The Road Ahead

By Rich Kozlovich

Index:

Part I: Industry is a Bottomless Well of Bad Logic and Self Serving Arguments.
Part II: Risk Versus Reality
Part III: What to do?
Part IV: Logical Fallacies
Part V: Final Thoughts

Part I: Industry is a Bottomless Well of Bad Logic and Self Serving Arguments.

In my thirty five years in the pest control industry I’ve seen changes, very subtle and very slow changes, but as destructive as a glacier in the thrust of our thinking and our views of reality. I find myself the only openly heterodoxical writer in our industry nationwide. Although based on e-mails and phone calls I believe there may be a ‘silent majority’ out there. Let’s face it - heterodoxy isn’t for the faint of heart.

Timothy P. Carney [writer for the Washington Examiner] said:

 “Washington is a debate club for the logically impaired, with its share of fallacies, sophistries, oversimplifications and utter absurdities.”

I find this pattern repeats in more areas than just Washington. Through with legislative power and massive amounts of grant money federal bureaucrats have had a great deal to do with undermining any natural sense of logic in the minds of everyone in the nation, including industry.

Is the pest control industry any different?

In my years I have seen our industry go from being ardent defenders of pesticides-  universally - to a substantial number who are almost as anti-pesticide in their approach as anyone from the Sierra Club or the NRDC. Why? That’s where the fascination comes in!

In the early years of the modern green movement - started largely with the publication in 1962 of Rachel Carson’s science fiction book, Silent Spring - the green movement insisted pesticides were a major cause of cancer. I remember those days, and I also remember the conversations by the older members of my family talking about this. People believed modern living was responsible. They were right, but for the wrong reasons. Industry [and cities and towns in America] were responsible for many sins against the environment, so it was easy to point the finger, but mostly it was pointed at industry. The real finger of blame should have been pointed at the personal habits of people themselves for the rise in cancer rates.

Over the years the rates of cancer have consistently dropped, and yet we still hear the irrational, and unscientific mantra, that pesticides cause cancer. If you were to take a plastic overlay of our modern demographic and put it over the demographics of those living in 1914 and those living in 2014 you would notice two very distinct differences. Very few people smoked and very few people lived past 65, the two major areas of cancer related deaths. Old people die of something.  Cancer and heart disease are the two biggest culprits, and smokers have a known link to cancer.  It's been estimated that 80% of lung cancer patients smoked. 

For comparisons sake, what would happen if we eliminated the aged and smokers, the two largest demographic categories regarding cancer, from our demographic chart?  The decrease in I spoke of would be even more dramatic.

When the federal government banned DDT industry rose up as one to defend it, and it was the same for chlordane. By the time we came to the irrational elimination of Ficam and Dursban (chlorpyrifos), neither of which were banned in spite of what you may read. The manufacturers pulled their registration for structural applications for economic reasons, and there was very little argument, and when Dow decided not to fight it the other companies manufacturing chlorpyrifos gave up. Was it a business decision? You bet!

Chlorpyrifos was out of patent and it represented a very small percentage of their annual intake, at least from structural pest control - and the lawsuits against these products kept coming. It's interesting that the last time I looked it’s still used as an agriculture product under the brand name Lorsban. So structural pest control paid the penalty simply because we represent a small economic burden for the manufacturers, compared to agriculture.

What’s worse it appears the manufactures of pyrethroids, known as the “Pyrethroid Working Group (PWG), an industry task force whose members are AMVAC, Bayer, Cheminova, DuPont, FMC Corporation, Syngenta and Valent’, became part and parcel of this long term pesticide reduction scheme by EPA.

I would have loved to have been a fly on the wall when the Pyrethroid Working Group, an industry task force, was formed. I wonder, does this whole thing sound conspiratorial to anyone besides me? I know…I know….there’s no such thing as a conspiracy. I often wonder why the people who have never read a history book are so ardent in that view. Just a thought!

This Neville Chamberlain policy of appeasement with EPA and the anti-pesticide activists will repeat, because it’s become apparent to me the Pyrethroid Working Group (PWG), failed to grasp the lessons learned in Canada – you can’t sacrifice one group of pesticide users without eventually losing yourself, and you can’t make deals with ideologues – whether they’re in or out of government. Their goal is the elimination of all pesticides – and just getting a brief period of peace isn’t victory - they’ll eventually come after those who are left.

We have to get over this idea we can make any deal with anti-pesticide activists will honor – and I include the EPA in that category. Just as soon as we agree to one thing they will find another reason to end that agreement. Our long range vision is short to about five feet in front of us. Did we not learn anything from Canada in the 90’s?

 The efforts by industry was scuttled by industry itself. How? The activists offered deals to exclude some pesticide applications while imposing restrictive regulations on other pesticide users, and those self-servingly applicators agreed, destroying the coalition the users formed to defeat these regulations. And it wasn’t long before activists went after those excluded in the deal. Divide and conquer has been an effective tool for all tyrants, so to it is with activists and the EPA.

Incrementalism is what they practice and they do so with one goal in mind - the total elimination of pesticides. We’ve lost control of pesticides because we fail to see farther, deeper and wider than our adversaries. We’re at war, and it’s like a gang war, and if we’re going to win we need street fighters in leadership.

So we come to the crux of the matter. Why were these restrictions to structural pest control and not to lawn care or agriculture? The manufacturers agreed to allow substantial restrictions against where and how we – the structural pest control industry - can make pyrethroid applications to structures, but the lawn and shrubs can be completely covered with pyrethroids.

Does that sound irrational to anyone besides me?

All of this to protect an almost microscopic shrimplike creature known as Hyalella azteca? A creature that’s capable of living in extremely adverse conditions, and is one of the most prolific creatures in North America and South America. Yet, pyrethroids are used extensively everywhere! How can that be if these products are so deadly to Hyalella? Is that only true here in the United States? Or more specifically - California!

