infringements on our liberties, Westover has picked a poor issue to make his case. He conveniently neglects to consider that restrictions on dangerous activities make for a civilized society. A society in which there are no restrictions on personal liberty is anarchy — hardly what most Minnesotans aspire to. We accept limitations on countless activities every day. Should speed limits on residential streets be removed because they restrict our personal freedom? Should we legalize drugs in the name of personal liberty? I think not. The effort to limit smoking in public places is no different and is certainly not an "inequality that is being rectified by a brutal government." Just as traffic regulations make us all safer, restrictions on smoking in public places will reduce our exposure to the well-documented health risks of exposure to secondhand smoke.
(I have searched the Constitution in vain for passages on the right to take offense. Perhaps Justice Kennedy can find it elsewhere and graft it on)."I found it offensive that he confused important personal liberties-the right to associate, the right to worship —with an activity that is
inherently offensive and dangerous to others," said Shelley. "It’s just such a terrible example.I don’t think this is what the people who wrote our Constitution had in mind when they thought about personal liberties."
In short, the EPA was making it up. (And this making up passes 60 Minutes by two lengths). Back to Mr. Shelly. Smoke is smelly, it's not a killer. I do not expect Mr. Shelly, nor many other to agree. After all, "The EPA says....". Suppose second hand smoke presented some kind of risk. Not like acid fumes or shattered glass, but perhaps aggravates the flu, pushing it towards pneumonia in the rare instance. What would be wrong with the State of Minnesota or the Twin Cities passing a law, "No one who works in an environment where smokers assemble may be a non-smoker. Only smokers are eligible for employment". Problem taken care of, yes? Oh. What's that I hear? That would violate those individuals' rights? So? Didn't seem to be a problem violating the rights of the restaurant and bar owners. Uh! How could I forget, smoking is "inherently offensive". Mr. Shelly's most egregious: "A society in which there are no restrictions on personal liberty is anarchy". Mr. Shelly uses traffic rules as his example of restrictions, without which there would be (road) anarchy. But the presence of restrictions, rules of the road do not, de facto, "make us safer". It is the agreement to abide by particular guiding rules in exchange for the privilege of driving which prevents the driving chaos of, say, Cairo. These are agreements made between people who possess Liberty. The Liberties of the People of this country are defined and enumerated most clearly in the founding documents. What they proscribe are limitations upon the powers of the government. A free people are to be trusted. Mr. Shelly stands this on its head, equating personal liberty with restrictions upon those liberties. Notice how many of the sentences in the Bill of Rights begin, "Congress shall pass no law". I thinkthat is "what the people who wrote our Constitution had in mind...". Does Mr. Shelly really wish to argue that restrictions in the name of safety,In the name of stamping out the offensive, are the path to Liberty? There are regimes in this world who find free speech offensive. Freedom of assembly, offensive. Private property, offensive. Turn this assertion on its head, "A society in which there are no restrictions on Government is..." what? Let us hope Mr. Shelly returns to his feet and comes to his senses before he passes out.EPA claims its authority to conduct the ETS Risk Assessment derives from the Radon Gas and Indoor Air Quality Research Act of 1986. (small snip) In the ETS Risk Assessment, EPA evaluated the respiratory health effects of breathing secondhand smoke (environmental tobacco smoke or ETS) and classified ETS as a Group A carcinogen, a designation meaning there is sufficient evidence to conclude ETS causes cancer in humans. Disputing the Assessment, Plaintiffs argue: EPA exceeded its authority under and violated the restrictions within the Radon Research Act; EPA did not comply with the Radon Research Act's procedural requirements; EPA violated administrative law procedure by making a conclusion regarding ETS before it concluded its risk assessment, and EPA's ETS Risk Assessment was not the result of reasoned decision making. EPA denies the same and argues the administrative record (record) demonstrates reasoned decision making. (snip) Plaintiffs have shown that EPA aggressively disseminated information, coordinated activities with government agencies and non-governmental organizations, and promoted ETS regulation and prohibition.' Plaintiffs argue EPA's conduct constitutes de facto regulatory activity in violation of the Radon Research Act.(snip, and cut to the chase) EPA determined it was biologically plausible that ETS causes lung cancer. In doing so, EPA recognized problems with its theory, namely the dissimilarities between MS and ETS. In other areas of the Assessment, EPA relied on these dissimilarities in justifying its methodology. EPA did not explain much of the criteria and assertions upon which EPA's theory relies. EPA claimed selected epidemiologic studies would affirm its plausibility theory. The studies EPA selected did not include a significant number of studies and data which demonstrated no association between ETS and cancer. EPA did not explain its criteria for study selection, thus leaving itself open to allegations of "cherry picking." Using its normal methodology and its selected studies, EPA did not demonstrate a statistically significant association between ETS and lung cancer. This should have caused EPA to reevaluate the inference options used in establishing its plausibility theory. A risk assessment is supposed to entail the best judgment possible based upon the available evidence. See Ethyl, 541 F.2d at 24. Instead, EPA changed its methodology to find a statistically significant association. EPA claimed, but did not explain how, its theory justified changing the Agency's methodology. with the changed methodology and selected studies, EPA established evidence of a weak statistically significant association between ETS and lung cancer. (Did you get that? When the inches didn't add up to thousands, they changed to millimeters).
