"Providing an informed, reasoned and dispassionate
voice to the global public debate..."
-- James Tozzi, Advisor to the Center for Regulatory Effectiveness, and former official of the White House Office of Management and Budget (Mr. Tozzi was instrumental in establishing OMB's Office of Information and Regulatory Affairs and development of the Paperwork Reduction Act and Information Quality Act)
Lawrence Kogan has identified and proposed a solution to the one impediment which has stopped the Information Quality Act ("IQA") from realizing its full potential - judicial review of actions taken pursuant to the statute. In so doing, he has also highlighted the immense reach of the IQA's peer review guidelines. Mr. Kogan also dispels the myth that Congress passed the IQA with no hearings, by providing numerous citations to the public statements of Members and witnesses who appeared before the House Appropriations Committee. Mr. Kogan's paper is encyclopedic and scholars may differ on some of the points made therein, but it should be noted that the endgame is to demonstrate that Congress enacted a statute which, when implemented in an enthusiastic manner, will ensure that federal agencies provide the American public with reliable and reproducible data. He also gives a detailed description of the plethora of judicial cases involving the IQA, which readily leads the reader to the conclusion that the reviewability of the IQA is unsettled. To this, Mr. Kogan makes an important point seldom raised by others who have written on the IQA; namely 'that a court's 'hard-look' or 'arbitrary and capricious' review of federal agency action ... should include a review of the quality of data inputs' i.e., compliance with the IQA. The challenge is to put Mr. Kogan's recommendations into practice, many of which the United States Department of Justices opposes. Mr. Kogan identifies one candidate for potential legal challenge - EPA's Clean Air Act Endangerment Findings - which could fulfill that purpose. Another possible target of the type of IQA challenge he proposes would be against EPA's failure to conduct a peer review of 'highly influential scientific information' in its determination that carbon storage and sequestration is a viable technology - the central component of its proposed rule to control emissions from new gas-fired power plants. [...] This WORKING PAPER offers a roadmap for precedential action that would establish the IQA's reviewability, and at the same time ensure that costly agency initiatives are science-based [...]
-- Dr. John. D. Graham, Dean of the School of Public and Environmental Affairs, Indiana Univ.; former Administrator of the Office of Information and Regulatory Affairs ("OIRA"), White House Office of Management and Budget
"The WORKING PAPER [Revitalizing the Information Quality Act as a Procedural Cure for Unsound Regulatory Science: A Greenhouse Gas Rulemaking Case Study] attorney Lawrence Kogan has produced on this subject matter is quite detailed and informative. It clearly conveys the IQA's key concepts and explains how OMB guidance serves the public interest by endeavoring to protect a stakeholder's right not to be burdened by poor quality government-disseminated scientific and technical data. The manuscript also focuses on what IQA opponents have seized upon as its major putative weakness - the statute's failure to expressly provide for judicial review. As Mr. Kogan correctly states, while '[a]gencies and their allies may believe that requests for correction are beyond the scrutiny of the courts, ... this is not a conviction that OMB - the agency Congress charged with the IQA's implementation - necessarily shares.' For this reason, a 2002 OMB memorandum admonished agencies against including within their own guidelines any statements that 'suggest they are free to disregard their own guidelines,' and statements disclaiming judicial enforceability, which 'might not be controlling in the event of litigation.' It is on this final point that the paper arguably makes the greatest contribution to public understanding of the potential reach of the IQA. Although I am not a lawyer, I can fully appreciate the care he has taken in analyzing the IQA and PRA statutes and the relevant IQA, APA and constitutional jurisprudence to date. I agree with his conclusion that Congress did intend for courts to determine the reviewability of agency denials of RFCs [Requests for Correction] on a case-by-case factual basis."
-- Carol LaGrasse, President, Property Rights Foundation of America
"Larry, [ ...] Again, thanks for such a fine presentation about international influences on U.S. government at the conference. [...I] began reading your publisher advance copy [since finalized] of the article for Kentucky Journal of Equine, Agriculture & Natural Resources Law. This is a priceless contribution to the understanding of the forces affecting private property rights in the United States. Thank you!"
