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CITINGS

Red Zone

By Henry Payne

The Environmental Protection Agency should celebrate its latest triumph over "environmental racism" –the alleged siting of smokestack industries and waste dumps near minority populations. It may well prove the agency's last such victory for some time to come. That's good news for the people the EPA says it's protecting.

In September, the Shintech Corp. canceled plans to locate a $700 million polyvinyl plastics facility near the poor, largely black community of Romeville, Louisiana. (See "Green Redlining," October.) Though the plant, which would have added 255 jobs to the local economy, had passed state and federal emissions requirements, the EPA delayed final approval after Greenpeace and other activist groups claimed that the plant's proposed location constituted environmental racism. Shintech will build instead in the mostly white community of Plaquemine, some 30 miles away. (Greenpeace, which opposes all polyvinyl plastics production, is expected to challenge the new site, though not on racial grounds.)

The environmental racism charges were "clearly a factor" in the company's decision to relocate, says Shintech Controller Richard Mason, who adds that the Clinton administration's policy "will inhibit companies from looking to develop near minority areas." Over 50 environmental racism cases have been filed with the federal government.

In a burst of doublespeak, EPA head Carol Browner praised Shintech's relocation decision as "a community- based, constructive approach for insuring industrial growth while protecting the rights of communities." Such rhetoric, however, is undercut by the sentiments of Romeville residents and their elected representatives.

"It's a shame. It's a great loss for economic development," says Gladys Maddie, an African-American member of the St. James Citizens Coalition, a local group that negotiated an agreement with Shintech that would have provided $500,000 in job training for the area. Polls showed a solid majority of area residents supported the plant, as did six of seven parish councilmen–including all three black members.

The plant cancellation has greatly intensified attacks on the EPA's policy from Congress and may well lead to its undoing. Concerned that the agency has unilaterally acted to expand federal civil rights law by applying it to industrial pollution, Congress passed a resolution temporarily cutting off funds for further EPA enforcement of its environmental justice policy.

The agency is also facing a court challenge. In November, the Washington Legal Foundation, a market-oriented public interest group, filed a petition against the EPA, claiming that its policy is "legally and procedurally flawed, standardless, and unconstitutional; and …stifles economic development in low-income and minority communities, thereby harming the very persons Title VI and EPA's Environmental Justice policy were designed to protect."

Old-Time Celebration

By Michael W. Lynch

If you've been depressed since the clock ran out on United Nations celebrations such as "The Year of the Family" (1994) and the year of "Eradication of Poverty" (1996), cheer up. The U.N. recently teamed up with the U.S. Department of Agriculture to anoint 1999 the "International Year of Older Persons."

"This is a U.N. year unlike any other," declared USDA Deputy Secretary Richard Rominger at a kickoff celebration in Washington, D.C. "Longevity is a way of life."

The U.N. has issued guidelines for how one might celebrate the International Year of Older Persons, whose mantra is "Towards a Society of
All Ages." Given the source, it's not surprising that the proposals lean heavily toward long, tedious meetings, preferably held in expensive settings and at taxpayer expense. Among the suggestions: Invite mayors, community leaders, writers, homemakers, and caregivers to share their views on "old age in a new age." If that doesn't move you, then try this: Convene a national conference on "agri-tools for elders."

Bone Sell

By Ryan H. Sager

Your milkman is free to exclaim that milk does a body good. But if he tells you that milk also helps prevent osteoporosis, he may soon be in trouble with the Food and Drug Administration. Under a proposed rule change, the agency could classify such a statement as a "disease claim," which can be made only about FDA-approved drugs.

Under a 1994 law, manufacturers of dietary supplements and food products are already prohibited from claiming to cure or treat a disease–defined by the FDA as "damage to an organ, part, structure, or system of the body such that it does not function properly (e.g. cardiovascular disease)."

This means that products cannot be represented as able to "cure cancer" or "treat arthritis." But manufacturers can make more general claims about health effects, as the milk example illustrates.

