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Podcast: http://www.fdrurl.com/FDR2148cast
Stefan Molyneux, host of Freedomain, makes the case that we only really start worrying about social, economic and environmental problems when they are just about be solved by freedom. Examples include the Cuyahoga River fire that sparked the Clean Water Act and the FDA, DDT and drug protection through the FDA. FABLES OF THE CUYAHOGA: RECONSTRUCTING A HISTORY OF ENVIRONMENTAL PROTECTION
By 1969, efforts were already underway to reduce pollution and restore water quality in many water bodies, including the Cuyahoga.
Subsequent federal efforts received more attention – and far more credit – but it appears the tide was turning well before Congress enacted the 1972 Clean Water Act. One problem Cleveland faced was that the Cuyahoga was treated as an industrial stream, and state permits inhibited local clean up efforts.
Public nuisance actions and enforcement of local pollution ordinances, in particular, were precluded by state regulation, while Federal laws protecting commercially navigable waterways went largely unenforced.
Although the image of the 1969 fire is supposed to have spurred the nation to action, few Americans have ever seen a picture of the infamous event. The fire was so quick that by the time local photographers arrived, the flames were out.
There is a famous photo of the Cuyahoga River on fire. It accompanied the August 1 Time magazine story. This striking photo of a fireboat fighting a river aflame is probably the photo some Americans remember and is most likely the photo that Carol Browner referred to above.
It is also reproduced as “evidence” of the horrific 1969 fire. Yet despite Time’s characterization, it was not a picture of the June 1969 fire at all. Rather, it was an old archive photo of the river blaze of 1952, a true inferno that caused substantial damage.
A city ordinance prohibited the release of oil into the river by refineries, but it appears to have been rarely enforced, and carried only a $10 fine.
The River and Harbors Act of 1899 contained provisions barring the disposal of wastes into navigable waters, but it did not address most liquid wastes, which were responsible for the lion’s share of water pollution.
As recounted in one prominent environmental history, “In 1881, the mayor of Cleveland called the Cuyahoga River ‘an open sewer through the center of the city.’ It remained so until passage of the Clean Water Act in 1972.”
Yet contrary to popular perception, Cleveland officials began river cleanup before the 1969 fire. The brief blaze may have prompted federal action to address water pollution, but local officials and community leaders were well aware of the Cuyahoga’s plight and had already initiated cleanup efforts, including efforts to remove flammable debris and upgrade local sewage treatment facilities. “We were already doing the things we needed to clean up things there, and then the fire happened,” recalls Ben S. Stefanski II, Utilities Director at the time of the fire.
It appears that the nadir of the Cuyahoga was well before the 1969 fire, perhaps around the time of the 1952 inferno. In the days following the November 1952 blaze, local business leaders demanded action by the city. In October 1959, the Cleveland Plain Dealer trumpeted the reappearance of fish in the Cuyahoga, which suggests there had been noticeable improvement in at least some aspects of river quality, but more action was still needed.
The state had apparently expected to provide funding for pollution control projects, yet balked when federal support was not forthcoming.
Congress authorized substantial sums for Lake Erie cleanup, but then failed to actually appropriate the money. Cleveland spent approximately $30 million on the construction of waste treatment facilities from 1967 to 1970.
In the wake of the June 1969 fire, many city officials pointed fingers at the state of Ohio for creating a legal regime which made it unduly difficult for the city to maintain local river quality. Specifically, officials pointed to the state water pollution permitting system which insulated permitted facilities from public nuisance actions and generally inhibited local efforts to combat pollution
Stokes alleged that “[t]he State has capriciously been circumventing the laws of Ohio by issuing licenses to polluters and making no effort to prevent the kind of occurrences” that led to the fire.
The state’s water pollution control board licensed industrial facilities along the river, providing potential immunity from suit. “We have no jurisdiction over what is dumped” in the river, explained Utilities Director Ben. S. Stefanski II. “The state licenses the industries and gives them legal authority to dump in the river. Actually, the state gives them a license to pollute.”
Mayor Stokes was even more critical, testifying before Congress that the state “issues water discharge permits at such a low level that industries and municipalities can virtually dump what amounts almost to pure garbage and only minimally treated effluents into the streams, the rivers, and the tributaries that lead into the lake.”
In theory, the permit system was designed to enable industrial firms to develop and implement cost-effective pollution controls. In practice, it appears that once permits were issued, industrial firms were able to pollute with impunity.
State officials acknowledged at the time that they adopted a relatively hands off approach to enforcement of permit conditions. As Dr. Emmett Arnold, chairman of the Ohio Water Pollution Control Board, told the Cleveland Plain Dealer several days after the fire, he was unaware of the board ever taking “legal action – a fine or revoking of a permit” for pollution violations.
Ohio courts rarely considered the reasonableness of activities giving rise to nuisance claims and Ohio courts were generally hostile to claims that polluters could acquire prescriptive rights if they had continually polluted for a sufficient amount of time before a suit was filed.
