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The Supreme Court Just Did Serious Damage to the Fight Against Climate Change

by LawannaCrossley Posted on February 10, 2016

Mother Jones

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The Supreme Court dealt a blow to President Barack Obama’s climate agenda Tuesday evening by putting his flagship greenhouse gas emissions rules on hold. In a 5-4 ruling, the justices granted the stay in response to a lawsuits by coal companies and two dozen coal-reliant states. The plaintiffs have argued that by setting new limits on carbon pollution from power plants, Obama’s Environmental Protection Agency is overstepping its authority to control the electricity sector.

The ruling is far from a death knell for the Clean Power Plan, as the policy is known. Rather, it allows power companies and state official to hold off on preparing for the new regulations until the courts decide whether the administration went too far. The cases will most likely end up in front of the Supreme Court sometime next year, so there’s still plenty of time before the plan’s fate is sealed.

According to Vicki Arroyo, executive director of the Georgetown Climate Center, the Court’s track record on EPA regulations is pretty favorable for environmentalists.

“Every regulation from EPA is attacked legally,” she said. “There might be delays, but there is almost always a rule that come out the other end.”

But in the meantime, the ruling could throw a wrench in the delicate diplomacy surrounding the global climate agreement reached in Paris in December. One defining feature of the Paris summit that made it the most successful round of climate talks in two decades was the leadership of Secretary of State John Kerry and other US officials. It was the Clean Power Plan that gave other countries confidence that the US was finally willing to do something about its own massive carbon footprint. In other words, the plan was supposed to be Obama’s proof that the US would follow through on its Paris promises. Now, the trust of other big polluters—China, India, the European Union—could be shaken. That could have a chilling effect on climate action around the globe.

“I think the stay raises doubts in other countries’ minds,” said Jake Schmidt, international program director at the Natural Resources Defense Council. “I’m already getting a lot of questions and confusion from policy analysts abroad. There will be a lot of outreach to explain what this really means.”

Their concerns may well be justified—even if the Supreme Court ultimately does rule in favor of the administration. That’s because, regardless of the case’s final outcome, yesterday’s stay will make the Clean Power Plan more vulnerable if a Republican wins the presidential election in November. All of the leading GOP candidates have vowed to roll back Obama’s climate agenda. (Bernie Sanders and Hillary Clinton have both promised to carry it forward.)

The problem is the timeline, explained Robert Stavins, director of Harvard’s Environmental Economics program. Until yesterday, state regulators and power companies were in the early stages of putting together their plans to comply with the regulation. But with the stay in place, power companies can push off the investments and upgrades required by the plan—switching coal-fired power plants to natural gas, improving efficiency on the electric grid, building more wind and solar energy, etc. That means that by the time the next president takes office, the power companies will have sunk less capital into implementing the plan, and will have less incentive to see it survive than if they had already made those investments, Stavins said. With that potential roadblock out of the way, a Republican president would have an easier time killing the plan.

“That’s a subtle chain of causality, but it’s the one that—if understood—may reasonably cause concern to other countries regarding the ability of the USA to live up to its Paris promises,” Stavins said.

Still, at least in the short term, the US doesn’t need the Clean Power Plan to follow through on its initial Paris commitments, Schmidt said. The US will be required to submit its first progress report under the agreement in 2020, a couple years before the Clean Power Plan was originally scheduled to take effect. Moreover, he said, even if countries such as China and India are spooked by the Supreme Court’s new ruling, they’re unlikely to jump ship on their own climate plans.

“When you look at what’s happened over the past couple years, it’s really hopeful that the US is moving forward,” Schmidt said. “But most countries aren’t moving forward solely on the basis of what the US is doing.”

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The Supreme Court Just Did Serious Damage to the Fight Against Climate Change

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Here’s the Latest Reason Republicans Are Afraid of a Hillary Clinton Presidency

by AnnmarieE89 Posted on January 29, 2016

Mother Jones

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Supreme Court nominations, thanks to a lifetime appointment if confirmed, are always one of the most important parts of presidential administrations elections but rarely get much attention on the campaign trail. But at a campaign stop in Iowa City Friday afternoon, Ben Carson suggested to caucus voters that they had a new reason to fear Hillary Clinton becoming president: put her in the White House and you’ll end up with Barack Obama on the Supreme Court.