-- Friends of the Earth International and CEO Corporate Europe Observatory
"The NFTC made a huge splash with its 2003 paper, "Looking Behind the Curtain: The Growth of Trade Barriers that Ignore Sound Science" [authored by Lawrence Kogan], which argues that the EU's moratorium on GMOs as well as laws for tracing and labeling GMOs must be countered. The paper also calls for the overriding of Japanese and Korean quarantine requirements for fresh fruit and nuts; the striking down of bans in many countries on various food additives; the overturning of EU chemicals legislation; and the trashing of a host of other national environmental and health policies. The paper received strong support from the U.S. government, and U.S. Department of Commerce personnel were apparently so impressed with the ideas it contained that they placed it prominently on their website."
-- Robert Weissman, Editor, Multinational Monitor
"A May [2003] Report by the National Foreign Trade Council (NFTC) [authored by Lawrence Kogan]...highlights the priority corporations place on crushing the Precautionary Principle. The EU rules on biotech are only the most prominent of precautionary rules that the NFTC argues conflict with WTO rules. Others that the NFTC say violate WTO provisions include EU rules requiring electronics manufacturers to take responsibility for products at the end of their consumer life, an EU chemicals strategy (known as 'REACH'), which will require chemical manufacturers to safety test their products before putting them on the market, and a directive prohibiting use in cosmetics of carcinogenic or mutagenic substances. The NFTC [Kogan] report makes clear how much corporations believe is at stake in the biotech case."
-- Robert Weissman, Editor, Multinational Monitor
"Perhaps the most serious threat to the implementation of the Precautionary Principle is the claim that it conflicts with governmental obligations under the World Trade Organization (WTO) agreements and other trade deals...[P]rivate industry has developed a series of well-crafted arguments about how Precautionary Principle-based regulatory systems violate WTO rules...
The National Foreign Trade Council (NFTC)...has issued a series of reports [authored by Lawrence Kogan] arguing that precautionary action conflicts with countries' WTO duties. The centerpiece of the council's elaborate argumentation is this: The WTO's Sanitary and Phytosanitary Standards Agreement (SPS Agreement covering food safety, animal and plant health standards) and Technical Barriers to Trade Agreement (TBT Agreement covering regulations, standards, testing and certification procedures) requires countries not to use standards more stringent than those established by international agencies. Countries may exceed these standards only in very rare circumstances, and based on risk assessments. Regulatory action in the face of uncertain evidence - the core of the Precautionary Principle - conflicts with these rules.
As it happens, the NFTC's [Lawrence Kogan's] arguments are good ones, at least in WTO terms...Thus, although the Precautionary Principle may be an idea whose time has come, there is nothing inevitable about its adoption, implementation and diffusion."
-- Thuy-Dung Ngo, Program Director, U.S.-Vietnam Trade Council
"Dear Mr. Kogan...we would like to thank you and your colleagues for meeting with the TBT delegation from Vietnam. The discussion and information provided will be very useful in their efforts for the BTA implementation and WTO accession. We appreciate the important contribution you made to their visit."
-- Tom Amolo, Former Deputy Chief of Mission, Embassy of Kenya, Washington, DC
"Dear Mr. Kogan, it was a pleasure to meet with you again. I think you are doing excellent work."
-- John Burke, Leadfree Electronics Assembly Forum and Pushback
"The fight against the RoHS lead ban is moving to a higher level, thanks to Lawrence Kogan JD, LLM and the ITSSD."
-- GMO Pundit a/k/a David Tribe, Senior Lecturer, Microbiology, University of Melbourne
"ITSSD raises the debate about the 'Precautionary Principle'".
-- Phil Zahodiakin, Editor, Pesticide.net Insider eJournal
"Attorney Lawrence Kogan, CEO of the Institute for Trade, Standards and Sustainable Development, has tackled a particularly complex advocacy - one that involves comprehensive knowledge of international and environmental treaty law - but his background has prepared him well."
