Return to top of page(1) The request for comments was received October 24, with a deadline for reply of November 10, 1996. The short time period provided for comments did not permit a full discussion of some of the points raised, nor time to sufficiently document all sources and references cited in the comments.
(2) It would obviously be reasonable to pose specific questions to non-EMF experts as an aid in evaluating particular EMF reports. For example: Were molecular biological studies performed by Goodman and her colleagues, or Saffer and Thurston carried out at a level of competence typically exhibited by scientists working in the area of molecular biology? If not, what procedures or strategies constituted the sub-par performance? Since peer-review is no guarantee that the published work is valid, it might be entirely reasonable to consider such specific questions, and to seek the services of a non-EMF expert in doing so. For example, if Dr. Stuart Aaronson, National Cancer Institute, were asked to review published EMF studies involving molecular virology, his comments would deserve considerable weight because of his standing in that scientific discipline. On the other hand, Dr. Aaronson's opinion concerning the global issue whether powerlines constitute a health risk (they do not, according to his testimony in Zappavigna v. New York) would be exactly the role that a non-EMF expert should not be afforded in evaluating the health risks of powerline EMFs.
(3) The role of the physicist in the EMF bioeffects debate has been consistently dogmatic and focused on irrelevant issues.
Following World War II, questions arose concerning the safety of military personnel exposed to the EMFs from the newly-invented radar systems. Herman Schwan was brought to the United States, where he joined the engineering faculty at the University of Pennsylvania and secured support for research regarding EMFs. In the early 1950s Dr. Schwan presented calculations showing, he argued, that electromagnetic fields were safe. Those calculations were implemented by the military and federal agencies as if they had the force of law (which they did not).
In 1975, Dr. Schwan extended his calculations to high-voltage owerlines, and concluded that they also were safe. All subsequent physicists who have opined publicly regarding health risks of EMFs have simply repeated Dr. Schwan's reasoning. The assertions became increasingly shrill, culminating in a recent manifesto in which the Board of Councillors of the American Physical Society expressed belief and doctrine, but provided no reasoning based on scientific knowledge.
Congress wants the NIEHS to answer the question: Does exposure to powerline EMFs constitute a health risk? The physicist, in contrast, wants to answer the question: What is the transduction mechanism for biological detection of EMFs? It is clear that these questions are different. It is also clear that the absence of knowledge regarding mechanisms (almost universally conceded) is irrelevant and immaterial. It is irrelevant because the absence of knowledge regarding a mechanism does not make the biological evidence more or less credible. We do not understand the mechanisms that underlie gravity, love, pain, fracture healing, the loss of anchorage independence by neoplastic cells grown in culture, clearance of human immunodeficiency virus from the bloodstream, or the mechanisms underlying a plethora of other observable processes. In no case, however, is it rationally argued that the absence of mechanistic knowledge is relevant to the issue whether the phenomena exist.
The argument is immaterial because, even if true, it has no consequences with regard to the issue of whether EMFs are a health risk to human beings. It might be material to a question involving mitigation strategies because mechanistic knowledge would permit the industry to devise remedies that would minimize its costs. The question of mitigation strategies, however, is far from the main thrust of the Congress's interest, and that question is not ripe for consideration unless the main question posed by Congress is first addressed.
In any sensible inquiry into the health risks of EMFs, the issue of mechanisms would not enter at the fact-finding stage because no true issue of fact is presented - no credible scientist maintains that he knows or understands the mechanism. Injection of the issue of mechanism merely serves to consume the resources of the tribunal.
(4) Many federal laws (and accompanying regulations) require the use of animal studies to assess human health risks, and none contain provisions that would vary the normal evidentiary burden associated with civil litigation. Clean Air Act, codified at 42 U.S.C. §7401 et seq. (1983 & Supp. 1995); Consumer Product Safety Act, codified at 15 U.S.C. §2051 et seq. (1982 & Supp. 1995); Federal Food, Drug, & Cosmetic Act, codified at 21 U.S.C. §301 et seq. (1972 & Supp. 1995); Federal Hazardous Substances Act, codified at 15 U.S.C. §1261 et seq. (1982 & Supp. 1995); Federal Insecticide, Fungicide, & Rodenticide Act, codified at 7 U.S.C. §136 et seq. (1980 & Supp. 1995); Federal Water Pollution Control Act, codified at 33 U.S.C. §1251 et seq. (1986 & Supp. 1995); Occupational Safety and Health Act, codified at 29 U.S.C. §651 et seq. (1985); Resource Conservation and Recovery Act, codified at 42 U.S.C. §6901 et seq. (1983 & Supp. 1995); Safe Drinking Water Act, codified at 42 U.S.C. §300 et seq. (1991); Toxic Substance Control Act, codified at 15 U.S.C. §2601 et seq. (1982 & Supp. 1995).