If there’s “another progressive president,” Carson said, “and they get two or three Supreme Court picks—one of them being Obama—America’s toast. Your children and grandchildren, they’re toast.”

Carson isn’t the first candidate to suggest this possibility—from either party. Earlier this week, Hillary Clinton said she would consider nominating Obama to the Supreme Court when she was asked about putting Obama on the bench at a town hall in Iowa. “I mean, he is brilliant and he can set forth an argument,” she said. That proved to be fodder for Sen. Marco Rubio at Thursday night’s debate. “Hillary Clinton this week said Barack Obama would make a great Supreme Court justice,” Rubio said. “The guy who systematically and habitually violates the constitution on the Supreme Court? I don’t think so.”

In terms of campaign trail fear mongering, it’s actually not a crazy suggestion. Obama did, after all, teach constitutional law classes before entering politics full-time. And he wouldn’t be the first president-cum-justice, though it’s been quite a long while since the last one, nearly a century. Only William Howard Taft has made that transition, appointed in 1921. But, as MSNBC’s Steve Benen noted, Obama told The New Yorker in 2014 that being a judge would “a little bit too monastic” for him. The White House also shot down the idea earlier this week.

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Here’s the Latest Reason Republicans Are Afraid of a Hillary Clinton Presidency

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Why Do So Many People Believe Donald Trump?

by ClaudiaMillican Posted on January 26, 2016

Mother Jones

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I’m sort of bored with the Republican race (and the Democratic race too—about which more later) but I do wonder if a lot of Republicans are getting things fundamentally wrong. Here’s Jonah Goldberg:

The level of distrust among many of the different factions of the conservative coalition has never been higher, at least not in my experience. Arguments don’t seem to matter, only motives do.

Here’s Rush Limbaugh on Friday: “Forget the name is Trump. If a candidate could guarantee to fix everything that’s wrong in this country the way the Republican Party thinks it’s wrong, if it were a slam dunk, if it were guaranteed, that candidate will still be opposed by the Republican Party establishment…. If he’s not part of the clique, they don’t want him in there.”

In other words, the GOP establishment has become so corrupted, its members would knowingly reject a savior just to protect their comfortable way of life.

This really does get at a key part of Trump’s popularity: a lot of people believe him. Hell, I’d almost vote for him if I believed him. We’re talking about a guy who says he’s going to grow the economy at 6 percent, save Social Security, cut taxes on everyone, get rid of unemployment, crush ISIS, rebuild the military, erase the national debt, and make America great again. And the icing on the cake for conservatives is that he claims to be solidly pro-life, pro-gun, pro-religion, and in favor of nice, right-wing Supreme Court justices like Clarence Thomas. What’s not to like? A few minor deviations from movement conservatism? That’s piffle. Why are all those establishment Republicans opposed to him?

There are reasons, of course. But primary among them is that no one with a 3-digit IQ believes he can do this stuff. Lots of it is flatly impossible, and the rest is politically impossible. And if you don’t believe Trump, then he’s just a charlatan with nothing left except bad qualities: he’s erratic, narcissistic, boorish, racist, thin-skinned, ideologically unreliable, opportunistic, etc. etc. It’s pretty obvious why you’d oppose him.

So, really, it all comes down to whether you believe Donald Trump can do the stuff he says. It’s pretty plain that he can’t. So why do so many people think he can? That’s the $64 trillion question.

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Why Do So Many People Believe Donald Trump?

