Lawyers representing coal mines threaten science journals to stop release of findings

[geochem1st]

Will Mining Companies Really Sue Scientific Journals For Defamation?


A week ago, ScienceInsider (part of Science magazine) reported on lawyers for the mining industry sending a vaguely threatening letter to several scientific journals over the results of twenty-year diesel exhaust study:

Editors with at least four research publications say they have received a letter advising them against “publication or other distribution” of data and draft documents. The warning, including a vague statement about “consequences” that could ensue if the advice is ignored, is signed by Henry Chajet, an attorney at the Patton Boggs firm in Washington, D.C., and a lobbyist for the Mining Awareness Resource Group, which works on behalf of the mining industry.

Chajet declined to comment, but his letter makes it clear that he seeks to persuade journals to delay publishing or distributing papers containing results from the Diesel Exhaust in Miners Study (DEMS), a government-funded research project. His letter pointed out that a coalition of mining industry groups are legally entitled to review data from the study before publication. Other lawyers and researchers involved in the case also declined comment because the 2-decade-long dispute over DEMS is now under review in the U.S. Court of Appeals in New Orleans.

ScienceInsider posted a copy of the letter. We’ll get to it in a moment.

The stakes are high; the DEMS diesel study is a joint effort of the National Institute for Occupational Safety and Health (NIOSH) and the National Cancer Institute (NCI) to evaluate whether diesel exhaust, currently classified as a “potential human carcinogen,” is not just “potentially” but is actually a carcinogen, a finding that could prompt a wave a lawsuits and workers compensation claims by thousands miners in the United States, and changes in the mining industry itself.

The timing of the letter is no accident; in June the International Agency for Research on Cancer will review its position on diesel exhaust, and the U.S. National Toxicology Program is expected to do so soon as well.

Scientists are understandably upset over the threat; as John Cherrie at at the Institute of Occupational Medicine in Edinburgh, UK, worries:

I don’t pretend to understand the ins-and-outs of the court debate but it seems wholly wrong that the court, US congress or industry representatives should have some veto on publication of scientific results. It seems as though the original court ruling that this was the case was overturned but now the issue is about disclosure of data by the government agencies.

Pretending or not, he’s right about the original court ruling being overturned, but let me shed a little light on the current situation and why the mining company’s letter is more puzzling than truly worrisome.

The Federal Advisory Committee Act (FACA) establishes certain guidelines and limitations for all those committees, boards, commissions, councils and the like set up to advise federal agencies. The requirements are for the most part fairly easy to comply with, and are more focused on ensuring transparency than on altering the functioning of the committee itself. The FACA is not meant to be a vehicle for quashing scientific studies.

A couple companies in the mining industry, organized as entities like Methane Awareness Resource Group and Diesel Coalition, have tried to use claims of FACA violations over the past sixteen years to get a “use injunction” prohibiting the scientific peer review panel overseeing DEMS from ever releasing the DEMS data and their conclusions. The mining companies haven’t succeeded so far; the Fifth Circuit Court of Appeals (the last stop before the U.S. Supreme Court for this case) rejected that request in 1999. In 2001 they also rejected the miners’ request that the House Subcommittee overseeing the advisory panel be allowed to stop publication of the results if it chose. The Fifth Circuit concluded:

The [district court's] order cannot require [House] Committee approval before publication of the study. Instead, HHS must wait until 90 days after the Committee has received the data before it can publicly release the data.

After that, the case was dormant until 2010, when the mining industry filed motions claiming the United States wasn’t complying with the order to provide data to the mining plaintiffs and the House Committee. Their initial attempt was denied by the District Court. Last August, however, they won the August 19, 2011 order you see attached to the letter their lawyer sent out to all the journals.

And that’s where things get interesting. The letter from Patton Boggs isn’t a threat, per se, and it’s notable largely for how vague it is. If I threaten to sue you, you will have no doubt why I’m threatening it and what I will allege, but the Patton Boggs letter doesn’t mention any particular claims — like, say, defamation — the mining companies think they would have. It doesn’t even ask the journals to do anything other than request that they “carefully consider any intent to publish these papers” and that they “do not act precipitously to disturb the status quo, or to frustrate, violate, or interfere with the expected Circuit Court’s ruling …” The implication of a threat is there nonetheless, because of the implied assertion that publication would somehow violate a court order.

