Guest post by Alec Rawls
Gabrial Malor at Ace of Spades HQ pulls some choice excerpts from what he calls an “epic broadside” by Judge Milan Smith. After reviewing a number of cases where the Ninth Circuit has upended whole fields of economic activity with rulings that contradict both statutory requirements and executive rulemaking (imposing stormwater runoff regulations on logging roads that had been explicitly exempted from such regulation by the EPA, twisting water use statutes to parch California’s central valley in favor of Delta Smelt), the last paragraph of Smith’s dissent drops the hammer:
No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.
Our green-obsessed legislatures are plenty bad but at least their electoral accountability forces them to limit the damage. Green judges are apparently seeing this as a problem that they should correct. After all, isn’t the role of the courts to hold the legislative and executive branches to higher principles than their worldly natures incline to?
Yes, but only when the higher principles in question are those laid out in the Constitution. Green principles, found nowhere in the Constitution, are entirely for the “political branches” to embrace or renounce as they see fit, so long as the Constitution is not violated.
When judges impose their own political principles they are the ones who are violating the Constitution. Trusted to defend against tyranny, they instead become tyrants themselves.
Willie Soon, Edward Calabrese and the not-so-demon mercury
The case that occasions Judge Smith’s dissent involves minute amounts of mercury stirred up by small scale suction dredging for gold. Both elements are heavy so neither is going to be carried far by the current but some increase in water-borne mercury does result, which is claimed to present a risk to drinking water downstream.
The California department of Fish and Game wants to deregulate the industry (originally regulated to protect fish, which can be accomplished by seasonal restrictions). That brought in the eco-activists and the EPA, both demanding suffocation by green tape, and the Ninth Circuit finds a way to do their bidding, regardless of the law.
But on to the science. As Willie Soon discussed here Monday, mercury regulation is highly irrational, with regulators imposing huge costs to reduce human mercury emissions that are dwarfed by natural emissions. Lacking any evidence that natural levels of mercury exposure are harmful, there is no basis for thinking that our small additions are doing any harm.
Actually, we can go further and say that small increases in exposure to mercury are beneficial. This is due to the poorly understood but well documented phenomenon of “hormesis” whereby seemingly any substance that is harmful in higher doses will have a “hormetic range” where small enough doses will typically have a stimulative or prophylactic effect, presumably from the body gearing up to resist the assault.
The expert on this subject is Dr. Edward Calabrese from the University of Massachusetts who has revolutionized toxicology with his vast research on hormetic effects, but the regulators don’t want to hear it:
Regulators currently assume that toxins either always pose some risk at any level or that there’s a threshold below which toxins won’t cause health problems. But while these assumptions are used to regulate everything from mercury to pesticides, Calabrese argues that they just don’t reflect the paradoxical and sometimes beneficial effects seen at low doses in the lab. “The central pillar of toxicology is the dose response,” he says. “I’m telling them that they got the most fundamental aspect of their field wrong.”
Here is a link to one of Dr. Calabrese’s papers on the subject. If you are not familiar with the hormesis phenomenon it is well worth a look. The hormetic effects of mercury are particularly well studied thanks to the thimerosal scare. This study, for instance, found that low dose exposure to thimerosal from its use as a vaccine preservative actually lowers autism rates, much to the surprise of its authors. Calabrese’s response (linked below the abstract), clues them in to the mother lode they just suction-dredged a nugget from.
Demonization of mercury is one of the main weapons the EPA wields against CO2-producing fossil fuels. Mercury and Air Toxics Standards released by the EPA in December (also called MACT rules for the Maximum Achievable Control Technology criterion that the EPA applies) are right now forcing the retirement of many existing coal-electric plants, even though for the great majority of people current levels of exposure to Mercury are well into the hormetic range, meaning that mercury exposure from coal generation actually has significant net health benefits.
The EPA is unplugging the grid in order to make us less healthy, a lose-lose proposition. It’s just what the Bizarro-Earth eco-doctor ordered: “first do harm.” Wherever they manage to ensconce themselves the eco-religionists betray the established principles of their professions. In the government bureaucracy and in academia they jettison science fact in favor of eco-presumption, then in the courts they treat their eco-ideals as a higher standard to which the other branches are to be held. It’s models all the way down and thuggery all the way up.
how about rights? is a little bit of violation beneficial for the victim?
the orwellian creole being used, here, is incapable of resolving the only issue that matters, without which there can be no comprehension of the only issue that matters.
there can be no right to violate a man’s rights.
serious discussion of political religion instead of immediately and exclusively addressing the only significant principle that matters is, of course, beneficial for the rapist who can say ‘well, it’s only stuck in you just an inch – that’s beneficial – and besides, you negotiated the transaction – so it’s a business deal- heck, you paid for it, ho.’