I have spent some time going over the information available and there are a number of things I would like to see answered. Since this “shrimp” is so impacted by such small amounts of pyrethroids – even though one study claimed the appearance of chlorpyrifos created a more toxic impact, which I found truly interesting since we are no longer using chlorpyrifos in structural pest control, where did it come from? If it came from agriculture, why then should we believe this alleged pyrethroid problem originated with structural pest control and not agriculture or lawn care?

 It’s still used in agriculture and there was no effort to eliminate it for agricultural purposes at that time.  And just as in Canada - it wasn’t long before the EPA decided to end the registration in agriculture also, but the new administration put a stop to that declaring they’re going to start using real science.

Well, that’s a tacit acknowledgement there’s been a serious problem with what standard the EPA using before, and in my opinion – many are still using – a standard of junk science in order to support their anti-pesticide ideology.

Since we already know EPA is devoid of real science in so many cases - and has been so since their original ban on DDT – historically we can presume the same is true now.  In short, the EPA has been a lava flow of scientifically dubious regulations.

How can they tell these traces are coming from structural pest control and not lawn care, agriculture and DIY home applications? Thirty five years ago when I first came into the structural pest control industry we were using a very large amount of liquid pesticides and we were only using 4% of all pesticides purchased. It must be far less now, so why would structural pest control need to be so restricted?

Since Hyalella are amongst the most prolific creatures on the planet I think there are some questions that need answered:

• How long did these products impact the areas tested?
• Did the Hyalella azteca resurge?
• How quickly did they resurge?
• Was more than the San Joaquin Valley part of a national testing pattern?
• If California was the only area tested it should have been easy to determine what impact this had on the surrounding eco-system. What was it?
• What impact would this have on other areas of the country?
• Canada is a heavy user of pyrethroids and yet the Hyalella population there is thriving, why?
• As for determining risk - I find the study methodology disturbing. First it starts out with a small number of people and it’s a self reporting study.  How strong can the study be and and what wording was used?
• Mostly it seems to me the impact appears to be inconsistent.
• I would also like to see if the study determined what difference it would have made if they all the Hyalella died, or if some died.
• If they did all die - in what size area did it occur - how wide spread - how often did they find 2 parts per trillion in the water - what was the water mass -was still water or a stream or river, or was it even a stream that is only a stream when it rains, as in a ditch with deposits merely left until the next rain?
• What was the pesticide levels all through the year?
• If the levels dropped what was the number of Hyalella in those waters?
• What was the water mass?
• What was the total number count living within the region before and after treatments?
• Were these questions asked by manufacturers, along with our national and other state associations - and if not - why not?
• Where are the studies that determined the need for these regulations in structural pest control and not agriculture and lawn care?
• How can they tell these traces are coming from structural pest control and not lawn care, agriculture, home applicators, etc.? 
• Are they functioning under the dictates of the Information Quality Act?
• Thirty years ago when we were using a very large amount of liquids structural pest control only used 4% of all pesticides purchased. It must be far less now, so why would structural pest control need to be so restricted?
• I would also like to know how the Pyrethroid Working Group was formed and by whom.
• So we’re right back to the beginning – why wasn’t this information asked for and if it was, what was the answer? If it wasn’t why didn’t anyone challenge this ruling? If it was made available and it was kept from us I want to know why!

We accepted the new restrictions on pyrethroids with hardly a peep. This was a fight the entire industry should have been fighting and should still be fighting, but there was a problem from the beginning. Chemical manufacturers are - on the best of days - leaky vessels - and it’s my opinion they sold us down the river, because without their support and willingness to stand firm we can’t force them to manufacture anything they don’t want to manufacture and we can’t make them fight for better labels and ultimately that will be determined by the manufacturers and the EPA, with little of no input from us.  

Their long range vision is about profits – and it should be – but we also have to understand they will do what is good for their bottom line even if it means abandoning a segment of the pesticide application industry if necessary, and those who use the least amount of pesticides, are of the least amount of concern to them economically.

And that’s us!

But that isn’t the whole story. This is where the story really gets intriguing. I have criticized manufactures for their bottom line mentality, but what about us?

In the last couple of years we had an anti-pesticide law passed in Cuyahoga County, Ohio on county property. We discovered this was going on at the last minute and could only testify against it at the third reading. That’s way too late in the game to stop things, but we wanted to go on record. As the months progressed we came to an interesting insight.  Few applicators were upset about this.

Why?

I don’t know what the lawn care contract was before, or ended up being afterward, but the cost of a two year contract for the county’s structural pest control program was approximately $45,000. After all the dust settled it ended up being approximately $145,000 for a two year contract. And I have to believe any difficulties with pest problems could be explained away far more easily than before since by law they were seriously restricted in what they could do.

We’ve come to a crisis of thought and conscience. For many years I have been saying this should be treated as a moral issue, not a financial one. Do we take a moral stand, or do we take the money and be quiet?

For many years I have been saying we are the thin gray line that mans the wall telling the world no one will harm you on my watch. Maybe we aren’t after all and I'm wrong about all of this! Where do we stand? Morality or economics – that’s the question.

But one thing is clear to me. At some point we will have to come to a point where all this is going to create a disaster. We have bed bugs as a national plague, mosquitoes carrying dengue fever and Zika virus right here in the U.S., and a Lyme disease carrying tick population that’s increasing. Does anyone think getting rid of pesticides might – just might – have something to do with that?

When disaster finally strikes I would like to know who will answer for it.

Part II: Risk Versus Reality

Much of what will appear in this section is from Steve Milloy’s Junk Science Judo, Self Defense Against Health Scares and Scams, and Getting the Risk Right by Geoffrey C. Kabat, and information from the American Council on Science and Health.