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Are Immigration Agents Defying the President?

by CharoletteCambe Posted on January 21, 2016

Mother Jones

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As you all know, the Supreme Court has agreed to rule on the legality of President Obama’s 2014 immigration program—Deferred Action for Parental Accountability, or DAPA. Like DACA, the “mini-DREAM” rule that Obama established in 2012, DAPA codifies the president’s ability to direct prosecutorial resources by explicitly telling immigration agents to do what they’ve mostly been doing anyway: ignore undocumented immigrants who have clean records and have been in the US for a long time. The key word here is “mostly.” Nearly all immigrants who fit the DAPA criteria are left untouched, but immigration agents continue to randomly deport some of them. Over at the New Republic, Spencer Amdur makes an interesting argument that this is at the core of the legal case:

As the administration tries to rationalize its immigration policy, the biggest challenge has actually come from within….In 2011, the head of ICE, John Morton, issued a memorandum directing agents not to focus their limited resources on immigrants with clean records, long-time residence, and families in the United States….Morton issued several of these “priorities” memos, and line-level agents almost universally ignored them, continuing to deport immigrants with deep roots here and no convictions.

….Later in 2011, the administration instructed immigration prosecutors to close cases of people who were not priorities for deportation; little changed. In 2012, the administration asked agents to stop sending detention requests to local police for immigrants without criminal records. Still nothing.

….This pattern of defiance is not mentioned in any of the briefs or court decisions in United States v. Texas. But it was an essential antecedent for DAPA, which effectively forces immigration agents to follow the previous policies….This is the elephant in the courtroom. The lawsuit is not just about the balance of power between the president and Congress, as the briefs suggest. It’s about democratic control of the police. Do our elected officials have the right to control the enforcement bureaucracy?

The fact that this isn’t mentioned in any of the briefs suggests it’s not taken seriously by anyone. Should it be?

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Are Immigration Agents Defying the President?

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Supreme Court Throws Out Arkansas’ Abortion Ban

by JeffDeSalis3584 Posted on January 19, 2016

Mother Jones

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In February 2013, Arkansas passed the Human Heartbeat Protection Act, a bill outlawing abortions after 12 weeks of pregnancy if a heartbeat is detected. The new law came at a fine moment for the state’s anti-abortion legislators: In recent months, they’d passed a bill doubling the state’s mandated abortion waiting period, and had passed a 20-week ban on abortion.

The 12-week ban, however, was at the time the most restrictive abortion ban passed not only in the state, but in the nation. A pair of Arkansas doctors challenged the bill as unconstitutional and two lower courts prevented the ban from going into effect. Today, the Supreme Court rejected Arkansas’ bid for reconsideration of the abortion ban. The high court’s decision not to take this case, Edwards v. Beck, and to uphold lower courts’ decisions to throw out Arkansas’ law, could send a signal and help curb early abortion bans in other states.

“Arkansas politicians cannot pick and choose which parts of the Constitution they want to uphold,” Nancy Northup, president and CEO of the Center for Reproductive Rights (CRR), said in a statement on Tuesday. “The Supreme Court has never wavered in affirming that every woman has a right to safely and legally end a pregnancy in the US—and this extreme abortion ban was a direct affront to that right.”

When this bill was first passed, pro-choice advocates and medical professionals pointed out that at 12 weeks most fetuses may have a heartbeat, but none are viable. Viability is the critical point when a fetus is sufficiently developed so it can survive outside the womb. In 1973, Roe v. Wade introduced viability as a standard and established that women have the right to an abortion until the end of their second trimester of pregnancy—about 27 weeks. Nineteen years later, in Planned Parenthood v. Casey, the high court shifted the time limit discussion from trimesters to one of viability, ruling that states can only outlaw abortions of viable fetuses.

But what is the exact point at which a fetus is viable? In Casey, the court ruled that viability begins at 23 or 24 weeks, slightly before the end of the second trimester, in part because medical advances have made it possible for some pregnancies to be viable at that point.

When proposed in 2013, the Arkansas bill moved swiftly through the state legislature, even though the 12-week cut-off clearly violated the Supreme Court’s decision on fetal viability. It was vetoed by Democratic Gov. Mike Beebe in March 2013, but within two days, the Legislature overrode his veto and passed the bill into law. A month later, two local physicians and some of their patients sued the state medical board, asking the court to bar the law from going into effect. In 2014, two courts—first a district court, and later the 8th Circuit Court of Appeals—threw out the ban, ruling that there was no evidence a fetus can be viable at 12 weeks.

