Wednesday, March 21, 2012

Supreme Court Allows Redress Against Agency Intimidation

A Note to Health & Food Freedom & Justice advocates:

Today witnessed another Supreme Court unanimous victory for the individual's right to petition for redress when Federal agencies merely threaten enforcement action. The application of this case to various matters regarding health & food freedom & justice issues is very significant.

Standing to sue has been the key issue in cases such as the CoMeD mercury cases, the Ear Candlers Case and the "stop the shot" vax mandates cases.

Here is what the high Court said earlier today:

"The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal District Court, contending that the compliance order was “arbitrary[and] capricious” under the Administrative Procedure Act (APA), 5U. S. C. §706(2)(A), and that it deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre-enforcement judicial review of compliance orders and that such preclusion did not violate due process.

"Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order. Pp. 4–10. ...

"The APA creates a “presumption favoring judicial review of administrative action.” Block v. Community Nutrition Institute, 467 U. S. 340, 349.

In this case, the circumstances are similar to what happened to the Ear Candlers, who all received "cease and desist" orders from FDA declaring that ear candles were "unapproved medical devices..." that had "no medical use" and could therefore never be approved. The District Court denied the Ear Candlers relief because the FDA only threatened enforcement but did not actually enforce (this, despite the FDA's own web site claiming it was enforcing and had forced companies to stop selling).

Here is what happened to the Sacketts:

"The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but thatrequest was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment.

"The District Court dismissed the claims for want of subject matter jurisdiction, and the United States Court of Appeals for the Ninth Circuit affirmed, 622 F. 3d 1139(2010). It concluded that the Act “preclude[s] pre-enforcement judicial review of compliance orders,” id., at 1144, and that such preclusion does not violate the Fifth Amendment’s due process guarantee, id., at 1147. ...

"We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."

In recent years the FDA has responded to strong citizen "push back" by backing off some of its most extreme assertions of power. For example, when Natural Solutions Foundation led over a half million people to object to the FDA 'CAM' Guidance in 2007, that draconian regulation was never finalized. When we pushed hard against the Swine Flu Vax, the mandates collapsed. When we pushed against the recent New Dietary Ingredient Guidance, the comment period was extended. When the Raw Milk Freedom Riders publicly disobeyed the FDA interstate raw milk prohibition, the FDA backed off its claimed power to stop such shipments when for personal use, at least.

BUT, but, but... while backing off, the agency continues to act as though it had adopted these onerous rules. The Ear Candler Case shows that they are enforcing their illegal 'CAM' category (never adopted by Congress) anyway. The banning of a certain form of B-6 shows how they intend to enforce the NDI regulation.

Through intimidation and innuendo...

But now, with the Sackett case, it is clear the potential victims of agency-less-than-final-enforcement can have their day in court; they have standing to sue, to seek redress of grievances, when threatened by the consequences of enforcement even when the agency plays sly and tries to intimidate instead of directly enforce.

Ralph Fucetola JD
Natural Solutions Foundation

Tuesday, March 13, 2012

Fracking, Physicians and the Status Quo

I am re-posting this article which links fracking and health freedom. I find it particularly outrageous that physicians should be required by law to maintain proprietary secrecy when human health and life might be at risk. Once more, the health keepers are being conscripted to maintain a status quo that seeks to hide foreseeable harm. Another factor to note is that some in the natural gas industry assert that fracking is never needed and that there is a huge amount of natural gas available that can be brought to market without these extreme and dangerous means.

The answer:

The Pennsylvania gas law fails to protect public health

Our legislators punted when it was time to protect us...
Say Pitt experts Bernard Goldstein and Jill Kriesky

Sunday, March 11, 2012

Gov. Tom Corbett recently signed a bill that goes beyond just ignoring concerns about the potential human health effects of Marcellus Shale drilling, it retains some of the worst aspects of industry secrecy about proprietary hydrofracking chemicals while making unethical demands on physicians.