Michael Larkin says:
June 6, 2012 at 5:42 am
Hmm. So what about homeopathy? I believe also that radiation in small doses can be beneficial.
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Homeopathy is where the does is so small it is actually zero, and irrelevant.
Homeopathy has an interesting history. Samuel Hahnemann found through anecdotal evidence that small doses of substances that caused symptoms emulating a certain condition, would (apparently) result in a cure for that condition. Not content with discovering a medication or two, he elevated his “findings” into a general law, the “Law of Similars.” At that point, he went off the rails, if he wasn’t already.
There are, however, still people who believe in it and use homeopathic remedies. An excellent site on the history of homeopathy (and many other things) is found among the pages at: http://www.homeoint.org/morrell/londonhh/outbreak.htm
During the 1854 cholera outbreak, London Homeopathic Hospital had a lower fatality rate (16.7%) than nearby Middlesex Hospital, whose fatality rate was 53.2%.
Hormesis is at first counterintuitive and has gained acceptance slowly among toxicologists. However, there is a great deal of evidence with regard to many toxic substances that support it. The difference between toxicology and climate science is that toxicologists were skeptical of this from the start (as most scientists are about most things) and only began to come around when substantial results from many independent scientists were available. In climate science, there seems to have been a brief initial period of skepticism, but as soon as the advantages of CAGW were appreciated (research funding, primarily), it disappeared. In addition, publishing on hormesis did not hurt one’s career and was not seen as a risk to toxicologists, who mostly try to be very objective because the field as a whole is funded both by government and by industry. I think it is a field in which the attitude is that we need to be extra careful and wary of bias, because most things that we do have policy implications.
One other point is that hormesis is not a justification of homeopathy. Homeopathy relies on vanishingly small doses, which are below the level of even a hormetic effect.
ferd berple says (June 6, 2012 at 7:14 am): “Perfection is the enemy of good. The cost of producing a good environment is low. The cost of producing a perfect environment is astronomically high. In seeking to create a perfect environment we become slaves to the cost.”
As the late Julian Simon wrote in his book The Ultimate Resource 2, the object of washing dishes is not to get them perfectly clean, but rather to get them acceptably dirty. The EPA version of a dishwasher would be a combination autoclave/sandblaster. 🙂
Steve Richards says:
There is indeed a huge pile. Calabrese, who was at the very top of the field of toxicology before he started studying hormesis, has been the ringleader for 20 years. Hormesis is now the most widely accepted if not the dominant model in the field of toxicology. In particular, the competing models (the threshold model where harmful effects are seen above a threshold and no lower dose effect is considered, and linear extrapolation to zero, where harmful effects are considered to still occur at lower than measurable levels) are both thoroughly discredited. It is the regulators who don’t want to acknowledge this because it would strip them of the source of their power, which at present is cleaning stuff up to minute levels, which according to hormesis actually has negative net health effects.
Michael Larkin says:
Homeopathy is something quite different, where the first discoverer of hormetic effects tried to use it as a basis for cures. The stimulative effects are much too small for that. Hormesis can reduce your risks of coming down with bad stuff but it cannot help you very much once you get a tumor or whatever. Risks of coming down with stuff is exactly what EPA regulations are about, so here hormetic effects are crucial.
As for the benefits of small doses of radiation, that is a well documented effect, and one of the few that has been verified to be a persistent effect. Most toxocological studies don’t look at the time course of the dose-response so there is not a lot of data on whether hormesis effects persist, but radiation studies look at parts of the world that have high background radiation and find that they have the lowest cancer rates, which does show persistence.
I suspect that many who post here are not familiar with biomedical literature. It is now easy and free to search MEDLINE on a keyword such as ‘hormesis’, if you can remember the word ‘pubmed’. A google of ‘pubmed’ brings up the MEDLINE start page as the first hit.
The MEDLINE starting page has a search box at the top, and entering ‘hormesis’ produces 859 hits at the moment. Note the filter choices and the related hits features. MEDLINE is free and no registration is required.
