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"...Manufacturers told the subcommittee Monday that some faced financial ruin without the bill, which the Congressional Budget Office estimates could cost taxpayers...."¹

"We appeal to your sense of justice!"

That's how the American Apparel Manufacturers Association begged the Senate for $50 million in 1981, pleading with legislators to approve the Tris Indemnification Act. Tris (2,3-dibromoprophyl) phosphate (tris) was used as a fire retardant in children's sleepwear in the 1970's, but the government banned its use in kids' pajamas when studies showed that it could be absorbed into the skin and could cause cancer. The apparel association wanted some payback.

$50 million seems like pittance now, given the billions flying around as the 2008 US government hopefully sprinkles newly minted, crisp Treasury dollars about. The back story of American Apparel Manufacturing in the 1970's is clearly different than the insurance, bank and auto-industries of 2008. But there are similarities. Behind many bailout stories, it turns out, is a coincidental trail of deregulation. Deregulation that's good for business.

Autos and Chemicals in Deregulated America

Today's beggarcorps, the auto, bank, and insurance companies, greedily sucked as much money as possible out of the Great Market and its Invisible Hand until it showed signs of withering. Companies shunned deregulation, oversight and caution. Once market money dried up, like insatiable green blooded Aliens or Predators, the CEOs stoop to clamber out of their Neon concept cars and pursue taxpayer dollars.

In the case of the auto industry, history repeats itself. Reagan bailed the industry back in the 1980's after Carter left the White House. Carter tried to wean the US, but Reagan declared morning in America. As they say in Michigan, Reagan "really pulled the fat out of fire for the auto industry". But how did the automakers use the good will, deregulation and limits imposed on Japanese import cars, grandly granted to them by Reagan?

Not to pursue wise business practices. Reagan's bailout not only bought the auto industry time, it helped cement expectations for habitual handouts. Auto CEO's learned how to fly to Washington on a Jet, fling out minimal rhetoric circa 1970 about: "the health of the industry", then fly back to Michigan and continue to sell good 'ole oil-hungry "safe" cars -- at a rate of two and three per household. Now, they're forced to offer two-for-one sales and occasionally even drive to bailouts in their own vehicles.

The chemical industry did even better under Reagan. It never floundered like the auto industry has, but thrived under deregulation and continued to grow into the behemoth we know today. Its size allows the chemistry industry to produce more and more consumer products, under less and less scrutiny. On occasion citizens become apoplectic about something like bisphenol A, but the industry's size make it more than capable of mowing down potential regulation or even, heaven forbid -- threats to remove a chemical from the market. As with the auto industry, "idealistic" long-term consumer goals like non-polluting products routinely fall by the wayside to quarterly profits.

Tris History - In Brief

The story of Tris is interesting, because it was banned in the US before the chemical industry became adept at protecting its economic interests so thoroughly. Tris was an unusual chemical in that it only had a quick sojourn in pajamaland before being banned. In 1971 the U.S. produced about 3 million pounds of tris. That year the Department of Commerce established flammability standards for children's pajamas. The chemical industry saw the opportunity in that particulas regulation and promoted tris for use as a fire retardant in children's sleepwear, essentially without any preliminary studies on the chemical's safety. 3 years later Tris production in the U.S. was 12 million pounds.

Then rat studies showed toxicity and kidney cancer from exposure to tris and rabbit studies showed that the chemical was absorbed through the skin. These were followed by human studies showing that kids absorbed tris too. Congress had just established the Consumer Product Safety Commission (CPSC) in 1972 as part of the Consumer Product Safety Act. The Environmental Defense Fund, also recently formed after its successful legal action against the use of DDT, threatened to sue the CPSC if it continued delaying. The CPSC banned tris in 1977.

Carter: The Presidential Scrooge of Toxic Chemicals

Once the US banned tris, textile manufacturers sold their tris pajamas overseas until President Jimmy Carter ordered them to stop. Carter said he wanted countries to know "that the United States is a responsible trading partner and that they can trust goods bearing the label 'Made in the U.S.A." (AP Feb., 1981)

Despite their overseas sales, however the textile industry claimed losses of $50-$100 million in business as a result of the ban. Textile manufacturers demanded government compensation via a bill passed by Congress in 1978, saying that they tried to abide by government regulation and took a loss.. But Jimmy Carter vetoed the indemnification bill, saying the resulting litigation would cost too much and only large retailers would be able to fund lawsuits. Carter noted that the companies had alternatives flame retardants to tris, and advised that the bill would set "an unwise precedent [to] paying industry for losses" incurred to industries when subsequent research showed a particular chemical was dangerous. Instead Carter offered business loans.

The Greatest Presidents

When President Reagan was elected, he promptly revoked Carter's executive order on exports. This allowed US companies to ship abroad hazardous products banned in the US. This is now a common practice known as dumping. A Reagan congress promptly rewrote a Tris Indemnification Act to allow textile manufacturers to sue for damages, which the legislature estimated would cost taxpayers $56 million dollars or more. Senators like Strom Thurmond (R-SC) and Edward M. Kennedy (D-MA) helped sponsor the bill that Reagan signed into law.

US citizens have been swept along for years of these policy battles over fire retardants. In the 1970's California was one of the first to require fire retardants, and California children became some of the first in the nation to wearing tris pajamas. When tris was banned in 1977, the chemical industry replaced it with dichlorinated tris, which the CPSC then also banned from pajamas.