Oddly enough, the Arkansas Medical Board made no effort to make a scientific case for 12-week viability. “The only factual record presented in this case was by plaintiffs,” wrote one 8th Circuit judge, pointing to the testimony and data the doctors had presented showing that a 12-week fetus can’t survive outside the womb. “The State offered no competing evidence” on fetal viability, wrote the district court judge.

In asking the Supreme Court to review this case, Arkansas made the argument that viability is an outdated standard and that the law should allow states to get involved with a woman’s decision-making at an earlier point in her pregnancy. The brief noted: “This case is about the impropriety of a judicially-imposed rule that sets in stone ‘viability’ as the point before which the State’s profound interests must give way to a woman’s desire to terminate her pregnancy.”

Despite the Supreme Court’s rulings on viability, 15 states have since 2010 passed abortion bans that would outlaw the procedure at 20 weeks, or earlier. Many of these so-called “fetal pain” bills—model legislation originally drafted by the anti-abortion National Right to Life Committee—base the 20-week cut-off on the medically incorrect assertion that a fetus can feel pain at that point in its development. Now that the Supreme Court has rejected this case, the viability standard established over decades of Supreme Court jurisprudence remains intact—for now.

After today’s decision, advocates on both sides of the abortion debate are turning their focus back to a pivotal case challenging a Texas abortion law that is before the Supreme Court this term, Whole Woman’s Health v. Cole. Arguments are scheduled for March 2, and a decision will be announced later this year.

“We now look to the Justices to ensure Texas women are not robbed of their health, dignity, and rights,” said CRR’s Northup in today’s statement.

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Supreme Court Throws Out Arkansas’ Abortion Ban

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Texas Governor Wants to Add Nine New Amendments to the Constitution

by JayneWiggins Posted on January 8, 2016

Mother Jones

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Texas Gov. Greg Abbott has a plan to make America great again: Add nine new amendments to the Constitution. On Friday, fed up with Supreme Court rulings that have gone against conservatives as well as the regulatory actions of the Obama administration, the first-term Republican issued a 92-page report outlining his proposed tweaks to the founding document and calling for a national constitutional convention to make it happen.

The “Texas Plan” is as follows:

I. Prohibit Congress from regulating activity that occurs wholly within one State.

II. Require Congress to balance its budget.

III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

IV. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.

VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.

IX. Allow a two-thirds majority of the States to override a federal law or regulation.

Clearly, Abbott has been listening to way too much of the Hamilton soundtrack.

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Texas Governor Wants to Add Nine New Amendments to the Constitution

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This Year, States Took the War on Uteruses to the Next Level

by CarrollMadewell Posted on December 30, 2015

Mother Jones

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Reproductive rights took a beating in 2015. According to a year-end report released by the Center for Reproductive Rights, nearly 400 anti-abortion bills were introduced across the country in 2015, up from 335 provisions introduced in 2014. The bills ranged from regulation of medication abortions to all-out bans on the most common method of second-trimester abortions, and the Guttmacher Institute reports 57 of them were enacted. The few pieces of good news can be found in access to contraceptives: Oregon became the first state this year to expand access to birth control medication by offering it over the counter for up to a year’s supply, and California passed a law that allows women to get birth control directly from a pharmacist.

In the final days of 2015, Gov. Cuomo in New York signed legislation that permits pregnant women to enroll in the state’s health insurance exchange at any point during the year by making pregnancy a “qualifying life event.” For everyone without a qualifying life event, enrollment is only available from October through December. New York is the first state to pass such legislation.

But generally, the good news has been limited. Here are some of the most impactful state restrictions that became law this year—and that are likely to affect millions of women of reproductive age:

Medication abortion restrictions: Arkansas’ HB 1578 requires providers to tell patients that the effects of the “abortion pill“—a drug called mifepristone, or RU-486, which is used in conjunction with another pill that is taken at home—can be reversed. This claim has been refuted by the American Congress of Obstetricians and Gynecologists and in medical studies. In the same measure, abortion counselors are required to include in their sessions inaccurate information about fetal pain during the procedure and women’s mental health problems after it. Multiple studies have debunked the claim that most women regret their abortions after the fact.