In 1928, for example, a state court agreed to dismiss a private nuisance claim against an industrial rayon plant that had been sited before the development of nearby residential neighborhoods.
In order to bring such a claim, a plaintiff must a) have suffered material harm that is b) different from the harm suffered by the public generally.
Public nuisance actions, on the other hand, should have been viable, at least in some instances.
Under state law at the time, water pollution was generally considered a public nuisance.
This would imply that individuals, or at least local government officials, could file common law actions against polluting companies and facilities for unreasonably interfering in the public’s rights in the Cuyahoga.
Under Ohio law, however, industrial facilities discharging effluent into public waters pursuant to a valid permit from the state Water Pollution Control Board could not be charged with creating a public nuisance.
Ohio law declared that it was illegal to “cause pollution . . . of any waters of the state, or place or cause to be placed any sewage, industrial waste, or other wastes in a location where they cause pollution of any waters of the state.”
Such actions were declared public nuisances, “except in such cases where the water pollution control board has issued a valid and unexpired permit.”
When private citizens tried to sue the city of Cleveland:
The city argued, among other things, that enforcement of its municipal ordinances against the polluting firms would be “improper because of existing state licenses.”
The city appealed the case to the Supreme Court of Ohio maintaining, among other things, that the plaintiffs could not obtain a writ of mandamus forcing city officers to enforce police regulations against specific parties and that such actions were preempted by state regulation. In particular, the city argued that industrial permits issued by the state Water Pollution Control Board granted licenses to emit industrial wastes into the Cuyahoga, and that the city was powerless to prevent this pollution. The Ohio Supreme Court eventually upheld this argument, leaving local officials and environmental advocates little ability to force river cleanup.
In November 1965, President Johnson ordered all federal installations to provide secondary waste treatment at a minimum. Despite this decree, federal facilities remained a substantial pollution problem. In 1966, 237 federal installations continued to discharge insufficiently treated waste into domestic waters.
The U.S. Army Corps of Engineers also contributed to the pollution of Lake Erie, depositing contaminated dredge from the bottom of the Cuyahoga into Lake Erie on a regular basis. The Corps dumped over one million cubic yards per year from the Cuyahoga and Cleveland’s outer harbor each year in the late 1960s.
The 1965 Federal Water Pollution Control Act aimed to force the Corps to clean up its act, but by 1968 there had been no progress on this front, and the Corps “continue to dump highly polluted wastes into areas of Lake Erie still relatively undefiled.”
Although criticized for the practice, the Corps defended its actions as cost justified.
Under the federal Rivers and Harbors Act of 1899, also known as the “Refuse Act,” it was unlawful to deposit “refuse” from shore into a navigable water of the United States.
Refuse was defined to include all pollutants, including gasoline accidentally discharged into a navigable river, save nonpoint source pollution such as runoff.
The act provided for both criminal sanctions, as well as private actions for damages if a polluting company failed to observe the requisite amount of care.
Yet prior to the 1960s, this authority was rarely invoked.
DDT
Over 80 percent of all infectious diseases afflicting humans are carried by insects or other small arthropods.
These scourges, which have killed billions of people, include bubonic plague, yellow fever, typhus, dengue, Chagas disease, African sleeping sickness, elephantiasis, trypanosomiasis, viral encephalitis, leishmaniasis, filariasis, and, most deadly of all, malaria. Insects have also caused or contributed to mass death by starvation or malnutrition, by consuming up to 40 percent of the food crop and destroying much of the livestock in many developing countries.
One of the first countries to benefit from the use of DDT for civilian purposes was the United States. In the years immediately preceding World War II, between one and six million Americans, mostly drawn from the rural South, contracted malaria annually. In 1946, the U.S. Public Health Service initiated a campaign to wipe out malaria through the application of DDT to the interior walls of homes. The results were dramatic. In the first half of 1952, there were only two confirmed cases of malaria contracted within the United States.
Carson claimed that DDT was threatening many avian species with imminent extinction. Her evidence for this, however, was anecdotal and unfounded. In fact, during the period of widespread DDT use preceding the publication of Silent Spring, bird populations in the United States increased significantly, probably as a result of the pesticide’s suppression of their insect disease vectors and parasites. In her chapter “Elixirs of Death,” Carson wrote that synthetic insecticides can affect the human body in “sinister and often deadly ways,” so that cumulatively, the “threat of chronic poisoning and degenerative changes of the liver and other organs is very real.” In terms of DDT specifically, in her chapter on cancer she reported that one expert “now gives DDT the definite rating of a ‘chemical carcinogen.’”[16] These alarming assertions were false as well.
The panic raised by Carson’s book spread far beyond American borders. Responding to its warning, the governments of a number of developing countries called a halt to their DDT-based anti-malaria programs. The results were catastrophic. In Ceylon, for example, where, as noted, DDT use had cut malaria cases from millions per year in the 1940s down to just 17 by 1963, its banning in 1964 led to a resurgence of half a million victims per year by 1969.[18] In many other countries, the effects were even worse.