The FDA is now proposing to expand its "disease claim" definition to include "any deviation from the normal structure or function" of the body. The new definition is potentially limitless. As Dr. Stacey Zawel, a food safety expert with the Grocery Manufacturers of America, points out, any health claim for a product will have something to do with its effect on the body's "structure or function."

Data on Demand

By Jacob Sullum

Information may want to be free, but sometimes researchers just don't want to let it go. During the 1997 debate about the Environmental Protection Agency's new limits on airborne particles and ozone, for example, the authors of a federally funded study that was cited to support the stricter standards refused to make their raw data public. (See "Polluted Science," August/September 1997.)

In response to such stonewalling, Sen. Richard Shelby (R-Ala.) inserted a little-noticed provision into the omnibus spending bill that Congress approved last fall. It says researchers who receive federal grants have to make their data available to the funding agency, which in turn must release them to anyone who files a request under the Freedom of Information Act.

Previously, federal agencies had a contractual right to obtain research data, but they were not required to exercise it. "Lack of public access to research data feeds general public mistrust of the government and undermines support for major regulatory programs," Shelby said before the bill was passed.

Some researchers worry that access to the data on which government policy is based will only magnify public mistrust. New York University environmental scientist George Thurston, who did some of the research on which the EPA relied for its revised particulate regulations, sees a danger in too much openness.

"It's the most insidious thing," Thurston told the Daily Environment Report, "because it sounds like a good thing at first blush." In an interview with Science, he predicted that "vested interests will misuse [the Shelby provision] to discredit valid research results they don't like and to harass the researchers doing the work."

Yet one man's harassment is another's vigorous criticism, long thought to be an essential element of the scientific process. "If the research is sound," University of Chicago chemist R. Stephen Berry dared suggest to Chemical & Engineering News, "then it will withstand the kind of analysis that these interests want to do."

Strip Steak

By Michael W. Lynch

Talk about unintended consequences: New York Mayor Rudolph Giuliani is waging a high-profile war on the city's adult entertainment industry, in part to shield minors from the corrupting influence of the skin trade. But at least one Big Apple eatery that serves up bare-breasted women along with top-grade steak will remain open precisely because it opens its doors to kids.

Facing a Giuliani-backed initiative to banish establishments that feature nude entertainment and "exclude minors by reason of age" to desolate lots in New York's outer boroughs, Ten's World Class Cabaret in Manhattan decided to welcome minors as long as a parent accompanies them. The restaurant's attorney then went to court and argued that Ten's is no different than a Broadway Show that may expose Fun City's tender youth to nudity. In November, a New York trial court agreed, ruling that "Ten's cannot be defined as an adult eating and drinking establishment if it does not exclude minors."

"This is, like, nuts," Giuliani told the Associated Press, later adding: "If a parent was bringing a kid into a place like that, we should question whether the parent should have custody of the kid." The city's appeal will be heard in January.

Mark Alonso, Ten's attorney, predicts the city will lose the rematch. "You can't bend the law simply to attack one party you disagree with. That concept goes back to Sir Thomas More," says Alonso, who points out that, in recent years the city itself has sponsored a free Shakespeare production open to all ages that featured considerable nudity.

If the city does lose again, it can take solace that Ten's reports having served only three minors under its new policy.

All Wet

By James V. DeLong

A recent study by the National Wildlife Federation, a leading environmental group, documents the high tide of insanity that is the federal flood insurance program.

Higher Ground, available on the Web at www.nwf.org, focuses on "repetitive loss properties"–homes the government keeps rebuilding over and over again through insurance settlements. Using data from the Federal Emergency Management Administration, the study finds that between 1978 and 1995, repetitive loss properties (defined as two losses of over $1,000 each in any 10-year period) represented 2 percent of the homes insured but claimed 40 percent of the payments. Over 5,500 property owners collected more than the total value of their houses. Top honors went to a Texan with a house worth $114,000 who collected $807,000 on 16 claims over 18 years.