The wikipedia article on hormesis gives an overview, but one should be aware that the resident editors are often biased. The article on radiation hormesis explains the controversial aspects:
http://en.wikipedia.org/wiki/Radiation_hormesis
The classical author on radiation hormesis is T. D. Luckey, who published a CRC monograph I read some years ago. There is extensive evidence that such effects exist, and the ‘official’ opinion on hormesis is a function of regulatory propaganda. The regulators fear with some reason that any recognition of hormesis will encourage quackery.
The Taiwan Cobalt-60 accident is mentioned in the wiki article and suggests that low-rate photonic exposure activates DNA repair, thus reducing the incidence of cancer. Note that high-rate exposures such as CT scans are another matter, since normal repair rates would be overwhelmed.
Following the Preamble, the very first sentence of the Constitution says: “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives.” And nowhere does the Constitution give Congress authority to delegate that power. When government agencies pass regulations which carry the force of law without Congressional legislation that violates the Constitution, plain and simple. But if we the people don’t demand that government obey the Constitution they won’t. And we will lose the Constitution and all of the rights it protects. By this process, America can be transformed from a free country to a totalitarian dictatorship. And that unfortunately is happening.
“The more corrupt the republic, the more numerous the laws.” – Tacitus
As true today as it was during the Roman Empire. Is Obama our Nero?
Rog G. says:
In small enough doses, yes, that it the theory.
Rob Potter says as an aside
Just to clarify, yes hormesis certainly can be falsified. It is the finding of a u-shaped or j-shaped low-dose response curve, where negative outcomes are reduced below background levels at very low levels, before rising as the dose rises to the threshold for measurable harmful effects.
The threshold model of dose-response was the original default because testing regimens had to become more sensitive before responses to lower doses could be measured. That’s why it is not coincidental that it was a leader in the field–Calabrese–who became the pioneer of the hormesis “revolution.” He was a leader in using the most sensitive new testing regimens, kind of like Galileo having the most powerful telescope.
Now everybody has good telescopes and they all are seeing hormesis everywhere, but the regulators don’t want to hear it.
I sympathize as I just went a few rounds with similar outcome.
http://www.theprovince.com/health/Junk+science+leading+junk+public+policy/6722137/story.html
And this out today about science and Rio+20
http://www.scidev.net/en/science-and-innovation-policy/science-at-rio-20/news/science-recognition-in-rio-20-talks-uphill-struggle-.html
Fortunately the MSM is slowly waking up to the eco-fear machine and the damage it is doing.
First time I came across Hormesis was via Lawrence Soloman.
http://opinion.financialpost.com/2010/09/24/lawrence-solomon-radiations-benefits/
http://opinion.financialpost.com/2012/02/10/lawrence-solomon-the-fallout-of-the-nobel-scam-of-1946/
A few years back I read about a study done in the UK that evaluated young children on various metrics based on the (trace) levels of mercury found in their blood. Interestingly, they found a significant positive correlation between mercury levels and IQ; that is, higher levels of mercury corresponded to higher IQs.
IIRC, interviews done as part of the study indicated that mercury levels corresponded well with the amount of seafood the parents reported serving the children. Of course, these results do not establish any particular chain of causality – it’s possible that a better diet led to better brain development, or simply that brighter parents (who have brighter children) fed their children more fish. But at any rate, it is very hard to find any significant (in practical sense as well as the statistical) negative effect from mercury at these levels.
I have not been able to find links to this study. Can anyone help?
clipe misspells Solomon. ♠
What is interesting is the FDA has estabished a recommended daily intake (RDI) for various metals, many of which are toxic in heavier quantities. The FDA considers them necessary for proper health in humans. The include zinc, selenium, copper, chromium and molybdenum. Toxicity does not mean they should be totally avoided. Quite to the contrary, they are needed.
jorgekafkazar says:
June 6, 2012 at 9:46 am
Homeopathy has an interesting history. Samuel Hahnemann found through anecdotal evidence that small doses of substances that caused symptoms emulating a certain condition, would (apparently) result in a cure for that condition. Not content with discovering a medication or two, he elevated his “findings” into a general law, the “Law of Similars.” At that point, he went off the rails, if he wasn’t already.
