PRESS RELEASE – A friend of the court brief filed jointly by the Coalition for Sustainable Organics, the Western Growers Association, the Aquaponics Association and the Scotts Company was formally accepted this past week by the judge in the case seeking to compel the U.S. Department of Agriculture to initiate the formal rule making process to revoke certification of growers using organic hydroponic methods.
Purpose and Limitations of Our Brief
Under the Ninth Circuit’s rules, amicus parties typically file briefs no longer than half the length of the party whom they’re supporting; USDA had 40 pages (but used 38) so our brief is around 17 pages.
The goal of our brief was to provide the court with the perspective of interested parties other than those participating in the lawsuit, ideally without duplicating arguments made by the party whom the amicus is supporting (here, the USDA). Our 18-page brief complied with the Ninth Circuit’s requirement that amicus parties file briefs no longer than half the length of the brief of the party whom they’re supporting and focused primarily on material drawn from the Administrative Record (AR) produced by USDA. The AR included the transcripts from the NOSB meetings and the Hydroponic Task Force Report but did not include the written comments we submitted over the last few years.
Substantively, we focused on providing additional technical information, shining light on some of the factual and legal errors contained in the Plaintiffs’ motion, and sharing information about the harm that growers, retailers, and consumers would suffer should Plaintiffs prevail. In other words, we aimed to fill in the gaps to complement the brief of DOJ on behalf of USDA that pertain to the limited scope of the legal issues applicable directly to the case.
Highlights of our Brief
· Hydroponic systems have been allowed since the inception of the program
o Not all hydroponic systems are organic
o But organic hydroponic systems do meet the requirements
· Hydroponic and soil-based systems have equivalent microbial properties inherent in all organic systems the cycle resource
· OFPA and NOP standards rest upon site-specific analyses by Certifying Agents’ review of farm-specific Organic Systems Plants
· Overview of the certification process
· Growers are readily able to meet the actual OFPA and NOP standards
· Provide several examples that are recorded in the Administrative Record of growers utilizing hydroponics still meeting even the soil requirement interpretation demanded by the plaintiffs.
· Explain the significant economic and market consequences on consumers and producers that would arise from the judge imposing the desired decertification demanded by the plaintiffs in the case
Government Brief
Here are some of the main points of the brief filed by the Department of Justice on behalf of the USDA.
· Congress intended the OFPA to permit a broad range of production practices to qualify as organic.
· Production or handling systems that wish to be certified as organic need not comply with every provision of [the regulations]. Instead, “[t]he producer or handler of a production or handling operation intending to sell, label, or represent agricultural products as . . . ‘organic’ . . . must comply with the applicable provisions of [the] subpart.”
· The petition for rulemaking does not rely on any supporting exhibits or materials. And the petitioner did not enter evidence into the record in support of the petition while it was pending before USDA.
· NOP’s position that hydroponic systems are allowed has remained consistent over time.
· NOP explains that the “[p]etition provides no evidence that organic hydroponic systems [categorically] hinder cycling of resources, ecological balance, or conservation of biodiversity. To the contrary, USDA explained that even though hydroponic systems are different than soil-based systems, “that does not make them [categorically] incompatible with the vision for organic agriculture expressed in the OFPA.”
· “Hydroponic operations produce food in a way that can minimize damage to soil and water, and that can support diverse biological communities.” Accordingly, NOP denied “CFS’s requests to undertake a rulemaking to amend 7 C.F.R. [§] 205.105 to prohibit hydroponic systems.”
· Judicial review of an agency’s decision not to institute rulemaking is extremely deferential, particularly in an area requiring significant technical expertise.
· The OFPA’s plain text does not unequivocally require organic crops to be produced in soil, and if anything supports USDA’s conclusion that they do not.
· A literal reading of § 6513(b)(1) that all organic plans—including those of handlers— must foster soil fertility would threaten to exclude handlers from the scheme entirely and permit organic products to only be sold directly to consumers by soil-based agricultural producers. “It is implausible that Congress meant the Act to operate in this manner.”
· Courts “normally accord particular deference to an agency interpretation of ‘longstanding’ duration.” “In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that its interpretation is . . . one [permitted] by Congress.”
· Hydroponic producers may demonstrate how they comply with NOP’s definition of “organic production” on a site-specific basis.
· CFS—who “ha[d] the burden of proof,” failed to introduce a single piece of evidence into the record indicating that any particular hydroponic producer had been certified by a certifying agent without an organic plan demonstrating compliance.
· All in all, Plaintiffs’ “evidence” from the administrative record supports nothing more than USDA’s acknowledgement in the Petition Denial that “[o]rganic hydroponic systems have been controversial. Some groups support the organic certification of these systems, while others are opposed to their certification.”
