ABSTRACT: Case of Dr. David
Lewis discussed on p. 338-39; 359
American Journal of Law & Medicine, 30 (2004): 333-69
© 2004 American Society of Law, Medicine & Ethics
Suppression of Environmental Science
Robert R. Kuehn†
There is a long history of
attacks on scientists. During the Inquisition, the
Roman Catholic Church charged Galileo with heresy and,
after imprisonment and
threats of torture, forced him to renounce his theory
that the sun, not the earth, was
the center of the universe.1 In the 1950s,
politicians sought to silence scientists that
allegedly held political views sympathetic to
Communists.2
In recent years, research
results, rather than the scientist’s religion or politics,
have motivated attacks on scientists. As environmental
issues grow in economic
significance and as science takes on increasing
importance in influencing public
opinion and resolving environmental policy debates,
suppression of environmental
science has become “increasingly common.”3 As one author
observed, the power of
science to legitimate environmental positions by
claiming exclusive truth makes
ownership of science “one of the most contested issues
in modern
environmentalism.”4
In addition, as university dependence
upon industry financial
support for research on environmental science becomes
more widespread, the
scientific freedom of university researchers to pursue
research activities and
communicate research results is increasingly at risk.5
Environmental scientists have
always had to answer questions about their
methods, data, assumptions, and conclusions, and
rightfully so, since it is the nature
of science to exchange and question research results.6 Because
scientific research
and judgments by scientists are not always free of
outside influences, a healthy
scientific debate may also include inquiries about a
researcher’s motives, biases, and
values.7 Not content with determining issues of environmental
science through an
open discussion over scientific methods and values, some
have gone beyond debate
and sought to silence certain scientists or their
scientific work.8 By attacking the
scientist who brings a contrary message, these attackers seek
to prevent the
scientist’s work or, at the very least, to delay or detract the
scientist from focusing
on the unwelcome research project, to reduce the
credibility of the researcher and
her work, or to send a warning signal to other scientists
about the adverse
consequences that may result if they engage in similar unwelcome
work.
Suppression of
environmental science raises serious concerns about scientific
freedom and threatens public health and the environment.
Because science, and the
advancement of scientific issues and methods, depends on the free
and open
exchange of research and ideas, suppression of science may result
in delays or
wasteful repetition of research.9 Similarly, where suppression of
environmental
science results in the failure or delay of scientists or
government regulators to gain
information about harmful activities, public health and the
environment may be
negatively impacted.10
This Article examines the
phenomenon of suppression of environmental science
and how the legal system addresses, or fails to address,
such suppression. Part II
describes the scope and methods of suppression of environmental
science,
examining both anecdotal evidence and surveys of scientists.
Part III examines
some of the laws relating to suppression of environmental
science, in particular laws
relating to defamation, research misconduct, and employer
retaliation against
employees who speak out. It analyzes both the ways laws are
used to suppress
scientific speech and ways they may be used to protect and
promote such speech.
Part IV recommends more effective legal remedies to
protect scientists and prevent
suppression. Finally, Part V concludes that greater professional
efforts, including
the support of institutions and professional societies,
are necessary to deter the
suppression of environmental science.
_______________________________________
† Professor of
Law, University of
Clements and Jenny Parker for their research
assistance.
1 Linda Rosenstock & Lore Jackson Lee, Attacks on Science:
The Risks to Evidence-Based
Policy, 92 AM. J. PUB. HEALTH 14, 14
(2002).
2 Brian Martin, Suppression
of Dissent in Science, in 7 RESEARCH
IN SOCIAL
PROBLEMS
AND
PUBLIC POLICY 105, 107 (William R. Freudenburg
& Ted I.K. Youn
eds.1999).
3 Elihu Richter et al., Efforts
to Stop Repression Bias by Protecting Whistleblowers, 7 INT’L.
J. OCCUPATIONAL & ENVTL.
HEALTH 68,
68 (Jan./Mar. 2001); see also infra notes 68-70 and
accompanying text.
4 A. Dan Tarlock, Who Owns Science?, 10 PA. ST. ENVTL. L. REV. 135, 136
(2002); see also
Brian Martin, The Scientific Straightjacket: The
Power Structure of Science and the Suppression of
Environmental Scholarship, ECOLOGIST, Jan.-Feb. 1981, at 33, 35 (arguing that environmental
scholarship is a prime area for suppression because it
often threatens vested interests).
5 Richter et al., supra
note 3, at 68.