Federal public health authorities invariably consider both animal and epidemiological studies. U.S. Environmental Protection Agency, Final Guidelines for Developmental Toxicity Risk Assessment, 56 Fed. Reg. 63798, 63799 (1991) ("hazard identification/dose-response evaluation involves examining all available experimental animal and human data"); U.S.Environmental Protection Agency, Proposed Guidelines for Assessing Female Reproductive Risk, 53 Fed. Reg. 24834, 24836 (1988) (EPA consistently relies on "evaluation of toxicological data from humans and experimental animals" in assessing reproductive and developmental risks); U.S. Occupational Safety and Health Administration, Final Standard for Occupational Exposure to Ethylene Oxide, 49 Fed. Reg. 25734, 25743 (1984) (OSHA ruling rested on a "comprehensive review of the scientific evidence ... based on information from many investigations in several species of experimental animals ... as well as positive results from several human studies"); U.S. Occupational Safety and Health Administration, Final Rule for the Identification, Classification, and Regulation of Potential Occupational Carcinogens, 45 Fed. Reg. 5002, 5040-59 (1980) (requiring data from other human studies or from experimental studies in test animals).
(5) Historically, the courts in the United States did not ask a scientist "how do you know?". Rather, the courts assumed that science was objective, dispassionate, and without the bias that is sometimes seen in other areas of human endeavor. The error resulting from this unrealistic view of scientists was rectified in Daubert v. Merrell Dow Pharms., Inc., 113 S.Ct. 2786, 61 U.S.L.W. 4805 (1993). In that case, the question presented to the Supreme Court was whether "general acceptance" was the standard for admitting scientific testimony. The Supreme Court rejected the "general acceptance" standard and held that the reliability of scientific opinion must be determined from a consideration of how the scientist arrived at his opinion. The testimony would be acceptable only if it was based on "scientific ... knowledge."
Every scientific dispute, the dispute in the Daubert case and the dispute regarding the bioeffects of powerline EMFs are only two examples, involves two schools of thought regarding the scientific evidence, one of which is generally favorable toward each side. Science on the opposing side of the dispute is called "junk science" to distinguish it from the "good science" advanced by the other side; "good science" is my science, and "junk science" is the other guy's science. The Supreme Court said, in effect, that all such disputes must be decided in an open adversarial process based on scientific knowledge. For further discussion see The Scientific Basis of Causality in Toxic Tort Cases. A.A. Marino and L.E. Marino. Dayton Law Review, vol. 21, pp.1-62, 1995.
(6) The following is an example of how the manner of disclosure of a study can affect its interpretation. Since the mid-1970s, investigators at Battelle Pacific Northwest Laboratories have performed contract research, partly funded by EPRI and DoE, to show the safety of high-voltage powerlines. One study involved the effects of long-term exposure to electromagnetic fields on the growth rate of mice. One group of animals was exposed to the field, and the other served as the comparison group to permit assessment of the effects of the field. The result was that the mice in the exposed group were smaller, on average, compared with the controls, and the difference could not be attributed to chance (less than a 5% possibility). The result was unexpected, and the experiment was repeated; this time, however, the exposed mice were found to be larger than their corresponding controls. Again, the results could not be attributed to chance. If the data from each study was evaluated separately, which was the initial plan, it would be concluded that exposure to electromagnetic fields can decrease or increase growth in mice, depending upon the presence or absence of other, unascertained factors. What the investigators did, however, was average the results of the two studies and conclude that electromagnetic fields had no effect on growth in mice and, consequently, that the studies did not suggest a likelihood of harm to similarly exposed human subjects. R.D. Phillips et al., U.S. Dept. Energy, Biological Effects of High Strength Electric Fields on Small Laboratory Animals, DOE/TIC-10084 (1979). Discussed in R.O. Becker & A.A. Marino, Electromagnetism & Life 150 (1982); A.A. Marino & J. Ray, Electric Wilderness 98 (1986).
(7) The National Academy of Sciences (NAS), in cooperation with the U.S. Navy, appointed a blue-ribbon committee to evaluate the safety of a large Navy antenna that would emit electromagnetic fields similar in some respects to those emitted by powerlines, except that the fields from the antenna would be 100,000 times weaker. Three experts who previously testified that powerline electromagnetic fields create no health risk were appointed to the NAS committee. Not surprisingly, the NAS committee found that the proposed antenna would be safe. National Academy of Sciences, Committee on Biospheric Effects of Extremely-Low-Frequency Radiation, Biologic Effects of Electric and Magnetic Fields Associated with Proposed Project Seafarer: Report of the Committee on Biospheric Effects of Extremely-Low-Frequency Radiation (1977). P.N. Boffey, Project Seafarer: Critics Attack National Academys Review Group, 192 Science 1213 (June 18, 1976); Discussed in A.A. Marino & J. Ray, Electric Wilderness 98 (1986).
(8) H.B. Graves, who previously performed contract research for EPRI, was appointed by a state agency in Florida to chair a blue-ribbon committee regarding powerline safety. The committee generally exonerated state regulatory practices (which did not require any special efforts to lessen exposure to electromagnetic fields or to apprise the public of the nature or extent of the exposure). Shortly thereafter, Dr. Graves became the chief of staff for Crowel & Moring, which represents power companies in legal actions involving the issue of health risks due to electromagnetic fields from powerlines. See Florida Electric and Magnetic Fields Science Advisory Commission (H.B. Graves, Chairman), Biological Effects of 60-Hz Power Transmission Lines, Florida Electric and Magnetic Fields Science Advisory Commission Report (Mar. 1985); 8 Microwave News 3 (Mar./Apr. 1988).