Such statistics illustrate the lunacy of the 30-year-old flood insurance program. It undercharges property owners and takes on risks that no sane insurer would accept, which encourages development in flood plains. This, in turn, increases both the political pressure for more government expenditures on flood control and the monetary losses that occur when the inevitable 100-year or 500-year floods overwhelm those defenses. Those losses are then paid for by the insurance program, and the spiral starts all over again.

During the past 25 years, the Army Corps of Engineers has spent $25 billion on flood control projects, but the losses just keep on rolling like a river. Indeed, the insurance program has lost more than $40 billion in the last five years.

But cheer up, things could be worse. And they're getting there: People are now becoming so used to the idea that the federal government will pay for disasters that they are not bothering to buy even the subsidized flood insurance. In most places, less than 30 percent of the properties located in designated flood plains are covered.

The response to such developments? The feds are now working with communities, buying back properties, passing regulations, yada, yada, yada. All to try to keep people from doing what government payments make it profitable for them to do: build in flood zones. Indeed, the feds seem anxious to consider anything except the one solution–eliminating the insurance program–that might actually change the situation.

Contract Killer

By Michael W. Lynch

Even the most skilled managed-care bashers in the Clinton administration must have felt a little queasy last October. That's when 96 HMOs announced that they would no longer do business with the federal government.

For months, HMO representatives had been telling the Health Care Financing Administration, which administers Medicare, that without reimbursement increases and relief from new regulations, they would be forced to pull out of some markets. While the HCFA sets non-negotiable pay rates for participating plans, it can't force insurers to renew Medicare contracts.

"We told them, `No deal,'" bragged President Clinton at an October 8 press conference. "We're not going to allow Medicare to be held hostage to unreasonable demands." The upshot for the 50,000 seniors now living in areas bereft of a single managed-care provider? They can enroll in Medicare's traditional plan, for which seniors will pay the same premium as before in return for fewer services. How's that for reasonable?

Too Kool?

By Ryan H. Sager

Smoking has gone from a personal vice to a public health problem to a civil rights violation. In a lawsuit filed in U.S. District Court in Philadelphia, the National Association of African Americans for Positive Imagery, the Uptown Coalition (originally formed in 1990 to protest a cigarette brand aimed at urban blacks), and a group of current and former smokers claim that the marketing of menthol cigarettes to blacks violates their civil rights.

Based on the Civil Rights Acts of 1866 and 1870, which were enacted to protect former slaves during Reconstruction, this lawsuit marks the first attempt to sue tobacco companies under federal civil rights law rather than personal injury or product liability statutes. The suit alleges that blacks account for 60 percent to 70 percent of menthol puffers and argues that since the soothing effect of menthol enables deeper inhaling, menthol cigarettes have a disparate impact on black smokers' health.

The plaintiffs want tobacco companies and industry groups to make public all research about the impact of smoking on blacks. It also seeks a ban on menthol cigarettes.

In explaining the use of civil rights legislation, plaintiffs' attorney Stephen Sheller told CNN that the acts were "intended to prevent targeting black people in ways that take advantage of them."

Courtroom Shootout

By Brian Doherty

With the smoke of the tobacco industry's settlement with the states still hanging in the air, city governments are turning their attention toward the handgun industry. Chicago and New Orleans have filed civil suits against groups of gun makers, distributors, and sellers; other cities, including New York, Philadelphia, Los Angeles, Tampa, and Boston, are contemplating joining the posse. The cities argue that gun makers and sellers must pay at least some of the costs that municipalities bear while treating victims of gun violence. (See "Smoking Guns," July.)

Chicago has strict gun control, and the city argues that gun makers and dealers are creating a public nuisance by supplying the areas outside the city with more handguns than they need, thus guaranteeing that the excess will end up in Chicago. Charging that legal gun manufacturing and sales constitute a public nuisance is a novel legal strategy–and one whose chances of success seem low. Generally, attempts to characterize legal, regulated businesses as nuisances have failed in court.

The New Orleans suit also pursues a novel strategy. It argues that a lack of safety features–such as a mechanism that would ensure only specific users can fire a gun –means that gun manufacturers and vendors should be liable for mayhem involving their products.

