Let’s replace our failed regulatory state by and for corporations with a new constitutional right that would shrink government and industry power over our lives, health and environment.

I used to think the way to preserve our environment and health was through better regulation and laws. I felt scared when Republican administrations came in and talked about “slashing regulations,” as I saw regulations as the barrier between myself and being poisoned. Similarly, I’d groan inwardly when budgets for regulatory agencies were cut.

Now I see my prior views as ignorant and naïve. The regulatory agencies don’t exist to protect people or keep us safe. They exist to promote big business. The more power they have, the more they are a target for industry manipulation. Big business writes regulations that they can afford to comply with, but smaller players cannot. They write regulations that maintain enough public health and safety to keep their operations going, but no more. They approve environmental regulations only to the extent that permitting proceeds as an orderly process, but environmental destruction is never actually stopped.

Don’t believe me? Keep reading.

I talked about this is my last essay, and how it applied to pipeline regulation. I’ll give a more thorough example here, pesticide regulation. We rely on the EPA to protect us and the environment from harmful pesticides. I took a deep dive on this process, and even though I already believed what I wrote in the prior paragraph, that regulation is by and for industry, I was shocked. I’ve only included the bare minimum of information here.

Pesticide Regulation is a Complete Failure

First, note that pesticides are a serious issue. They damage human and environmental health and residues are ubiquitous in the environment:

• The organization Beyond Pesticides maintains a pesticide-induced disease data base, updated weekly, with over 2000 published scientific papers that links pesticides to every disease you can think of. If you need any motivation to spend more money on organic food, this is a good place to spend some time.
• As of 2021, USGS found that over 90% of sampled streams had 5 or more pesticides that exceeded at least one federal aquatic life standard, many of which also have been shown to have negative effects on human health. If you want to learn more about the pervasive contamination of our water, such as glyphosate in our rain, Beyond Pesticide’s page is invaluable.
• PFAS chemicals were found in every sampled small mouth bass in the Chesapeake Bay. These “forever” chemicals are being used more and more in pesticides – 70% of new pesticide registrations between 2015 and 2020 include these chemicals. They are also in the rain all over the world.

No one who understands how pesticides are regulated in this country would have any faith in any safety claims made by the EPA. The following points are all found and elaborated upon in this excellent expose:

• As of 2016, the EPA approves 85 pesticides for agriculture that are banned in other countries, including 72 banned in the E.U., 17 in Brazil and 11 in China.
• The main law governing pesticide regulation, The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) only allows the EPA to refuse to re-register pesticides if the risk they present is greater than their economic benefit. This test is inherently subjective as, obviously, metrics for health and economic benefit cannot be directly compared and comparisons vary wildly depending on precisely what is measured. Regulators choose to reduce measured risk through reducing application rates, requiring protective clothing, restricting proximity to schools, etc., rather than taking a pesticide off the market.
• Since 2000, only 5 pesticides have been successfully taken off the market – and only 1 since 2010. There are approximately 20,000 pesticides available.
• FIFRA requires pesticide companies pay for toxicity tests, but they are allowed to request waivers. Between 2011 and 2018, the EPA granted 87% of all requests for waivers, resulting in completion of only 10% of all legislatively “required” developmental neurotoxicity tests, 8% of chronic cancer studies, and 3% of tests for immune system effects.
• Since 1974, every director of the pesticide office except the 2 that retired followed their government tenure with working for the pesticide industry.
• Congress has chronically underfunded the Office for Pesticide Programs in the EPA for decades, so they use contractors to review scientific studies – often the same contractors that chemical companies hire for expertise in sailing through the regulatory process.
• None of the above even touches on the failure to evaluate cumulative, long term, or interactive chemical effects.