The chemistry industry then quickly introduced chemicals called polybrominated diphenylethers (PBDE's). Europe and Sweden banned all PBDE's. In the US, anufacturers of Penta and Octa PBDE's only recently stopped producing these chemicals due to toxicity. But individuals states first had to pass legislature which threatened the PBDE market. Now, many US states plan to ban Deca-PBDA. For each chemical banned, however, which is few and far between, several more spring up, all untested for safety. But chlorinated tris, banned from pajamas years ago, is now used to flame proof furniture today.

The cigarettes that ignited most fires that these anti-flammability chemicals protect consumers from are not only less in use, but they're finally required by law to be self-extinguishing. Now fire deaths from flaming pajamas are even less than when tris was introduced. Despite the decreased home fire risk, in 2007 the Bush administration pushed through a nationwide flammability law. The law attracted attention mostly for clauses it contained that pre-empted states from taking their own measures against flammable products, either by stricter laws or as a result of tort law.

Acronym Required discussed this trend in the Bush administration to hoard power at the executive level when we talked about greenhouse gas emission regulation in The EPA and the Automobile Manufacturers Lobby, Snuggly Under their "Patchwork Quilt"?, and http://acronymrequired.com/2008/07/clean-air-one-two-punch.html">"Clean Clear Air, Nothing To See Here, Drive Through Please". In the case of flammability chemicals, the states are now forced to the Bush administration standards, despite the limited proof that deaths due to fire are effectively decreased by stricter flammability laws requiring more chemicals. California is now working to amend its own laws to accommodate evidence about toxicity.

Toxic Chemicals Persist

The story of tris's demise as an anti- flammability product is often portrayed by the chemisty industry as a huge regulatory mistake, a case of overzealousness. But was it overzealousness? Or did science work as it should -- but just in that case?

Federal agencies and politicians are exceedingly cautious about banning chemicals when faced with the expanded clout of industry. Take bisphenol A, an endocrine disruptor with far reaching effects in experiments with rats, which seem to be replicated in humans. Children are heavily exposed to BPA as neonates, infants and toddlers. Meanwhile, Canada recognizes BPA as a toxin. Yet despite hundreds of research papers, and decades of questions about the safety of BPA, US politicians are still debating the pros and cons.

Public attention to an issue is influential as the history of BPA shows. But the underlying process for assessing chemical safety is flawed -- if it could be considered in existence at all. The European Union recently implemented REACH to deal with the more systemic problems of regulation for toxic chemicals, as we wrote about here and here. The US has no such program.

Lobbyists persist, and "risk benefit analysis" is often spun-out to cover for politicians dragging their feet on telling chemical companies to come up with a better product. The chemical lobby is so strong that as BPA history shows, even the most convincing body of evidence can be trounced by a few well placed lobbyists who don't let any public conversation stray from industry talking points.

Chemisty Lobbyists -- Planted on the Down Side of the SeeSaw?

Not to say that many organizations don't try to balance the scales. But as the global warming and BPA debates show, their voices are weaker and budgets smaller.

This week the Purpose Prize, funded by the John Templeton Foundation and the Atlantic Philanthropies, awarded six individuals 60 $100,000, and nine others $10,000. The recipients were chosen from 1000 60+ nominees "who are taking on society's biggest challenges". Arlene Blum, a chemist whose research helped convince regulators to remove tris from the market 30 years ago, received the award to continue her work at the Green Science Policy Institute she founded.

Blum is a chemist who worked on the the flame retardant tris (2,3-dibromopropyl) phosphate (tris) in the 1970's. In threeScience articles she published with Bruce Ames et all, the authors looked at the history of flammability chemicals and the toxicity of tris ², ³. They then analyzed urine samples from kids wearing tris treated pajamas and showed that children absorbed the chemical through their skin.⁴ Months later tris was banned. In the 1978 paper, Gold, Blum, and Ames wrote. In their 1978 paper Blum and Ames concluded that testing of chemicals and labeling of products was essential to consumer safety.

Despite this quick seeming success, chlorinated tris is in heavy use today Thirty years later, as progress on this aspect of protecting consumer health seems elusive. Blum will put $100,000 to the task. And its a far more daunting task today than it was 30 years ago. The industry is dependent on being unregulated, and has a gargantuan marketing budget with which to keep things laissez-faire, status quo.

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¹ The Associated Press, May 5, 1981 "Sleepwear Manufacturers Call Tris Ban 'Regulatory Overkill'"

² Blum A, Ames BN. Flame-retardant additives as possible cancer hazards. Science. 1977 Jan 7;195 (4273):17-23.

³ Gold MD, Blum A, Ames BN et al. Another Flame Retardant, Tris-(1,3-Dichloro-2-Propyl)-Phosphate, and Its Expected Metabolites Are Mutagens: Science, New Series, Vol. 200, May 19, 1978 (4343), pp. 785-787.

⁴ Blum A, Gold MD, Ames BN et al. Children absorb tris-BP flame retardant from sleepwear: urine contains the mutagenic metabolite, 2,3-dibromopropanol. Science. 1978 Sep 15;201(4360):1020-3.

