MILLOY: Federal judge overturns EPA human experiments case

OPINION:

It’s a good thing the U.S Public Health Service called off the infamous Tuskegee syphilis experiments in 1972. Had someone sued to stop the horror, a federal judge like Anthony Trenga might have stopped the suit — not the experiments.
 
That’s precisely what Judge Trenga did on Jan. 31 in the case of the American Tradition Institute v. U.S. Environmental Protection Agency.

The American Tradition Institute sued the EPA in October to stop an ongoing experiment in which the agency was exposing elderly study subjects (up to 75 years of age) to concentrated levels of a deadly (according to EPA) air pollutant known as PM2.5 (soot or dust much smaller than the width of a human hair).

The lawsuit claimed the experiments were illegal in that they blatantly violated virtually every major standard developed since World War II for the protection of human study subjects used in scientific experiments.

Given that the EPA long ago determined that any exposure to PM2.5 could cause death (as well as a host of other serious health consequences) within hours or days of inhalation, the experiments are fundamentally illegal. Federal regulations and the Nuremberg Code strictly prohibit scientists from treating human subjects like expendable guinea pigs. In the experiment in question, the study subjects were asked to risk their very lives for $12 per hour.

Then again, the study subjects really weren’t “asked” to risk their lives, since the EPA researchers failed — and, in fact, refused — to warn them that PM2.5 could kill them. At the very least, exposing study subjects to a dangerous and deadly toxin without their consent is also known as “assault and battery.”

To Judge Trenga, however, the important thing apparently was to nitpick to death the effort to stop the experiments with a narrow reading of the federal rules of civil procedure.

Judge Trenga determined that the EPA’s decision to endanger the lives of its study subjects, including inducing them to sign a fraudulent consent form, did not constitute a “final agency action” under the Administrative Procedures Act. Judge Trenga also determined, as the American Tradition Institute was not being harmed by the experiments, it didn’t have standing to pursue the case.

Presumably Judge Trenga might have allowed an actual human study subject to maintain a lawsuit to stop the experiments, but then again, how would they? The EPA lied to each of them about the risks of the experiment.

Lifetime-appointed and thus unaccountable Judge Trenga essentially decided, in agreement with Department of Justice and EPA pleadings, that no one and no law can stop the EPA from breaking the sacrosanct rules protecting human subjects from rogue experimentation. His ruling came even though federal rules of civil procedure explicitly state they “must be construed so as to do justice.”

Thanks to Judge Trenga, EPA (and possibly any other rogue government human experimenter) now has a “get out of the Nuremberg Code free” card.

Perhaps looking for a way to wash his hands of the case, Judge Trenga did ask the American Tradition Institute during the hearing whether a political solution was being sought against the EPA experiments. Yes, the House has asked the EPA Office of the Inspector General to investigate, and Oklahoma Republican Sen. Jim Inhofe asked the Senate Environment and Public Works Committee chairman Barbara Boxer to hold hearings last October.

Aside from the high probability of a whitewash by the EPA inspector general and Sen. Boxer’s failure to take any action so far, the experiments are ongoing, and the study subjects are in mortal danger now. Moreover, it doesn’t seem reasonable to expect expedited, or even any political action from a polarized Congress that hasn’t passed a basic budget for the country in years.

Consider that Supreme Court Justice John Roberts recently had no qualms about distending the Constitution to compel people to buy health insurance under Obamacare. Yet federal district court Judge Trenga wasn’t even willing to at least temporarily liberalize his interpretation of the federal rules of civil procedure so that he could hear all the facts in the human testing case.

The EPA’s guinea pigs didn’t get any “compassionate conservatism” from this appointee of George W. Bush. Unfortunately, they still don’t even know they are being treated like lab rats.
Despite the unfortunate ruling by Judge Trenga, this controversy is not over —not by a long shot. The effort to spotlight and stop the EPA’s outrageous conduct will continue. Don’t expect it to be easy.

In conducting these experiments, the EPA either lied to the study subjects (giving rise to civil and possibly criminal liability), or the agency lied to Congress and the public about the dangers of PM2.5 (risking the agency’s reputation and related regulatory programs). This question remains of great import. It’s just too bad Judge Trenga wasn’t interested in learning the answer.