This heavy reliance on the powerful industry it regulates leaves the EPA unable to objectively judge the chemicals’ effects, according to [Burd, the director for environmental health at the Center for Biological Diversity]. “The bottom-line standard in FIFRA — having an unreasonable adverse effect — that’s a judgment call. And who makes that judgment call? People who call the pesticide industry their ‘client,’” said Burd. As a lawyer whose job involves surveying the impact of pesticides on both wildlife and humans, she feels that the EPA’s pesticide office has consistently abused its legal leeway to weigh in on the side of the chemicals. “As far as this office goes, extinction is not unreasonable, mass poisonings are not unreasonable, and pollinator population collapses are not unreasonable.” Quote from The Intercept.

As seen above, congress wrote FIFRA to allow every pesticide to be permitted, at worst with restrictions, not to make sure pesticides are safe. Congress, or industry lobbyists more precisely, was also careful to include other measures in FIFRA, such as a distinction between inert and active ingredients, to grease the wheels for regulatory approval. FIFRA defines “inert” ingredients solely by their function in the finished product not by their toxicity. The same ingredient may be “inert” in one formulation, and “active” in another. Out of the 20 human-focused toxicological tests nominally required for registration, only 7, all evaluating short, rather than medium or “long” term effects, must be done on the full formulation that includes “inert” ingredients. This means that manufacturers can choose which ingredient to count as “active” based on its likelihood of causing regulatory problems. Unfortunately, numerous studies indicate that “inert” ingredients enhance the toxicity of the “active” ingredient, with consequences for human and wildlife health as well as environmental persistence.

A look at the EPA’s putative efforts to ban chlorpyrifos illustrates how the law makes it nearly impossible to take chemicals off the market, despite overwhelming evidence of negative human and environmental health effects. The time scale alone reveals an utterly useless process. In 2017, the EPA denied a petition submitted by environmental advocacy groups in 2007 (yes it took 10 years to get that far) to ban the pesticide. The groups sued and the EPA “lost” in 2021, in that their denial was deemed “arbitrary and capricious” and they were given 90 days to either grant the petition or modify the legal limits on use (amounts and crops) to make it safer. A chlorpyrifos registrant and several grower groups promptly sued in response to the EPA’s subsequent decision to grant the petition, which would have banned chlorpyrifos. In 2023, a U.S. court of appeals overturned the EPA’s ban as “arbitrary and capricious” on the basis that they had a duty to restrict use in whatever manner was necessary (such as limiting its use to a subset of crops) until overall public exposure could be considered “safe.” Currently, the EPA recommends restricting chlorpyrifos use to only 11 food crops (and your exposure if you eat an unusual amount of these?) but even this restriction is not yet in force.

Is Regulatory Reform the Answer?

On the one hand, an obvious answer to the corruption in the EPA is to reform it. Theoretically, congress could pass changes to FIFRA that removed the economic test, eliminated waivers, erased the distinction between “active” and “inert” ingredients and defined “an unreasonable effect” with clear metrics that protect human and other life. They could fund the EPA at much greater levels so that reliance on contractors was eliminated and staff had no economic incentive to leave for industry. Would such measures transform the EPA from an agency that promotes industry to one that serves human and environmental health?

I think it is possible. Even though I worry that industry would soon corrupt any agency that yielded such enormous economic power, I would support such measures, depending on the details. Reformers have a history of compromising on the critical details that make all the difference. At the same time, and considering the current political impossibility of the above, I wonder whether other types of change could be more effective, sooner.

Libertarians argue that “market incentives” would work better at protecting human health from pesticides, for example, than government regulation. Market incentives include consumers choosing organic produce, farmers choosing less harmful chemicals, and the ability to hold pesticide manufacturers liable for damages to health or property. Tort law is considered a cornerstone of libertarian market regulation. What remedies does tort law currently hold for those being poisoned by pesticides or other chemicals?

