on behalf of industry. In 1997 testimony before the Senate Committee on Environmental and Public Works on the Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety she argued incorrectly as the Vice President of "Economists Incorporated" that smog was beneficial because it protected individuals from ultraviolet radiation. In the same presentation she asserted preposterously that since research showed that asthma rates were associated with poverty, a smog ruling would have the "perverse effect" by costing communities money, which would in turn increase poverty and asthma. She now works for government and on behalf of citizens instead of industry, but she employs the same line of thinking.

The OMB, for its part, has the EPA in its sights for what it deems as engaging in misguided rule-making based on unreasonable scientific uncertainty and high costs. In the 2007 annual report to Congress The Costs and Benefits of Federal Regulations, OMB criticized the EPA for its determinations of the health effects of particulate matter: "the degree of uncertainty in benefit estimates for clean air rules is large. In addition, the wide range of benefits estimates for particle control does not capture the full extent of scientific uncertainty", the agency wrote, managing to insert "scientific uncertainty" into every sentence, in order to deny the EPA its scientific evaluation of the health benefits of particulate matter regulation.

The OMB authors further single out six EPA rules on drinking water which they say cost state, local, and tribal governments or the private sector "over the threshold" of one hundred million dollars annually. Of course this OMB analysis doesn't expound on the enumerable benefits of clean drinking water free of cleaning agents, disinfectants or arsenic. And why one hundred million dollars? Some Senator's houses cost nearly that much. And this is a drop in the bucket compared to the Iraq war, which cost $341.4 million per day and has some mighty uncertain benefits.

The 2007 OMB costs and benefits report grounds its analysis in the philosophy that economically well-off countries have strong property rights and minimal regulation. The draft document often veers to pure right-wing ideology, citing the Heritage Foundation for information and absurdly saying that Communism was the result of excessive regulation gone awry.

Strengthening their hand, the Clinton/Bush II Executive Order 12866, and Bush's two recent amendments, increased OMB/OIRA's authority over the "independent" regulatory agencies, including putting executive appointed regulatory policy positions into each (decreasingly) independent agency.

No More Neighborhood Wimp

In an issue of Regulation in 1997 Dudley wrote before she was administrator about a previous OIRA administrator who had bragged that OIRA was the "biggest kid on the block", so other agencies had to respond to its agenda. She complained that the OIRA under Clinton was the neighborhood wimp. So although Dudley's perch at OIRA may be short-term, she has been preparing her tenure for decades and when nominated by Bush strode in to the post with a clear agenda.3

Johnson's proposal to rewrite the Clean Air Act is not out of left field, rather something urged for decades by industry, various government agencies, congressman and lobby groups. Furthermore, it's no more surprising then his smog ruling, if more appalling, since the changes he speaks of have been in the works for years and in fact progress towards the goals he articulated is well underway.

Health and the Environment: The Public's Standing

You'd think Johnson wouldn't even mention to Congress rewriting the Clean Air Act, given the spotlight on the EPA's recent record on the environment and the vocal admonition of members like Senator Boxer (D-CA). But Congress, though recently vocal against the EPA's refusal to move on environmental laws, has at times acquiesced eagerly to business deregulation and cost benefit guided rulemaking. Thus, the current ease and confidence of Dudley in thwarting the goals of the EPA. Congress of course touts progress on all fronts, business, environment, and health, but business generally comes out the biggest winner.

Our intent is not to focus entirely on Susan Dudley, anymore than it is to focus on Stephen Johnson, or George W. Bush. They're all accomplices to a larger agenda which seems outmoded and outdated, that needs to be "overhauled" and "modernized". We are not in competition with Soviet ideology, capitalism is not merely ascendant, it's dominant -- so arguments in last year's OMB report to Congress about regulations on Clean Air and Water being nigh to Communism are absurd.

We live in a time when kids can't play outdoors because of smog, when business pollutes with abandon then screams about a rule that mildly asks, please don't pour oil into streams. We live in a time when the UN warns monthly about climate change and rising seas. This is the state of our nation today. To Johnson's comment about the Clean Air Act not being a museum piece, it may be that the administration's decades old way of thinking deserves only to be encased in Plexiglas in a museum.