We live in a world that’s just a tiny bit short of ideal….well….actually a lot short of ideal. Bad things happen all the time, and will continue to happen all the time, and no about of legislation, regulation will be able to stop it. We have high priced, highly placed and highly educated people constantly declaring something or other is “potentially” too dangerous to use and that creates what’s called an “outrage factor”. However when you compare how people live their lives we find their concerns about these “risks” are out of proportion. One pregnant woman smoking a cigarette was concerned the vibrations and noise of jackhammers being used on her street were going to have a negative effect on her unborn baby. One well known environmental activist here in Cleveland goes on and on about the dangers of pesticides and then goes outside and smokes a cigarette.

Restrictive regulation cost billions in compliance and enforcement. That’s what known as capital and it’s being sucked out of the system by too much government and too many unnecessary regulations. Capital that could be better used, especially since so many of these “risks” are based on speculatory hypotheticals and extrapolations based on animal studies.

My personal motto is De Omnibus Dubitandum – question everything - and is supposed to be the motto of science as first articulated by the father of analytical geometry, Rene Descartes who died in 1650. He stated: “The first was never to accept anything for true which I did not clearly know to be such;’ this is to say, carefully to avoid pre-acceptance and prejudice, and to comprise nothing more in my judgment than what was presented to my mind so clearly and distinctly as to exclude all ground of doubt.”

When dealing with risk assessments that surely must apply more than ever for a number of reasons.

The burden proof is on the claimant. If someone declares something is so risky it needs to be regulated they MUST be able to prove it - not just policy – proof! And the precautionary principle isn’t proof! Junk science isn’t provable, so junk scientists at the EPA will do anything to avoid having to prove their speculative claims.

The EPA operates like Grand Inquisitors holding all the power and all the answers – answers that fit their agendas – "often stretching data or interpreting data invalidly". In short – their “studies” and speculations are conclusions in search of data, not data in search of conclusions.

Speculation isn’t science, and “statistical correlations are not scientific evidence, much less proof of cause and effect relationships.” Speculation in place of evidence is unendingly promoted with weasel words such “may, might, could, if, possible, perhaps, potentially - and are at the very best nothing more than “informed” speculation. “ At worst – it’s a lie, not just wrong, a lie! You may wish to see my article Weasel Words and Phrases, which was quoted and cited in the Canada Free Press.

Assumptions are guesses. “Researchers sometimes use assumptions to bridge gaps in scientific data and knowledge. Assumptions enable research and analysis that might otherwise be stymied. This isn’t an unreasonable practice as long as assumptions are interim, stop gap measures pending development of relevant data or testing for validity."

Epidemiologic guessing is the use of statistics to find possible associations between a substances and health problems and even death. This allows for assumptions “that may or may not be reasonable”, but regulators unendingly rely on these assumptions when formulating regulations, such as declaring substances carcinogenic on rodent testing.

In 2005 the American Council on Science and Health petitioned EPA - through the Washington Legal Foundation – to stop declaring substances carcinogenic based on rodent testing alone. Under the Information Quality Act the federal government is required to “ensure the equality, objectivity, utility, and integrity" of information it dispenses to the public -- and to explain itself in a timely fashion when petitioned about regulations that fail to employ the best available science.”

“The law permits EPA, if it so chooses, to adopt policies that err on the side of caution when faced with genuinely equivocal evidence regarding a substance's carcinogenicity, but the IQA does not permit EPA to distort the scientific evidence in furtherance of such policies. The petition argues that EPA distorts scientific evidence through its Guidelines' use of "default options," its purported right -- based not on scientific evidence but its regulatory mission to protect human health -- to assume that tumors in lab rodents indicate that much smaller doses can cause cancer in humans. Erring on the "safe side" in regulatory decisions does not, argues the petition, permit EPA to falsely claim that such regulated substances truly are "likely to be carcinogenic to humans." To do so, argues ACSH, is a distortion of both science and law. “

Finally, after stalling for months the “EPA replied with a dodge, claiming that their Risk Assessment Guidelines are not statements of scientific fact -- and thus not covered by the IQA -- but merely statements of EPA policy.”

Of course my question was then and still is – if the EPA’s guidelines aren’t based on science what are they based on?

Hypothesis searching isn’t hypothesis testing. All too often researchers “jump right into a pile of data without a specific hypothesis in mind hoping serendipity will produce a suitable hypothesis suitable for further research and testing and some just skip to conclusions.” Then there’s what Steve Milloy calls Hypothesis hot-dogging, casting a wide net in hopes of identifying risk factors, and as is always true, freak statistical associations can be found. He used the term "hot-dogging" because researchers were trying to find a link between hot dogs and childhood leukemia, and make no mistake about this. You can find a statistical link for just about everything by something if the net is cast wide enough.

This brings us to the fact that statistics aren’t science. Data mining is a common tact taken by researchers looking for links and correlations, and often times this is done through questionnaires. Self reporting! This leads to data mining or data dredging which can be useful for hypothesis generation but in itself it isn’t science and should never be the basis for legislation or regulations. Statistics don’t prove cause and effect. Statistics can't demonstrate what biological mechinisms are at play to prove or disprove anything. 

There must be some way of objectively measuring claims. There must be a process all agree to, as Milloy points out: “counting the number of angels that can dance on the head of a pin” isn’t science. We can’t see angels, therefore if we believe in angels, we simply believe in angels – we can’t prove they exist – and belief isn’t objective it’s subjective.