Poisoning Industries Lack Liability

Regulatory agencies and laws make it much harder to sue poisoning industries. The 1986 National Childhood Vaccine Injury Act gave vaccine manufacturers protection from civil suits for design and labeling defects, if the product is administered according to FDA regulations. The PREP (Public Readiness and Emergency Preparedness) Act of 2005 provides the most sweeping liability protection for drugs, biologics, vaccines, medical devices, etc., though, to all involved parties (manufacturers, distributers, health care providers) for any harm from any “covered countermeasures” identified in a PREP Act Declaration. The Covid PREP Act Declaration currently extends through the end of 2029 and there are other PREP Act Declarations in effect including for “pandemic flu” and Zika virus. The liability protection garnered under the Act does not end when the relevant Declaration ends.

Looking at another industry, the 1996 Telecommunications Act Section 704 prevents localities and states from regulating cell phone towers based on health concerns, if the towers comply with FCC regulations. The FCC is also responsible for setting radiofrequency exposure limits. Courts routinely dismiss lawsuits challenging installations based on health risks, due to the Telecom Act and dismiss lawsuits on actual health effects if exposure is within the limits set by the FCC.

These laws provide examples of liability protection that rely on the “cover,” so to speak, of a putatively functioning regulatory agency. However, poisoning industries often succeed in preventing liability even without laws explicitly banning liability. Bayer is currently awaiting a Supreme Court decision on whether FIFRA pre-empts citizens’ rights to sue over harm from Glyphosate using state product liability laws.

Poisoning industries like the vaccine, pesticide, and telecom industries commonly use the legal argument of federal preemption to defend against citizen suits. Since these items are regulated at the federal level, industries claim they have fulfilled their duty by complying with federal regulation and should not be held responsible under state product liability laws (there are no federal product liability laws). In essence, in terms of liability, if the regulator declares a product safe, it is safe. Courts, under the Supremacy Clause of the Constitution, infer that the presence of a federal law like FIFRA that assigns and defines federal regulatory duties overrides state statutes, even without any specific language limiting liability.

Obviously, from the perspective of a poison peddler, legislation that explicitly prevents liability is the gold standard. This past Spring, Bayer pushed state legislation across farming states to explicitly prohibit suits against any pesticides under state product liability laws under the logic that safety warnings are under the purview of the EPA. Bayer passed their bill in Georgia and North Dakota and included the liability limitation language in North Carolina’s Farm Bill, which is still pending. Activists expect them to introduce their bill to at least 21 more states in 2025, after failing in at least 7 other states. While Republican opposition has been instrumental in states where these bills have failed, Republican politicians are also the ones most responsible for supporting them.

A big believer in redundancy, Bayer has also ensured that its pesticide liability language is included in federal legislation. The 2024 draft of the U.S. House Republican Farm Bill includes it, and the Republican Agriculture Committee Chair said in May that it would be in the final Farm Bill. Eleven Republican state Attorney Generals also filed a petition in August 2024 with the EPA for them to promulgate a new rule that would expressly prohibit states from adding any hazards or danger language to the federally approved label for pesticide or chemical products.

So even as this administration and Republican politicians praise cutting regulations, they are also actively working to strengthen the regulatory power of the agencies. They like a powerful government just fine, so long as it serves their donors.

No Regulatory or Liability Protection — Other Options?

I think I agree with the libertarians at this point that I would take the unfettered right to sue over government regulation. Regulation works against justice by concentrating the determination of safety in the hands of people and agencies that perversely rely on funding and expertise from the regulated. Corruption is pervasive, including the way the regulatory laws are written, as well as the explicit liability bans. These industry protections are also normalized ideologically as pro-business, pro-public health, pro-farmer and pro-consumer.

In thinking about legal actions that could help remedy the current situation, I wondered if a person could sue all the manufacturers of glyphosate, say, in the United States, for “assault,” due to its unwanted presence in his or her blood (assuming an all organic diet) or other tissue. The answer is no, because “assault” is specifically defined to require imminent harm, direct threat, and intent. The relevant area of law is “toxic tort,” and a successful suit would require proof of causation from a specific manufacturer and damages. Even then, as discussed, you might lose if the chemical were regulated at the federal level due to preemption.