We live in a time when business calls the shots in Congress, in the White House and in the Judiciary, and we should all wake up to that truth. Yet voters still respond to "red phone" imagery with a knowing nod of utter naivete. There is no threat bigger than ourselves -- we are the traitorous monsters in our midst.

When the phone rings -- red, blue, yellow or green -- in the White House, in your Congressperson's office, or at the court house, it's not some nameless international threat, but an American industry whose TV advertisements you hum to and whose brand you endorse, and the person on the other end is calling to murmur in the lawmaker's ear about less regulation. One hand of the caller is slipping dollars into the decision-maker's pockets while the other waves fanatically to citizens about the economic doom of Clean Air and Clean Water, about the unemployment that will follow, and balance sheets that will run red. That's what happens when the red phone rings in the White House in 2008. Let's get real.

So what will elected representatives do for Clean Air? What they always do? Should the world have faith that Congress will protect Clean Air and Water? Sure, as long as somehow business benefits. But citizens have a choice, and always a voice, so we'll veer positive here. The NYT editor's right. The US evolves. Congress will see Johnson's clumsy marionette arms and legs being yanked by OIRA, his mouth voicing the agreed upon words from the decades old script. And in our dream world, your Congressman will answer the phone when citizens call, skip the form letter reply, and renounce Johnson's quest to rewrite Clean Air considering notions thrummed by business such as unbearable costs, scientific uncertainty, lack of feasibility, and job trade-offs.


1The report details how during seven years in the 1990's, Koch Industries (a petrochemical company) was found by the EPA to have spilled 3 million gallons of oil (300 unstopped leaks) into waterways in 6 states, and was fined $30 million dollars as a civil penalty (Koch founded Mercatus and is its largest contributor).

2 Incidentally, Mercatus donors included Merrill Lynch, JP Morgan Chase, NYSE, Fanny Mae, and Freddie Mac. A quarter of the proposals the Mercatus submitted to OIRA in 2001 and 2002 were for financial services deregulation.

3Executive orders and congressional laws paved the way, for instance in the 1990's, for frules such as the Unfunded Mandates Reform Act (1995), the Government Performance and Results Act (1993), and the Small Business Regulatory Enforcement Fairness Act (SBREFA) (1996) -- all addressed regulatory and reporting costs without expanding definitions of benefits. SBREFA, for example, spares businesses from what could be burdensome regulatory costs. Bush's latest rules significantly strengthen the clout of the agency.


Acronym Required wrote previously about the EPA, the environment, and public policy.

CT Scans for Lung Cancer: Whose Interest?

Lung Cancer, No Worries?

The New York Times reported today that a study promoting CT scans for early lung cancer detection published in the New England Journal of Medicine was supported in part by a cigarette company. Funds for the research came from the Foundation for Lung Cancer: Early Detection, Prevention & Treatment, a group funded by $3.6 million dollars from the Vector Group, the parent company of the Liggett Group.

The New England Journal of Medicine published the study by Dr. Henschke et al, "Survival of Patients with Stage I Lung Cancer Detected on CT Screening The International Early Lung Cancer Action Program Investigators" in 2006. The authors concluded that "annual spiral CT screening can detect lung cancer that is curable", which was optimistic on two fronts. 1) The idea that lung cancer is detectable would be well received by doctors and patients because lung cancer is not usually detected in time for successful treatment. 2) If lung cancer were treatable, that is if Stage I cancers were "curable", as the authors concluded, this was very positive news considering that the mortality rate for all lung cancer is high. Both of these ideas could quell fears of some concerned smokers and health workers. More and more, cancer is considered a chronic disease not necessarily a fatal one, but lung cancer is still one of the deadliest.

The study results, if repeatable, could potentially change (some people's) perceptions about the dangers of smoking, and the paper got a lot of attention. The study authors compared CT scans to mammography scans and concluded that you could prevent 80% of deaths from lung cancers in at risk populations. If the results were that significant, if CT scans helped treat cancer, and if policy followed from the authors' conclusions, one might see an increase in the number of routine CT scans performed in the US.