Multiple Chemical Sensitivity Syndrome is one example. When someone is diagnosed with “Multiple chemical sensitivities syndrome,” life changes radically. Dr Ronald E. Gots, executive director of Environmental Sensitivities Research Institute in Rockville, Maryland, a clearinghouse for scientific data, notes that “the diagnosis of MCS begins a downward spiral of fruitless treatments, culminating in withdrawal from society and condemning the sufferer to a life of misery and disability. This is a phenomenon in which the diagnosis is far more disabling than the symptoms.”

Apparently, there is no limit to the number of symptoms. If the number of symptoms are unlimited; what about the causes? The sky is the limit for causes! Virtually anything and everything is claimed to be sources of causation, and there’s no cure because there’s no identification of the biological mechanics to demonstrate how anything can cause so many different symptoms.

This is an incurable affliction because it cannot be defined by the treatment. Let me explain. If I claim to have a sore throat and the doctor gives me an antibiotic, and the antibiotic works, then I had a sore throat. And the “cure” proves it is a sore throat because it works. “MCS is not considered a curable disease, and the treatments are as diverse as the symptoms and causes.” Those who claim to have MCS are probably more afflicted by the cures than the symptoms. There are about 400 believing practitioners providing services…unending services…to those who claim to be afflicted with this ailment, none of whom can be cured except those who accepted psychological treatment.

Health effects must be capable of being observed and shouldn’t be an issue of interpretation. The claims about endocrine disruption represent just such scenarios. The Tulane study that was foundational to the ED component of the Food Quality Protection Act but was proven fraudulent, and yet we’re still stuck with that regulation.  As for the famous alligator study, it was so flawed it clearly had to be a case of a conclusion in search of data.   One of the researchers even demanded his name be taken off the list of researchers.

 ED research has been fraught with problems. That includes the issue of sperm count, but it also includes claims of ED’s and testicular and breast cancer, all of which has “very little in the way of factual underpinnings”. Especially since naturally occurring chemicals which are represented as endocrine disruptors are everywhere and can test as being more powerful than synthetic compounds.

Here is the fact of the matter of endocrine disruption and just one compound – Bisphenol A, or BPA. “After more than two decades of research and thousands of scientific papers devoted to endocrine disruption, the field has become embroiled in a bewildering scientific and political controversy focused on an unlikely culprit…...” At this point this is the same level of bewilderment exists involving endocrine disruption and pesticides. I would also include claims that pesticides impact thinking ability and IQ.

For more insights on this complex issue I recommend reading Chapter Five Hormonal Confusion: The Contested Science of Endocrine Disruption in Getting Risk Right.

All study results should be replicable. If a study can’t be replicated it isn’t science! Furthermore all study replication must be independent, and that’s become a massive problem in science. Accept no study or the peer review information without first digging deeper into the subject since we now know scientific fraud is rampant. Grant money has made scientific integrity an oxymoron.    

All these risk assumptions are guesses and invariably are driven by the biases of those making those assumptions. They need to be rejected.

Part III: What to do?

EPA and other agencies are nothing short of tyrants and the only way to deal with tyrants is to defeat them entirely. That’s history and that history is incontestable.

By friend Dr. Jay Lehr who was one of the founders of EPA has publically stated they’ve done nothing worthwhile since 1980 and need to be dismantled, and he’s put together a five year plan on how to do it. 

REPLACING USEPA WITH A COMMITTEE OF STATE AGENCIES

In 1968 when I was serving as the head of a ground water professional society it became obvious to me and a handful of others that the United States did not have any serious focus on potential problems with its air quality, drinking water quality, surface water quality, waste disposal problems as well as contamination that could occur from mining and agriculture. I held the nations first Ph.D in ground water hydrology which gave me great insight to understand the problems.

We collectively spoke before dozens of congressional committees in both the House of Representatives and the US Senate calling attention to mounting environmental pollution problems. We called for the establishment of an Environmental Protection Agency and in 1971 we succeeded. I was appointed to a variety of the new agencies advisory councils, and over the next 10 years we helped to write a variety of legislative bills which were to make up a true safety net for our environment. They included among others THE WATER POLLUTION CONTROL ACT, (later to be renamed THE CLEAN WATER ACT), THE SAFE DRINKING WATER ACT , THE SURFACE MINING AND RECLAMATION ACT (which strangely covered deep mines as well), THE CLEAN AIR ACT, THE FEDERAL INSECTICIDE, RODENTICIDE AND FUNGICIDE ACT. and finally THE COMPREHENSIVE ENVIRONMENTAL RECLAMATION, COMPENSATION AND LIABILITY ACT we now know as Superfund.

All of these acts worked extremely well for the protection of the environment and the health of our citizens, with the exception of the Superfund Law which proved to be far too over reaching and wreaked havoc with American business as after the fact companies operating within the law were fined countless dollars and required to pay huge sums for cleanup of waste disposal that had been within the law at the time of the activity.

From 1981 activists groups recognized that the EPA could be used to alter our government by coming down heavily on all human activities regardless of its impact on the environment. It is my strong opinion that no single law or regulation has been passed since 1981 which benefitted either the environment or society.

The power of environmental activists to take control of EPA and all of its activities was slow and methodical over the past 30 years to the point where EPA is all but a wholly owned subsidiary of environmental activist groups controlling 10% of the US budget.

For the past 20 years I have worked tirelessly to expose this story to the public beginning with my 1991 book Rational Readings on Environmental Concerns where 50 other environmental scientists joined together to expose the manner in which their own fields had been hijacked and distorted allowing fear mongering of an unconscionable nature.

I have now published more than 20 books attempting to accurately describe a wide variety of environmental issues with complete accuracy.

It is my very strong belief that the current structure of US EPA can be replaced by a committee of the whole of the outstanding 50 state environmental protection agencies which in nearly all cases have long ago taken over primary responsibility for the implementation of all environmental laws passed by the congress or simply handed down as fiat rulings without congressional vote or oversight.