Currently, there is no legal remedy for the mere presence of a harmful, human made (or foreign, like lead) chemical or substance in your body against your will. Imagine how powerful it would be if corporations and government were responsible for ensuring that every foreign chemical or contraption sprayed, injected, deployed, spread, or used did not penetrate the bodies of those who did not consent to it. Imagine, further, that those responsible for such violation were held not only civilly but criminally responsible. Shouldn’t they be?

We Need A Constitutional Right to Informed Consent

I think one of the most powerful changes we could make to protect human and environmental health would be a constitutional right to informed consent. When the founding fathers wrote the constitution, corporations were created and controlled by legislatures (or previously monarchs). In such a system, it makes sense that the Bill of Rights limited only the power of government, not corporations, against citizens. Today, when corporations and government are equally powerful and nearly indistinguishable, we need rights to protect us from both.

A constitutional right to informed consent would present a serious challenge to every sort of liability ban. It would make explicit liability limitation laws unconstitutional, as they would deprive citizens of the constitutional right to enforce bodily sovereignty. It would present a serious challenge to preemption, because the reliance on the Supremacy Clause would have to be tempered with an equal constitutional imperative.

Such an amendment would make adequate regulation superfluous, because corporations would be highly incentivized to ensure their products’ effects were limited to their beneficial intentions. Plastic toy manufacturers would have to ensure their products didn’t poison children with endocrine disrupters. Pesticide manufacturers would be forced to sell only products that never made it into an unwilling human being. All kinds of manufacturers would have to overhaul their processes, as any kind of nano-metal or foreign material or chemical that could be measured inside a human body that did not seek to ingest, absorb, inhale or inject it would be subject to liability. Even though this amendment focuses solely on human beings, it would also go a long way to protect every other life form and our air and water.

With each year passing, and technology accelerating, a constitutional right to informed consent becomes ever more important. We are not only faced with chemical pollutants in our water, products, food and sky, we are subject to increasingly invasive technology that sometimes seems to intentionally blur the line between our bodies and the external. Our bodily integrity is threatened by self-replicating “vaccines” and “vaccines” in food, as well as other “health” tech, like “smart dust” based monitors. We also need to wonder how much of the nanotechnology used in cloud seeding, jet fuel and pesticides ends up inside us.

Perhaps most importantly, though, we need to imagine a future where insane authoritarians try to use “public health” or “environmental sustainability” to force technology on us that is far more threatening than the mandates and geoengineering we already face. Many very wealthy and powerful people in the United States today are transhumanists, including Elon Musk, Peter Thiel, Marc Andreessen, Garry Tan, Sam Altman, and Jeff Bezos. These people believe in the unbridled promise of science to solve every problem, especially when they control the technology. Last week, the New York Times published an enlightening interview with Peter Thiel, in which he openly called for replacing human minds and bodies with technology to solve social problems.

The right to informed consent is the right to “Stay Human.”

To implement a new constitutional right, we need a government that is accountable to the people. At this point, the government is accountable to their transhumanist, chemical, biotech, pharma, telecom, and pesticide industry donors. Despite our current predicament, there is reason to hope that such a constitutional change is more doable and would be more effective than the piecemeal approach of regulatory reform.

Every poisoning industry, including ones we haven’t thought of, would be constrained at once if we had the right to informed consent, widening its potential for support among those with diverse concerns. A constitutional right like this one is also attractive across ideological divides as it reduces both the power of government and corporations in favor of individual, human rights that would also protect the environment. In addition to covering all current and future poisoning threats, it is also likely to be more effective because any reform of laws would be highly dependent on specific details making it into final bills – each of which would entail its own fight and be subject to industry maneuvering. A right to informed consent, in contrast, is based on an overarching, widely-recognized, fundamental principle that would be harder to render milquetoast.

The public will embrace the right to informed consent as they lose more and more misplaced faith in our institutions. Such disenchantment is increasing. The positive side of living in a society with accelerating death and disease, after all, is that the stench of the long dead canary becomes ever more noticeable. Even the employees of the poisoning industries may eventually smell it and join us.

The sooner, the better.

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