Not. But What About a CT Scans?

As with most science everyone wants to see more studies done, especially since eyes are on Cornell-Weill study's methodology and conclusions. The idea to test greater numbers of people from risky populations also has also interests doctors and public health practitioners. But doctors have also expressed concern that if its recommendations were enacted patients could risk overdiagnosis since the testing produces false positives and there are concerns about exposing populations to CT radiation. To this end the NIH is funding the a $200 million dollar National Lung Screening Trial which tracks 50,000 smokers using CT scans through the agency's National Cancer Institute, .

But that study has also been dogged by some concerns. The Wall Street Journal wrote an article last October suggesting that two of the researchers in the multicenter study also had conflicts of interest for work they had done for tobacco companies testifying about the safety of CT scans. The Lung Cancer Alliance wrote letters to the NIH calling their attention to possible bias. The Lung Cancer Alliance is supported by donations and grants including $100,000 from General Electric, the company that makes CT scanners.

Two researchers, Dr. Denise Aberle of UCLA and Dr. William Black of Dartmouth, each testified on behalf of tobacco companies in state lawsuits. The defendants in the cases wanted the tobacco companies to pay for CT diagnostic screens. Aberle earned $30,750 from American Tobacco by testifying against the state of Louisiana, saying that CT scans were "reckless or irresponsible to promote". Black reportedly earned $700 from Phillip Morris for testimony for that company against the state of New York. He said CT screening "may do more harm than good."

The NIH asks that researchers involved with government studies report conflicts of interest to the institutions that employ them. Most of those institutions, as Acronym Required has discussed before, refuse to impose restrictions on research funding sources, and in fact aren't eager to divulge their policies on controversial funding from industries like tobacco. CT scanning is a powerful tool, but the most appropriate use for lung cancer detection is still under study. With the forthcoming NIH study results due next year, the investigation of these important research questions is clouded by contentions of conflict of interest on both sides.

Religion, Something to Do on Weekends -- Or Knit.

PZ Goes to The Mall of America

PZ Myers of Pharyngula got booted from the line of registered guests to see the movie "Expelled", a creationist production about intolerance towards religion. The movie's producer ejected PZ while the rest Myers family and his other companions, Richard Dawkins and staff, were allowed to stay. The "Expelled" movie producer said he allowed Dawkins to watch the movie because he was a 'guest to our country' and had probably 'flown a long way'. In this amusing YouTube video Myers and Dawkins explain what happened.

"Expelled" is a movie reportedly dubious quality that recently showed at the Mall of America. Dawkins, in typical form, calls the movie "shoddy", "boring", and "bad in every possible way", filled with "Lord privy seal" moments and attended by a completely "sycophantic audience." He calls the whole production "second rate in film-making and public relations", to which Myers suggests that "second rate" might be a tad complimentary.

PZ Goes To The Apple Store

Mild mannered PZ, albeit with a ferocious quill, appeared in the movie at the request of the filmmakers. Then for his contributions he was ejected. He whiled away some time in an Apple store blogging. Meanwhile, in the movie showing across the way, the helpful Myers explained that he wishes to increase science literacy and make religion a "side dish rather than a main course", something 'to do on weekends'. His tone is notably conciliatory, comparing religion to knitting, as in -- "we're not going to take their knitting' needles away".

His is a charming analogy. There is a 21st century knitting revival and as many religious people in the US as ever. I used Google's totally unreliable "Trends" to compare "religion" to "knitting" here, and if you squint carefully you can see an inverse relationship. (Either that no relation whatsoever or the two trend together.)

The Economics of Antediluvian Intolerance

Coincidentally, I'm reading Dawkin's "The God Delusion" now, along with "Christopher Hitchen's "God is Not Great". You've got to be impressed with how Hitchen's waves his pen around, regardless of what he says, and while Dawkin's book is milder, he has little tolerance for my tolerance or anyone else's. Serious books with bits of entertainment, and I'm sure good screedy profitable fun for the authors.


