Saturday, August 23, 2003

EPA -- Island of Post-9/11 Panglossianism

The Washington Post reports that the White House intervened to soften Environmental Protection Agency warnings on air quality in the wake of the 9/11 attack on the World Trade Center, persuading EPA to delete cautionary statements and to add notes of reassurance. EPA deleted advice about cleaning indoor spaces, as well as information about "potential health effects from airborne dust containing asbestos, lead, glass fibers and concrete." And initial announcements that the air was safe to breathe "were not supported by proper air quality monitoring data and analysis," as the Post puts it.

EPA's guidance is routinely invoked as a kind of gold standard in Daubert disputes. For example, Justice Stevens's opinion in General Electric Co. v. Joiner, 522 U.S. 136 (1997), observed that the plaintiffs' expert in that case followed the same risk assessment methodology as the EPA.

So it is good to know that the Agency's inspector general has recommended, in the Post's words, "that the agency adopt new procedures so its public statements on health risks and environmental quality are supported by data and analysis." The IG's full report can be found here. If anything, it seems more critical than the Post's story suggests.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.