The state Legislature in Arkansas, which was ranked the second-worst state for women’s and children’s well-being by the Center for Reproductive Rights for its mass of restrictions this year, also passed laws banning telemedicine when it’s used for medication abortion. The technology—involving video conferencing and an automated drawer that pops out and contains the medication—has allowed physicians to administer mifepristone remotely. This method is particularly beneficial for women who live in rural parts of the state and cannot afford the time or money to drive to a clinic in a metropolitan area.

Arkansas implemented an additional restriction on medication abortion that requires doctors prescribing mifepristone to adhere to the original FDA-approved dosage. This sounds reasonable, but it actually decreases the effectiveness of the drug and increases the likelihood of nasty side effects. (Molly Redden reported on increased restrictions around medication abortion in Mother Jones‘ September/October issue.) Idaho also passed laws banning telemedicine specifically when it’s used for medication abortions by requiring physicians to be physically present while administering mifepristone. Doctors who administer the medication must also have admitting privileges at local hospitals or a written transfer agreement with another doctor who does have those privileges. These requirements often disqualify physicians from being able to offer abortion services.

Unprecedented bans against the most common procedure for second-trimester abortions: In April, Kansas passed legislation that made it the first state to explicitly restrict the most common procedure for second-trimester abortions. The wording of the law is ambiguous and does not use medical language—for example, it refers to the fetus as an “unborn child”—and it bans what is referred to as “dismemberment abortion.” In the law, the procedure is defined as “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus.” The focus of the law appears to be on the use of the dilation and evacuation method, a method considered by medical professionals to be the safest way to terminate a pregnancy, and which is used in most abortions after the 12th week of pregnancy. A Kansas district court judge, Larry Hendricks, blocked the law less than a week before it was to take effect, and the Kansas Court of Appeals heard oral arguments regarding the law’s constitutionality in early December. However, because the case is being presented before all the appeals judges rather than the traditional three-judge panel, the timing for a final ruling is uncertain.

Oklahoma passed a similar law targeting dilation and evacuation abortions, using even more gruesome language. The law defines “dismemberment abortion”—a popular term among “right to life” advocates—as ” purposely dismembering a living unborn child and extracting him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush, and/or grasp a portion of the unborn child’s body to cut or rip it off.” A temporary injunction in October was also applied by a judge in this case, and the law is pending a final ruling.

Waiting periods: North Carolina extended the waiting period from 24 hours to 72 hours, tripling the time between state-mandated abortion counseling and actually receiving an abortion. All 12 states in the Southeast have state laws that mandate a waiting period, with the exception of Florida, which tried to pass a 24-hour waiting period this year, but the law was blocked by a circuit court judge and is pending a final ruling. Oklahoma also passed a law that expanded the state’s 24-hour mandatory waiting period to 72 hours.

Tennessee Legislature scales back abortion access: Amendment One, which passed in late 2014, amended the Tennessee state constitution to declare that it does not protect a woman’s right to an abortion or funding for abortions (despite the well-known fact that state and federal dollars cannot legally be used to fund abortion, anyway). The amendment, which was one of the most expensive ballot measures in the state’s history, gave state lawmakers more power to control abortion access and opened the door to a number of restrictive measures in 2015. Twelve bills restricting abortion access were presented before the Legislature this year, including a mandatory 48-hour waiting period. Also in Tennessee, a woman who attempted to self-induce a miscarriage in her bathtub after 24 weeks of pregnancy now faces a first-degree attempted murder charge.

Less than six months after Amendment One was approved, Tennessee also passed a law requiring clinics performing more than 50 surgical abortion procedures per year to meet standards of ambulatory surgery center, which basically amount to hospital standards. This is an example of a TRAP law (short for Targeted Regulation of Abortion Providers), which focus not on women seeking abortions but on the practitioners who provide them. The additional construction, infrastructure, and maintenance costs can bankrupt these providers, as Mother Jones has previously reported.