Acronym Required wrote about science and religion in "Science Faith and Books", in "Dover: Science Prevails over Intelligent Design: Judge Doesn't Monkey Around", in "Evolution v. Not Evolution" among others. We looked at quests for fame and PZ Myer's reception for Stuart Pivar versus Lynn Marguis in "Science Fame: Million Dollar Minutes" and mentioned Hitchen's writing in "FISA: Turning Orwell On His Ear".

Intellectual Property vs. Vote Machine Analysis

Sequoia Systems sent Princeton professor Ed Felten an e-mail, warning that if Felten's lab proceeded to analyze the security and/or hackability of Sequoia's voting machines, the company would consider its intellectual property infringed. The move followed disturbing reports about Sequoia voting machines in New Jersey, for instance that 10,000 voting machines were uncertified by the state, that February primary officials noted irregularities in the vote records, and that Princeton professor Andrew Appel bought a few Sequoia machines at a state auction site and managed to program them to misappropriate votes.

The Sequoia Systems' letter warns that the company "retained counsel to stop any infringement of our intellectual properties, including any non-compliant analysis". Felten produced a demo last year showing how to hack a Diebold machine in one minute, and recently published a paper on the Diebold machines' vulnerabilities.


Acronym Required also mentioned voting machines in this post.

The Market Says...Greenspun's "Shocked Disbelief"

Federal Reserve Chairman Ben Bernacke, in the midst of financial meltdowns, struggles with federal monetary policy, or as put it "Plays `Whac-A-Mole' With Turmoil in Markets". Meanwhile his predecessor Alan Greenspan pens oft-quoted editorials offering policy hints and cryptic foretelling of the economy's prospects. Today he looked in his crystal ball and wrote in the Financial Times the future looked "most wrenching".

Greenspan seemed dismayed: "Those of us who look to the self-interest of lending institutions to protect shareholder equity have to be in a state of shocked disbelief." Shocked, shocked shocked. Greenspan's own "self-interest", is as an adviser to Deutsche Bank, Pimco, and Paulson & Co, a hedge fund company that has "posted stratospheric gains" by betting on credit crises.

Throughout his tenure, as indicated by this speech back in 2005, Greenspan advocated deregulation, along with "innovation and structural change in the financial services industry", which were critical to "providing expanded access to credit". As he concluded in his 2005 speech: "this fact underscores the importance of our roles as policymakers, researchers, bankers, and consumer advocates in fostering constructive innovation."

Greenspan didn't shy from acknowledging his influence then, but now in 2008, he pops up with sage words but quickly scuttles away from responsibility. Using this tactic he also blamed the federal debt and the housing crises on aberrant circumstances. In today's editorial titled: "We Will Never Have a Perfect Model of Risk", Greenspan abdicates responsibility and lets "the model" take the blow. Once he accomplishes that neat abstraction, he rallies for more of the same, warning against regulatory changes in the market that would "inhibit our most reliable and effective safeguards against cumulative economic failure: market flexibility and open competition."

Krugman, writing in today's article "The B Word", doesn't buy it. "Between 2002 and 2007, false beliefs in the private sector -- the belief that home prices only go up, that financial innovation had made risk go away, that a triple-A rating really meant that an investment was safe -- led to an epidemic of bad lending. Meanwhile, false beliefs in the political arena -- the belief of Alan Greenspan and his friends in the Bush administration that the market is always right and regulation always a bad thing -- led Washington to ignore the warning signs." Krugman thinks a bailout is inevitable.

House Votes on FISA

The House voted 213 to 197 to expand the 1978 Foreign Intelligence Surveillance Act. But it did not give retroactive legal protection to telecoms. Instead the bill proposes that companies present their case arguments before a judge when state secrets are at stake.

The Republican Party spent considerable time organizing a secret session yesterday, only the fifth since 1825, to convince the Democrats of the bill's necessary aspects. A two hour security sweep of the House chamber was conducted before the GOP presented classified information that in the end failed to impress the Democrats."We probably could have gone and eaten together at McDonald's...", Rep. Charlie Melancon (D-La.) told the Washington Post. Bush has said he would veto the bill.