Imagine a physician caring for a child whose illness might have been caused by long-term exposure to a proprietary fracking chemical while playing near a drill site. Assume that after signing a legally binding nondisclosure agreement, the physician is given the identity of the chemical and comes to believe it caused the illness. What can the physician tell the families of other neighborhood children who play in the same field?

Under the newly enacted law, copied almost verbatim from a controversial Colorado law, a physician may receive information about a proprietary chemical used in the fracking process, but the physician must agree to not reveal this information to the public.

The law also allows the company to keep secret from physicians information about agents that come up from the ground during drilling, such as natural gas constituents -- which themselves can be toxic -- and naturally occurring toxic agents such as arsenic, barium, brine components and radioactive compounds dissolved in flowback water. Nor can public health authorities begin with knowledge of a secret chemical and ask whether there is an increase in an illness that the chemical is known to cause.

Drillers should have an affirmative duty to know what dangerous chemicals they are introducing into the environment. Instead, the bill is laced with excuses: "the vendor didn't tell us" or "it was unintentional" or "it must be due to a chemical reaction." But chemicals inherently react with each other -- that is their nature. By making ignorance an excuse, the law absolves drillers from doing their homework.

This legislation was under consideration when drilling in the commonwealth began in earnest, and it was intensely studied by the governor's Marcellus Shale Advisory Commission -- a commission charged with protecting the environment and citizens' health and welfare. Moreover, citizens testified at public hearings time and time again that they are concerned about possible health impacts on themselves and their families, neighbors and friends.

Yet the governor's 32-member commission included no health professionals, and the seven state agencies involved did not include the state Department of Health.

Not surprisingly, the commission's few health-related recommendations failed to make their way into the final legislation. Neither did the governor's recommendation to provide Marcellus Shale impact funding for the Department of Health; 19 other state agencies, subagencies and commissions received funding, including the Pennsylvania Boat and Fish Commission. It appears that our state politicians are concerned about the impact of shale gas drilling on boats and fish, but not on humans.

Rather than providing health personnel with direction on how to prepare for potential exposures to toxic chemicals in the air, water or soil, or to accidents similar to those that already have occurred, the law sets up an obstacle course that health care providers must navigate to secure information about proprietary chemicals -- information needed to diagnose and treat patients. This obstacle course also presents an ethical dilemma for a doctor who treats a child exposed by playing too close to a Marcellus Shale drilling site. It is a breach of a physician's responsibilities not to report a public health threat, as well as a contradiction of established public health practice and law.

This law would have looked different had public health officials been consulted. Legislators and industry lobbyists seeking streamlined and stable regulations to aid their companies' planning and pursuit of profits should recognize that it's in everyone's best interests to research and prepare for the public health risks that come with drilling. The statistically significant disease clusters that will inevitably arise in communities with Marcellus Shale drilling, whether caused by the drilling or not, will generate fear, media attention, declines in property values and lawsuits.

Industry is liable for any adverse effects caused by the millions of gallons of chemical-laden water that flows back to the surface after each frack. Perhaps individual companies are hoping that their particular mixtures will not cause noticeable harm or that they will make their money before tort liabilities catch up with them. But hydrofracking will likely go on in Pennsylvania for decades, and depending on toxic tort suits to protect the public presupposes that we must wait until people get sick.

The usual engineer's response to just about every technology problem that has resulted in environmental or human health problems is to say that had they only known there was a potential problem, they could have designed the technology to avoid the problem. For this discussion to take place in the case of the unconventional development of Marcellus Shale gas, we need health professionals at the table to prevent adverse health effects, and we need to put them there now.

Dr. Bernard Goldstein is emeritus professor in the University of Pittsburgh Graduate School of Public Health's Department of Environmental and Occupational Health

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Jill Kriesky is senior project coordinator at the school's Center for Health Environments and Communities.

First published on March 11, 2012 at 12:00 am

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