Parental consent: By adding yet another requirement, Arkansas’ lawmakers tightened restrictions for women under the age of 18 who are seeking an abortion without parental consent. In order to waive the state’s parental-consent requirement, these young women must go through a judicial bypass procedure in which they appear before a judge to receive permission to have the procedure. But they now must also undergo an “evaluation and counseling session with a mental health professional” so that a judge can rule whether there is “clear and convincing evidence” that a minor is mature enough for the procedure and that an abortion is in her best interests. The law does not mandate any kind of time limit on the court proceedings, so it’s possible a slow-moving petition could delay a teen’s pregnancy until it is illegal for her to go through with the abortion. The law also requires that a minor file the petition in a court in the county where she resides, further compromising her privacy.

Ban after 20 weeks: This year, West Virginia became the 15th state to ban abortions after 20 weeks of pregnancy. Although the governor vetoed the legislation, the state Legislature overrode his veto and passed the bill into law. The law is especially restrictive, offering no exceptions for victims of rape or incest, and it only provides a highly limited exception for women whose lives are endangered by their pregnancy or for fetal abnormalities. Arkansas lawmakers passed a similar ban on abortions after 12 weeks, but the measure was struck down in the US Court of Appeals for the Eighth Circuit. “By banning abortions after 12 weeks’ gestation, the act prohibits women from making the ultimate decision to terminate a pregnancy at a point before viability,” the appeals court said.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, said that even though 2015 was a tough year, it could get worse in 2016. “In 2016, abortion restrictions are again expected to be on the front burner in many state legislatures,” Nash said. “It does not appear that the pending US Supreme Court case is slowing down abortion opponents. We expect to see a host of abortion restrictions in 2016, including restrictions related to medication abortion, bans on abortion in the second trimester and TRAP laws including the disposal of aborted tissue.”

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This Year, States Took the War on Uteruses to the Next Level

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Scott Walker Corruption Case Threatens to Implicate Wisconsin Supreme Court Justices

by Bradly2804 Posted on December 22, 2015

Mother Jones

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It’s the campaign scandal that just won’t die. For three years, prosecutors in Wisconsin tried to investigate what they believed was illegal campaign coordination between Wisconsin Gov. Scott Walker and conservative outside groups. The investigation has become a political flash point in the state: Walker and conservatives claim it is a witch hunt led by liberal prosecutors, while liberals believe it is about the power of dark money in Wisconsin politics.

The Wisconsin Supreme Court dismissed the case, but on Friday, the case moved to the national stage when prosecutors signaled their intention to take it to the US Supreme Court. And the focus is now set to shift from the actions of Walker and his allies to potential ethical violations by the Wisconsin Supreme Court justices themselves.

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Scott Walker Corruption Case Threatens to Implicate Wisconsin Supreme Court Justices

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Campaign Finance Regulators Won’t Do Their Job. Can a Lawsuit Force Their Hand?

by FlorentShq Posted on December 21, 2015

Mother Jones

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It’s a case that has haunted campaign finance watchdogs for years. The Commission on Hope, Growth, and Opportunity (CHGO) emerged in early 2010 as a nonprofit that would not engage in political work. Then, in the six weeks before the 2010 elections, the group spent about $4 million on political ads across 15 congressional races, all attacking Democrats. But in filings with the IRS, the group maintained that none of its spending was campaign-related, and it did not disclose any of its spending with the Federal Election Commission. Facing complaints from federal regulators, the group folded. Some of its key players—including Scott Reed, now a top strategist at the US Chamber of Commerce, and Wayne Berman, the chief fundraiser for Marco Rubio’s presidential campaign—split more than $1 million in leftover funds. No one involved was ever sanctioned.

Almost all the money CHGO raised came from a single donor. The group’s ability to spring up, use secret money to influence elections, and then disappear provides a template for rich donors who want to pick off or boost candidates without revealing their political activity.

But one watchdog group, the Democratic-leaning Citizens for Responsibility and Ethics in Washington (CREW), believes it has found a way to hold the group’s key players accountable. If successful, the effort could set its own template for forcing lax federal regulators to crack down on campaign finance violations by the types of outside groups that have been awash in money since the Supreme Court’s 2010 Citizens United ruling.

