MILLOY: EPA’s illegal human experiments could break Nuremberg Code
Agency claims unfettered discretion in treatment of test subjects
That astounding assertion will be tested Friday, when a federal district court in Alexandria decides whether it has jurisdiction to hear claims made by the American Tradition Institute that EPA researchers are exposing unwary and genetically susceptible senior citizens to air pollutants the agency says can cause a variety of serious cardiac and respiratory problems, including sudden death.
Although the lawsuit only addresses ongoing, purportedly illegal experimentation being carried out at an EPA laboratory on the Chapel Hill campus of the University of North Carolina School of Medicine, EPA researchers and grantees have carried out dozens of similarly shocking experiments over the past 10 years at UNC and other schools, including Rutgers University, the University of Michigan, University of Rochester, University of Southern California and University of Washington.
During that time at those university laboratories, EPA-employed or -funded researchers have intentionally exposed a variety of people to concentrated levels of different air pollutants, including particulate matter (soot and dust), diesel exhaust, ozone and chlorine gas — the latter substance more recognized as a World War I-era chemical weapon than as an outdoor air pollutant.
Over the same period that the experiments in question have been conducted, the EPA has become more and more alarmist in communications to Congress and the public about danger the air pollutants pose to individuals even at commonplace, non-concentrated levels. The EPA has determined, for example, that any exposure to fine particulate matter can cause death within hours or days of inhalation. EPA Administrator Lisa P. Jackson, moreover, has testified in Congress that particulate matter causes about 1 of every 4 deaths in America.
Not only is diesel exhaust largely made up of “deadly” particulate matter, but its components include polycyclic aromatic hydrocarbons (PAHs), which the EPA considers to be cancer-causing. The agency generally says that any exposure to a carcinogen increases the risk of cancer. Diesel exhaust also includes lead. The EPA has determined that lead can be readily absorbed from inhalation into the blood and that there is no safe level of lead in blood.
The EPA has exposed its human guinea pigs to ozone levels as high as 400 parts per billion (ppb), more than five times higher than the EPA’s current standard and six times higher than the standard expected to be adopted in 2013. In a March 2012 letter to Mrs. Jackson from the agency’s Clean Air Scientific Advisory Council, a council member unwittingly commented that “[experimental] exposure of rats to 300 or 400 ppb may be very relevant to humans, but impossible to study in humans for ethical reasons.” Little did the council member know that EPA researchers routinely — but illegally — do the “impossible.”
Aside from the EPA-determined dangers associated with the air pollutants used in the experiments, there are the human study subjects. While some have been healthy young adults, others have been elderly, asthmatic or both. Many have been diagnosed with “metabolic syndrome.” Some had suffered heart attacks and, while they were in rehabilitation, were enrolled as human guinea pigs. EPA-funded researchers apparently have even exposed children to dangerous diesel exhaust and ultrafine particles.
The American Tradition Institute contends in its lawsuit that the EPA has broken virtually every rule established to protect human subjects used in scientific experiments, including the Nuremberg Code, ethics principles for human experimentation adopted following the Nuremberg Trials at the end of World War II, and similar U.S. regulations known as “The Common Rule.”
Rather than defending itself against the serious allegations made by the institute, the EPA instead has said it is essentially above the law and the federal court has no business hearing those serious charges.
The EPA claims the court has no jurisdiction to hear the case under the Clean Air Act (CAA): “Nothing in the CAA provides a meaningful standard to evaluate what air pollution EPA chooses to study or how. To the contrary, the CAA gives EPA broad discretion in the subject matter of its research program. Congress broadly mandated that EPA study the health effects of air pollution.”
Of course, Congress most likely thought the EPA would conduct such research in a lawful manner. The EPA also says because “no judicially manageable standards are available for judging how and when [EPA] should exercise its discretion in deciding what research to undertake, EPA’s decision to study the health effects of [particulate matter] using controlled human exposure studies was a decision committed to the EPA’s discretion and immune from review under the [Administrative Procedures Act],” the general law governing the conduct of federal agencies.
The EPA’s view, then, is that because Congress has not enacted a law that expressly forbids the agency from violating the Nuremberg Code and federal regulations governing human testing or that expressly guides judges in evaluating the conduct of agency researchers who experiment on their fellow human beings, the agency has unfettered discretion to do as it pleases with the young, old, sick and anyone else who falls into its clutches.