American Journal of Law & Medicine

Suppression of environmental science.

I. INTRODUCTION

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.

II. THE SCOPE OF SUPPRESSION OF ENVIRONMENTAL SCIENCE

The International Society of Environmental Epidemiologists ("ISEE") defines research suppression as obstructing the study or release of scientific findings for reasons other than a concern for scientific validity or objectivity. (11) Brian Martin, who has written extensively on the issue of suppression of environmental scientists, defines suppression as instances where someone or some organization threatens a scientist's employment position, financial support, or ability to publish or communicate research for reasons other than the quality of the work or the qualifications or credentials of the researcher. (12) More specifically, suppression involves efforts to withdraw or withhold research money; transfer scientists to jobs where further unwelcome research is difficult or impossible; deny employment appointments, promotions, or tenure; dismiss scientists from their research positions; and block publications or presentations on the methods and results of research. (13) Thus, suppression of environmental science, as the phrase is used herein, seeks to prevent the creation of certain unwelcome data or theories, or, alternatively, to deter or block the dissemination of unwelcome data or theories that already exist, through pressure or restraints on environmental scientists. (14) Suppression can be contrasted with what Martin has termed "repression," in which extralegal methods, including violence or threats of violence, are used to silence scientists and their work. (15)

Recent examples of efforts to suppress environmental science involve government and private sector employers who sought to punish scientists for publicizing their research results or communicating their scientific opinions. In the mid-1990s, David Kern, a physician employed by Brown University and a Rhode Island hospital, noticed a rare lung disease among workers at a flock manufacturing plant that hired him as a consultant. (16) When he prepared an abstract about his findings for a professional conference, the company requested that the abstract not be submitted, arguing that an agreement to protect manufacturing process trade secrets, signed by Kern a year before he began his investigation, prevented any public discussion of the disease. (17)

Kern changed the abstract to make it difficult to identify the manufacturer and presented the paper, feeling that his professional obligations to seek out information from colleagues that might assist in determining the causes of the disease and to warn others to be on the lookout for the disease outweighed the company's objections. (18) Judging that the risk of litigation by the company over any disclosure was not worth publicly disclosing information about the disease, Kern's hospital and university employer pressured Kern to withdraw the abstract. (19) Ultimately, Kern's employer terminated Kern's consulting relationship with the company, eliminated the occupational health program he directed, and informed him that his five-year employment contract would not be renewed. (20)

Omar Shafey, a former epidemiologist with the Florida Department of Health, met a similar fate when he refused to alter a report characterized by the Centers for Disease Control ("CDC") as "excellent" and "reasonable and appropriate." (21) The report recommended that the state stop its aerial spraying campaign of the pesticide malathion. (22) After Shafey refused to follow the suggestion of a state official that Shafey conform his scientific recommendations to official agency policy or leave, (23) the agency undertook an extensive audit of Shafey's travel records and, upon finding a possible $12.50 overcharge on a travel reimbursement claim and an allegedly inappropriate e-mail to the CDC, fired him. (24)

Myron Mehlman, Mobil Oil Corporation's former Director of Toxicology and Manager of its Environmental Health and Science Laboratory, gave a presentation in 1989 to corporate managers in Japan about the health effects of gasoline. (25) Upon learning during the presentation that gasoline sold by Mobil's Japanese subsidiary contained levels of benzene in excess of 5%, Mehlman warned the managers that the concentrations were too high and that the levels had to be reduced or the gasoline should not be sold. (26) Immediately upon his return to the United States, Mobil fired Mehlman, accusing him of misusing company personnel and supplies to promote his wife's scientific publishing business, and subsequently attempted "to orchestrate a smear campaign" against him. (27) Mehlman successfully sued Mobil under New Jersey's employee protection act and recovered $7 million in damages. (18)

Although they did not go so far as to dismiss the scientist, supervisors of James Zahn, a former researcher at the U.S. Department of Agriculture's Agricultural Research Service in Ames, Iowa, repeatedly prevented him from publishing or otherwise presenting his findings that air emissions from hog confinements contained antibiotic-resistant bacteria. (29) Zahn's supervisors took the action after a representative of pork producers questioned his scheduled appearance before a local board of health. (30)

Scientists for the U.S. Department of Interior report numerous instances of threats or demotions when their scientific opinions differ from the Agency's preferred position. (31) Similarly, a senior member of the Royal Society, the United Kingdom's premier scientific academy, allegedly threatened the editor of The Lancet that he would lose his editorial position if the journal published research questioning the safety of genetically modified foods. (32)

