University Environmental-Justice Whistleblowers Versus Industry Retaliators: Dow Chemical,Union Carbide,and Edward Calabrese

Federal law and protection of whistleblowers

US law specifically protects EJ and other whistleblowers against retaliation, provided they are (a) federal-government, (b) private-financial-sector, or (c) private-environment-related-sector employees. Whistleblowers (a) are protected by the No Fear Act. Whistleblowers (b)—employed by publicly-traded financial-services companies—receive retaliation protection from the 2002 Sarbanes-Oxley Act (SO). ⁵ Under it, anyone who retaliates against SO whistleblowers faces the same penalties as violators of the 1934 Securities and Exchange Act; through retaliator payment of “special damages,” including compensation for emotional distress, the law requires SO whistleblowers be “made whole.” ⁶ Whistleblowers (c) receive retaliation protection for whistleblowing if their employers are subject to any of eight environmental laws: the Safe Drinking Water Act; Federal Water Pollution Control Act; Toxic Substances Control Act; Solid Waste Disposal Act; Clean Air Act; Energy Reorganization Act; Comprehensive Environmental Response, or Compensation and Liability Act; and Atomic Energy Act. ⁷

Congress passed the three preceding whistleblower laws because it recognized that preventing misconduct requires protecting whistleblowers. What protects university faculty who face polluter retaliation because of research-related EJ whistleblowing?

University EJ whistleblowers: Herbert Needleman

Faculty have little protection, as Herbert Needleman's case shows. He is a University of Pittsburgh pediatrician whose research showed lead poisoning causes neurodevelopmental damage, including lowered IQ, that disproportionately affects poor children and children of color. His whistleblowing secured a major EJ victory, caused leaded-gas bans, and massively reduced childhood lead poisoning.^8,9

Yet, Needleman's story is one of public gain and private sacrifice. As he wrote recently,

After Needleman became a whistleblower, he was victimized for decades. Although he was finally exonerated, for years he had to abandon his research. Why? After lead-industry-financed scientists Claire Ernhart and Sandra Scar filed RM charges against Needleman with NIH and his university, he spent his time responding to RM charges, appearing in court, and answering subpoenas. A Philadelphia law firm—that refused to name the companies paying it—orchestrated the attack. ¹¹

Needleman's case is typical. At least 50 percent of environmental epidemiologists—mostly in universities—report polluter harassment after publishing environmental-health research. ¹² Innocent scientists—with fully corroborated research—face RM harassment, job loss, economic hardships from legal fees and sometimes, physical harm. Penn State's Mike Mann had to go to law-enforcement officials after receiving “threats of violence against me and even my family.” ¹³ Mt Sinai's Irving Selikoff was subjected to decades of asbestos-industry-funded media demonization and charges of fraud, after he showed asbestos-caused health harms. Princeton's Adam Finkel lost his job and bore massive legal expenses after whistleblowing about beryllium poisoning. ¹⁴ Lawrence Livermore's Benjamin Santer had a dead rat left at his chiming front door; University of Victoria's Andrew Weaver had his computer stolen. ¹⁵ Harvard's Mary Amdur lost her job, despite being later fully exonerated and her findings corroborated. ¹⁶ Apart from physical and economic harms, Needleman says RM accusations are “like a death sentence. If you're found guilty of scientific misconduct, you're out of business…ruined; you're through.”^{17,13,14,15,16,18,19,20}

Yet, 30 years after Needleman's harassment, polluter RM retaliation against university EJ researchers continues unabated. Why? Government says (2005) its experience shows no “need to protect respondents [accused of RM] from [EJ-related] retaliation.” ²¹ Yet, this government claim begs the question. It also ignores numerous cases of polluters' retaliatory RM charges against faculty—and fails to treat RM accusers and accused consistently. Admittedly government wishes to encourage RM reporting. However, ethical “ends” (RM disclosure) never justify unethical “means”(unequal/inconsistent treatment); otherwise, any atrocity could be permitted.

