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.