-- Gary E. Marchant, Professor of Law, Executive Director & Faculty Fellow, Center for the Study of Law,
Science & Technology, Sandra Day O'Connor College of Law, Arizona State University
"In a well-documented and encyclopedic tour-de-force, Lawrence demonstrates that Europe's application of the precautionary principle is already harming U.S. businesses and consumers...This Monograph clearly establishes that the precautionary principle is a malignancy that destroys economies and innovation while also proliferating to new regions to infect. Mr. Kogan has provided a much-needed call to action on the need to stop the precautionary principle now before it spreads further and causes more devastation."
-- Graham Mather, Esq., President, European Policy Forum, London, UK
"This Washington Legal Foundation Monograph by Lawrence Kogan comes at a timely moment. Around the world, people are beginning to re-think systems of regulatory intervention that have grown apace...Mr. Kogan illustrates clearly the dangers of regulatory approaches based on such phrases as 'a high level of social protection' - to use a particular European nostrum - but created without making a proper quantification of risk and without implementing realistic cost-benefit analysis...Mr. Kogan clearly sets out documented evidence and case studies of damaging initiatives whilst linking these to legal and economic theory. It does an excellent job in causing us all to pause for thought..."
-- William H. Lash, III, Former Professor of Law, George Mason University School of Law;
Former Assistant Secretary for Market Access and Compliance, U.S. Department of Commerce
"In this Washington Legal Foundation Monograph, Lawrence Kogan explores and details the spread of the European Union's application of precaution in a quest for a risk-free world...Mr. Kogan recognizes the perils of further exports of this dangerous misinterpretation of the precautionary principle are far more lethal than any of the products attempted to be regulated...This comprehensive Monograph does a fine job of addressing the problems."
-- The Honorable James C. Greenwood, Biotechnology Industry Organization
"This important [WLF Monograph] analysis by Lawrence Kogan outlines in vivid detail the nature and scope of the risk we face from undocumented and undefined 'principles', while providing a path forward for all of the concerned stakeholders - government, industry and consumers. In that regard, it is an invaluable contribution to the growing debate about an issue that affects, in the long run, all of our daily lives."
-- Mark Cantley, Adviser, Biotechnology, Agriculture and Food Research Directorate-General
European Commission
"Just an acknowledgement of your WLF Monograph, which is an encyclopaedic and valuable reference to those of us who have long (and generally with scant success) laboured to inject a more scientific approach into EU regulatory initiatives."
-- John Kilama, Ph.D., President Global Bioscience Institute
"Once in a long while, a person comes along who knows the inside scoop or holds a penetrating insight about a particular issue or situation that others simply overlook, ignore or take for granted. Lawrence Kogan is one such person who, in my opinion, correctly sees a major paradigm shift slowly taking shape in the international law of intellectual property rights. As Mr. Kogan explains, in painstaking detail, this shift is occurring notwithstanding the fact that successful private property rights regimes have resulted in remarkable scientific and technological advances and generated exceptional economic wealth throughout the world. This very comprehensive article represents a clear understanding of why we should all take pause and reevaluate the bases underlying the unprecedented rate and degree of human progress that has taken place during the past century...I strongly recommend that scientists and policymakers, especially those from developing countries, carefully read Mr. Kogan's well researched manuscript. His analysis accurately describes the close relationship between exclusive private property rights, scientific and technological innovation, and economic development."
-- O. Lee Reed, Professor of Legal Studies and Meigs Professor, University of Georgia
"Like Hernando De Soto, Lawrence Kogan recognizes the importance of private property to nations, but he extends this recognition to the increasing globalization of trade in the vital area of IP rights. He fully embraces Article 1, Section 8, of the U.S. Constitution, which acknowledges that the purpose of patent and copyright protection is 'to promote (give incentive to) the Progress of Science and useful Arts (business),' all done to serve the nation's general welfare or common good. He vigorously promotes this justification for private IP in global trade as well...With a meticulously documented case, Lawrence Kogan shows that Brazil itself will benefit in the long-run from curbing its efforts to impair private property in what is currently protected by trade secret and patent law. From increasing foreign direct investment and providing incentive to its own private investors, Brazil will ultimately benefit more under-rather than out of-the private property regime. Lawrence Kogan provides an important service in reminding us why some nations are rick and others are poor."