· Plaintiffs lack standing to challenge USDA’s decision not to provide specific guidance to hydroponic organic producers, and their challenge is not ripe for review because no plaintiff has petitioned USDA to issue regulations establishing specific standards for hydroponic organic production.
· Plaintiffs assert no concrete injury-in fact caused by USDA’s decision not to issue rules or guidance specific to hydroponic producers detailing the myriad ways that hydroponic producers may be able to “foster cycling of resources, promote ecological balance, and conserve biodiversity.”
Next steps in the case
December 1 Center for Food Safety with other plaintiffs filed their final brief.
December 22 DOJ/USDA files its final brief.
Jan. 21, 2021 Hearing on Cross-Motions for Summary Judgment
February 18 Further Case Management Conference, if the case has not been resolved through the Summary Judgment process (without a jury trial)
CSO Urges Biden USDA transition team to make organics more inclusive and to continue defense of lawsuit
The CSO reached out to the Biden transition team to request that the incoming administration support a more inclusive organic community built for the needs of the future that include increasing demand and supply for clean and healthy foods.
We urged the Biden – Harris Administration to continue to make sure that organic farming remains open to growers from around the world that are ready to meet the high USDA standards. We asked that USDA continue to defend against the lawsuit brought by the Center for Food Safety that seeks to overturn decades of organic policy set by Congress and the USDA and affirmed by the National Organic Standards Board.
The CSO will continue to reach out to new political appointees in 2021 to make sure they continue to understand our issues.
Don’t let your voice be silenced as efforts to revoke your organic certification continue
If the lawsuit to revoke organic certification for growers using pots and other containers is successful, the case would have detrimental consequences for all organic growers that use containers including substrate production.
Your help is needed now to defend your interests in the lawsuit. Without your continued financial support to allow the CSO to fully engage with expert attorneys to strengthen our efforts in the courts in California, no one will be there to defend your farm and your production practices.
Please join today at this link or donate today if you are more comfortable making a one-time contribution. The CSO members are grateful for whatever support you can provide.
The CSO believes that everyone deserves organics. By working together, we can help sustainably and legitimately increase your markets and expand supplies to meet the needs of consumers.
CSO welcomes incoming House Agriculture Committee Chair David Scott of Georgia
The U.S. House Committee on Agriculture will see significant changes to its leadership in the new Congress. The current Committee chairman Collin Peterson lost his reelection bid last month. In addition, the ranking Republican on the committee Mike Conaway will retire at the end of the current session. Democrats have selected David Scott of Georgia as the next chair of the committee.
“I am honored to have been chosen by my colleagues in the Democratic Caucus to serve as Chairman of the House Agriculture Committee,” said Congressman Scott. “I was born on my grandparents’ farm in rural Aynor, South Carolina, during the days of segregation, and the hardships, of those, on whose shoulders I now stand. I owe this historic selection as the first African American Chairman of the House Agriculture Committee to a diverse coalition of members from across our nation. And I will use this critical opportunity to represent the values of our entire caucus and advance our priorities for trade, disaster aid, climate change, sustainable agriculture, SNAP, crop insurance, small family farms, specialty crops, and rural broadband. The fault lines dividing our rural and urban communities are running deep, and climate change is now threatening our nation’s food supply. As Chairman, I will lead the fight to rise up and meet these challenges.”
Congressman David Scott has served as a Member of Congress and the House Agriculture Committee since 2003. In his various leadership roles on the House Agriculture Committee, Congressman Scott has chaired the Subcommittees on Commodity Exchanges, Energy, and Credit as well as Livestock and Foreign Agriculture. Scott played a key role in ushering through the three last Farm Bills, including by serving as a conferee, securing critical disaster aid for our farmers, strengthening the food and nutrition programs that help our families, seniors and school children and securing $80 million for new scholarships for students attending 1890 African-American land-grant colleges and universities.
Congressman David Scott grew up living and working on his grandparents’ farm when his parents moved north to find work. During his 18 years in Congress, he has developed a deep understanding of the critical issues facing farmers today and the practical challenges posed by an agricultural lifestyle. He also understands the critical role agriculture plays in our economy and the importance of policies that preserve our place as the #1 exporter of agricultural products.
In addition, the Senate Agriculture Committee will have a new chair regardless of the outcome of the Georgia special election Senate results. Chair Pat Roberts is retiring.
If you would like to participate in outreach to any new leaders and their staff in the upcoming year, please contact the CSO at info@coalitionforsustainableorganics.org.