When the agency was established in 1971 the federal government had no choice but to oversee all regulations of the initial seven safety net laws. Rapidly however every state established an independent agency which filed for primary control of the implementation of all existing laws. With only rare exception each state is now under full control of the regulatory program but continually harassed to be sure that no one evades the heavy hand of dozens of new regulations passed in the past 30 years which have strengthened all the initial laws not to the benefit of our environment or our citizens but rather only to the detriment of our economy and the right of our citizens to make an honest living without endangering the environment.

With 30 years of experience these 50 agencies are ready take over the entire management of the nations environment collectively. Only the USEPA research laboratories should be left in place to answer continual scientific question, no longer under the heavy hand of Washington politics.

Eighty per cent of what is now USEPA’s budget could be eliminated while 20% could be used to run the research labs and administer the Committee of the Whole 50 states. A relatively small administrative structure would need to be set up to allow the collective states to refine all existing environmental laws in a manner more suitable to the primary requirement of protecting our environment without thwarting national progress in the carrying out of all business activities and the development of our natural resources and energy supplies.

USEPA could be phased out over five years with a one year preparation period followed by a four year program in which 25% of the agencies activities would be phased out each year beginning with those activities least critical to the nation. As each was phased out control would be given to The Committee of The Whole made up of representatives in each state from each significant area of concern. The committee of the whole would be divided up into subcommittees reflecting exactly how USEPA is set up though many programs and offices within USEPA could be eliminated entirely. Offices for instance whose primary purpose is oversight on the state agencies.

The Committee of The Whole would quickly determine which regulations are actually mandated in law by the congress and which were established independently by USEPA believing that legislation allowed them such latitude. Rules written clearly into legislation would be recommended for continuance or considered for request that the Congress take another look at regulations that the committee of the whole deems unnecessary in their current form.

Regulations clearly not supported by writings within legislation would be considered by the subcommittees and the whole committee for alteration by a two thirds vote of the committee of the whole.

Until the committee of the whole acted upon each individual regulation all regulations would remain in force. Many regulations would be ruled in the purview of the states to act independently and others would be required of all states by a two thirds vote of the committee of the whole.

Each state would be funded to increase their staff to include people whose primary jobs would be to serve on subcommittees of the committee of the whole overseeing the many various issues we oversee in the current USEPA

This phase out of USEPA could be done in an orderly manner within five years. Oversight of the existing USEPA research labs would eventually be seeded to a subcommittee of the whole.

When one considers exactly how the USEPA was initially set up along with the growth of the state agencies this is actually a logical endpoint that could have begun 30 years ago.

Personally I would prefer the total elimination of the EPA and their functions as information gatherers returned to the Agriculture department and then let the states make the bulk of the decisions versus this one size fits all mess we have now.

If California wants to ban pyrethroids then let them do it but don’t allow California set the standard for the rest of the nation. The EPA should be made to stay out of it. We now have that opportunity with the new director and if we fail to take advantage of it now that window of opportunity will close and may never open again.

Part IV: Logical Fallacies

It’s been my experience that much of what come out of these people is loaded with logical fallacies.  Here's the list you might wish to peruse. Various Red Herring fallacies seem to mostly used and in this case the Appeal to Authority also.  But go through them you will find them illuminating,  and I think they're extremely important for sound argumentation. 

Part VI: Final Thoughts

We’ve often heard the quote with President Calvin Coolidge saying “The chief business of the American people is business!” Unfortunately as in so many cases - that quote represents a logical fallacy because much is left out. Amity Schlaes in her book Coolidge goes into who he was talking to, what he meant and why.

In his efforts to reduce government and taxes he was constantly be accused of pandering to big business interest groups by the press. He was trying to explain to the press he didn’t’ represent any interest group – he represented the people of America!

“The chief business of the American people is business. The chief ideal of the American people is idealism.” “I could not truly criticize the vast importance of the counting room, but my ultimate faith I would place in the high idealism of the editorial room of the American newspaper.”

Schlaes goes on to say in explanation of his views that: “Public service was the business they were all in: Newspaperman, businessman, or politician, Republican or Democrat.” Unfortunately there is little idealism in the press. There wasn’t then and there isn’t now. In fact – it may have even been worse because there were far more newspapers then and there was no internet. But Schlaes is right in her point that public service is the business we’re all in, and we should be motivated not only by profit, but high ideals. Standing on the wall and defending our industry isn’t just about profits – it’s about public service telling the world no one will harm you on my watch. That’s the burden and the high ideal we should bear gladly.

This is just part of my white paper for The Road Ahead. I will have a great deal more soon and expect it to be twenty to thirty pages and I intend to include the importance of fund raising and how we need to create a fund raising committee that can go outside pest control for funding.  There's millions out there to be had, but someone has to ask for it.   But that requires a new vision and a way of looking at the world. That means seeing things farther, deeper and wider than everyone else.

Part V.  A Failure of Definition 

Clarence Thomas and the Lost Constitution

September 2019 • Volume 48, Number 9 • Myron Magnet

Myron Magnet
Author, Clarence Thomas and the Lost Constitution

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Myron Magnet is editor-at-large of City Journal, where he served as editor from 1994 to 2007. He earned an M.A. from Cambridge University and a Ph.D. from Columbia University, where he also taught for several years. A 2008 recipient of the National Humanities Medal, he has written for numerous publications, including Commentary, The Wall Street Journal, and The New York Times. He is the author of several books, including The Founders at Home: The Building of America, 1735-1817 and, most recently, Clarence Thomas and the Lost Constitution.

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The following is adapted from a speech delivered on September 17, 2019, at Hillsdale College’s Constitution Day Celebration in Washington, D.C.