Would it? The references to the “status quo” and “the expected Circuit Court’s ruling” are remarkable. It’s not mentioned anywhere in the Patton Boggs letter, but here’s the actual status quo, as ordered by the Circuit Court on September 19, 2011:

The district courts 8/19/11 order is stayed pending appeal except for the order’s requirement that final drafts of the study’s final three papers, once those papers have been accepted for publication, be provided to the appropriate congressional committee and to the plaintiffs pursuant to an agreement that plaintiffs not disclose or further disseminate the papers, a 90 day review period prior to publication is allowed.

In other words, at this very moment the District Court’s August 19, 2011 Order is stayed pending the appeal and is not enforceable at all except as specifically described above. Critically, the order’s limitations don’t even apply to the three studies until “once those papers have been accepted for publication.” The United States moved for clarification and got it, with another order explaining that the primary restrictions in force are the limits on the plaintiffs — the mining companies — from using or publishing the materials prior to the actual publication date.

Might the situation change on appeal? Sure. But in terms of DEMS, the big guns — i.e., the use injunction prohibiting its publication, and giving the House Committee a veto on it — are off the table. All that remains is some housekeeping over the manner in which it is released.

We’re thus not at the stage of, say, Andrew Wakefield suing the British Medical Journal, a case I have no doubt will be dismissed prior to reaching a jury. (Popehat has more on the legal details there.) So while the scientific community should be quite rightly be protective of their rights to publish scientific data and conclusions without threat of a lawsuit, the DEMS situation isn’t really an example of that right being attacked — it’s an example of a law firm over-reaching an implying claims its clients obviously don’t really have, or they would be mentioned.

One final coda, for those readers who aren’t steeped in legal news. Patton Boggs (the law firm that represents the mining companies and sent the threat), like most large corporate law firms, makes its money by representing the powerful against the government (its lobbying practice, which recently absorbed the Breaux-Lott Leadership Group, might have the highest revenue of any firm in the DC area), the powerful versus the powerful, and the powerful versus the people. Yet, they’ve made the most news recently by inverting this relationship and representing indigenous farmers in Ecuador who have been in an 18-year legal odyssey to recover from Texaco, now Chevron, for environmental damage caused by oil extraction in the Lago Agrio region of the Amazonian rainforest.

I suppose I should mention that they’re not doing that work for free. But, credit where it’s due: the work may be potentially lucrative, but it’s also financially and politically risky, and Chevron has already apparently pressured one of the Ecuadorian group’s hedge fund backers to stop assisting with the litigation. Just this week Patton Boggs filed its third lawsuit (at least by my count) against Chevron complaining about Chevron’s tactics. While I think they over-reached here, and should not have made clear in the letter if they were threatening action or not — and should have mentioned that the District Court’s Order was stayed — I wouldn’t blame them entirely. They’re zealously representing their client, as they’re obligated to do. The fault primarily lies with their clients for requesting such a letter in the first place.

Will Mining Companies Really Sue Scientific Journals For Defamation? | Litigation

 

[Sinmastah]

Can they sue scientists for results they find? I don't believe they can. People who write factual information haven't been persecuted since Galileo, with his disagreement with the Pope.

 

[geochem1st]

Can they sue scientists for results they find? I don't believe they can. People who write factual information haven't been persecuted since Galileo, with his disagreement with the Pope.

We live in strange times.

 

[Gooner]

This report has the potential for massive repecussions world wide. Let 's see it.

 

[geochem1st]

Journals Warned to Keep a Tight Lid on Diesel Exposure Data

A protracted legal battle over an $11.5-million health study into whether diesel exhaust damages the lungs of miners has suddenly widened to take on scientific peer review. Editors with at least four research publications say they have received a letter advising them against "publication or other distribution" of data and draft documents. The warning, including a vague statement about "consequences" that could ensue if the advice is ignored, is signed by Henry Chajet, an attorney at the Patton Boggs firm in Washington, D.C., and a lobbyist for the Mining Awareness Resource Group, which works on behalf of the mining industry.

Chajet declined to comment, but his letter makes it clear that he seeks to persuade journals to delay publishing or distributing papers containing results from the Diesel Exhaust in Miners Study (DEMS), a government-funded research project. His letter pointed out that a coalition of mining industry groups are legally entitled to review data from the study before publication. Other lawyers and researchers involved in the case also declined comment because the 2-decade-long dispute over DEMS is now under review in the U.S. Court of Appeals in New Orleans.