"This lawsuit is a turning point in our efforts to force the gun industry to make a safer, childproof, `personalized' product," a spokesman for the Center to Prevent Handgun Violence, which is serving as New Orleans' co-counsel, told the press. New Orleans is suing over 20 gun makers, trade associations, and dealers.

Such arguments have not prevailed in private actions. In November, for example, a California jury dismissed Dix v. Beretta, in which the plaintiff argued that a 14-year-old boy would not have been shot and killed had the pistol been equipped so that only an "authorized" user could have fired it.

But legal precedents may prove irrelevant, particularly in the New Orleans case, cautions Jon Vernick, associate director of the Center for Gun Policy and Research at the Johns Hopkins School of Public Health. He notes that while gun manufacturers typically win strict liability cases, suits like Dix v. Beretta and the New Orleans filing make a subtly different argument about design defects: These suits say that the weapons could–and should–have been made safer than they are. While one California jury found that argument less than persuasive, it's impossible to predict the fate of the New Orleans case, Vernick says.

The gun industry says it's armed and ready for long legal battles. That's partly because it has no other option, says Bob Ricker of the American Sports Shooting Council, a gun industry trade organization and a defendant in the New Orleans suit. Unlike the tobacco companies, explains Ricker, gun makers lack the deep pockets to finance a settlement that might satisfy the dozens of city governments that could come after them.

Desperate Measures

By Ryan H. Sager

Desperate times call for desperate measures. Last fall, New York State Attorney General Dennis Vacco was desperate as election day approached and he found himself in a neck-and-neck race with Democratic challenger Eliot Spitzer. The desperate measure he took: seizing the computer servers of two Internet service providers as part of a high-profile, international child-pornography bust called Operation Ripcord.

The action targeted "Pedo University," an online newsgroup of pornographers that trades electronic images of adolescents engaged in sex acts. Last October, law enforcement agents in 12 states and four countries arrested a total of 13 suspects for possession and transmission of child pornography.

Vacco's prey, however, was not suspected child pornographers. It was Syracuse's Dreamscape and Buffalo's BuffNET, two ISPs whose only crime may have been operating in areas where the attorney general needed votes. While it is illegal to distribute or possess child pornography, no state or federal law requires ISPs to moderate newsgroups. Although hundreds of New York-based ISPs carried the newsgroups on which members of Pedo University traded files, Dreamscape and BuffNET were the only two to have their servers seized, raising charges of politically motivated prosecution and investigatory overreach.

Noting that none of the individuals arrested in Operation Ripcord had accounts with Dreamscape or BuffNET and that no charges have been filed against either provider, BuffNET Vice President Mike Hassett asks, "Isn't it intriguing that [Vacco] chose only two ISPs, both in upstate New York? Is it coincidence that Vacco won his last election relying on upstate New York votes? Why weren't the other 1,000-plus ISPs in New York state a target of his investigation?"

Vacco's action also has troubling implications for all ISPs, says BuffNET's attorney, Steven Fox, who has likened seizing equipment that merely provided subscribers with access to Internet newsgroups to "seizing envelopes to combat mail fraud." Vacco's office refused comment on the matter.

While neither ISP faces criminal charges, both have incurred costs for legal fees, equipment replacement, service interruptions, and massive bad publicity. Vacco, too, has problems: He lost a tight race ultimately decided by absentee ballots.

Soundbite: WIld Idea

By Michael W. Lynch

In a 1989 Los Angeles Times book review, National Park Service ecologist David M. Graber forcefully articulated the anti-humanism that informs much of the environmentalist movement. "Human happiness and certainly human fecundity, are not as important as a wild and healthy planet," wrote Graber. "We have become a plague upon ourselves and upon the Earth….Until such time as Homo sapiens should decide to rejoin nature, some of us can only hope for the right virus to come along."

Last fall, the United Nations released a report on world population growth that suggests Graber's dream virus may have come along in the form of AIDS. (See "Population Bomb," page 17.) Washington Editor Michael W. Lynch talked with Graber in December via telephone to find out what he thought about the U.N. data.