The Exxon-Valdez and Whales in the Supreme Court

The New York Times recently published "From One Footnote, a Debate Over the Tangles of Law, Science and Money", a story that looked at the Supreme Court decision in the Exxon Valdez case. In 1989 Exxon's tanker ran aground in Prince William Sound, piloted by an overworked seaman and his drunk master, spilling 11 million gallons of crude oil over 1,200 miles of Alaska shoreline, and leaving 32,000 plaintiffs with ruined livelihoods. The jury had awarded the plaintiffs $5 billion in damages, and a district court reduced this to $2.5 million. The Supreme Court then lowered the punitive award to the plaintiffs from "$2.5 billion to $500 million. Exxon-Mobil made about $40 billion dollars in profits in 2006, $5 million accounts for about 4 days of profits. By the time the Supreme Court ruled on the case, in June of this year, about 20% of the plaintiffs had died.

From the title of the article, I thought that the Times story would have similar themes to the recent case about Navy sonar testing off the California coast. In that case, Winter vs. NRDC, (we wrote on this in "Whales in the Supreme Court"), the justices seemed to take at face value oral assertions by the Navy that their sonar caused no harm, despite government funded research proving sonar did cause significant harm to marine animals. In fact the Navy's own research -- both published and suppressed, all significantly downplayed in the arguments -- also found risks for significant damages to marine mammals.

The science in Winter vs. NRDC seemed for the most part to be explicitly ignored by the court. Said Justice Breyer: "you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who's right in the case where the other side says the other side is totally unreasonable." The court reduced the case to a question of national defense vs. an incidental whale, and naturally ruled in deference to defense.

The ruling was narrow, which environmentalists like NRDC and the Sierra Club took as a good sign. Despite NRDC's sanguine public relations statements in face of their defeat, however, it is not clear to me that the decision was a calculation of risks the Navy's training efforts would face by taking mitigation efforts to not injure whales. Did they simply give a nod to the Bush administration and its callous approach to the environment when it comes to commerce, the military, or, well, anything else?

Scientific details which could have influenced the decision were ignored. While the court didn't say that the military would never have to do environmental impact statements, the ruling hinted that they were thinking in that direction.

When Exxon Recruits Researchers

The Times article on Exxon Shipping Co. v. Baker ended with a quote from Prof. William R. Freudenburg, who teaches sociology at UC Santa Barbara: "The legal system and the scientific method, he said, co-exist in a way that is really hard on truth."

The Exxon story is convoluted. Freudenburg was recruited by the company to do sociological research showing (basically) that juries are too generous in awarding damages. His initial research apparently offended people at the company, so Exxon terminated his contract. Exxon than paid other sociologists and legal experts to do this work. Those experts then published their findings in two prestigious law journals. The Supreme court read these articles, but wrote this footnote in their decision:

"The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous "mock juries," where different "jurors" are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity in Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L. J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it."

However the court's decision conferred with this Exxon funded research, despite the footnote saying the opposite. This, combined with the fact that the court misinterpreted non-Exxon funded research showing that jury awards were generally fair compensation, led Freudenburg to comment about science and the court.

The Supreme Court's footnote has led to a bit of a maelstrom in the legal world over both the validity of the sociological research and the court's treatment of it. After the June decision, some writers were alarmed about the court's assertion that it wasn't relying on what they considered ""top notch work". Others voiced "skepticism about these particular mock jury trials." Clearly there's different interpretations of the sociological research.

Of course sociological research is different than science research. And Exxon is well known for supported "anti-research", for example in global warming -- so in this case, corporate funded research is a different research beast altogether.

Despite my initial impression, the Exxon case did not resemble the NRDC case in a simple way. But the two cases are similar in how predictably the court seems to decide, despite whatever research is out there. The footnote is a puzzle, either cover for a decision that was influenced by Exxon's research, or simply acknowledgment that the reader might suspect this. But it's hard to ignore the fact that corporations have long worked to eviscerate the ability of the public to impose financial damages because of bad behavior. Corporations have also long worked to reduce consideration of the environment when doing business. The court seems merely to be codifying these goals.

Some recent news stories:

• Whales:

  The Supreme Court ruled that the Navy trumps whales. Acronym Required commented on the arguments presented to the court in "Whales in The Supreme Court".

• Corn Conquistadores: (?)

  Nature writes this week (doi:10.1038/456149a) that a paper to published in the journal Molecular Ecology reports on transgenes from genetically modified corn planted in Mexico found in tradition maize. The work confirms the findings of a disputed 2001 paper published in Nature. The new paper found that 4 of 23 sites reported in the 2001 work had evidence of genes from the GM corn in the native maize.

Mars Lander, No Goodbye, Just Kaput:

NASA is ceasing operation of the Phoenix Mars lander. The $428 million dollar mission began operations in March of last year, outlasted it's scheduled usage, and died in a dust storm of Mars winter. Winters don't provide enough solar energy to keep the lander running.

• Plasticware In the Lab:

  In last week's Science, McDonald et al, report that plastic labware can leach manufacturing agents into dimethyl sulfoxide (DMSO) and ethanol solutions. As polycarbonate plastic leaches bisphenol A into water, for instance, other plastics can leak manufacturing agents into solutions. This could possibly change the outcomes of experiments.

• Your Secret's Safe, or Not:

  Google Flu trends tracks flu outbreaks before the CDC, the company reports. A study by Yahoo and researchers at the University of Idaho confirmed that search engine results produced a faster indication of disease that traditional tracking methods. This is pertinent news for tracking deadly pandemics. So if one typed "itchy bottom" into the computer, would Google be tracking the data in some database, say Pinworm Trends across the US? Don't worry. The researchers scrub the data of personal information.