The diesel study, for which planning began in 1992, is run jointly by the National Institute for Occupational Safety and Health (NIOSH) and the National Cancer Institute (NCI). It has monitored the health of more than 12,000 miners exposed to diesel exhaust in underground spaces. One goal of the study (which controls for smoking) was to learn how many miners developed lung cancer. NIOSH currently classifies diesel exhaust as a "potential human carcinogen," but new data could prompt a revision of that assessment.

The timing of the release of DEMS data is critical because two prestigious groups, the International Agency for Research on Cancer and the U.S. National Toxicology Program are set to review their standards on the health risks of diesel exhaust. Their decisions could have financial consequences for many users of diesel engines, particularly in lawsuits claiming harm.

An industry coalition, including the Mining Awareness Resource Group, has long argued that DEMS was scientifically flawed. The coalition first took the federal government to court in the 1990s arguing that the industry needed to be more involved in DEMS oversight. The case has gone through multiple hearings (details below), resulting in a court order that requires DEMS scientists to turn over all data related to DEMS, including drafts of scientific papers based on that data, to the mining coalition and to the U.S. House of Representatives Committee on Education and the Workforce, which claims jurisdiction over the study. The coalition and committee have the right to review the data for 90 days prior to publication.

Editors at two U.K.-based publications—Occupational and Environmental Medicine (OEM) and The Annals of Occupational Hygiene—say they have received the letter from Chajet warning them not to publish DEMS results or even pass around drafts of papers. Science obtained a copy of the letter, which says, in part, "We respectfully request that you and your counsel carefully consider any intent to publish these [DEMS] papers, as well as the impact and consequences of any such publication." It continues: "[W]e provide you with advance notice of this situation in the hope that, if you are considering publication or distribution of these papers, you will refrain from doing so, until the court orders and congressional directions are complied with, or otherwise resolved." (Read a full copy of the letter.)

Dana Loomis, editor of OEM and an epidemiologist at the University of Nebraska Medical Center in Omaha, says, "I was completely surprised" by the letter, especially since OEM does not have and never had any DEMS paper under consideration. "It's a vague but threatening letter, and I think its vagueness is what makes it noteworthy," Loomis says. "It demonstrates how the legal system can be used to restrain scientific communication." Loomis says he doubts the legal rulings would even apply to scientific journals, especially ones based in another country.

Another recipient, The Annals of Occupational Hygiene, had already published some DEMS work in October 2010—a long, four-part explanation of DEMS's methodology. (Parts one, two, three, and four available here. The Annals published a rebuttal from six scientists working for the mining groups a few months later, in April 2011.)

Trevor Ogden, a retired physicist and the editor of The Annals, says his journal accepted the four papers in February 2010. Publication usually takes 7 weeks after acceptance, but the various court actions delayed publication in this instance for months. The journal also accepted a fifth paper in February 2011, but is still waiting for permission from DEMS to run it.

Ogden says, "Despite our attempts to be neutral on various controversies, this journal has more frequently been accused of being on the employers' side. However, I am disgusted by the many actions being taken to delay [the DEMS] publications and prevent their being open to public examination." Ogden added that the letter he received was sent to two other publishers as well, but they declined to be named.

Loomis says the Journal of the National Cancer Institute already has a paper outlining the main findings of DEMS. A spokesperson refused to comment on whether JNCI had received a letter.

In skipping up and down through the court system, the legal case has stretched almost as long as DEMS and has turned multiple times on bureaucratic minutiae. Early disputes involved whether DEMS ought to include industry representatives on a scientific oversight committee. The two sides also disputed who exactly should have jurisdiction over DEMS. Eventually a court ruling forced DEMS to file a charter with a U.S. House committee. This should have gone through the House Committee on Education and the Workforce. But the U.S. Department of Health and Human Services (which oversees NIOSH and NCI) mistakenly submitted applications to a different committee. This inevitably brought new lawsuits, with accusations that DEMS was trying to "evade transparency." DEMS personnel did file with the proper Senate committee.

Litigation about the mistaken filing went to the federal court in Lake Charles, Louisiana, where Judge Richard Haik ruled in March 2000 that DEMS had to turn over all data to the mining groups and the House Committee on Education and Workforce. Haik in effect granted them power to stop DEMS from publishing any results.

DEMS leaders appealed, and the U.S. Court of Appeals in New Orleans overturned much of the lower court decision in May 2001, saying that DEMS had the right to publish. However, it affirmed that the scientists had to turn over all data and drafts to the mining coalition and to the House committee for review, and that these reviewers must get the materials at least 90 days before publication.

