Environmental trial lawyers are thrilled that the politically friendly 9th Circuit Court of Appeals in California ordered EPA to ban chlorpyrifos but the science is even less settled than the court case is.
And this court case is far from settled, because it should never have been heard.
If you are not familiar with American law, the 9th is the most overturned appeals court by the Supreme Court of the United States, because their rulings are often overtly political, and therefore not grounded in evidence. This seems to be another instance of it. It came down along predictable political lines, but that is not why it shouldn't have been heard, it is why that venue was chosen. Judge Jed Rakoff, an appointee of the Clinton administration, was joined by Obama appointee Judge Jacqueline Nguyen to create a 2-1 majority over George H.W. Bush appointee Ferdinand Fernandez. All fine. Except Fernandez is legally in the right, because he argued that the case should have gone to a lower court first.
His point is sound law. If EPA chooses to appeal the decision it is almost certain to be heard at the Supreme Court and that means the 9th will probably be overturned when it comes to wacky science and health findings yet again.
Activist groups and their lawyers claim chlorpyrifos residues on food cause neurodevelopmental damage in children, but that has only been found using statistics created by the Columbia Center for Children’s Environmental Health at Columbia University. If that sounds like IARC on coffee or herbicides or bacon, yes, it is the same voodoo methodology. They ignore dose and declare any presence as hazardous. That is like assuming 1 shot of Scotch will harm you as much as 10,000.
No one has seen the data. Not EPA, not USDA, because the researchers behind the claim have refused to show it. And somehow, even though the studies are taxpayer-funded, the federal government has allowed agenda-driven academics to claim they "own" the data.
The Obama administration overruled its own scientists
Instead of demanding that the data, which did not match the pattern of other studies, be reviewed, the Obama administration overruled its own scientists and agreed to a ban. It ignored its own U.S. Department of Agriculture. “USDA has grave concerns that ambiguous response data from a single, inconclusive study are being combined with a mere guess as to dose levels, and the result is being used to underpin a regulatory decision,” the Agriculture Department wrote during the waning days of the Obama administration.
It's junk science made policy, exactly what those agencies are supposed to prevent.
Such politicization of science has hindered EPA for decades, but this incident led to calls for eliminating "secret science" by government panels - a request ironically made by EPA. We testified in support of EPA being able to evaluate data before politicians force can them to place bans on products because they have been hobbled by such politics since they were forced to ban DDT over the objections of scientists at their founding in the early 1970s. The previous administration forced not one but two special assessments of an herbicide called atrazine, for example, and they did so based on similar secret science - a paper by a Berkeley biologist who claimed endocrine disruption in frogs but refused to show any data. Which meant EPA could not even use the study that got the politician to force them to re-evaluate the product.
Sierra Club and their EarthJustice litigation group, along with the Usual Suspects at Environmental Working Group et al. can try to claim is as a victory, but it will only be such if EPA decides not to pursue an appeal they are almost guaranteed to win.
Hank Campbell is the President of the American Council on Science and Health and founded Science 2.0, the world's largest science writing community, whose sites have been read by over 300,000,000 people.