Crimes Against Nature

by Kennedy, Jr. Robert F.

  11 Needless to say, consumer and environmental groups are not represented on the council.

  As director of the HCRA, Graham played a central role in undermining support for many of the country’s vital environmental protections through his “research” papers. His testimony before Congress and work with the media helped to endow anti-environmentalism with scientific gloss. The center’s bimonthly journal, Risk in Perspective, for instance, routinely featured articles discounting the risks of children’s exposure to pesticides or power plant emissions, almost always without disclosing the abundant funding it had collected from pesticide manufacturers and utility companies.

  Graham’s close working relationship with Philip Morris is a perfect illustration of the way in which he blatantly offered research assistance to companies that agreed to fund his organization. In the mid-1990s, while apparently collaborating with Philip Morris to undermine an EPA risk assessment of the cancer-causing effects of secondhand smoke, Graham accepted a $25,000 donation to the HCRA. He subsequently returned that check on the purported basis that HCRA was prohibited from accepting money from tobacco companies. In his letter enclosing the check, Graham suggested that the tobacconeer reissue the check from the account of one of its subsidiaries, Kraft Foods. Philip Morris happily complied. Graham’s actions appear to have been aimed at hiding the fact that he received tobacco money. But the Kraft donation may have given Philip Morris more bang for its buck: Soon after receiving Kraft’s money, Graham not only continued to work on the secondhand-smoke issue, but began soliciting Kraft’s help for his work opposing restrictions on pesticide residues on foods.

  12

  But even the Harvard name couldn’t always protect Graham from his own fuzzy math. In March 1997, Graham argued in news appearances and before the National Transportation Safety Board that a new, unpublished HCRA report had convinced him that passenger-side air bags were not cost-effective since they cost $399,000 for each year of life saved.

  13 After harsh criticism from auto safety advocates, Graham’s study was peer-reviewed, resulting in a dramatic recantation by Graham in the Journal of the American Medical Association; it turned out that the true cost was $61,000 for each year of life saved.

  14 Graham was forced to acknowledge that his own data revealed that air bags were a worthwhile investment. To this day, Graham refuses to disclose the amount of unrestricted funding from the auto industry to the HCRA.

  Graham suffered a major embarrassment during his confirmation hearings for OIRA. He claimed in his résumé that a study on the cost-effectiveness of regulations was the primary basis for his reputation “as a scholar.” The 1996 study, which included the examination of 90 environmental regulations, claimed that 60,000 lives could be saved if the government abandoned certain rules and reallocated resources more efficiently.

  15 Graham had stated in appearances before Congress and elsewhere that his data showed that these federal regulations were guilty, in his own words, of the “statistical murder” of 60,000 Americans every year.

  16 Thanks to Graham’s aggressive promotion, his conclusion became a sacred tenet of industry, and his “statistical murder” statement was endlessly repeated by the radical right and routinely quoted by opponents of regulation. It is this study that established him as an expert and ushered him onto the national playing field.

  The study, however, had never been peer-reviewed.

  17 The peer review process, in which unbiased experts evaluate the author’s data and verify the conclusions, is the gold standard in science; no reputable medical or scientific journal will publish a study that has not been peer-reviewed. Graham’s OIRA nomination prompted Professor Lisa Heinzerling of Georgetown University’s Law Center to take a closer look at his data. In testimony submitted to the Senate Governmental Affairs Committee, Heinzerling proved that Graham’s work was completely misleading. Heinzerling revealed that in fact Graham had based his calculations on 79 environmental regulations that were never enacted. In his study, Graham presented the vast majority of environmental programs as if they had been implemented, yet only 11 of the 90 “inefficient” rules upon which Graham based his calculations had ever been enacted. Heinzerling also showed that in Graham’s calculations, he grossly understated the value of a human life.

  18

  Heinzerling’s discovery of Graham’s misleading conclusions forced him to recant the study, sheepishly admitting in testimony to Congress that his claimed 60,000 “murders” were an exaggeration.