The legal fracas started up again in 2010 and 2011, as The Annals prepared to publish the four methodological papers. The mining groups charged that DEMS scientists had withheld data and not turned over drafts of papers before submitting them for peer review, violating court orders. The case went back to Judge Haik, who once again ruled in favor of the mining groups, holding the federal government in contempt of court and reaffirming that the DEMS scientists must turn over all data and drafts of any papers they plan to publish. The ruling also ordered the DEMS people to notify scientific journals that the journals were not allowed to circulate any drafts they had already received. This case has since been appealed and argued before the U.S. Court of Appeals in New Orleans; a ruling is expected soon.
Journals Warned to Keep a Tight Lid on Diesel Exposure Data - ScienceInsider

 

[Lurko]

Coal companies are fvcking evil.

 

[colchar]

Not a chance in hell this would stand up in court.

 

[AngryHatter]

Whoever bought "clean coal" had not looked beyond the sound byte.
This is the epitome of bulllshit.

 

[JonMan94]

If this passes, then I lose all hope in congress and this country... for awhile.

 

[Sinmastah]

Whoever bought "clean coal" had not looked beyond the sound byte.
This is the epitome of bulllshit.

Clean coal isn't clean. It's just cleaner.

Low amounts of sulfur in the coal is greatly beneficial. But still, coal and diesel can be made better.

 

[bertzie]

Not a chance in hell this would stand up in court.

It doesn't have to. They're just doing everything they can to force the journals not to publish. The journals really don't have the finances the corporations do to defend themselves in court. The legal bullshit these companies could dig up could be enough to effectively bury the study.

 

[BillB1960]

Coal companies are fvcking evil.

Whoever bought "clean coal" had not looked beyond the sound byte.
This is the epitome of bulllshit.

Clean coal isn't clean. It's just cleaner.

Low amounts of sulfur in the coal is greatly beneficial. But still, coal and diesel can be made better.

This isn't about "clean coal" it's about diesel powered equipment being used in mines.

 

[geochem1st]

Correct Bill..

It's about a long term government funded study of the effects of diesel smoke on coal miners, where the conclusion of that study is that diesel smoke is a carcinogen, and hence hazardous to the coal miners.

Since a lot of litigation is involved, and the implied negative liability from the study's conclusion to the coal mining industry, the coal mining industry is attempting to intimidate the scientific community into not publishing the study by threatening the journals publishers and editors.

 

[Engel]

Correct Bill..

It's about a long term government funded study of the effects of diesel smoke on coal miners, where the conclusion of that study is that diesel smoke is a carcinogen, and hence hazardous to the coal miners.

Since a lot of litigation is involved, and the implied negative liability from the study's conclusion to the coal mining industry, the coal mining industry is attempting to intimidate the scientific community into not publishing the study by threatening the journals publishers and editors.

Boo

 

[Roberteaux]

As an collateral bit of possible folklore: I know guys who swear that working on diesel engines causes colon cancer. These dudes I am citing right now are guys who work on heavy equipment of various types, and who have noticed a very high number of their peers succumbing to that particular malady after about thirty years of wrenching on such equipment. If you don't like what I just said, go holler at them: I am merely repeating something I have heard and make no claims as to its veracity whatsoever.

But anyway: their idea is that diesel is absorbed through the skin and into the blood stream. And blah, blah, blah, but hey: now a bunch of old-timers are dead, and all of the same specific disease.

Of course, this ain't a big scientific study at all-- which somehow makes it seem almost more credible than what the big-buck survey guys punch out on behalf of their cruel masters-- but is instead just what some guys in that particular business have claimed to me. The only thing I have noticed is that while mucking around with diesel or kerosene, just touching it does seem to cause one to actually taste it. Even the old kerosene based LSA we used to clean our guns in the Army had this effect. But then, it could just be a crossover of one's sense of smell bleeding into the taste department, since the two are so closely interrelated. One more time: I have no dog in this fight and really don't care what the truth is since I'm not part of this schtick.

All I know for sure is this: when there's billions-- or even just millions-- of dollars wrapped up in anything at all, the lies fly like eagles and everybody has to run to a plastic surgeon to get rid of the Pinocchio nose they sprout. Having worked in the immediate presence of one too many fat cats on various details in my checkered past, I learned this much: I don't trust any of 'em.

Humans have a tendency to turn anything they touch into a racket. I don't care if it's religion, philosophy, or just building ships in bottles, once the money gets thick, so does the bullshit.