• Old, Older, Oldest:

  Gobekli Tepe is in the news again. Archeologists continue to excavate the temple site containing 11,300 year old carved stones in southern Turkey. The pillars were built in circles in with pillars up to 16 feet tall, some carved with foxes, lions, scorpions, and vultures. One of the sites lead archeologists, Klaus Schmidt, suggests that culture and building proceeded and then necessitated farming. Scientists have thought that the domestication of nomad hunter societies to farming societies proceeded the building of communities.

YAY!

It's a new day.

"...His triumph was decisive and sweeping, because he saw what is wrong with this country: the utter failure of government to protect its citizens. He offered a government that does not try to solve every problem but will do those things beyond the power of individual citizens: to regulate the economy fairly, keep the air clean and the food safe, ensure that the sick have access to health care, and educate children to compete in a globalized world..." (NYT)¹

Yes, there's work to do. Yes, it will be difficult. But today we recognize how much America's just accomplished.

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¹Obama won despite warnings about possible GOP ballot fraud stemming from information dribbling out of the Ohio trial concerning 2004 Ohio ballot fraud. In the latest episode, Michael Connell, a consultant whose firm has been accused of computer manipulation, denied knowing anything about GOP rigging the 2004 Ohio election results. Connell works for Randy Cole. Cole owns 15 companies that work simultaneously on GOP election campaigns (Bush/Cheney 2000/2004, McCain 2008, many others), anti-Abortion groups and churches, GOP mass mailings, government contracts, etc. Stephen Spoonamore, a key witness in the trial brings the allegations, explains in a multi-part series starting here.

BPA: Trade Globally, Regulate Slowly

Today there are over 1000 bisphenol A studies, with evidence in hundreds showing connections between low-dose exposure to the chemical and harm, especially during perinatal development. Some of the reported effects of BPA are so commonly known that recent headlines for Asian, Indian and UK papers reported on Canada's new ban: "Canada to Ban 'Gender-Bend' Baby Bottles".

But chemistry and plastics companies keep up the relentless marketing. In 1999 the American Plastics Council (APC, now subsumed into the American Chemical Council (ACC) wrote this:

"Consumer Reports has committed a serious error alleging dangers from the use of polycarbonate plastic baby bottles, based on an apparent lack of understanding of toxicology or safety and risk assessment. Because of the misleading and needlessly frightening statements made in the Consumer Reports article, the American Plastics Council has requested that the publication issue an immediate retraction."

In addition to press releases, letters to editors, and scientific studies, the American Chemistry Council (ACC) owned a corral of internet domains where they posted reassuring consumer information on topics like the safety of plastic baby bottles. Sites such as the ACC's www.babybottle.org assured parents via scripted Q&A's like "Ask the Doctor", that plastic bottles were the absolutely safe. Explicit notice about the site's ACC affiliation was missing, as such, the messages were pretty convincing.

Just last week the Polycarbonate/BPA Global Group issued a press release saying they'd just reviewed the weight of the BPA evidence. The research, from Gradient Corporation in Massachusetts, and a convened panel on the matter, found BPA harmless. The same scientists sat on this panel that sat on preceding panels, in 2004 at the Harvard Center for Risk Analysis and in 2006 by the Gradient Corporation. They reach the same conclusion despite the flood of research on BPA. Two more studies indicating derogatory effects on fetal neural development were included in the October issue of Environmental Research in its feature "A Plastic World".

The lead panel member and author of the Gradient paper is Dr. Lorenz Rhomberg. Acronym Required last caught up with Rhomberg when he was working for the American Plastics Council (APC) writing letters to editors of California papers. Our 2006 post covered the failure of California legislators to get AB 319 through appropriations. AB 319 would have banned phthalates and bisphenol A in the state, but failed following the intense lobbying by the ACC and American Plastics Council (APC) (California came back with a different version later). Rhomberg now works for a private research lab in Boston.

Does the ACC own the FDA on BPA?

Recently the public has increased their response and even outrage over the extent of the deceptions by chemical companies and their lobbies. Congress has beefed up its scrutiny of the BPA regulation, and scientists continue to spend time and money responding to the flood of industry research. The current focus is how much the chemical industry seems to influence the FDA. The FDA issued a decision in August, 2008 saying basically that BPA was safe, weighing its decision on two industry studies. The FDA's decision conflicted with statements of concern from other agencies and scientists.

We previously wrote about the investigation by the U.S. House of Representatives and Committee on Energy and Commerce, chaired by John D. Dingell (D-MI), and its Subcommittee on Oversight and Investigations. On October 15th, the committee wrote to a letter to FDA Commissioner von Eschenbach questioning the appointment of the FDA BPA advisory panel chair Martin Philbert and possible conflicts of interest. Philbert's panel was to review the April, 2008 decision of the FDA.

In that same letter the Dingell requested "all records of communication between FDA and ICF Consulting relating to their BPA work for the agency." As Dingell and Bart Stupak (D - MI) wrote:

"summary assessments of BPA were created for FDA's BPA panel by ICF Consulting, a private contractor that has done prior work for BPA manufacturers, and whose board members have ties to BPA manufacturers."

Acronym Required found supporting documents for the FDA draft here on the FDA site. Among them you can find the ICF consulting product as well as the neurobehavioural review contracted by ACC to the company Exponent¹, along with various other reviews and communications about BPA research that you can pick through.

Markey To FDA: Are Americans Not Worthy Of Canada's Standards?