  19 In the end, his study, hailed as proof of regulatory inefficiency and cited dozens of times by the media and members of Congress as evidence of the need for regulatory reform, was worthless. Worse, the fact that Graham himself used his flawed study in a deceptive way in congressional testimony and other public appearances amounts to a devastating indictment of the way in which he regularly aids and abets his corporate paymasters.

  Graham’s screwball cost-benefit formulas, coupled with his well-documented industry bias, made his confirmation one of the more intense political battles of the spring of 2001. He was widely opposed by public interest groups, labor unions, and scientists. Two separate letters signed by dozens of academics — including 11 of Graham’s colleagues from the Harvard Medical School and the Harvard School of Public Health, which houses Graham’s center — were sent to the Governmental Affairs Committee to express opposition to the Graham nomination.

  20

  The letters denounced Graham as a scientific charlatan and an ethical train wreck. “Professor Graham,” the authors of one letter said, “has shown his willingness to over-ride health, safety, environmental, civil rights, and other social goals in applying crude cost-benefit tools far past the point at which they can be justified by existing scientific and economic data.” The letter charged him with using “controversial risk management methodology” and “extreme and highly disputed economic assumptions” that “discount the real risks of well-documented pollutants such as dioxin and benzene.” Graham, they warned, “has publicly rendered many opinions on complex and imperfectly understood scientific phenomena, such as the etiology of cancer and other diseases, despite his lack of a degree in the hard sciences.” They accused him of routinely making deceptive comments “to the media and Congress” that undermine regulatory efforts “by understating many of the potential benefits of health, safety and environmental regulation and overstating their costs.”

  Observing that “Graham’s work has, overall, demonstrated a remarkable congruency with the interests of regulated industries,” these scientists condemned his ethical lapses: “We also have serious concerns about Professor Graham’s disregard for widely accepted fundraising and research norms within academia. He has solicited and accepted unrestricted funds from corporations with a direct financial interest in particular regulatory issues addressed by his work, without acknowledging the role of his corporate benefactors.”

  They concluded that “Graham’s record shows that he is unlikely to serve as an honest broker as OIRA director.”

  21

  Despite all that, Graham got the job. His narrow victory — he received 37 no votes in his Senate confirmation, the second highest of any Bush nominee after Attorney General John Ashcroft — was a triumph for the industry forces that had long supported his career.

  22 With Graham in place, his Wise Use backers now had a man in Washington who could promote their agenda out of sight of public scrutiny.

  Now, as the government’s regulatory czar, Graham sits in judgment of virtually every new rule affecting workplace safety, consumer safety, public health, education, and the environment. Many proposed regulations disappear into the black hole at Graham’s OIRA. In congressional testimony in March 2002, Graham boasted that since his appointment the previous July he had rejected more than 20 potential new rules, claiming inadequacies in cost-benefit analysis — more than were rejected in all eight years of the Clinton presidency. Not once has Graham’s OIRA rejected a proposed rule for being ins
ufficiently protective of public health, safety, or the environment. OIRA’s clear overriding concern is cost to industry. A recent report by the United States General Accounting Office analyzed 85 federal agency rules that OIRA changed, returned, or withdrew between July 2001 and June 2002. The GAO found that OIRA had hobbled several proposed public health and environmental regulations, including more than two dozen rules suggested by the EPA.

  23

  Graham seems hell-bent on demolishing as many existing regulations as he can. As soon as he was confirmed, he collaborated with corporate allies, including the American Chemistry Council, the Mercatus Center, and the American Petroleum Institute, to come up with a hit list of existing regulations to “reform.” Graham presented 23 of those regulations to Congress the following December, recommending they be changed or eliminated. Among the rules Graham targeted were the EPA’s plan to reduce arsenic levels in public drinking water, the preservation of roadless areas in forests, a proposed Interior Department rule prohibiting snowmobiles in National Parks, and rules controlling coal-burning power plants.