--R

 

[SteveGangi]

I am a cynic and a pessimist. I figure whatever is the shittiest, worst, most mean spirited most selfish and dishonest thing that can happen, is what will happen.

".. to evaluate whether diesel exhaust, currently classified as a “potential human carcinogen,” is not just “potentially” but is actually a carcinogen, a finding that could prompt a wave a lawsuits and workers compensation claims by thousands miners in the United States, and changes in the mining industry itself."

It's fvcking exhaust from an engine. How can it NOT be dangerous in an enclosed and probably inadequately ventilated area??? And in more than just one way - carbon dioxide sulfur dioxide carbon monoxide etc etc etc etc.

 

[geochem1st]

NIOSH, OEM, HHS, feckin alphabet soup worth of feds. Aren't there enough regulations and bullshit to keep 'merica from being all it can be? Now these namby pamby regulators are going to jack up the price of coal, because of coal miners and their union BS. This is only going to hurt the poor. Can't keep the lights on with fairies and rainbows.

 

[cynic79]

These seem to be the relevant portions of the article:

Chajet declined to comment, but his letter makes it clear that he seeks to persuade journals to delay publishing or distributing papers containing results from the Diesel Exhaust in Miners Study (DEMS), a government-funded research project. His letter pointed out that a coalition of mining industry groups are legally entitled to review data from the study before publication. Other lawyers and researchers involved in the case also declined comment because the 2-decade-long dispute over DEMS is now under review in the U.S. Court of Appeals in New Orleans.

...


An industry coalition, including the Mining Awareness Resource Group, has long argued that DEMS was scientifically flawed. The coalition first took the federal government to court in the 1990s arguing that the industry needed to be more involved in DEMS oversight. The case has gone through multiple hearings (details below), resulting in a court order that requires DEMS scientists to turn over all data related to DEMS, including drafts of scientific papers based on that data, to the mining coalition and to the U.S. House of Representatives Committee on Education and the Workforce, which claims jurisdiction over the study. The coalition and committee have the right to review the data for 90 days prior to publication.

This seems like a preemptive attempt to prevent the groups from releasing the data early, given that the mining coalition has a legal right to review the data 90 days before its release. I'm sure it's an attempt to cover their asses, but they don't seem to be chilling scientific research. The data will be released, just not right away.

 

[geochem1st]

These seem to be the relevant portions of the article:



This seems like a preemptive attempt to prevent the groups from releasing the data early, given that the mining coalition has a legal right to review the data 90 days before its release. I'm sure it's an attempt to cover their asses, but they don't seem to be chilling scientific research. The data will be released, just not right away.

The study was given to the mining companies in August 2011. Publication was to be in the Fall of 2011. The release of the study has been tied up in the courts since December 2011.

However there has just been an update:

Study of Miners Exposed to Diesel Fuel Finally Published

Sunday, March 04, 2012

Diesel exhaust is hazardous to your health…but the diesel industry does not want you to know that. That is the basic message underlying two papers just published in the prestigious Journal of the National Cancer Institute. The papers are based on a large study of more than 12,000 miners who were frequently exposed to high concentrations of exhaust from diesel engines, which are widely used in the mining industry.

Those miners most heavily exposed to the exhaust had a risk of dying from lung cancer three times higher than it was for those exposed to low doses. For non-smokers, the risk was seven times higher. Both studies provide evidence that diesel exhaust exposure may cause lung cancer in humans and may represent a potential public health burden.

Although the diesel exhaust study was conceived in 1992, industry opposition, led by the Mining Awareness Resource Group (MARG), kept the results secret until now. In June 2001, MARG won a court order giving it and the House Education and Workforce Committee the right to pre-publication review of any study-related publications. In August 2011, MARG won a contempt order against the Department of Health and Human Services (parent of the two institutes that conducted the study), for not fully complying with the 2001 court order. That contempt order is stayed while the New Orleans-based Fifth Circuit Court of Appeals decides an appeal filed by the government.

AllGov - News - Study of Miners Exposed to Diesel Fuel Finally Published

 

[colchar]

It doesn't have to. They're just doing everything they can to force the journals not to publish. The journals really don't have the finances the corporations do to defend themselves in court. The legal bullshit these companies could dig up could be enough to effectively bury the study.

An awful lot of journals are owned by the major publishing companies and those parent companies have more than enough money to say "Fvck you, try taking this to court."