-- Pat Choate, Ph.D., Director, Manufacturing Policy Project
"Lawrence A. Kogan's...thesis is Brazil is undermining its national innovation efforts by policies and practices whose ultimate effect is to discourage the creativity of the Brazilian people and divert meaningful levels of direct foreign investment...Kogan persuasively argues that Brazil would prosper under a strong regime of intellectual property protections. He points out that it has one of the world's greatest collections of plant and life forms, which could under undergird the creation of a world-class pharmaceutical industry, plus the development of [the medical] biotech...environmental biotech, agro biotech, and chemical sectors, among many others...But most of all, Kogan argues that Brazil is diminishing its own future by not creating a legal, political and developmental environment in which Brazilians and foreigners are inspired and rewarded for innovating. This piece is lucid and written strikingly well. A full set of endnotes with sources, elaborations, and aside comments that merit attention backs the analysis. The audience should be Brazilian intellectuals, politicians, media and business people."
-- Marcio Coimbra, Academic Council, Instituto Liberdade, Brasil;
International Analyst, Madrid, Spain for the CIEEP, Brasil
"Dear Mr. Kogan, I really would like to thank you. The information is really relevant for us...You can update us in any issue you may think is important...I also would like to congratulate you for the quality of the paper. Your work is really impressive."
-- Mark Cantley, Adviser, Biotechnology, Agriculture and Food
Research Directorate-General, European Commission (RET)
"I would like to remain in contact with ITSSD and yourself, for I do appreciate the quality, the thoroughness, of your work. The topic of IP, innovation and developing countries is an issue which can only increase in importance over the coming years."
-- William Reinsch, President, National Foreign Trade Council
"I've reviewed your paper, and...[a]s always, it's an excellent piece of scholarship and research and superbly written, and it makes an important point about IP..."
-- Carol LaGrasse, President, Property Rights Foundation of America
"Larry, Congratulations! This [the ITSSD-Whitehead School Internship Program] is a benchmark - not only for you and ITSSD, but for all of us devoting our lives to the advancement of private property rights. Thank you for all your good work and accomplishments!"
-- Unsolicited testimonial received from British scholar self-identified as petwem85, Manchester, UK, via Scholar.com
"The Institute for Trade, Standards and Sustainable Development (ITSSD) website displays an implicitly hegomonic 'positive paradigm of sustainable development'. With foundations based loosely in generally accepted sustainable development publications, including the WCED's Brundtland Report (1987) and the 'three pillar' environmental, economic and social elements of sustainability, the ITSSD, through its website, develops a set of principles, reflective of its position in this debate.
A commercially and politically independent organisation, the ITSSD is deeply supportive of traditional American imperial ideology, promoting unregulated and market-driven capitalist economics as the fundamental theory of this 'positive paradigm'. Lawrence Kogan (2008) in an ITSSD released article, attacks external ideological and political power over the USA through an "environment-centric paradigm of sustainable development". This website strongly encourages the anthropocentric capabilities of mankind, particularly Americans, in "developing scientific knowledge, new technologies and equipment." The ITSSD's 'positive paradigm' moves away from increasingly accepted environmental preservation, towards unanimous support for economic development (not just 'meeting the needs'), "without requiring the absolute preservation of specific natural resources".
The ITSSD provide a well-structured and easily navigated website, consistently informing the reader of this anthropocentric 'positive paradigm' and that sustainable development is an area of extreme importance, but that must be defined, academically and politically, with reference to the necessity of creative and forward thinking professionals. Kogan neatly concludes, "Do they not deem Americans worthy of the challenge?""