  24

  One of those regulatory changes directly affected the Waterkeeper lawsuit that had brought me to that memorable press conference in North Carolina. The tensions behind that lawsuit had been simmering for decades. Industrial meat moguls and their agribusiness allies often argue that the disappearance of the traditional family farm is inevitable; the greater efficiencies of large operations, they claim, render the small business obsolete. Nothing could be further from the truth. The disappearance of the family farm has little to do with market forces. It is the direct consequence of government policies deliberately designed to favor agribusiness over traditional farmers. In no agricultural sector is this clearer than in meat production.

  For 300 years, this country’s family farmers produced more than enough beef, pork, and chicken for American consumers and export markets. They used traditional techniques of animal husbandry, recycling their manure to fertilize the soil to grow feed crops. They were proud stewards of their land and generally raised their animals in a humane manner. Study after study shows that these small operations are far more efficient than the giant farm factories.

  25 But agribusiness has used its political and financial clout to eliminate agricultural markets, seize federal subsidies, and flout environmental laws to gain competitive advantage.

  The fact is, an industrial meat factory cannot produce a pound of bacon or a pork chop cheaper than a family farmer without breaking the law. Several federal and state laws prohibit dumping waste into the environment. Traditional farms are exempt from these laws since they have enough land to use their manure as fertilizer to grow actual crops. Factory farms simply have too much waste per acre to put it to beneficial use. Hog barons build football-sized warehouses and cram genetically engineered hogs into tiny cages where they endure short, miserable lives deprived of sunlight, exercise, straw bedding, and interaction with other animals.

  26 Concentrated waste from these facilities is saturated with dozens of toxic chemicals and antibiotics, which are fed to the pigs to stimulate growth and keep them from dying from the stress.

  The waste stream from factory farms is prodigious, to say the least. A pig produces 10 times the fecal waste of a human being, and a facility with 50,000 hogs produces more waste than a city of half a million people.

  27 Circle 4, a Smithfield facility licensed in Utah for 850,000 animals, can produce more waste every day than all the human beings in New York City combined. Of course, before it dumps waste into the water or onto the land, a city needs a permit that prescribes strict treatment requirements. And these facilities do, too. It says so in the Clean Water Act.

  But costs of hauling or treating this excess waste in accordance with a permit would make it impossible for these corporations to compete with traditional family farmers. So the hog barons ignore the permit requirements. They simply dump the waste in open-air “lagoons” and spray it onto fields, saturating them with toxins in concentrations far greater than growing crops can assimilate. As a result, they transfer the cost of their production to the rest of us by polluting the land, air, and waterways.

  Waste from industrial pork factories contains a witch’s brew of nearly 400 toxic poisons, including heavy metals, antibiotics, hormones, deadly biocides, pesticides, and dozens of disease-causing viruses and microbes.

  28 Millions of tons of this fecal marinade, produced by meat factories in 34 states, leaks or oozes into waterways or aquifers, or volatizes into the air. Hog factory contaminants have also fostered outbreaks of a previously unknown microbe, Pfiesteria piscicida, in U.S. coastal waters. Pfiesteria, “the cell from hell,” kills millions upon millions of fish and causes pustulating lesions that won’t heal, severe respiratory illness, and brain damage in humans who handle fish or swim in the water.

  29 My clients include fishermen from the Neuse River in North Carolina, where an estimated 1 billion fish died from Pfiesteria in a single six-week period in 1991. Many of these men are covered with open sores and some can no longer manage their lives because of brain damage caused by Pfiesteria.

  30

  The hog barons’ business model relies on the assumption that they can evade prosecution for these crimes by improperly influencing government enforcement officials. Corporate meat producers intentionally locate their meat factories in poor and minority communities where they can crush and muzzle opponents. They routinely rely on intimidation and bullying lawyers to silence critics. They harass neighboring farmers for complaining to regulatory agencies about odors or water pollution or for participating in public hearings. The meat industry typically infiltrates state legislatures in order to manipulate local officials. In Iowa, North Carolina, Michigan, and other states, legislatures have stripped local officials of their decision-making powers so that hog factories cannot be zoned out by local planning boards or health officials. When staff members from the Leopold Center for Sustainable Agriculture, a state-financed organization that advocates for family farmers, attended my Waterkeeper Alliance seminar on factory farming in Iowa in the spring of 2002, the pork barons got the Iowa State Legislature to retaliate by cutting $1 million, or 85 percent of the center’s annual budget.