We also wrote about FISA here in "FISA: Turning Orwell On His Ear", and here in "FI-HISSS-SA".

Seamless Mess Mesh Computing

Microhoo, Forward to the Future

Microsoft's Chief Technology Officer Ray Ozzie talked at a Las Vegas technology conference recently about the company's plans to build a "seamless mesh" computing infrastructure, inclusive of online applications and mobile devices. Microsoft is of course looking to extend its reach and in keeping with this goal aggressively proposes to merge with Yahoo. In public relations efforts focused on its Yahoo offer the company spins out comforting nuggets of merger wisdom. Ozzie told the Financial Times Monday: "'Technology companies, if they dive in and just smash things together for smashing them together's sake, it's reckless, it's just simply reckless.'" ("Microsoft in No Rush to Merge Yahoo Technology.") The message for investors, employers and customers is that Microsoft understands the risks of large mergers.

Meanwhile, as Mr. Ozzie spews sage adages about the heedless smashing together of things, Microsoft contends with product fallout from its latest operating system. In "They Criticized Vista. And They Should Know", the New York Times describes Vista's incompatibility problems and quotes three top executives who make disparaging on-the-record remarks. Granted they don't sling zingers worthy of Democratic presidential campaign staff, but one Microsoft executive who bought a "Vista Capable" PC, then thrashed through reckoning with its limited functionality told the Times: "I now have a $2,100 e-mail machine."

According to the story, many users refuse to upgrade and instead run XP because of Vista's reputation for various issues like: "[t]he graphics chip that couldn't handle Vista's whizzy special effects. The long delays as it loaded. The applications that ran at slower speeds. The printers, scanners and other hardware peripherals, which work dandily with XP, that lacked the necessary software, the drivers, to work well with Vista." All these problems after multiple launch delays. Is Vista a "smashed together" product?

Trash From The Past

If Vista had been launched at another time in history, like after any one of its proceeding operating systems -- MS-DOS, Windows 1.0, 2.0, 286, 386, 3.0, or Windows for Workgroups 3.1 or 3.11, for instance, these users might be duly appreciative. Today's new operating systems are comparatively customer friendly. Mind you today's customers have every right to complain heartily -- but lets get some perspective from the systems of yore.

Once operating systems didn't come bundled on PCs and setting them up took hours. This was often a collaborative group effort, as individuals all over the world, through trials and tribulation, would acquire tricks for easing the process then share their expertise on websites or via newgroups. Here's how one set of instructions for installing Windows for Workgroups 3.11, circa 1995, touted the new operating system from the Redmond company: "WFWG 3.11 is a real product with a real manual and Microsoft support. If there is a problem installing it, then there are many other sources of information available for troubleshooting the problem." Hard to overemphasize the importance of other sources back then.

If you weren't blessed with a CD-Rom, you'd do the installation by floppy, and so for Windows for Workgroups you'd get your pile of installation floppy discs and settle down at your computer for some fun. Four steps in, the guide offered some advice on the part, "add network protocol"

"With a bit of luck, the TCP/IP-32 protocol will be in the list. If not, then it is an "Unlisted or Updated Protocol" which is the first choice. Unfortunately, even if the TCP/IP protocol is listed, WFWG generally doesn't really know where to find it. It may invent a plausible but incorrect directory...No matter what choice is made, be prepared to fill in a dialog box with the letter and directory where the Microsoft TCP/IP distribution directory is found. Once the files are located, WFWG will copy them into the WFWG system and will add the protocol to the list in the Network Drivers and Network Setup panels. Back out by clicking the various OK buttons."

That's how it went, not mind-boggling, but tedious. If the installation was successful it was a great moment, but you'd keep that pile of floppies close at hand because who knew? If soon after you tried to install some software in an order that the operating system found offensive or if the computer for no apparent reason ceased to function in a predictable way, often your only recourse was to "reinstall". Vista is a system with today's problems, as all Microsoft operating systems have had age appropriate glitches for perpetual cutting edge user demanded technologies.

