USDA Motion to Dismiss Granted In Organic Case

Written by Katharine Richter

On October 9, the United States District Court of Northern California ruled in favor of the United States Department of Agriculture (USDA) motion to dismiss a complaint brought against them by the Center for Food Safety (CFA) and other consumer groups.  The groups had claimed the USDA did not issue a proper notice and comment period regarding a new review process for certified organic foods.

The complainants originally filed on September 16, 2013.  The USDA was seeking to revise which “substances may be used in food certified as ‘organic’ under the Organic Foods Production Act (OFPA).”  Under the act, there is a 15 member board called the National Organic Standards Board (NOSB), which determines what substances can be used in products and considered “organic” for labeling purposes.  USDA proposed a new framework that would alter the review process from requiring a two-third vote for renewal of allowable substances. to now requiring all members of the group to remove the substances from the allowable substance list. 

The Court found the plaintiffs lacked standing because they had failed to show the new review procedures would cause them any concrete harm.  The complainants will have 21 days to file an amended complaint.

Court Grants EPA Summary Judgment in CAFO Information Gathering Case

Written by Katharine Richter

On September 29, 2015, the United States District Court for the District of Columbia granted summary judgment to the Environmental Protection Agency (EPA); EPA was sued back in 2013 by five groups over the EPA’s decision to withdraw a proposed rule.  According to the decision, the rule “would have required large industrial livestock operations to provide information to the EPA in order to facilitate the EPA’s ability to regulate their discharge of pollutants into the waters of the United States pursuant to the Clean Water Act [CWA].”  The five groups bringing the lawsuit were the Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Human Society of the United States, and Iowa Citizens for Community Improvement.

The plaintiffs alleged that the withdrawal of the proposed rule “was arbitrary and capricious in violation of the Administrative Procedure Act…”  According to the decision, in 2011, the EPA introduced two potential rules which “would have required CAFOs to submit certain basic information to the EPA, pursuant to the EPA’s information-gathering authority under the CWA.”  The Agency decided to not adopt either rule after a notice and comment period.  The EPA stated it would use the “existing information approach,” using data from other sources such as U.S. Department of Agriculture (USDA) and state registration or licensing programs rather that requiring CAFOs to submit information.

In the decision, the plaintiffs argument focused upon the “clarity of explanation offered by the EPA” in deciding to not adopt the proposed rule.  The Court found the EPA’s decision to not adopt the rule and notice was “adequately explained and coherent.”  Further, the plaintiffs argued the EPA erred in determining it could properly gather information on CAFOs without enacting the rule.  The Court determined the evidence was sufficient that a reasonable person would “reach the conclusions that the EPA did regarding the existing sources of information.”

Lawsuit Against USDA Compost Policy Allowed to Continue

Written by Tyler R. Etter

On September 29, 2015, a California federal court denied the USDA’s motion to dismiss the lawsuit
brought by the Center for Food Safety, Center for Environmental Health, and Beyond Pesticides. The
lawsuit is challenging a USDA guidance that recognized the presence of synthetic pesticides in compost
used for organic food productions.

The plaintiffs asserted that the USDA guidance effectively allows certified organic producers to use
compost materials treated with synthetic pesticides, amending existing organic food regulations. They
also argued that the guidance violates the produces for public notice and comment, as the guidance was
issued without an opportunity for public input. The USDA argued the requirement did not apply, as the
guidance was not a legislative rule. Magistrate Judge Jacqueline Scott Corley found merit in the
plaintiffs’ arguments, specifically within the context of the premium paid by consumers and farmers to
ensure that organic produce avoids synthetic pesticides.

Prior to the release of the guidance, synthetic substances were expressly prohibited from compost used
in organic food production. Ralph Bloemers, attorney for the Crag Law Center, stated that the guidance
“radically changes organic requirements...” and that the USDA “made the change without the required
rulemaking process.”

Proponents of the lawsuit are calling the denial of the motion to dismiss a major victory for public input
in the organic policy process, and believe that the USDA must facilitate public input to ensure the
integrity of the process.

Organic Advocacy Group Sues USDA

Written by Stephen Kenney

On August 25, 2015, the Center for Food Safety (CFS) filed suit against the USDA Animal and Plant Health Inspection Service (APHIS) for violating the Freedom of Information Act (FOIA).  CFS sought records from APHIS related to the proposed Plant Protection Act Regulations.  CFS requested in its complaint that the court order APHIS to disclose all the non-exempt records that CFS requested. CFS is a non-profit entity that advocates for and promotes organic and similar types of agriculture production.  APHIS is tasked with regulating genetically engineered organisms which it does under the Plant Protection Act.

CFS alleged in the complaint that APHIS has routinely violated FOIA when CFS has requested information regarding APHIS’s oversight of GE crops.  In addition to the disclosure of the requested documents, CFS seeks a court declaration that APHIS has a pattern of failing to timely respond to CFS’s FOIA requests and to order APHIS to make amendments to its FOIA Handbooks and procedures to ensure compliance with FOIA in the future.

APHIS published its proposed updated GE crop regulations in 2008.  The proposal was officially withdrawn on March 4, 2015.  CFS made a FOIA request about the decision when the group first learned that APHIS was planning to withdraw the proposed updated GE regulations in December 2014.  Nine months later, CFS had not received any records from APHIS.  CFS claimed that this is not an isolated incident and that it has made dozens of FOIA requests to APHIS regarding the regulation of GE crops since 2002.  CFS further claimed that APHIS had failed to respond timely to twenty-nine of those claims.