If you live in California, you can never get too amazed by the 9th Circuit Court of Appeals. If there is a progressive position that an activist court can take, they usually take it.

If you can't go to a national chain store and get your eyes checked and buy glasses, the 9th is why - they ruled that is medical care and health care is not interstate in America. Sure, we can mandate health care and force people to pay for it under the Commerce clause, but for some reason we can't let people buy prescription glasses from an out-of-state company.

The Supreme Court is always teeing off on them. In 2011, 19 of the 26 court decisions from the 9th were reversed or vacated by the Supreme Court. 12 of those were unanimous, so even the ‘liberal’ justices on the Supreme Court thought they were bonkers.

But there are limits, and Sierra Club and organic farmers counting on the 9th to do for them what the marketplace and a US District Could would not have found those limits; Circuit Judges Mary Schroeder, Sidney Thomas and Randy Smith upheld the lower court's determination that Roundup Ready Alfalfa was not a 'plant pest' under the Protection Act.

Anti-science groups, from Union of Concerned Scientists to Greenpeace, count on nuisance lawsuits to hurt businesses. They hire lobbyists to get arcane, conflicting laws in place and then hire lawyers to enforce the laws they get passed.  The federal and state government having to spend years in court because environmentalists used the Wilderness Act to keep government scientists from enforcing the Endangered Species Act - the only way to restore an endangered trout was to use an auger powered by a gas generator - is the perfect test case to teach to Anti-Science majors, or whatever they call Political Science degrees these days.

Sierra Club and its clients claimed that the Endangered Species Act, the National Environmental Policy Act and the Plant Protection Act should all be against Roundup Ready Alfalfa - if only they could find a court to determine it was a 'noxious weed'.  The government had already determined there was nothing wrong with this Alfalfa - pesky science dealing with facts - but the motivated reasoning for the $29 billion Big Organic industry and its activist groups was that there was a slippery slope to biological doom.  And you can't prove it can't harm people. Mostly they were concerned about their own markets.  What if a piece of wind blew some alfalfa into an organic rancher's field and a cow ate it.  That could show up in tests.

Really, if organic farming tests were that rigorous Whole Foods would not have been implicated in having up to 25% of their imported organic food be just regular food (they may be better now - but there is no surprise spot testing of organic farmers so we have no way to know how legitimate any of it is).

But here was their hook; Monsanto created Roundup Ready Alfalfa by transferring a gene from Agrobacterium, a naturally occurring bacterium, into the genetic structure of conventional alfalfa. The USDA’s Animal Plant and Health Inspection Service (APHIS) considers Agrobacterium a plant pest so, in the minds of environmentalists, that alfalfa has a gene from a plant pest makes alfalfa a plant pest.

If this sounds a lot like homeopathy reasoning to you, you're never going to work for Greenpeace.

But anyone can sue about anything and, in line with the usual environmental efforts at manipulating the law, science was not part of this decision; they simply argued that government scientists did not know Roundup Ready Alfalfa was a 'noxious weed' and that the government does not understand the Endangered Species Act or the National Environmental Policy Act. They made sure to include the USDA in the lawsuit so they didn't look 'anti-business'.

The 9th, in the opinion written by Judge Schroeder, affirmed that the FDA's role is to remove adulterated food (in some way harmful) from the food supply and there is no evidence that this alfalfa is in any relevant way different from regular alfalfa, unlike raw milk and raw sprouts and lots of other organic products that environmental groups think are good for us.

The court found that the plaintiffs had no case. Yes, even the 9th Circuit Court, which once overturned the conviction of a rapist who assaulted a 72-year-old woman because it decided the jury was 'racially biased' due to two black potential jurors not being chosen, which led to the Supreme Court calling their thinking “as inexplicable as it is unexplained” when they overturned it and sent the criminal back to jail, couldn't side with environmentalists here.

Basically, activists were trying to make Frankenhay out of harmless hay. And it didn't work, which forces me to say something nice about a Court that doesn't get many nice things said about it.

As I have said before, Monsanto is a lightning rod for progressive anti-science fantasies and this is another example. But reason won here, even if the data wasn't on trial.

Science:1 - Magic Soap Peddlers: 0

Links:

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 12-15052 D.C. No.3:11-cv-01310-SC OPINION

H/T Keith Reding