Lawsuits, or threats of lawsuits, are another form of harassment. For example, after Dr. Randolph Byers first suggested that some childhood learning problems might be caused by lead toxicity, the Lead Industries Association threatened to sue him for a million dollars. (33) Furthermore, a lawyer for cold fusion proponent Stanley Pons wrote a letter to University of Utah physicist Michael Salamon threatening legal action and demanding retraction of a study reported in Nature magazine that cast doubt on some of Pons' cold fusion claims. (34) Additionally, a retired director of epidemiology for Monsanto filed a $4 million defamation suit in 1991 against the Environmental Research Foundation, a small public interest science organization, after it published a story about a U.S. Environmental Protection Agency ("EPA") memo that raised questions about the epidemiologist's study of workers exposed to dioxin while manufacturing Agent Orange. (35) Also, a company proposing to build a nuclear waste facility at Ward Valley, California, threatened to sue two members of the National Academy of Science who were commissioned by the U.S. Department of Interior to study the safety of the proposed facility. (36) When the federal government claimed that it could not indemnify the scientists against the lawsuit, the safety analysis stopped. (37)

A final set of examples involves public attacks on the personal character and conduct of the scientist. Dr. Melvin Reuber, a National Cancer

Center research scientist, found his career destroyed and reputation ruined after someone leaked a private employment reprimand letter to chemical industry officials, which was then published in Pesticide and Toxic Chemical News. (38) The personnel action and reprimand letter, which a jury found contained false statements, (39) occurred after someone with the California Department of Food and Agriculture complained to Reuber's supervisors that his research on the potential carcinogenicity of the pesticide malathion was harming the state's agriculture industry. (40)

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)

In addition, a lead industry trade group hired dozens of scientists in an attempt to discredit the work of Herbert Needleman, a Harvard University scientist, whose research indicated that even low levels of exposure to lead could negatively impact a young child's intelligence and behavior. (44) Years after an EPA committee of experts examined Dr. Needleman's work and rejected lead industry complaints that he had committed scientific misconduct, two scientists, represented by a law firm that previously represented lead companies and acting on "suspicions," filed renewed scientific misconduct charges against Needleman. (45) He was again cleared of all misconduct charges but spent more than fifteen years and thousands of dollars, not to mention thousands of hours that would otherwise have been spent on further research on lead's toxicity, defending his work and character against unsupported scientific misconduct charges. (46)

Further, a campaign allegedly orchestrated by a public relations company that worked for Monsanto attacked the character of researchers David Quist and Ignacio Chapela of the University of California at Berkeley. In 2001, Quist and Chapela published a study indicating that traces of DNA from bio-engineered corn had spread to native Mexican maize and, more controversially, that the foreign genes seemed to have become re-assorted and introduced into different genomic backgrounds. (47) Immediately upon publication, critics of the study mounted a series of Internet-based attacks, some false, against the researchers' motivations and credibility. (48) It turned out that many of the Internet postings were made using fictitious names from computers belonging to a public relations firm specializing in "Internet advocacy" that represents Monsanto, a leading manufacturer of genetically modified crops. (49) Chapela, who also was personally intimidated and threatened by fellow scientists and Mexican officials over his research, feels he can no longer work on the issue of transgenic corn because of the discreditation campaign. (50)

A number of surveys have examined the scope of suppression of science. A 1991 survey of university-industry research centers found that universities had weakened their long-held commitment to the free flow of information and to full public disclosure of their research findings in order to obtain industry funding. (51) More than 40% of survey respondents reported that sharing information with the public is at times restricted; 35% reported that companies participating in university research can require that information be deleted from research papers prior to submission for publication; and more than half indicated that participating companies can delay the publication of research findings. (52)

A 1993 survey of university life sciences faculty likewise found that 20% admitted to withholding research results for more than six months at least once in the previous three years. (53) Of that 20%, 28% delayed publication to slow the dissemination of undesired results and even greater numbers delayed to protect the proprietary or other financial value of the results. (54) Nine percent of life science faculty reported refusing to share research results or materials with other university scientists in the previous three years, and 34% indicated that they had been denied research produced by other university scientists 55 After examining the context in which research was performed, the authors concluded that their findings confirmed the widespread impression that involvement with commercialization or participation in an academic-industry research relationship are significantly associated with the tendency of faculty to withhold research results. (56)

A 1994 study of life sciences companies engaged in the fields of agriculture, chemicals, and pharmaceuticals confirmed this practice of withholding research data. (57) Fifty-six percent stated that the research they support in universities often or sometimes results in keeping information confidential to protect its proprietary value beyond the time required to file a patent. (58) The authors of the study expressed concern that the information withheld by these companies may involve findings of interest to academic colleagues, including information useful in repeating and confirming research results. (59)

A 1999 survey of British specialists in science, engineering, and technology found that 30% had been asked to tailor their research conclusions or resulting advice to suit the customer's preferred outcome, to obtain future contracts, or to discourage publication. (60) Results from a survey of attendees at the annual conference of the ISEE revealed that 50% of those who completed the questionnaire had experienced harassment following publication of research on health risks from environmental exposures. (61)