Crash To the Past

Vista problems were accompanied by a less than straight-forward marketing scheme with confusing (some say deceptive) advertising. In order to market Vista to lower end computers, the NYT says, Microsoft changed the label on new PC's. from the definitive "Vista Ready", which it wasn't, to the more wishy-washy "Vista Capable", a dubious distinction that many customers assumed meant "able", but actually meant "unable", and "incapable" of running any version of Vista except the scaled down one called "Home Basic", missing many of Vista's advertised features. There's the catch.

The judge in the lawsuit against Microsoft granted the case class-action status, so the plaintiffs who bought a PC labeled "Windows Vista Capable" could seek compensation for the company's deceptive marketing aimed at increasing demand. Microsoft appealed the class-action status, saying since customers had "different information" they weren't all in the same class, and because, "[c]ontinued proceedings here would cost Microsoft a substantial sum of money for discovery and divert key personnel from full-time tasks." But doesn't Microsoft systematically buck for court proceedings in lieu of nicer, profit-curtailing behavior? What better use of key personnel then?

They DOS Protest Too Much

Sure, some key personnel -- top executives -- spend time complaining to the New York Times about Vista. The paper quoted Microsoft VP Mike Nash saying "I personally got burned", which is interesting because VP's usually don't get "burned" on operating systems they (buy?) at steep employee discounts, especially when they have a stake in the company's rising stock. But still, when your executives go on the record with such admissions it can't be good -- or can it? Since key personnel are unlikely to join the class action suit, maybe their playing the we're all in it together card?

Some key personnel also make soothing sounds about the future and Microhoo, and some more stay busy shaking off the past and a chaffed EU, which seethes over MS refusals to share code and play nice. Last month the EU fined Microsoft 1.3 billion Euros for interoperability issues. The company has 3 months to pay off the fine which increases daily as the value of the dollar sinks.

Some complained that the fine was staggering, but to keep this in perspective -- Microsoft is worth hundreds of billions of dollars. No company likes piles of cash to whither away but this relatively small fine is also an important piece of the business model, balanced by profits rendered from the same strategies that peeved the EU. Yes, Microsoft has promised to be less secretive and more open in the future but it will no doubt will appeal the decision.

The company may express yearning to be free on the internet and in mobile devices, but its bread and butter is embedded in its desktop products -- its software, its browser and its operating system -- mainframe as that may seem. Steve Balmer commented that the fines were for past issues now behind the company. But the company's profit is in proprietary systems and maintaining market share by shutting down competition. So what to expect? Naturally, Microsoft will continue to conduct business "competitively", as usual.It will build impressive backwards compatible software and strategize about how to squeeze profit out of some of Yahoo's services. To do this still more "key personnel" will be the large teams of razor-teethed lawyers, ready, no doubt, for many court bouts. Brussel's just initiated two new antitrust investigations against the Microsoft.

"Tongue to alveolus" for Language Mastery?

In an essay on how to pronounce the surname of the Putin's presidential successor Dmitri Medvedev, Serge Schememann writes of English speakers vexed by the Russian language, and gently mocks language teachers who guide them. The author quotes a bilingual journalist from the Moscow Times, who once tutored an American actress how to pronounce the consonants T,D, and N: "the tongue must touch the upper teeth, not the alveolus like in English". Schememann adds, "Russians have their own problems with American names", continuuing, "I never touch the upper teeth with my tongue nor anything that comes up when I google 'alveolus'".

"Alveolus", is a "a small cavity or hollow", and often refers to the pulmonary alveoli (plural) in the lungs, which function during respiration to exchange oxygen and carbon dioxide to and from the blood. Accordingly, the Russian reporter's alarming suggestion -- tongue to alveolus -- might actually constitute a medical emergency. "Alveoli" also refers to other hollows, such as the sockets in which the teeth are rooted.

When To Chop A Tree

If a Tree Falls in a Forest, 364 Days a Year, Does Anyone Hear It?