In other action from the legislature, Congressman Ed Markey wrote a letter to the FDA Thursday asking if the FDA analyzed the same studies that the Canadian government's did, and if so why it hadn't decided differently on BPA.²

"Does the FDA consider a different level of risk acceptable for American consumers including infants, than the Canadian government is willing to accept for its consumers? If so what is the difference in risk assumption and why is the difference appropriate?"

Markey wrote that he was concerned that Americans, "including our most vulnerable infant populations", were being exposed to unsafe doses of bisphenol A. Senator Grassley (R-IA) also asked the BPA to answer questions about the criteria it used for its decision.

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¹ Exponent is chemical consulting company located in San Francisco. On the management team, Elizabeth Anderson was previously the president of Sciences International, the company fired for conflict of interest from the NIEHS bisphenol A contract, which we wrote about here and here, founded the journal Risk Analysis.

² Acronym Required wrote on the different economic and political climates of the two countries and their BPA policies in "The Politics of Everyday Bisphenol A".

Once Red State - Blue State, Now Internetland - Radioland?

The news is all economy and election: Warren Buffet, accustomed to being courted by the press, software tycoons and presidential candidates flexes his muscles and asks that everyone go buy stocks. The people totally ignore him. Greenspan rears his head, a haunting apparition moaning about 'the one think he didn't know'...The market swoons again....

Sarah Palin goes for the rich little poor girl image...McCain supporters stage increasingly hostile and bizarre threats to Obama supporters and all the media...The liberal Internet pulls for a landslide Democrat win that if necessary parts of the blogosphere could accomplish by sheer force of editorial will. The liberal-nets feature daily reports from conservatives and their sons and daughters and commentators who either disapprove or are defecting from the Republican Party (Goldwater,Schwartzenegger, Powell, Buckley, Brooks, Adelman...) If Huff Po ran out of Republican offspring essays to feature I'm sure there's room to increase the pixel size of their headlines from 70-80 to 700.

Bloggers predict that the internet is bringing an end to the era of Rove style politics...Karl Rove writes a letter to the editor of Harper's to point out that Grover Norquist, not him, said: "We can go to students at Harvard and say, 'There is now a secure retirement plan for Republican operatives'"

The media talks about back-stabbing and Republican resumes reportedly flying out to corporations...Nobody's too happy that Imelda Palin spends a lot on make-up in addition to shoes. (Still, I think it's way to soon too start cheerfully humming 'We never promised you a rose garden')

Meanwhile in science news:

The Oddities in Commodities

• Chinese Milk Scandal: We last reported on melamine in milk made in China when the tainted milk had killed three kids and sickened a couple of thousand. Now 5000 are hospitalized in China, and products across the world are found to be toxic with melamine. Along with the "rabbit hole" of the economic despair and the "rabbit hole" of the McCain's campaign strategy, there's the imported melamine tainted "White Rabbit" candies found on candy shelves throughout the world. The United Nations noted this week that the Chinese government's oversight system needs "urgent review and revision".
  
  
• Scientists are Eager to Explore your Genome: Last month Sergey Brin advertised on his blog that his genome indicated an increased risk of Parkinson's. This week George Church announced the first 10 volunteers had signed up for the Personal Genome Project and release parts of their genetic information and medical records to Harvard investigator. Church is "hoping to offset ethical concerns" that the data may breed discrimination in jobs, health insurance and how volunteers and their families are perceived."

  Before you sign up, the "Personal Genome Project" wants you to know a couple of things. On the positive side they say you're doing good for "society" and your donation (if you will) might allow you to indulge in a little "self-curiosity". One possible negative they mention is that someone could "claim statistical evidence that could affect employment or insurance or the ability to obtain financial services for the participant."

• Open Access: In "Publish and be Wrong", earlier this month, the Economist pointed to a PLoS Medicine article that argues the science publishing model is seriously flawed. According to he authors, there's a false scarcity of publication slots at top science journals, and the criteria for publication doesn't assure that quality papers get published.

  The weight of the article rests with its title: "Why Current Publication Practices May Distort Science". Along with some familiar points, the writers offer shaky economic comparisons, vague criticism, and some recommendations that are just as vague as the criticism. In one line of argumentation, the authors rework the idea that journals should include more negative results and fewer positive results. They reason that a glut of published data with negative results (along with analysis, peer review, time) would help solve the problem of too much data with too few publication outlets, which is their primary concern. Review by peers is so flawed they say, let's let the more unprepared, less science literate readers, as opposed to scientists familiar with the research, sort through the data. Is this a recipe for sound science?

  The team writes that many top journal publication results turn out to be flawed, and bases this on previous research by lead author John Ioannidis, an epidemiologist at Ioannina School of Medicine, Greece, who in 2005 wrote "Why Most Published Research Findings Are False". I didn't pick through the 2005 study, but assuming his assertions are true -- for the sake of discussion -- lots of published results get overturned. Therefore as I read it, lots of research is "negative", but published. So why isn't that "negative" research coveted as much by the authors of the current PLoS Medicine as the unpublished "negative" research they say are so important?

  Ioannidis et al assert that "scientific information is a commodity" and say there's a "moral imperative" to consider how its judged and disseminated. Maybe so, but if that then why separate the publishing from the foundation that its built upon (academia, tenure, granting)? And to be consistent, can we talk about drugs as commodities? And the moral imperative for generics?

