'Sound Science' Attack on OSHA Nominee David Michaels Is Drenched in Irony

by Sidney Shapiro

October 06, 2009

 

How’s this for any irony? David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration (OSHA), has written a book, published by Oxford University press, documenting how industry manufactures doubts that chemicals harm people by accusing regulators and plaintiff lawyers of relying of “junk science” instead of “sound science.” Now, after Michaels has exposed this effort as a public relations campaign that mischaracterizes how science actually works, he is being attacked on the grounds, you guessed it, of favoring junk science. And, because he favors “junk science,” he must be, you guessed it, a “radical.”

Michaels, an epidemiologist and research professor at the School of Public Health and Health Services at George Washington University, notes that the “sound science” campaign originated with the tobacco industry’s efforts to stave off regulation and tort suits by attacking the science indicating that smoking kills you. It has since been taken up by anyone with a financial interest in avoiding regulation or being sued for exposing people to toxic substances.

The sound science campaign depends on three ideas that appear reasonable enough on their face, but constitute sophisticated sabotage in their operation. 

First, the campaign equates uncertainty about just exactly how dangerous a chemical might be with unreliability of scientific evidence. A scientific assessment of the risk posed by a chemical may be professionally competent even if it does not provide conclusive evidence that the chemical is dangerous. Regulation on the basis of such evidence may be justified nevertheless because Congress requires OSHA and other regulatory agencies to act on the basis of anticipated harm. And a jury may find the producer of the chemical to be liable because the preponderance of the evidence indicates that the chemical is harmful. To head off such results, industry argues that such evidence is not “sound” because it does not conclusively prove that the chemical causes harm. Of course, this is not the requirement in the legal system.

Second, scientific studies about risk are never perfect, and industry lawyers and scientists can always nitpick some problems with individual studies. Once an alleged defect is identified, the lawyers demand that the study be ignored. CPR scholar Tom McGarity calls this the “corpuscular” attack on science. It ignores the difference between major and minor flaws. It also labels scientific judgments as “mistakes.” A scientist, for example, may decide to use groups of 25, not 40, rats in a bioassay. If the study indicates a chemical is toxic, the study is attacked as “unsound” because there might have been a different result if more rats were used. That’s how advocates operate, but as Michaels points out in his book, it’s not how science works. Scientists rely on a “weight of evidence” evaluation that takes mistakes and scientific judgments into account in evaluating, but nevertheless using, such studies. 

Finally, industry demands additional legal procedures to vet science in order to separate out junk science from sound science. Such procedures slow down the effort to regulate and, if, as industry prefers, they adopt the corpuscular approach, they distort the effort to hold industry accountable for exposing people to toxic chemicals. A good example is how courts administer the so-called “Daubert” procedures. In the Daubert case, the Supreme Court required trial judges to be science gatekeepers, determining whether scientific evidence is sufficiently reliable to be shown to a jury. Unfortunately, as Michaels discusses in his book, federal judges, who are relatively unsophisticated concerning how science operates, have often adopted the corpuscular misunderstanding favored by industry, instead of taking the “weight of the evidence” approach that is appropriate. Too often courts fail to recognize that scientists consider all the scientifically relevant evidence taken together in order to come to a conclusion about causal relationships between exposures and disease. A CPR scholar, Carl Cranor, has confirmed this difficulty in his own book, published by Cambridge University press, demonstrating how judges can misapply Daubert procedures unless they understand how science actually operates.  

The appeal of the sound science campaign is that it sounds so reasonable. To understand that it is not, it is necessary to appreciate how science and law work together to protect people from dangerous chemicals. Michaels’ book has this goal, which hardly makes him a radical, unless it is in your financial interest to call him that.

OSHA is perhaps the least functional of all the regulatory agencies. Its regulations are years, even decades, behind the health and safety dangers in the workplace, and its enforcement of its standards is feeble at best. David Michaels might change that, and that’s what industry is worried about. Just as in the argument over the danger of tobacco products, there’s a plain truth here that the “sound science” protests are designed to obscure: Industry fears Michaels’ confirmation because it prefers its OSHA chiefs to be passive and accepting of the status quo. It has good reason to worry Michaels will not be that kind of chief. 

For further reading:  CPR Member Scholar Carl Cranor reviewed Michaels Doubt is Their Product in Science Magazine's September 5, 2008 edition.  Read the review.

Tagged as: David Michaels OSHA
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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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