Q: Is AIDS the "right virus" for you?

A: I have no idea where AIDS is going to take us. The point I was making [in the review] was that, from the standpoint of just about every other living thing on the planet, human beings are a plague. That's still an accurate and safe assumption. Anything that reduces human populations or reduces their growth is a benefit to just about everything else on the planet. Whether that's desirable for human beings is a completely different issue.

Q: So from the point of view of the planet, AIDS is good?

A: It's a very complex issue because [AIDS] also fouls up the economies of countries. That, in turn, can have other kinds of ecological consequences. Broken economies can lead people to consume primary resources at a faster rate if distribution breaks down. It isn't just how many people you have on the planet. It's how many resources they use. For example, because we use far more resources, Americans are much more expensive to the planet than people in the Third World. Somebody dying in central Africa reduces the impact on Earth much less than somebody dying in the United States. It's not a simple question. I know you would like a simple answer, but I'm not going to give you one.

Q: So if AIDS were having the sort of effect in the First World that it's having in the Third, that would be a good thing?

A: It would be a good thing for other organisms. It certainly wouldn't be a good thing for people who were dying or their families. Ecology is a game where some win and some lose. Death is by far the crudest and cruelest solution to a problem of crowding.

Q: Why put humans on the same level as other organisms?

A: If we were to ask other organisms, they would say, "I've got a lousy deal here; those human beings are my plague." Human beings are unraveling the very stuff of nature with every passing day. From a human viewpoint, and given how we're heading, we need to ask: Do we want to live on a planet that looks like New Jersey or England, with no wild animals, no rainforests, no wildness?

Quotes

"Mr. Ventura…is basically a libertarian. `I want to be the governor who destroys the property-tax system as we know it,' he says. When his term [as governor of Minnesota] is over, he'd like people to remember 'when Jesse Ventura was around, "I didn't even notice the government."'…Mr. Ventura makes libertarianism, a rather dogmatic creed, sound like everyday wisdom."

–Michael Kazin, American University history professor, in a widely reprinted op-ed piece.

Sources

"For the first time since our measurements began in 1994," states the 1999 edition of the annual Index of Economic Freedom, co-produced by the Heritage Foundation and The Wall Street Journal, "global economic freedom has declined." The Index, which for the last half decade has measured the openness of hundreds of countries' economies in such areas as trade, taxation, and regulation, found that of the countries rated in the last two years whose score had changed, "27 improved their overall scores while 29 regressed." Overall, 71 countries earned a rating of "free" or "mostly free" while 90 countries were judged "mostly unfree" or "repressed." The executive summary, selected charts, and country analyses are available at www.heritage.org/index. The entire 490 pages can be purchased for $24.95 online or by calling 1-800-975-8625.

Artifact: A Perfect Shot

That's Tipper Gore, America's second lady, and she's shoveling more than mud in a Hurricane Mitch-ravaged town in Honduras. Despite their self-styled adversarial role, the major U.S. media chose not to explore the Potemkin Village theatrics necessary for the heartwarming snapshot. Instead, it was up to sources such as London's The Independent and The Drudge Report to explain that there was more to Mrs. Gore's November trip than met the eye.

According to The Independent's Phil Davison, Gore's press secretary briefed reporters on the details of the photo op, even explaining that Tipper would toss exactly eight shovelfuls of mud before pausing to wipe the sweat from her brow. Not that everything went off as planned: Some villagers mistook the second lady for the late Princess Diana, and Tipper herself almost threw off the plan when she paused in front of an old woman moving mud from in front of her home and asked aloud, "Is this where I'm supposed to shovel?" (Her Nicaragua stop was almost as much fun: Relief supplies were commandeered from a private donor so she'd have something to give away, and a network cameraman slugged a White House press officer.)

But not to worry. The press printed the right picture. In fact, Davison reports, Tipper's press secretary even helped a camera crew "clamber up the [mud] pile for the perfect shot

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