  There's more to say, but in short, from my view some of the most spurious research emanates from public relations departments of universities or lobbyists in the form of press releases. Some of the most flawed research (sometimes what seems like reworked press releases) shows up in esteemed media outlets (for instance FT and the related Economist). And if I were a certain type of policy advocate who wanted to push policy under the guise of science I'd welcome the chance to elevate my editorial -- I'd pay to publish my "research" in PLoS Medicine along with all the genuine great research, and if I got rejected there than I'd settle for PLoS One, with all its real research. Upon publication I'd mail out press releases touting my PLoS research.

  Sure we have far from a perfect system, but open access has its pitfalls too.

  Along with Ioannidis, the collaborating authors are Neal Young, an MD at the NIH, and Omar Al-Ubaydli, an assistant professor of economics at George Mason University and a research fellow at the Mercatus Center.

Seen In Space

• India to the moon: India is aiming for the nation's first lunar exploration by putting an unmanned spacecraft, Chandrayaan1, into orbit for a 2 year mission on the moon.
  
  
• NF₃: The journal nature Nature reports that scientists found much higher levels of nitrogen trifluoride 3 from plasma TV's in the atmosphere then they had predicted.3 replaced perfluorcarbons and is "12,000-20,000 times more efficient at trapping heat than carbon dioxide". A UC Irvine scientist correctly predicted earlier this year that the emission rate of the chemical was more that previously assumed by scientists. An alternative technology to the plasma screens is LCD screens.

Picking Teams

• The American Bar Association lists lawyers who might be chosen by Obama or McCain to serve their administrations. For Obama they list Robert Sussman for the EPA, a former Clinton administration deputy administrator. They name Cass Sunstein as possible White House Policy Advisor (a libertarian, but "no idealogue" writes ABA). Sunstein has written extensively on various topics; see for instance "The Paralyzing Principle" about the precautionary principle in the December, 2002-2003 issue of Cato's journal Regulation. ABA also picked Massachusetts governor Deval Patrick as possible attorney general choice.

In Winter v. Natural Resources Defense Council (NRDC), the court heard arguments from the Navy and the NRDC about probable injuries to marine animals due to sonar, and whether the Navy had to file an EIS as established under EPA law. The justices seemed to clearly lean on the side of the Navy and the Navy's interpretation of the science, in fact Justice Scalia seemed to coax the Navy's counsel through his arguments. How does that bode for whales? For environmental impact statements?

What Environment?

In February 2007, the Navy initiated training exercises without filing the EIS required by the National Environmental Protection Act of 1969 (NEPA). The EIS is required by law and is meant to predict possible environmental harm from the sonar training. Various groups challenged the Navy in court, and the case wound up in the Supreme Court yesterday, where the prosecution and defense presented their arguments (NRDC). The counsel for the Navy, General Garre, summarized for Justice David Souter the Navy's decision to go ahead without the EIS, saying: "it doesn't specifically say what happens if they [the laws] are not followed".

A District Court had originally found in favor of NRDC, deciding that the Navy had violated (NEPA). Instead of complying with the court injunction, however, the Navy wrote its own environmental assessment EA and presented this to an executive-branch administrative agency called the Council on Environmental Quality (CEQ). The CEQ found that the Navy's mission constituted "emergency circumstances" that would allow the Navy to circumvent the law.

The Navy took this opinion back to the court, arguing that the court should dissolve its injunction. In more court reviews Los Angeles U.S. District Judge Florence Marie Cooper sifted through scientific evidence and determined criteria for when the Navy should turn off sonar. According to the NRDC brief, the courts reviewed "thousands of pages of briefing and evidence over the course of many weeks, and tour[ed] a Navy destroyer--to assess the Navy's contention that the mitigation measures would risk the Navy's ability to train and certify its strike groups."

The mitigations the NRDC asked for weren't new. In making its decision, the District Court heard how in previous training exercises, the Navy had "trained and certified its strike groups using the two mitigation measures at issue in this appeal". Following the lower court's decisions the Navy continued training exercises in the Pacific Ocean, "completing the last 13 of 14 training exercises, 8 of which were under the current rules", and did not appeal to the court for relief. Richard Kendall, who argued on behalf of NRDC pointed this out to the Supreme Court. The lower court has also loosened its initial ruling to accommodate the Navy.

But the Navy doesn't want to take any more steps to mitigate environmental damage (It did concede several points before bringing its case to the high court.) Despite the fact that the Navy's training was not impeded by the mitigations, the Navy and the President appealed to the Supreme Court to overrule any measures imposed by the lower courts. Yesterday the Supreme Court questioned the two sides about whales, sonar, and impact statements. It considered issues of standing and equity, as well as the role of the executive branch in determining the fate of the environment and endangered species.

Sometimes the court seemed aloof to the information in the briefs. In balancing the possible harm to marine animals, Chief Justice Roberts suggested the possible harm on the other side was: "the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected". NRDC counsel Kendall corrected the Chief Justice, noting that the questions in the case concerned only military training, not combat. Justice Breyer, also confused, elicited a laugh by suggesting that all military exercises were destructive: "You go on a bombing mission, do they have to prepare an environmental impact statement first?" Mr. Kendall again: "No." NRDC was arguing for basic mitigation measures during training, ones that the Navy had previously followed, which had not stopped training.

Whales & Sonar: It's Not Pretty

Research shows that whales become disoriented, injured or die after sonar testing. Strandings and deaths that have been frequently documented; in North Carolina (2005); at Haro Strait off the coast of Washington State (2003); in the Canary Islands (2004, 2002, 1989, 1986, 1985); in Madeira (2000); the U.S. Virgin Islands (1999, 1998); Greece (1996), and the Bahamas (2000), and off the coast of Spain (2006), and more The coincidence of whale strandings or deaths and naval sonar testing exercises seems too obvious to ignore, but cause and effect scientific data on the whales are more difficult to compile. That said, recent research points to how the marine mammals become injured and die.