One day a year we celebrate Arbor Day by planting trees. But there are 363 days - we'll disregard Christmas, the sort of a pro-logging holiday. The zeitgeist of the world, you'd think if you followed the news, is plant trees, trees to keep the cities shady, to keep the forests thriving, to provide shelter and food for birds and bugs and animals, and to capture CO2 that helps reduce global warming. Saving trees is the word of the day, the much ballyhooed choice. However day in and day out, people find all sorts of reasons to cut trees.

We all hear about the Amazon deforestation. Brazil's rate of deforestation increased last year despite efforts to stop illegal logging. For perspective, the rate of deforestation in the 1990's was 7,000 square miles per year. Starting in 2000, the rate increased to ~9,500 square miles per year. The rate decreased for a couple of years until 2007, when in the last 5 months, loggers cut a whopping 7000 square miles of forest. What happened?

The environmental minister told the Financial Times last week, in "Brazil takes battle to the Amazon", that the rate of deforestation had temporarily decreased because the government started arresting corrupt officials. But others say that public policies and populist local politicians still encourage logging. Perhaps the rate simply correlates with commodity prices, and the recent rise of illegal logging occurred when cattle ranchers cleared land to meet the beef demand and profit rose. So. arguably, rising food prices might be a reason to cut down trees.

But there are many other reasons why people fell trees besides for food. In each case there's a logical, rational reason. Here are some recent examples:

  • To Protect Your Truck: A mailman in Vancouver, Washington hacked at more that 30 fruit trees along his route because the city wouldn't trim them and he wanted to protect his truck.
  • For Your Solar Panels: For six years two neighbors in Sunnyvale, California engaged in a legal battle to resolve whether a resident who wanted solar panels could force his neighbor to cut down some redwoods. The 30 year old Solar Shade Control Act outlines the rules governing neighbors trees and solar panels.
  • For Aesthetics: Every so often a corner estate gets sold and the new owners begin refashioning it as their home. First the old toilets get discarded curbside. Last, despite the opposite trend in places like Miami and LA to replace non-native palm trees with shade trees, in some neighborhoods in California quixotic homeowners replace shade trees with exotic palm trees. I've seen this happen ALL over.
  • To Confront the Rebels: The president of Chad cut down "centuries-old trees" so that the leader could "be adequately protected". Said one bicyclist watching the trees fall: "When I was a child, soldiers used to stop us touching the trees...[n]ow they are being destroyed."

While Chad acted in the name of terrorism, the US for some reason didn't deploy that reasoning when it moved forward to develop its national forest areas. Last week the state of California sued the U.S. Forest Service, that wants to open more than 500,000 acres of California national forest for roads and oil drilling. The state wants to keep these forests free of roads.

State Attorney General Jerry Brown told the Los Angeles Times "I find it kind of ironic that the federal government won't let us clean up our cars and they now want cars going through these forests." California accuses the Forest Service of violating the National Environmental Policy Act and the National Forest Management Act by moving ahead with development plans and disregarding the state's laws. California enacted a moratorium on road construction in "pristine areas of its national forests" in 2006, according to the LA Times. But sometimes federal governments make the National Forests earn their keep, come hell or high water.

And so each of 364 new days a year, anyone can manufacture a fine reason to chop a tree.

New Antidepressant, New Revenue Stream

You're so Sad, We're So Happy

Antidepressants have taken a beating over the past couple of years with a steady stream of difficult news, some of it contradictory -- about studies biased by doctors interests, potential dangers of the drugs for children, limited effectiveness as a result of selective reporting, and patients struggling to withdraw from the drugs. Regardless of the news, many patients critically depend on antidepressants and pharmaceutical companies invest heavily in their development.

Last week Wyeth announced the approval of Pristiq, an antidepressant they're marketing to succeed Effexor XR. Effexor was the first of the serotonin-norepinephrine reuptake inhibitors (SNRIs), followed by Eli Lilly's Cymbalta. Wyeth won FDA approval for the drug's use as an antidepressant and is hoping to get the drug approved for menopause. This is a savvy move. With the HRTs in decline because of cancer risks Pristiq is the first drug to be marketed as a non-hormonal option for menopause "symptoms".

Eating Your Own Dog Food?