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I wonder if he intitially stumbled on hormesis but didn’t realize what he’d found. As I understand it, the theory behind homeopathy is to stimulate the symptom of an illness to “jump start” the body’s natural defenses with the thought that symptoms are your body’s way of dealing with the problem. Say, you sneeze due to an allergy. You sneeze because your body is trying to get rid of the allergen. If you get your body “ready to sneeze” using something else that would make you sneeze then you’ll clear the allergen that much faster, in theory anyway. Maybe what he started with caused the symptoms because it was the actual problem and hormesis is waht gave the positive results? Just a thought. I don’t know the history of homeopathy.
PS The dissenting judge is right on! We’d be better off with an honest man who can read with a 1780’s era dictionary on the bench than many of the exlawyers we have on the bench today.
PS to my PS I’ve nothing against honest lawyers. My both my late uncles were lawyers. One of them was a law professor and wrote at least one law book.
We need judges that will “rule by the rules” no matter their personal convictions. If a “rule” is flawed, we have the amendment proccess to fix it.
The 9th is what led a certain commentator to create the term “The Stench from the Bench!”
ferd berple says:
“The smaller the government, less bureaucrats making regulations, the lower the taxes, the better the economy functions. When things aren’t going well in business, you need to lay off workers. Why not apply this logic to government? When the economy is in the toilet, when government isn’t doing its job, cut the government. Lay off the public sector, cut costs, free up the economy and let people get back to work.”
That was the specific remedy employed in the Depression of 1919 – 1921. The federal government slashed employment and spending by more than 60%. The result? In less than 18 months unemployment fell from almost 12% to below 3%, and the greatest expansion in U.S. economic history followed.
But when the Great Depression began, the success of the 1921 remedy was disregarded. Government grew instead of getting smaller. The result? What should have been another 18 month depression turned into the Great Depression and lasted until WWII. We are making exactly the same mistakes now, and the results are predictably the same: long term high unemployment and economic stagnation.
@ur momisugly Smokey says:
June 6, 2012 at 2:56 pm
But when the Great Depression began, the success of the 1921 remedy was disregarded. Government grew instead of getting smaller. The result? What should have been another 18 month depression turned into the Great Depression and lasted until WWII. We are making exactly the same mistakes now, and the results are predictably the same: long term high unemployment and economic stagnation.
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Being charitable, that is always the result of misplaced compassion. Which is an emotional disease that primarily infects the political left.
Curiousgeorge says:
June 6, 2012 at 5:28 pm
Being charitable, that is always the result of misplaced compassion. Which is an emotional disease that primarily infects the political left.
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Being charitable isn’t the problem. Being “charitable” using someone else’s money is the problem.
Smokey says: @ur momisugly June 6, 2012 at 2:56 pm
…..That was the specific remedy employed in the Depression of 1919 – 1921. The federal government slashed employment and spending by more than 60%. The result? In less than 18 months unemployment fell from almost 12% to below 3%, and the greatest expansion in U.S. economic history followed.
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That would be Silent Cal: http://online.wsj.com/article/SB10001424053111903520204576484673631290098.html
In 2010 the Institute for Justice released a series of studies documenting government-imposed barriers to entrepreneurship in eight cities. In every city studied, overwhelming regulations destroyed or crippled would-be businesses at a time when they are most needed.
This is a very ominous sign because the bureaucrats politicians and even the voters have lost sight of what fuels their cities, towns, states and countries and that is commerce.
I have often thought it is the weight of accumulating laws, the bureaucracy to enforce them and the taxes that pays for it all that finally strangles commerce completely and results in the civilization collapsing.
Time to start repealing lots of laws and cutting the bureaucracy to the bone or we will be heading down the tubes like every other 200 year old civilization to a nasty totalitarian dictatorship. This time it will be a global dictatorship and it is already forming via “Global Governance” and Agenda 21.
Hoser says:
June 6, 2012 at 8:15 am
“Water supply problems stemming from bad court rulings based on poor science continue to impact agriculture in California and harm our economy [4].”
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Isn’t water Dr. Gleick’s game? Guess they need him back.
Could water be the next CAGW….UN’s stab at a people control vehicle?
“There are two ways to conquer and enslave a nation.
One is by the sword. The other is by debt.” John Adams 1826
“You cannot strengthen the weak by weakening the strong.” A. Lincoln
“When injustice becomes law, then resistance becomes duty.” T. Jefferson