A growing weight of research links routine antibiotic use on factory farms to the rise in antibiotic-resistant bacteria–which are showing up in more and more places worldwide (including, according to recent studies, in your local supermarket). Doctor groups, from the American Medical Association to the American Society of Microbiology, have appealed to the government and industry to restrict the practice, lest critical antibiotics become useless for human treatments.

Over the past couple of years, the FDA changed its tune and has finally begun to respond to the threat. Top officials at the FDA have testified of the dangers to Congress. The agency itself is developing “voluntary guidance” that would restrict the practice–which currently sees 80 percent of all antibiotics used in this country given to food animals.

Sadly, though, the FDA is still whistling when it should be belting its song to the rafters. In fact, the meat industry has successfully resisted, and in the case of the antibiotic Cephalosporin, turned back via “midnight regulations” by outgoing Bush administration FDA officials, specific measures meant to address this threat to public health.

As a result, a coalition of environmental groups including the Center for Science in the Public Interest, Food Animal Concerns Trust, Public Citizen, Union of Concerned Scientists, and the Natural Resources Defense Council (NRDC) has decided to sue. According to a blog post by the NRDC’s Executive Director Peter Lehner, the goals are simple:

We want the FDA to follow its own safety findings and withdraw approval for most non-therapeutic uses of penicillin and tetracyclines in animal feed. We also want the agency to respond to the petitions to withdraw approval of non-therapeutic uses in animal feed of other antibiotics important to human health.

This lawsuit will have no bearing on the use of antibiotics for treating sick animals. We simply want to end the practice of giving these critical disease fighters to healthy livestock when it’s not medically necessary.

While this may cause eyerolls among some who look at this as “just another lawsuit,” there’s something very important going on with the courts and contested science right now. As it happens, one of the main roles of a judge is as “finder of fact.” In practice, this means that judges determine whether scientific evidence is compelling enough to force government action.

In several recent cases, the courts have decided that environmentalists and reformers were right–and industry was wrong. It was, after all, the Supreme Court that ultimately forced the EPA to regulate carbon dioxide and other greenhouse gases (however fitfully the agency has done it). More relevant to this case, it has been the federal courts–including the Supreme Court–that have forced the USDA to consider things like gene flow and economic harm from contamination of organic crops by genetically modified seeds. Indeed, the courts are currently holding the USDA’s feet to the fire on its entire regulatory process surrounding genetically modified seed–much to the consternation of the biotech industry (not to mention senior administration officials). Oh, and the courts recently determined that, yes, milk treated with artificial growth hormones is worse than regular milk–as activists have claimed for decades.

And so, it may be that the courts hold the key to forcing the FDA to finally act on antibiotics in livestock. It’s one thing to ignore industry pressure–which is something the FDA is utterly unable to do. It is another thing to ignore a court order by a federal judge. It’s a shame that our politics and our regulatory environment are now so toxic to reform that even commonsense changes like preserving life-saving drugs for human use can be controversial. For the moment, judges, who are forced to treat peer-reviewed scientific evidence with the respect it deserves, may be the only hope.

Originally published on Grist