Clarence Thomas is our era’s most consequential jurist, as radical as he is brave. During his almost three decades on the bench, he has been laying out a blueprint for remaking Supreme Court jurisprudence. His template is the Constitution as the Framers wrote it during that hot summer in Philadelphia 232 years ago, when they aimed to design “good government from reflection and choice,” as Alexander Hamilton put it in the first Federalist, rather than settle for a regime formed, as are most in history, by “accident and force.” In Thomas’s view, what the Framers achieved remains as modern and up-to-date—as avant-garde, even—as it was in 1787.

What the Framers envisioned was a self-governing republic. Citizens would no longer be ruled. Under laws made by their elected representatives, they would be free to work out their own happiness in their own way, in their families and local communities. But since those elected representatives are born with the same selfish impulses as everyone else—the same all-too-human nature that makes government necessary in the first place—the Framers took care to limit their powers and to hedge them with checks and balances, to prevent the servants of the sovereign people from becoming their masters. The Framers strove to avoid at all costs what they called an “elective despotism,” understanding that elections alone don’t ensure liberty.

Did they achieve their goal perfectly, even with the first ten amendments that form the Bill of Rights? No—and they recognized that. It took the Thirteenth, Fourteenth, and Fifteenth Amendments—following a fearsome war—to end the evil of slavery that marred the Framers’ creation, but that they couldn’t abolish summarily if they wanted to get the document adopted. Thereafter, it took the Nineteenth Amendment to give women the vote, a measure that followed inexorably from the principles of the American Revolution.

During the ratification debates, one gloomy critic prophesied that if citizens ratified the Constitution, “the forms of republican government” would soon exist “in appearance only” in America, as had occurred in ancient Rome. American republicanism would indeed eventually decline, but the decline took a century to begin and unfolded with much less malice than it did at the end of the Roman Republic. Nor was it due to some defect in the Constitution, but rather to repeated undermining by the Supreme Court, the president, and the Congress.

The result today is a crisis of legitimacy, fueling the anger with which Americans now glare at one another. Half of us believe we live under the old Constitution, with its guarantee of liberty and its expectation of self-reliance. The other half believe in a “living constitution”—a regime that empowers the Supreme Court to sit as a permanent constitutional convention, issuing decrees that keep our government evolving with modernity’s changing conditions. The living constitution also permits countless supposedly expert administrative agencies, like the SEC and the EPA, to make rules like a legislature, administer them like an executive, and adjudicate and punish infractions of them like a judiciary.

To the Old Constitutionalists, this government of decrees issued by bureaucrats and judges is not democratic self-government but something more like tyranny—hard or soft, depending on whether or not you are caught in the unelected rulers’ clutches. To the Living Constitutionalists, on the other hand, government by agency experts and Ivy League-trained judges—making rules for a progressive society (to use their language) and guided by enlightened principles of social justice that favor the “disadvantaged” and other victim groups—constitutes real democracy. So today we have the Freedom Party versus the Fairness Party, with unelected bureaucrats and judges saying what fairness is.

This is the constitutional deformation that Justice Thomas, an Old Constitutionalist in capital letters, has striven to repair. If the Framers had wanted a constitution that evolved by judicial ruling, Thomas says, they could have stuck with the unwritten British constitution that governed the American colonists in just that way for 150 years before the Revolution. But Americans chose a written constitution, whose meaning, as the Framers and the state ratifying conventions understood it, does not change—and whose purpose remains, as the Preamble states, to “secure the Blessings of Liberty to ourselves and our Posterity.”

In Thomas’s view, there is no nobler or more just purpose for any government. If the Framers failed to realize that ideal fully because of slavery, the Civil War amendments proved that their design was, in Thomas’s word, “perfectible.” Similarly, if later developments fell away from that ideal, it is still perfectible, and Thomas takes it as his job—his calling, he says—to perfect it. And that can mean that where earlier Supreme Court decisions have deviated from what the document and its amendments say, it is the duty of today’s justices to overrule them. Consequently, while the hallowed doctrine of stare decisis—the rule that judges are bound to respect precedent—certainly applies to the lower courts, Supreme Court justices owe fidelity to the Constitution alone, and if their predecessors have construed it erroneously, today’s justices must say so and overturn their decisions.

To contemporary lawyers and law professors, this idea of annulling so-called settled law is shockingly radical. It explains why most of Thomas’s opinions are either dissents from the Court’s ruling or concurrences in the Court’s ruling but not its reasoning, often because Thomas rejects the precedent on which the majority relies. Content with frequently being a minority of one, he points to Justice John Marshall Harlan’s lone dissent in the 1896 Plessy v. Ferguson case as his model. The majority held in Plessy that separate but equal facilities for blacks in public accommodation were constitutional. Harlan countered: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. . . . The law regards man as man.” “Do we quote from the majority or the dissent?” Thomas asks. Like Harlan, he is drawing a map for future justices, and he will let history judge his achievement.

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Thomas’s opinion in the 2010 McDonald v. Chicago case takes us back to the first of three acts in the drama of constitutional subversion. In that opinion, Thomas agrees with the majority that Chicago’s ban on owning handguns violates the Fourteenth Amendment, but disagrees on why. The Fourteenth Amendment deems everybody born or naturalized in this country, and subject to its jurisdiction, to be a citizen of the United States and of the state where he lives, and declares that no state may “abridge the privileges or immunities of citizens of the United States.” What the drafters meant by that language was that former slaves were full American citizens, and that no state could interfere with their federally-protected rights—including, said one senator in framing the amendment, “the personal rights guaranteed and secured by the first eight amendments of the Constitution.” The rights guaranteed by the Bill of Rights, observed a typical commentator of the time, “which had been construed to apply only to the national government, are thus imposed upon the States.” And the feds, the amendment’s chief draftsman declared, have the power to enforce them.