(9) Industry employees, consultants, and contractors have routinely served on EMF blue-ribbon committees. Indeed, almost all EMF investigators who have served on the committees fall into one or more of the categories.
The most sensitive conflict-of-interest issue is raised when prominent and well-respected scientists accept industry contracts, and then agree to serve on EMF blue-ribbon committees that lack mechanisms capable of forcing them to explain and defend their views. Perhaps the two most prominent examples are Drs. Ross Adey, Veterans Administration Hospital, Loma Linda, California, and Dr. David Savitz, University of North Carolina, Chapel Hill, North Carolina.
It is not wise to make public policy on the basis of judgments formed in part by scientists in the position of evaluating the potential liability and responsibility of parties that control their research funding.
(10) Perhaps the only exception was an EMF blue-ribbon committee impaneled by the Navy (Proceedings of the Ad Hoc Committee for the Review of Biomedical and Ecological Effects of ELF Radiation, Bureau of Medicine and Surgery, Department of the Navy, Washington, DC, December 6-7, 1973).
(11) For example, the 1977 National Research Council report (Biological Effects of Electric and Magnetic Fields Associated with Proposed Project Seafarer, Report of the Committee on Biosphere Effects of Extremely-Low-Frequency Radiation, National Academy of Sciences, Washington, DC, 1977) lauded only the calcium efflux studies. Similarly, the 1996 NRC report seemed to afford the existing science little respect, except for the studies dealing with melatonin and the epidemiological studies involving wire codes and childhood leukemia. In each case, the studies were performed by committee members.
(12) Zappavigna v. New York, Claim No. 74085 (testimony of Richard Bockman, Oct. 11, 1988); only animal studies need be considered. Zappavigna v. New York (testimony of Margaret Tucker, Oct. 13, 1988); only epidemiological studies need be considered. Rausch v. School Board of Palm Beach County, Civ. No. CL 8810772 AD (D. Fla. 1989) (testimony of Phillip Cole); powerlines are safe because the number of negative studies is greater than the number of positive studies. For further details see A.A. Marino, Negative Studies and Common Sense, 8 J. Bioelectricity v (1989). Alabama Power Co. v. Western Pocahontas Props., No. CU88-676 (Cir. Ct. Ala. Apr. 17 1992) (testimony of Mary Ellen OConnor); knowledge of underlying mechanisms is required to show a causal relation between electromagnetic fields and health risks.
(13) The Science Court Experiment: An Interim Report, 193 Science 653-56 (1976).
(14) In a blue-ribbon committee approach, even if it were the case that both sides of the dispute were represented by virtue of their choice of the committee members, it would still be difficult to constrain the two sides to address the same issues. Each side would likely focus on its own evidence, and ignore the evidence championed by the other side.
(15) The lack of reticence on the part of individuals and groups that ought to know better to make judgments that are beyond their competence is a hallmark of the EMF bioeffects dispute. The best known, recent example was the manifesto of the Board of Councillors of the American Physical Society which exonerated EMFs as a health risk. That action was supported by 35 (of 36) Councillors, even though none has a history of competence in the subject, as indicated by the lack of publications listed in Index Medicus. An even more striking example was that of 6 physicists and a chemist, all Nobel Prize winners, who sought legal counsel and then filed a voluntary friend-of-the-court brief with the California State Supreme Court in which they forcefully argued against the idea that powerline EMFs were a health risk. These cases illustrate both the depth of the feeling regarding the EMF issue, and the tendency for even first-rank scientists to opine in areas well beyond their competency.
(16) A major problem with the Proposal of the NIEHS is the implicit assumption that there is only one form of scientific reasoning, and that consequently the main issue involves the sufficiency of the data. This is not the case. See: The EMF bioeffects debate results from a paradigmatic shift. A.A. Marino, Abstracts from the 18th Annual Meeting of the Bioelectromagnetics Society, Victoria, B.C., Canada, 1996. Briefly, the physical scientist follows a hypothetico-deductive form of reasoning, and explains observations as deductive consequences from particular mathematical equations. The biological scientist follows an abductive form of reasoning and suggests general principles that may govern biological activity.
(17) A. Mazur, A.A. Marino, & R.O. Becker, Separating Factual Disputes from Value Disputes in Controversies over Technology, 1 Technology in Society 229-37 (1979).
(18) There is obviously no serious danger that the industry position regarding the health effects of EMFs will be undersupported, assuming that the proponents of that view agree to participate. On the other hand, as discussed, there is a serious question regarding the available resources and possible risks that would be faced by those who would argue against the industry position. If NIEHS does not adequately redress the imbalance, it would not be reasonable to conclude that the anti-industry view has no merit based on the refusal of scientists to participate in advancing those arguments, given the personal expenses and jeopardy that would accrue to them.
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