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Campaign Finance Regulators Won’t Do Their Job. Can a Lawsuit Force Their Hand?

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The Government Buried Some Really Important Herbicide News Right Before Thanksgiving

by JohnBorowski Posted on November 30, 2015

Mother Jones

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Just before the Thanksgiving holiday, the Environmental Protection Agency revoked its controversial approval of a novel herbicide mix, sending shares of its maker, chemical giant Dow, down nearly 3 percent in Wednesday trading.

The product, Enlist Duo, is the signature weed-killing cocktail of Dow AgroScience, Dow’s ag subsidiary. It’s composed of two endocrine-disrupting chemicals, 2-4-D and glypohosate, that have landed on the World Health Organization’s lists of “possible” and “probable” carcinogens, respectively. Dow markets it for use alongside corn and soybean varieties that have been genetically engineered to withstand the combined herbicides, to counter the rapid rise of weeds that have evolved to resist glyphosate alone. Approved by the EPA last year, Enlist Duo is the company’s “crown jewel,” a Wall Street analyst recently told The Wall Street Journal. The US Department of Agriculture thinks farmers will embrace it rapidly—it will boost 2,4-D use by as much as 600 percent by 2020, the agency projects.

How inconvenient for Dow’s shareholders, then, that the EPA has changed its mind. Last Tuesday, the agency petitioned the Ninth US Circuit Court of Appeals to revoke its approval of Enlist Duo, temporarily barring farmers from using it.

The reason for the reversal is fascinating. The decision hinges on the so-called “synergistic” effects of combined pesticides. When you combine two or more herbicides, do you merely get the weed-slaying properties of each—or do you also get something new and greater than the sum of the parts? There’s not a lot of data on that. Generally, pesticides are tested for safety in isolation, even though farmers tend to use several at once in the field. Yet studies have repeatedly shown—see here and here—that chemical combinations can be much more toxic than you’d expect from analyzing each of their components.

When the EPA reviewed safety data supplied by Dow, it found “no indication of synergism between the two Enlist Duo ingredients for mammals, freshwater fish, and freshwater invertebrates,” its court petition states, and thus it concluded that the “mixture of the two ingredients does not show a greater toxicity compared to either parent compound alone.”

But later, agency officials looked at Dow’s application to the US Patent Office for Enlist Duo, originally filed in 2013, and found something quite different: “claims of ‘synergistic herbicidal weed control.'” The EPA was not amused. “Specifically, Dow did not submit to EPA during the registration process the extensive information relating to potential synergism it cited to the Patent Office,” the agency complained to the court. “EPA only learned of the existence of that information after the registrations were issued and only recently obtained the information.”

In others words, Dow was assuring the EPA that its proposed cocktail was really nothing new—just the combination of two already-approved agrichemicals—while simultaneously telling the patent office that Enlist did indeed bring new and different weed-leveling properties to the farm field. In short, two different messages for two different audiences—the EPA sees potentially heightened toxicity from synergistic effects, while the investors who pore over patents might see a potential blockbuster in an herbicide mix that’s more than just the sum of its two components.

Dow has now handed that “extensive information” on Enlist Duo’s synergistic effects to the EPA. In a press release, Dow AgroSciences President and CEO Tim Hassinger vowed to resolve the EPA’s issues “in the next few months, in time for the 2016 crop use season.” Given that the EPA relies on company-supplied data to make these decisions, he’s probably right—the EPA’s action last week will amount to a speed bump on the road to Enlist Duo’s conquering of the nation’s vast corn/soybean belt. But considering the confusion so far, now might be the time for the EPA to demand independent testing of this powerful and potentially soon-to-be ubiquitous mix.

Meanwhile, last Wednesday’s action marks the second time in November the EPA has seen fit to revoke registration of a would-be blockbuster Dow pesticide. Just a week before, the agency nixed its approval of the insecticide sulfoxaflor, months after a federal appeals court found that Dow had delivered the agency “flawed and limited data” about the chemical’s impact on honeybees.

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The Government Buried Some Really Important Herbicide News Right Before Thanksgiving

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