After the 2003 mass strandings in the Canary Islands, Nature published a report by Jepson et al, showing that beaked whales had gas filled cavities and emboli in their organs and tissues. The animals hemorrhage around their ears and brain. According to Jepson's theory the whales died from decompression sickness.¹ A subsequent study in Science, 2004 found the same effect in sperm whales. ². Jepson later reported that embolisms were also present in whales stranded off the coast of Spain in 2006. ³ More studies of strandings found the same. ⁴ So common to the many government funded reports and consistent with observation, tagging, and corpse analysis, whales become disoriented when subjected to sonar, leading to decompression sickness ⁵.

Recent research by teams in the Ian Boyd lab at St Andrews University and in the Peter Tyack lab at the Woods Hole Oceanographic Institute suggest that the whales try to escape the sound, causing them to dive frantically, breaking their usual feeding and breeding. The diving behavior causes the bends, hemorrhaging and injuries. Tyack told Times Online in a story published September 28, 2008:

"[The Navy] uses pulses of similar frequency and duration to the pulses emitted by killer whales and is very loud. It seems to have a particularly strong effect on species, such as small beaked whales, of which killer whales are the primary predator."

Beaked whales are most susceptible to harm because of their behavioral response of abnormal diving in the presence of sonar. Scientists are closing in on the mechanisms for injury and possible ways to avoid them. In the meantime, the Navy publicly denies this research.

Oh, This Won't Hurt at All, Says the Navy

The justices of the Supreme Court acknowledged they can't evaluate science. When presented with rationale by the Navy about needing to train at night because of thermal layers, Justice Breyer considered the Navy's stance: "Fine, they went on some exercises and they didn't run into these layered things. So obviously they couldn't have training." (Thermal layers and sonar are not too complicated for a lay person to basically understand, as in here in the book, "How To Make War", by James Kunnigan, Chap. 10: Navy: Run Silent Run Deep.)

The court only anemically challenged the Navy's General Garre, who repeated asserted that the Navy's sonar causes no harm. Garre also claimed that the respondents hadn't shown "irreparable harm". For instance General Garre referred the court to a Navy document listing "all the species of beaked whales and explained that the harms that are predicted in the environmental assessment are non-injurious, temporary harms". Alioto asked Garre to explain this in "lay terms". Garre led Alioto to conclude there wasn't "physical injury", rather the whales might, as Alioto put it, just: "swim in a different direction"? (As if your child was whining in the living room so you wandered into the kitchen to get yourself a snack, rather than, that you were suddenly subjected to unending earth-shatteringly loud, nerve-rattling noise that caused you to flee up to the attic window then cover your exploding ears and plunge from the roof.) Garre assured Alioto: "that's right".

Despite the Navy's assertions, the NRDC presented significant evidence of harm in its briefs. Kendall disputed General Garre that sonar caused "no harm." He described the embolisms, gas filled pockets, and hemorrhaging, and presented this analogy to the court:

"In sound intensity, in this courtroom if we had a jet engine and you multiplied that noise by 2,000 times, correcting for water, that's the sound's intensity that would be going on in the water if you were a marine mammal near that source."

That's loud.

What the Navy Doesn't Want Us Know?

People have long suspected the Navy knows more then they're letting on about how sonar effects marine life. According to the NRDC brief (PDF) the Navy predicted in their EA that the SOCAL sonar training would result in 170,000 incidents to marine mammals -- harassment, injuries, or deaths -- and 548 permanent injuries for beaked whales.

The Navy denied and backpedaled about the possible harm to marine animals during Supreme Court questioning, but there is plenty of evidence that militaries of the world understand sonar's effects. The science journal Nature obtained an unpublished 2007 report from the UK Military under the Freedom of Information Act 2000 documenting that sonar negatively effects whale behavior and can lead to death. ⁶ The UK military ran Operation Anglo-Saxon 06 in 2006 and reported on whale activity during the "submarine war-games". Using hydrophones, researchers found the number of whale recordings dropped by 75% over during sonar exercises. The whales stopped vocalizing and foraging for food, and the UK military predicted this would lead to '"second and third order effects on the animal and population as a whole"', including starvation and death, according to the report.

To the extent the research is sparse perhaps it's because the US Navy has tried to suppress its findings. Nature reported in "Panel quits in row over sonar damage" in 2006 that the US Navy pressured scientists to suppress evidence of harm from sonar. ⁷ The US Marine Mammal Commission (MMC) was convened by Congress in 2003 to advise Congress on a plan to research whales and sonar, however the commission broke apart, plan-less, after 2 years of meetings.

The journal spoke to members of the failed MNC who said that the science had been "highly politicized". According to one participant, "the Navy, as well as other groups that use sonar, including geophysical researchers and the oil and gas industry, blocked a consensus." Lindy Weilgart of Dalhousie University in Nova Scotia, Canada, told the journal: '"This process has been a travesty of fiscal responsibility, scientific integrity, and environmental stewardship."'

Environmental Law, by the Navy: "What He Said."

In the beginning of the hearing Supreme Court pursued the facts pertaining to the Navy's decision to ignore the law requiring the EIS, and simply construct its own environmental assessment (EA) according to it's own criteria, unvetted by anyone but the Navy, and not subject to public comment.