Attempting to head off a hysteria-induced global health disaster, in 1970 the National Academy of Sciences issued a report praising the beleaguered pesticide:
To only a few chemicals does man owe as great a debt as to DDT. It has contributed to the great increase in agricultural productivity, while sparing countless humanity from a host of diseases, most notably, perhaps, scrub typhus and malaria. Indeed, it is estimated that, in little more than two decades, DDT has prevented 500 million deaths due to malaria that would otherwise have been inevitable. Abandonment of this valuable insecticide should be undertaken only at such time and in such places as it is evident that the prospective gain to humanity exceeds the consequent losses. At this writing, all available substitutes for DDT are both more expensive per crop-year and decidedly more hazardous.
After assessing all the evidence, Judge Sweeney found: “The uses of DDT under the registration involved here do not have a deleterious effect on freshwater fish, estuarine organisms, wild birds, or other wildlife.... DDT is not a carcinogenic hazard to man.... DDT is not a mutagenic or teratogenic hazard to man.”[20] Accordingly, Judge Sweeney ruled that DDT should remain available for use.
Around the globe, Third World governments were told that if they wanted USAID or other foreign aid money to play with, they needed to stop using the most effective weapon against malaria.
By some estimates, the death toll in Africa alone from unnecessary malaria resulting from the restrictions on DDT has exceeded 100 million people.
It can be seen that far from declining, the number of birds encountered by each observer nearly quadrupled over the period in question. In the case of the robin, singled out by Carson as “the tragic symbol of the fate of the birds,” the population count increased twelvefold.
And the annual data from the North American Breeding Bird Survey from 1966 (the year the survey was launched, in response to the public fear Carson had created about the effects of DDT on birds) through the end of the 1970s shows no obvious pattern of overall increasing bird populations as would be expected to follow the 1972 banning of DDT if it were truly harming bird populations.
Eggshell thinning is a potential problem, but it should not be overstated. The levels of DDT required for malaria control are much less than those required for crop dusting as practiced in the 1950s. Furthermore, the problem does not affect every bird species — indeed, for some species, there is reason to believe that DDT has an overall beneficial effect, by protecting them from the insect-borne diseases that are a primary cause of bird mortality.
The most egregious lie put forth by the anti-DDT crusaders was launched after Carson’s death, by Charles Wurster, a cofounder of the Environmental Defense Fund. In a note published in Science magazine in 1968, Wurster claimed to have shown that the presence of 500 parts per billion (ppb) of DDT in seawater would stop photosynthesis by phytoplankton.[46] Since phytoplankton are the productive foundation that supports all higher marine organisms, their suppression by DDT seemed to threaten the very existence of all life in the ocean, and possibly on the planet.
This was truly an alarming result. However, the maximum solubility of DDT in seawater is only 1.2 ppb, nowhere near 500 ppb, so the scenario Wurster reported was physically impossible.[47] In fact, in order to get so much DDT to dissolve, Wurster had been forced to use not seawater, but a saltwater/alcohol mixture as the medium for his experiment. It is hardly surprising that marine algae stopped functioning when thrown into such stuff. In contrast, other scientists found no harm or loss of activity of the same species of marine algae that Wurster used when immersed in actual seawater saturated to the limit with DDT.
FDA
As many as 1 out of 3 people who have died from disease in the last 40 years did so needlessly because of a single law passed by Congress in 1962.
For almost a decade after a definitive scientific study, the FDA forbade aspirin manufacturers to tell the public that their product could reduce heart attacks by over 40%.
Because vitamin companies are not allowed to advertise how folic acid supplementation reduces the risk of birth defects, approximately 2500 children are born each year with spina bifida and many more are aborted.
Prior to the passage of these Amendments, the FDA primarily regulated only drug safety. The Amendments gave the FDA authority over drug manufacturing, advertising, animal studies, and the design of clinical trials.
The result was predictable: the time it took to take a drug from the laboratory to the market went from 4½ years to 14½ years. Because patent life was 19 years or less, manufacturers had insufficient time to recover their costs before a drug went generic.
The amendments might have saved, at best, 7,000 lives. In contrast, many more died waiting the extra 10 years for life-saving drugs. According to my calculations, about 4.7 million people died over the last 40 years while the life-saving drug they needed was tied up in regulatory red tape!
The death toll from losing half of our innovations from 1962 to 2003 is somewhere between 4 and 16 million people depending upon the assumptions used. Adding the 4.7 million deaths due to an extra 10 years of development time suggests that as many as one out of three people who died of disease since 1962 may have done so needlessly.
The 1962 Kefauver-Harris Amendments may very well be the deadliest law that Congress ever passed.
In our fairly recent past a group of cancer patients sued the federal government for the right to purchase a drug in development that showed reasonable signs of either slowing the progression of their illness or putting their cancer into remission altogether. The court ruled that these individuals had no constitutional right to purchase a drug on the free market that could possibly save them. The Supreme Court refused to hear the case.
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