Attacks on university whistleblowers: The discredited allegations of Ed Calabrese

Although federal law now disallows decades-long RM harassment, like Needleman's, instead mandating “a six-year limitation” on RM assessment, whistleblower protections for university researchers remain weak, partly because of government's 2005 failure to protect them. ²¹ To understand these weaknesses, consider a 2011 case with ties to Dow-Union Carbide—the same company alleged responsible for South-African EJ violations. It is also one of many industry funders of Edward Calabrese—who recently filed RM allegations against an EJ researcher/whistleblower.

For decades, toxicologist Calabrese of the University of Massachusetts has received millions of dollars of industry-contract funding for defending the chemical/nuclear-industry position known as “hormesis.” This is the claim that low-doses carcinogens and toxins—like cadmium, dioxins, and ionizing radiation—are beneficial and should be deregulated, thus saving industry money on pollution control.^22,23,24 Calabrese receives most of his research funding from petrochemical polluters such as Dow, Union Carbide, Rohm and Haas Chemicals, Atlantic Richfield Oil, BASF (the world's largest chemicals producer), Bayer Chemical, Chemical Manufacturers Association, Exxon, Reynolds Metals, Shell Chemical, Syngenta pesticides—all of whom would benefit financially from hormesis-promoted chemical deregulation. Calabrese has published several hundred articles, also holds an Ed.D., but appears never to have attained the scientific validation of serving on any US National Academy of Sciences boards/committees. ²⁵

The EJ researcher attacked by Calabrese's RM allegations is endowed-chairholder, biologist, and philosopher of science Kristin Shrader-Frechette of the University of Notre Dame. Unlike Calabrese, virtually all her research funding (28 years) has come from competitive, peer-reviewed, US National Science Foundation grants. Author of 16 books and roughly 400 peer-reviewed journal articles (including scientific criticisms of hormesis),^25,26,27 Shrader-Frechette also holds a mathematics degree and has served on many boards/committees of the US National Academy of Sciences. ²⁸

Rather than using peer-reviewed, scientific-journal responses to try to defend hormesis against Shrader-Frechette's analyses, on August 23, 2011 Calabrese filed RM charges against Shrader-Frechette with her employer, the University of Notre Dame (UND). The UND Research Integrity Policy (UNDRIP), like most university RIPs, requires that “upon receiving an allegation of research misconduct,” the university must “immediately assess the allegation.” UND appointed a faculty committee to assess Calabrese's allegations. ²⁹

On one hand, Calabrese charged that Shrader-Frechette falsified and fabricated data regarding industry's hormesis position. University experts—familiar with Calabrese's four-inch-thick binder of industry-funded allegations—said they obviously were prepared, at great expense, by industry or Calabrese attorneys, not Calabrese alone. On the other hand, Shrader-Frechette retained no attorneys and herself prepared responses to the industry-financed allegations. She argued that (1) Calabrese's “allegations rely on…misrepresentations of Shrader-Frechette's statements” in peer-reviewed journals; (2) they appear to be retaliation for Shrader-Frechette's research on health effects of chemical-industry pollutants; and (3) many “scientists, backed by powerful special interests, often use lawsuits or [research-]misconduct charges to attack scholars whose work in peer-reviewed journals threatens their [financial] interests.” ³⁰

On November 28, 2011—after three months of assessment (including examining letters from five prominent outside experts)—the university-faculty committee unanimously and fully exonerated Shrader-Frechette:

When did this harassment begin? Calabrese filed RM allegations against Shrader-Frechette after her peer-reviewed research showed Calabrese's hormesis claims were scientifically/logically invalid. For example, she showed Calabrese's courtroom testimony—for an industry-polluter defendant—misrepresented harms from the potent carcinogen, ethylene oxide (ETO). (Partly as a result of Calabrese's scientifically-invalid testimony, the family of an African-American maintenance man—Walter Allen, who suffered years of ETO exposure—could not collect damages, needed to support his family, after his death from brain cancer.) Shrader-Frechette argued that Calabrese erred scientifically in claiming ETO's carcinogenicity was “irrelevant” to Allen's cancer because Calabrese ignored established scientific facts that ETO is a “multisite” mutagen/carcinogen/genotoxin and can easily cross the blood-brain barrier. Likewise Shrader-Frechette showed that Calabrese's hormesis claims are logically/scientifically invalid, for example, in ignoring refuting data, confounders, most biological endpoints, statistical-significance tests, and invalid extrapolations. She also revealed Calabrese's publications/reports/testimony typically fail to reveal his mostly-industry funders—but typically take pro-industry-polluter stances—and that toxicology-journal editors have confirmed in writing that Calabrese unethically pressured them, sometimes successfully, to censor/remove text from Shrader-Frechette's articles criticizing hormesis. ²⁵

As noted, the RM inquiry completely exonerated Shrader-Frechette. Hence, what harm did Calabrese and his funders do? They unfairly imposed massive time, money, and stress losses on both the university and Shrader-Frechette. As earlier examples noted, and as Nobelist in medicine Paul Nurse says, scientists doing health-related research are “targeted” by industry campaigns aimed at intimidating them, wasting their time, crippling their research—or worse. ³²

Yet, nothing has happened to accuser Calabrese or his deep-pocket-polluter funders. Nothing has happened to scores of polluters who use RM retaliation against university EJ researchers. Of course, researchers could file lawsuits against industry retaliators, but lawsuits—especially against deep-pocket industries—are costly, time-consuming, and would hinder victims' own research. Besides, like other whistleblowers, EJ researchers arguably deserve regulatory, not merely lawsuit, protection.

Limited federal protections for university EJ whistleblowers

Why do university EJ researchers still face polluter-funded RM retaliation? One reason is that because few victims publicize cases of industry-funded harassment, as this article does, the public, government, and other scientists are unaware of enormous RM-retaliation problems. Publicizing cases like that of Amdur and others arguably would deter RM retaliation. Why? Perpetrators would suffer PR and reputational losses. As later paragraphs argue, another reason for RM retaliation is vague and inconsistent federal RM policies/regulations. They merely require universities “to have written policies and procedures for addressing research-misconduct” allegations, not that “[university] policies contain certain requirements.” ³³ Instead, universities write their RM policies, modeled on federal guidelines. ³⁴ The result? Industries know that, to promote their profits, they can “get away with” harassing university researchers. ²¹

However, objectors might say federal-RM-retaliation protections are adequate for at least two reasons. (1) These protections ensure faculty, accused of RM, of “reasonable access to the data…and the opportunity to respond to the allegations…and the proposed [RM] findings.” (2) They require RM accusers/complainants to act in “good faith,” so their allegations would be accepted by any “reasonable person in the complainant's [accuser's]…position.” ²¹

However, argument (1) fails to provide adequate protection. Despite data-access/response guarantees, federal RM policies protect only RM accusers/complainants, not RM accused/responders, from retaliation. Failing to provide equal treatment to all parties, federal policies thus arbitrarily define RM “retaliation” as victimizing only RM accusers or assessors. ³³ However, EJ researchers accused of RM arguably deserve consistency/equal protection. Indeed, if earlier paragraphs are correct, researchers need greater protection if accusers are deep-pocket polluters. Government, however, provides no rationale for failing to include RM-accused researchers as possible retaliation victims.

Likewise, argument (2) fails. Although it requires “good faith” allegations by accusers/complainants, it penalizes only those guilty of RM, not those guilty of bad-faith allegations. ²¹ Thus it fails to promote consistency and equal treatment.

Protecting university EJ whistleblowers

What is the solution? Some deep-pocket polluters will always fund profit-driven retaliation. However, two ways to help deter it are (a) providing RM-retaliation victims equal/consistent treatment in RM proceedings, and (b) publicizing RM retaliation, so consumers and government understand the problem's extent and severity. Regarding (a), for reasons already given, government should accept the 2005 proposal to assess possible RM retaliation “against the respondent/[accused],” not just the complainant/accuser. ²¹ Regarding (b), RM-retaliation victims should speak out, including as attempted here.