6 See, e.g., ROBERT K. MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE 557 (1963)
(arguing that shared knowledge and full and open
communication of methods and findings is one of
the four imperatives of the ethos of modern science); EVE PELL, THE BIG CHILL: HOW THE REAGAN
ADMINISTRATION, CORPORATE AMERICAN, AND RELIGIOUS CONSERVATIVES ARE SUBVERTING FREE
SPEECH AND THE PUBLIC’S RIGHT TO KNOW 77 (1984) (noting the argument of William D. Carey of
the American Association for the Advancement of Science
that good science depends as much on the
free exchange of information as on the empirical
process); John T. Edsall, Scientific Freedom and
Responsibility,
188 SCIENCE 687, 688-89 (1975) (arguing that secrecy harms science because free
dissemination of information and open discussion are
essential parts of the scientific process).
7 See John T. Edsall, Two
Aspects of Scientific Responsibility, 212 SCIENCE 11, 12 (1981)
(observing that scientific facts and value judgments in
controversial issues such as environmental
protection are so closely interwoven they are
exceedingly difficulty to disentangle); Robert R. Kuehn,
The Environmental Justice Implications of Quantitative
Risk Assessment, 1996
133-39 (noting the ability of risk assessors to shape
the results of environmental risk assessments).
8 Brian Martin
explains the difference between commonly accepted means of disagreeing
with a scientist’s work and suppression:
If someone disagrees with a scientist’s research
conclusions or public statements, an
accepted method of response is to criticize the
argument, for example, by sending a
letter to the scientist or to a journal. By contrast,
sending a letter of complaint to the
scientist’s boss or funding body, attacking the
scientist’s credibility or right to speak
out, would be seen by many as an attempt to apply
pressure on the scientist rather than
address the issues under dispute.
Martin, supra note 2, at 110.
9 See AMERICAN ASSOCIATION FOR ADVANCEMENT OF SCIENCE, ABOUT THE SCIENCE AND
HUMAN RIGHTS PROGRAM, at http://shr.aaas.org/about.htm (last visited
July 1, 2004) (“To flourish,
[science] requires freedom of thought, expression and
movement, and the freedom to pursue
professional activities without interference.”).
10 See Edsall, supra note 6, at 690; Richter et al., supra
note 3, at 68; Steven A. Rosenberg,
Secrecy in Medical Research, 334 NEW
Science = Ethics Problems on Campus, NATION, Mar. 22, 1999, at 11, 14.
---------------------------------------------------------------------------------------------------------------------
SUPPRESSION OF ENVIRONMENTAL SCIENCE P. 338-39
Former EPA scientist David
Lewis alleges that EPA and sludge industry
representatives retaliated against him for his
research and publications challenging
the safety of the land application of sewage sludge.41 U.S.
Department of Labor
investigators agreed, finding that, in reaction to an
article in Nature critical of EPA’s
sludge rule, agency officials applied ethics rules on the
print size of publication
disclaimers in a discriminatory fashion and unlawfully denied
Lewis his
promotion.42 Other efforts to suppress Lewis’s work included sludge
industry
representative attempts to have EPA withdraw financial support for
Lewis’s
research, an EPA official’s public distribution of sludge
industry materials attacking
Lewis’s credibility, and an EPA official’s
solicitation of industry help in writing a
negative internal peer review of Lewis’s research.43
_______________________________________
41 Letter from David L. Lewis,
Research Microbiologist, to James Sensenbrenner, Chair,
Judiciary
Whistleblowers,
SARASOTA HERALD TRIB., Aug. 23, 2003, at A18; see also http://members.aol.com/
lewisdavel/ (last visited July 1, 2004) (containing Dr. Lewis’
explanation for his May 28, 2003
termination by EPA).
42 Caroline
Snyder, EPA Wants Scientist Out for Publishing Papers Critical of Sludge
Rule,
INSIDE THE FISHBOWL, July 2002 (Chapter 280 of the National Treasure
Employees
43
Citizens, ENV’T NEWS, May 1, 2000, available at http://www.heartland.org/article.cfm?artId=9784.
SUPPRESSION OF ENVIRONMENTAL SCIENCE P. 359
EPA microbiologist David Lewis collected $115,000 from
EPA when agency administrators accused him of an
ethics violation for publishing a
1996 article in Nature alleging that EPA was
bypassing sound science due to
political pressures.183 The Department of Labor found
that the agency’s inquiry into
Lewis’s compliance with agency standards was
improperly motivated by the content
of his writings rather than a sincere concern about
the form or style of the
writings.184
_______________________________________
183 David L.
Lewis, Background Information on EPA Whistleblowers, at http://
www.whistleblowers.org/epawhistleblowers.htm (last
visited July 19, 2004). EPA officials alleged
that Lewis violated the agency’s Standards of Ethical
Conduct by not including an appropriate
disclaimer on articles he authored that were critical
of EPA.
184 Letter from
George R. Holt, Wage and Hour Division,
L. Longest, II, Deputy Assistant Administrator for
Management,
Agency (undated 1997 letter) (on file with author);
Wage and Hour Division Compliance,
Department of Labor, Dr. David L. Lewis v. EPA
Investigation Report (Jan. 16, 1997) (on file with
author).