Perfectly clear, right? Well, no—not once the Supreme Court got hold of it. As Thomas recounts in McDonald, the Court’s first pronouncement on the Fourteenth Amendment came in its 1873 Slaughter-House Cases ruling, which drew a distinction between the privileges and immunities conferred by state citizenship and those conferred by national citizenship. The latter, the Court held, include only such things as the right to travel on interstate waterways and not to be subject to bills of attainder. All the rights having to do with life, liberty, and property attach only to state citizenship, not national, so they aren’t protected by the Fourteenth Amendment. One of the four dissenting justices correctly noted that the majority opinion “turns . . . what was meant for bread into a stone.”
The day before the Court handed down its bizarre Slaughter-House decision, the worst atrocity of the terrorist campaign in the South to nullify Reconstruction had occurred. Black Louisianans, aiming to safeguard Republican victories in contentious recent elections, occupied the courthouse in the county-seat hamlet of Colfax. Mounted White Liners—an anti-black militia like the KKK—massed in the surrounding woods, prompting more frightened blacks to crowd into the courthouse. On Easter Sunday, the White Liners set the courthouse ablaze and shot those who ran out the door or jumped out of the windows. That evening, they shot the captive survivors.

No Louisiana district attorney was going to charge the murderers, so a federal prosecutor convicted three of them of violating a congressional enforcement act that made it a crime to conspire to deprive someone of the privileges or immunities of U.S. citizenship. But in its 1876 Cruikshank decision, the Supreme Court overturned the convictions. The rights enumerated in the Bill of Rights aren’t the privileges or immunities conferred by U.S. citizenship, the Court held, citing Slaughter-House as precedent. They come from the Creator, and the first eight amendments merely forbid Congress from abridging them. Moreover, the murderers were individuals, and the Fourteenth Amendment refers only to states. That was the end of the Fourteenth Amendment’s Privileges or Immunities Clause.
In time, the Court rigged a workaround. The Fourteenth Amendment forbids states from taking away a citizen’s life, liberty, or property without “due process of law”—which really means, the Supreme Court asserted out of the blue during the New Deal, that some liberties are so basic that no state can invade them, a doctrine dubbed “substantive due process.” Thomas calls this smoke and mirrors in his McDonald opinion. Even worse, the “substantive due process” doctrine allows judges to conjure up imaginary rights out of thin air, making law instead of interpreting the Constitution. Why, Thomas asks, is the Court treating Slaughter-House and Cruikshank as sacrosanct? It doesn’t hesitate to overturn laws passed by Congress and signed by the president when it thinks the Constitution doesn’t allow them. Why should it treat the errors of previous Courts with any more respect? Yes, the Chicago handgun ban is unconstitutional, Thomas writes. But that’s because it abridges citizens’ Second Amendment right to keep and bear arms as guaranteed by the Privileges or Immunities Clause of the Fourteenth Amendment. Why not junk the mumbo-jumbo of “substantive due process,” on which the majority of his colleagues are relying in this case, and return to the original text?
Act Two of the great constitutional subversion stars Franklin Roosevelt, who wrongly diagnosed the cause of the Great Depression as a crisis of overproduction and thus wanted to seize control of the whole U.S. economy to regulate output. For years the Court resisted this power-grab, but it buckled under Roosevelt’s threat to enlarge its membership and pack it with judges who would go along. The “Court’s dramatic departure in the 1930s from a century and a half of precedent,” Thomas says, was a fatal “wrong turn” that marks the start of illegitimate judicial constitution-making.

In his 2005 dissent in Gonzales v. Raich, Thomas cites the New Deal Court’s zaniest decision: Wickard v. Filburn, a 1942 ruling in which the Court abjectly capitulated to the federal government’s takeover of the economy under the pretext of the Constitution’s commerce power. Wickard held that Congress’s authority to regulate interstate commerce could even forbid a farmer from growing grain only to feed to his own livestock. In his Gonzales dissent, Thomas hints that the Court should overturn the whole tangle of Commerce Clause cases related to Wickard.

The majority ruling in Gonzales held that federal agents had the authority, under the interstate commerce power—and despite California’s legalization of medical marijuana—to punish two ill Californians who grew and used pot to control their pain. Interstate commerce? Hardly, Thomas demurs. Like farmer Filburn’s grain, the pot was never bought or sold, never crossed state lines, and did not affect any national market. “Not only does this case not concern commerce,” Thomas writes, “it doesn’t even concern economic activity.” Next thing you know, the feds will be raiding potluck suppers.

Thomas understands that the New Deal gave rise to an even more powerful device for constitutional demolition than the engorged commerce power—a whole set of administrative agencies like the NLRB and the SEC. The Supreme Court, Thomas grumbled in the first of a series of 2015 administrative state opinions, has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”

For starters, the Constitution vests all legislative powers in Congress, which means that they cannot be delegated elsewhere. As the Framers’ tutelary philosopher John Locke wrote, the legislature can make laws but it cannot make legislators—which is what Congress does when it invests bureaucrats with the power to make rules that bind citizens. Nor can the courts delegate judicial power to bureaucrats, as the Supreme Court began doing in a World War II case when it ruled that courts must defer to agencies’ interpretations of their own regulations. The Court’s rationale was that agencies have technical expertise that judges lack. That’s not the relevant issue, Thomas contends: “The proper question faced by courts in interpreting a regulation is not what the best policy choice might be, but what the regulation means.” And who better to interpret the meaning of words, Thomas asks in Perez v. Mortgage Bankers Association, than a judge?