Different justices questioned General Garre about the CEQ's authority as an office in the White House to override environmental law set out in NEPA. They suggested that perhaps the only "emergency" was that the Navy had ignored the legal requirement for the EIS before starting training. Then Justice Scalia proposed a tactic of argumentation for General Garre:

Scalia: "Look, the problem you face and maybe you're being whipsawed, is that you are effectively estopped from the argument that no EIS is necessary by the fact that you have agreed to these alternative arrangements. But you should not be estopped from arguing that at the time the EA was issued that was not a good faith completion of all the Navy's responsibilities....It assumes that the EA wasn't enough. And I'm not sure that we -- that that assumption is valid."

General Garre: "Well, that's right....the Navy believes that its EA was not only prepared in good faith, but was appropriate and reached the right conclusions...." Garre had repeatedly stated that the sonar training would cause little "likelihood of irreparable injury..." But Justice David Souter wondered whether: "without the EIS, the Navy is acting in -- in a state of -- of some degree of ignorance greater than would be the case if -- if it had done -- done the EIS."

Scalia addressed Garre again:

"The EA demonstrates in your view that the EIS would -- would very likely say that this -- this action by the Navy is okay. And since that is the case, there is -- there is no probability of irreparable harm; to the contrary, there is the probability of no irreparable harm because of the EA."

Said General Garre: "Well, we agree with that." (The Navy does agree with that, even though the EA predicted over 500 serious injuries and 170,000 incidents, it concludes no harm, no harm, again and again.)

Scalia later suggested:

"In all -- in all of these cases it is controverted, or in most of them, whether an EIS is either necessary -- is even necessary. So if the mere allegation that it was necessary gives rise to an allegation of irreparable harm, you are going to get a preliminary injunction in all cases?"

General Garre replied: "I think that's right."

However, earlier in the questioning, General Garre had assured the court that he recognized the Navy's original "duty to prepare the EIS". He had told the justices about the Navy's steadfast commitment to completing the tardy EIS document per previous legal agreements. Now, suddenly, Garre asserted he was "contesting" what he had before agreed to -- that the Navy needed to complete an EIS. This confused Justice Ginsburg, who remembered that 30 minutes earlier Garre had stated his commitment to "meet the goal" of producing the EIS by January, 2009 (although, disconcertingly, the training ends in 2008). Ginsburg said: "I thought you conceded that point". General Garre the quickly apologized for his earlier concession: "if I misspoke".

Who needs Scalia's book "Making Your Case Persuading Judges"? Just show up for the tutorial, let him argue your points, and nod -- "what Scalia said".

Good Stewards of The Environment

In the end, the Supreme Court justices puzzled over why the Navy was dragging its heels if the agency had completed the EA, was committed to completing the EIS, and if there was "no irreparable harm" to mammals.

Garre, perhaps emboldened, after Scalia's pat on the back, suggested in closing that the NRDC did not even have standing if beaked whales were harmed.

One justice queried the two parties about why they hadn't worked it out, as opposed to leaving it to the courts. Judges aren't experts on Naval exercises or marine biology, the justices pointed out. NRDC's Kendall answered that "the Navy is focused on having it its way or no way". Chief Justice John G. Roberts retorted, "that's not fair"; the Navy had continually compromised, he said, but "no good deed goes unpunished".

Scientists warn that the beach strandings may indicate an even larger problem -- not all animals may be washed ashore, many more may be dying and lost at the sea. In a review of research on whale injuries, causes, and mitigation by Marine Pollution Bulletin. ⁸, the authors write: "...the greatest user of military sonars in the world, the US Navy, appears to be in denial about the situation." While the US has taken significant action to weaken cetacean protection in national and international waters, especially with regard to sonar, the Navy continues to boast about its commitment to being "good stewards of the environment".

The Supreme Court will issue its decision later this session.

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¹Jepson et al, Gas-bubble lesions in stranded cetaceans: was sonar responsible for a spate of whale deaths after an Atlantic military exercise? Nature, 425, 575-57, 9 October 2003: doi:10.1038/425575a.
² Moore and Early; Cumulative sperm whale bone damage and the bends, Science 306, Vol. 306. no. 5705, p. 2215. 2004: doe: 10.1126/science.1105452
³ Dalton, Rex; More whale strandings are linked to sonar : Nature 440, 593 30 March 2006 doi :10.1038/440593a.
⁴ Fernandez, A. Gas and fat embolic syndrome" involving a mass stranding of beaked whales (family Ziphiidae) exposed to anthropogenic sonar signals.Veterinary Patholology 42:446-457 2005.
⁵ Tyak et al. Extreme diving of beaked whales. Journal of Experimental Biology 209, 4238-4253. 2006 doi: 10.1242/jeb.02505).
⁶ Cressey, Daniel; Sonar does affect whales, military report confirms. Nature, Aug 1, 2008. doi:10.1038/news.2008.997.
⁷ Dalton, Rex; Panel quits in row over sonar damage. Nature 439, 376-377 26 January 2006 doi :10.1038/439376a;doi:10.1038/439376a
⁸ Parsons et al., Navy sonar and cetaceans: Just how much does the gun need to smoke before we act? Marine Pollution Bulletin, July, 2008 doi:10.1016/j.marpolbul.2008.04.025

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Acronym Required previously wrote on this subject in "Whales In A Time of War", and "Whales in Court".