Some doctors question whether "Pristiq", a metabolite of Effexor, is an improvement over any of the drugs currently on the market. Regardless of doubts, the drug is a lithe marketing confection, starting with the name, "Pristiq", which summons to mind "pristine", as in, that is the cleanest most crystal clear pristine lake you've ever seen, and "mystique", as in, wow, he/she has that certain je ne sais quois -- mystique. Ergo "Pristiq". Just saying it makes you want to hop out of the chair, dress well, smile brightly, finish a report, wrap up a business meeting, or throw a dinner party -- tonight, for 50 friends.

With Effexor coming off patent, Wyeth is happy to have Pristiq in the wings. As Gino Germano, Wyeth's president of pharmaceuticals told the New York Times, doctors and patients need to have options. The Times' print edition featured a photo of the beaming Germano, perhaps elated over the FDA approval news and definitely projecting a certain unique Pristiq mystique. Some analysts predict $1.5 billion in sales by 2012.

Gunning for FDA Changes

FDA Leader Criticized

We wrote the "State of the FDA" about a couple of reports documenting FDA management shortcomings compounded by budget shortfalls that compromise the health and safety of US citizens. Now Rep. Bart Stupak (D-MI), who heads the Subcommittee on Oversight and Investigations in the House Energy and Commerce Committee has called for FDA commissioner Andrew von Eschenbach to be replaced. Eschenbach has been in the post a little over a year.

In a press release Feb. 1, 2008 on the FDA, Stupak said the agency was no longer a "pending" crisis, but rife with problems and fresh off a formidable record of "378 recalls last year on everything from peanut butter to pet food to drugs". Stupak's goal "is to help identify what went wrong and implement changes to minimize negative health effects on the American people." Stupak even has a replacement candidate in mind according to the Wall Street Journal.

Firecracker Appointees

However some politicians see the Michigan Democrat as a little too aggressive. Rep. Joe Barton (R-TX) says that firing the commissioner is a bad idea and told the journal that Dr. von Eschenbach is a "dedicated public servant," who has "certainly not done anything unethical or illegal". (Gold Star commendable these days, but shouldn't we be throttling for a higher standard?)

Some news agencies scurvily suggest that the death of Stupak's son from suicide, a reaction to the acne drug Accutane, motivates his attention to the FDA's problems. However the congressman points out that while the incident gave him insight into the FDA, if people knew how little oversight the agency had on some products they'd be "marching in the streets." (like the Sixties?)

It's too bad Stupak wasn't in on the Senate confirmation hearings in August, 2006, since perhaps he could have guided the leadership choice at the beginning of the process. The Senate deliberated during von Eschenbach's confirmation hearings, voicing reservations about his suspected attention to politics over science. The commissioner is a family friend of President Bush's who had what Newsweek at the time called "a history of generating controversy".

Prior to his FDA tenure he worked at the National Cancer Institute (NCI), where he "introduced prayer to commission meetings", unrealistically set a goal of eliminating death from cancer by 2015, and was called a "disaster" by some staffers. Senators Murray and Clinton balked on his confirmation over the stance the FDA was taking on Plan B, the birth control pill. In what seemed like a sort of a quid pro quo deal, once Plan B got passed von Eschenbach got confirmed.

The interesting thing about Bush's political appointees to science agencies is that the lifecycles between Senate confirmation and given appointees' agencies' disasters has become quite short, in a way that nicely matches the current pace of news. The predictability and familiarity of it all gives us a sense of reassurance in a day when little else is predictable. Reporters aren't like - von Eschenbach who? It's just - oh yeah, that guy everyone worried about a year and a half ago.

But again, as with many of the science agencies it's not all about the commissioner. Stupak acknowledges that the FDA has entrenched problems that preceded Eschenbach's short tenure.


Acronym Required wrote about von Eschenbach's confirmation hearings in "The FDA'S 'Medical Ideology'"

We wrote "Resuscitating The FDA", about the FDA in the wake of various fiascoes.

"FDA -- Calling Off The Dogs", is about Plan B and FDA staff turnover.

"Ethics- The NIH and FDA", discusses conflicts of interests among scientists in these two agencies.

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