VII. CONCLUSION In 1988, EPA initiated drafting policy-based recommendations about controlling ETS exposure because EPA believed ETS is a Group A carcinogen. See, e.g., EPA Memorandum from William K. Reilly, Administrator, to Congressman Thomas J. Bliley, Jr., U.S. House of Representatives 1 (March 24, 1992) (JA 6,374; 6,380-82) (Reilly Mem. II) (EPA began drafting a policy guide recommending workplace smoking bans before drafting the ETS Risk Assessment.)Rather than reach a conclusion after collecting information, researching, and making findings, EPA categorized ETS as a "known cause of cancer" in 1989. (snip) In conducting the Assessment, EPA deemed it biologically plausible that ETS was a carcinoqen. EPA's theory was premised on the similarities between MS, SS, and ETS. In other chapters, the Agency used MS and ETS dissimilarities to justify methodology. Recognizing problems, EPA attempted to confirm the theory with epidemiologic studies. After choosing a portion of the studies, EPA did not find a statistically significant association. EPA then claimed the bioplausibility theory, renominated the a priori hypothesis, justified a more lenient methodology. With a new methodology, EPA demonstrated from the 88 selected studies a very low relative risk for lung cancer based on ETS exposure. Based on its original theory and the weak evidence of association, EPA concluded the evidence showed a causal relationship between cancer and ETS. The administrative record contains glaring deficiencies. The Radon Research Act authorizes information collection, research, industry inclusion, and dissemination of findings. Whether these actions authorize risk assessments is a matter of general and interstitial statutory construction. So long as information collection on all relevant aspects of indoor air quality, research, and dissemination are the lodestars, the general language of the Radon Research Act authorizes risk assessments as they are defined by NRC and explained in EPA's Risk Assessment Guidelines.It is clear that Congress intended EPA to disseminate findings from the information researched and gathered. In this case, EPA publicly committed to a conclusion before research had begun; excluded industry by violating the Act's procedural requirements; adjusted established procedure and scientific norms to validate the Agency's public conclusion, and aggressively utilized the Act's authority to disseminate findings to establish a de facto regulatory scheme intended to restrict Plaintiffs, products and to influence public opinion." In conducting the ETS Risk Assessment, disregarded information and made findings on selective information; did not disseminate significant epidemiologic information; deviated from its Risk Assessment Guidelines; failed to disclose important findings and reasoning; and left significant questions without answers. EPA's conduct left substantial holes in the administrative record. While so doing, produced limited evidence, then claimed the weight of the Agency's research evidence demonstrated ETS causes cancer. Gathering all relevant information, researching, and disseminating findings were subordinate to EPA's demonstrating ETS a Group A carcinogen. EPA's conduct transgressed the general meaning of the Radon Research Act's operative language. Further, to the extent EPA's conduct in this matter entailed interstitial construction of the Act, the court affords no deference to EPA. Congress did not delegate rule making or regulatory authority to EPA under
the Act. EPA's conduct of the ETS Risk Assessment frustrated the clear Congressional policy underlying the Radon Research Act. See 131 Cong. Rec. S7035 (May 23, 1985) (purpose of the Act is to provide clear, objective information about indoor air quality). EPA also failed the Act's procedural requirements. In the Radon Research Act, Congress granted EPA limited research authority along with an obligation to seek advice from a representative committee during such research. Congress intended industry representatives to be at the table and their voices heard during the research process. EPA's authority under the act is contingent upon the Agency hearing and responding to the represented constituents, concerns. The record evidence is overwhelming that IAQC was not the representative body required under the Act. Had EPA reconciled industry objections voiced from a representative body during the research process, the ETS Risk Assessment would very possibly not have been conducted in the same manner nor reached the same conclusions.Because EPA exceeded its authority under the Radon Research Act and also failed the Act's procedural requirements, the court will direct the entry of judgment in favor of Plaintiffs' motion for summary judgment and vacate Chapters 1 thru 6 of and the Appendices to EPA's Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, (snip, notes about review etc.) An order and judgment in accordance with this memorandum opinion will be filed contemporaneously herewith. This the 17th day July 1998.[Signed] William L. OsteenUnited States District Judge.
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