Worsening this problem, Thomas argues in Michigan v. EPA, is the deference doctrine that the Court hatched in Chevron v. Natural Resources Defense Council in 1984. This doctrine requires courts to assume that Congress intended that any ambiguity it left in a statute under which an agency operates should be resolved by the agency, not by the courts. Consequently, Thomas exasperatedly observes, not only do we have bureaucrats making rules like a legislature and interpreting them like a judge, but also the interpretations amount to a further lawmaking power, with no checks or balances whatever.

A not untypical result of all this administrative might, to cite an example recently in the news, was an EPA ruling that a Montana rancher polluted the navigable waterways of the United States by digging two ponds to be filled by a tiny trickle on his land, 40 miles from anything resembling a navigable waterway. For providing reservoirs to fight potential forest fires, the rancher was fined $130,000 and sentenced to 18 months in prison. (The rancher served his time in prison but continued his legal fight until he died at age 80. A month after his death, the Supreme Court vacated the ruling against him. The Trump administration recently revoked the regulation under which he was convicted.)
In a virtuoso dissent last year in Carpenter v. U.S., Thomas takes on the third and last act of the Court’s attack on the Framers’ Constitution—the license with which the Court presumes to make up law out of whole cloth, with no prompting from either Congress or the president. The best recognized example of this is the 1973 Roe v. Wade abortion decision. Carpenter is less incendiary, but it is deliciously instructive.

A career armed robber, Carpenter claimed that police use of cell phone location data in convicting him violated his Fourth Amendment protection against unreasonable search and seizure. The Framers, of course, had no cell phones. But, Thomas notes, Chief Justice William Howard Taft had shown as early as 1928 how to adapt to new circumstances, in a case concerning a telephone wiretap. The phone lines were outside the convicted bootleggers’ premises, and conversations aren’t papers, so federal agents had not invaded their Fourth Amendment-protected “persons, houses, papers, [or] effects.” Thus, Taft held, no Fourth Amendment-banned search had occurred.

But in a 1967 wiretapping case, the Supreme Court decreed that what the Fourth Amendment really protects is a person’s “reasonable expectation of privacy.” With this “reasonable expectation,” on which the Carpenter majority rests, Thomas has a field day. Dictionaries from 1770 to 1828 define a “search” as a looking into suspected places, he notes; transferring Fourth Amendment protection from places to people reads that word out of the text. And “their . . . papers,” he points out, can’t mean someone else’s records, so what does the Fourth Amendment have to do with a subpoena for the phone company’s files? And finally, Thomas asks, who’s to decide what a “reasonable” expectation is? That is a policy determination, not a judicial one—so shouldn’t Congress decide? Nevertheless, Chief Justice Roberts cast the deciding vote to uphold this nonsense, in line with half a century of Court-created rights that subverted the authority of the police to fight crime and of teachers and principals to discipline disruptive students.

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In conclusion, let me shift my focus from constitutional law to ethics. It takes a certain kind of character to be capable of liberty, and Clarence Thomas embodies that character. Indeed, his character is bound up with his jurisprudence in an exemplary way.
Born in a shanty in a swampy Georgia hamlet founded by freed slaves, Thomas enjoyed a few Huck Finn-like years, until his divorced mother moved him and his younger brother to a Savannah slum tenement. On her meager maid’s wages, her children knew “hunger without the prospect of eating and cold without the prospect of warmth,” the Justice recalls. After a year of this, Thomas’s mother sent her two little boys a few blocks away, to live with her father and step-mother, a magical, Oliver Twist-like transformation.

Thomas’s grandfather, Myers Anderson, the self-made if semi-literate proprietor of a modest fuel oil business, lived in a sparkling clean cinderblock house with porcelain plumbing, a full fridge, and a no-excuses childrearing code that bred self-discipline and self-reliance. A convert to Catholicism, Anderson sent his grandsons to a strict parochial school—segregated like everything else in mid-century Savannah, but teaching that all men are created equal—and he put them to work delivering oil after school and on weekends. Summer vacation was no holiday for the boys: with their grandfather, they built a house on 60 rural acres. Thereafter they tilled the fields every summer, harvested the crops, and butchered livestock for winter food. Anderson urged them on with his rich stock of moral maxims, including, “Where there’s a will, there’s a way.” There wasn’t a spare minute in the year for the boys to fall into street culture, which Anderson feared.

These lessons in self-reliance formed the bedrock of Thomas’s worldview. He temporarily flouted them, he recounts, during his student black-radical phase, when he and his college comrades spouted off about how they were “oppressed and victimized” by “a culture irretrievably tainted by racism.” Visits home became “quite strained,” he recalls. “My grandfather was no victim, and he didn’t send me to school to become one.”

By Thomas’s senior year, he had snapped out of it. His old self-reliance expanded from a personal creed to a political one, as he reflected upon how much his college stance of victimhood had threatened to diminish and impede him, especially compared to his grandfather’s heroic independence. He also pondered deeply the harms that affirmative action—purportedly America’s atonement for its historic sins—had done to his black classmates at Holy Cross and Yale Law. Thomas saw that it led to failure and grievance by placing smart but ill-prepared kids in out-of-their-league institutions and branding successes like him with the imputation of inferiority. His nine years as a federal civil rights panjandrum, running the civil rights division of President Reagan’s Department of Education and then the Equal Employment Opportunity Commission, confirmed his impression that “there is no governmental solution” to black America’s problems—a conclusion underlying the anti-affirmative action opinions he has written on the Court. In this equal opportunity nation, black citizens must forge their own fate, like all other Americans. Where there’s a will, there’s a way.

Regardless of race, everybody faces adversity and must choose whether to buckle down and surmount it, shaping his own fate, or to blame the outcome on powerful forces that make him ineluctably a victim—forces that only a mighty government can master. The Framers’ Constitution presupposes citizens of the first kind. Without them, and a culture that nurtures them, no free nation can long endure.