By John Schwartz
Washington Post Staff Writer
Sunday, July 19, 1998; Page A1

A federal judge has ruled that the Environmental Protection Agency wrongly declared secondhand tobacco smoke a dangerous carcinogen in a landmark 1993 report, a decision that could imperil hundreds of local and regional ordinances banning indoor smoking.

The controversial 1993 report concluded environmental tobacco smoke is a Class A carcinogen, as hazardous as radon and responsible for some 3,000 lung cancer deaths each year. It was strongly attacked as "junk science" by the tobacco industry, which sued in federal court to force the study to be withdrawn.

After five years of court pleadings and deliberation, U.S. District Court Judge Thomas Osteen, of the Middle District of North Carolina, finally ruled late Friday that the EPA report was biased and did not follow the proper legal or scientific procedures for reaching its findings.

EPA Administrator Carol M. Browner, said in a telephone interview last night the opinion is "disturbing" because "it's so widely accepted that secondhand smoke causes very real problems for kids and adults. Protecting people from the health hazards of secondhand smoke should be a national imperative."

Browner said the administration would almost certainly appeal the decision.

Michael York, an attorney for cigarette giant Philip Morris Cos., called Osteen's decision "a very important ruling" that could force the EPA to reverse its stand on secondhand smoke. "Now it will be up to the agency to reexamine all of the relevant studies and make the honest determination that the statistical correlations are extremely weak – – certainly below that necessary to justify their classification of [environmental tobacco smoke] as a Class A human carcinogen."

The effects of secondhand smoke have long been controversial. While all credible scientific authorities say that cigarette smoking causes cancer, secondhand smoke involves such a low concentration of carcinogens that a strong cancer connection is hard to establish.

A number of studies have found secondhand smoke to raise the risk of cancer about 20 percent – an increase many epidemiologists say is too low to constitute convincing proof. Other epidemiologists, however, argue that the exposure to environmental tobacco smoke is so widespread that even small increases translate into large numbers of sick people.

Reports continue to emerge with findings that both support and undercut the EPA thesis. A 1998 report by California's environmental protection agency found that secondhand smoke is a potent carcinogen.

In more recent months, controversy has erupted over a new study by the International Agency for Research on Cancer, which found no statistically significant risk to secondhand smoke. That research has been hailed by the tobacco industry, which accuses the study's sponsors, the World Health Organization, of trying to suppress the findings. WHO accused the companies of having "completely misrepresented" the findings and has said the study will be released after the customary review process.

In his 93-page opinion, Osteen said the EPA had wrongly used provisions of the 1986 Radon Gas and Indoor Air Quality Research Act in determining that secondhand smoke is hazardous. That act required a broad-based panel to be convened for such findings, including representatives of affected industries, but the agency excluded industry voices, the judge ruled.

"EPA publicly committed to a conclusion before research had begun; excluded industry by violating the Act's procedural requirements; adjusted established procedure and scientific norms to validate the Agency's public conclusion, and aggressively utilized the Act's authority to disseminate findings to establish a de facto regulatory scheme intended to restrict Plaintiffs' products and to influence public opinion," Osteen wrote.

An EPA official who asked not to be named said the agency's process included peer review and provided the "functional equivalent" of the requirements of the Radon act; the official also said that the judge did not have standing to rule on the EPA report because it was not a formal rule-making or final agency action. Both of those issues were argued before the judge, and would be part of any appeal, the official said.

The blow to the EPA report could give new energy to opponents of indoor smoking bans, since "the release of the original risk assessment gave an enormous boost to efforts to restrict smoking at the state and local levels," said Matthew L. Myers, a spokesman for the National Center for Tobacco-Free Kids.

In addition, a number of lawsuits filed against tobacco companies over claims of injury from secondhand smoke still lie in the balance. The most famous of those cases, a class-action suit brought by airline flight attendants, was settled recently for $300 million. But under the terms of the settlement, individual flight attendants still have to sue the industry and prove that secondhand smoke harmed them – which could be more difficult without the the support of the EPA.

He said, however, that the ruling of one judge in North Carolina could not blunt the national trend – especially given that so many reports have found secondhand smoke dangerous. "While the move to restrict smoking indoors could be temporarily set back by this decision," Myers said, "it won't be stopped."

© Copyright 1998 The Washington Post Company

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