  Believe it or not, the industry’s capacity to corrupt legislatures is so vast that it has been able to persuade legislators in Missouri and Illinois to pass laws making it a crime to photograph factory farm animals. Thirteen states now have veggie “libel” laws that make it illegal to criticize food from factory farms and other agribusiness products. Remember folks, this is America!

  In 2001, the Pork Producers Council launched a smear campaign against the Waterkeeper Alliance and against me personally. The industry created a Wise Use front group, “Truthkeepers,” whose sole purpose appears to be to discredit me. The president of Truthkeepers is an industry goon named Trent Loos, a former South Dakota pork factory manager. Loos follows me across the country, shadowing me at public appearances in New York, California, Illinois, and Kansas. Sporting a handlebar mustache, cowboy boots, a dandy scarf, and, appropriately, a black Stetson, he sits in the front row at my speeches and conferences, holding a microphone and a tape recorder. In Minnesota he followed me into a restroom and lurked behind me at the urinal. In Iowa he waited for me in a dark parking lot and made menacing comments. At an agricultural conference in Gettysburg, Pennsylvania, he trapped me in a hotel corridor, and I had to threaten fisticuffs to access my room. I was recently relieved of Trent’s company when he was charged with cattle theft in Nebraska.

  31 He pleaded guilty, and his probation prohibited him from leaving the state.

  Waterkeeper Alliance was led into the hog-industry battle by Colonel Rick Dove, a commercial fisherman and 27-year Marine Corps veteran who had become a Riverkeeper on the Neuse after pollution from industrial hog factories put him out of business. Dove had been engaged in nose-to-nose combat with Smithfield, the Pork Producers Council, and the American Farm Bureau, industr
ial meat’s most powerful ally. Masquerading as an ally of small farmers, the American Farm Bureau is a multibillion-dollar lobbying conglomerate of insurance, chemical, and agribusiness interests.

  Following the December 2000 press conference, Waterkeeper sued four of Smithfield’s North Carolina factory farms under the Clean Water Act and the Resource Conservation and Recovery Act, which forbids dumping pollutants onto soils. According to these statutes, anyone discharging waste into water or onto land needs a permit. Such permits require the dischargers to first treat their waste so that it will not injure public health or the environment. Smithfield countered with a motion to dismiss, arguing that it was entitled to the same exemptions that small independent family farms get.

  But the Honorable Judge Malcolm Howard, a federal magistrate appointed by Ronald Reagan, sided with us. On September 20, 2001, Judge Howard issued a decision that sent a shock wave through the industry. Pig factories, the ruling implied, are no different than any other factories that dump waste. If they don’t have a Clean Water Act permit, they are operating illegally, which meant that almost none of Smithfield’s approximately 1,500 company- owned or -controlled facilities were in compliance with federal law.

  A few weeks later, in November 2001, OIRA administrator John Graham and his staff held a meeting with lobbyists from industries affected by Judge Howard’s decision: the Pork Producers Council, the National Turkey Federation, Farmland Industries, the National Cattlemen’s Beef Association, the National Milk Producers Federation, and the United Egg Producers. Graham also invited the Mercatus Center to come to the rescue. Mercatus’s eight-member board includes Frank Atkinson, a partner in McGuireWoods, LLP, the law firm defending Smithfield in our case before Judge Howard. Mercatus presented Graham with a draft of sweetheart regulations that would alter the Clean Air and Clean Water Acts and dramatically affect Judge Howard’s decision. Graham sent the proposals to the EPA for review, ordering the agency to give them “high priority.”