In addition to delays or suppression of certain information, surveys indicate that many environmental scientists are reluctant to engage in certain research, or speak out on certain issues of environmental science, for fear of retribution. More than half of Australian environmental scientists employed as university researchers felt that scientists jeopardize their careers by speaking out on environmental issues; (62) over one-third knew scientists who had been disadvantaged because of their views on environmental issues. (63) An indication of the level of concern these scientists had for their careers if they disseminated unwelcome scientific information was the finding that, while over half had provided scientific information to politically-active environmental organizations, 16% acted exclusively in an anonymous capacity and an additional 43% acted anonymously at times. (64)

A study of Cornell University agricultural and nutrition-science faculty and extension educators found that although almost half had environmental or public health reservations about genetically-engineered foods and crops, educators with such concerns were less comfortable in expressing their views with colleagues and other constituents than those with pro-genetically engineered food opinions. (65) The authors suggest that those with a precautionary viewpoint toward genetically engineered foods may not feel free to express their views openly, particularly where they are seeking tenure or reappointment, out of concern over antagonizing agribusiness interests within the university. (66)

Because researchers often are reluctant to publicize their cases of suppression or stand up to employers or financial sponsors of research, there is no way of knowing how many studies have been delayed, suppressed, or altered due to outside influences on environmental research. (67) Martin argues it is reasonable to infer that the publicized cases of suppression are but a small fraction of the number of times third parties try to suppress environmental science. (68) Every researcher that has looked at the phenomenon has concluded that efforts to suppress environmental science are significant and increasing, (69) with one university researcher opining there was more pressure on environmental research from external sources than he had seen in thirty-eight years at the university. (70)

Even if the number of publicized efforts to interfere in environmental research is limited, the effects may not be. Efforts to suppress an environmental scientist's work not only impact the person directly attacked but also others who, upon learning of the attack, are dissuaded from pursuing certain lines of inquiry or publishing certain results. (71) This self-censorship, often hard to document, may be the greatest source of suppression.

III. LAWS RELATING TO SUPPRESSION OF ENVIRONMENTAL SCIENCE

The examples of suppression set out above suggest three areas of the law that may impact the scientific freedom of environmental scientists: defamation; scientific misconduct rules; and protection of employee speech.

A. DEFAMATION: SUPPRESSION'S SWORD OR SHIELD?

Special interests and scientists have repeatedly invoked the law of defamation, and even product disparagement, as means of both suppressing and protecting scientific speech. Efforts to use the law of defamation to suppress scientific speech are unlikely to succeed in court, given the protection afforded by the First Amendment to speech of public concern. Those same First Amendment protections also make it difficult for a scientist to use the law against suppression efforts that defame the scientist.

To establish a case for defamation, a plaintiff must prove that the defendant made a false statement concerning the plaintiff to a third person that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." (72) Businesses, like individuals, can be defamed if the false statement injures the business character of the corporation or its prestige and standing in the industry. (73)

In the case of defamation and other actions alleging injury from the written or spoken statements of environmental scientists, a number of First Amendment doctrines provide protection against such suits. (74) First, where the person allegedly defamed is a "public official" or "public figure," the plaintiff must show by clear and convincing proof that the defendant made the statement with actual malice. (75) A person can be a public figure where she has achieved such pervasive fame or notoriety that she is a public figure for all purposes and contexts, (76) or where she voluntarily assumes a central role in a particular public controversy and becomes a public figure for that limited issue. (77)

In Gertz v. Robert Welch, Inc., the Court defined limited public figures as those who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." (78) Thus, limited public figures voluntarily inject themselves into a particular public issue in hopes of affecting the debate. (79) Scientists may become limited public figures if they testify before regulatory agencies or serve as expert witnesses on the subject at issue, (80) voluntarily participate in media coverage of the issue, (81) or publish an opinion piece for a newspaper on a controversial issue. (82)

Two cases illustrate the distinction between a private figure and limited public figure scientist. In Hutchinson v. Proxmire, a scientist sued a U.S. Senator for defamation after the Senator used the scientist's publicly-funded research as an example of what the Senator perceived to be wasteful government spending. (83) The Court found that, because the scientist had simply received federal research grants and published his research results in scholarly journals that only reach a small category of professionals, he had not invited the kind of attention and comment that merits limited public figure status. (84)

In contrast, the court in Reuber v. Food Chemical News, Inc. found that the environmental scientist was a limited public figure and could only recover for the publication of false information about his conduct and character upon a showing of actual malice, because, in part, the scientist willingly shared a manuscript of his research with an environmental group and an attorney for a California county. …

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