Fight Over Feds’ Organic Rules Change Tossed

By Nicholas Iovino

SAN FRANCISCO – A federal judge has dismissed a lawsuit claiming the U.S. government illegally changed its process for reviewing substances approved for use in organic farming.

However, the groups challenging the rule will get a second chance to file a new complaint against the U.S. Department of Agriculture.
The Center for Food Safety and 13 organic food groups sued the USDA in April, claiming the government changed a key provision of the Organic

Foods Production Act without sufficient notice or public input.

The law previously required synthetic materials be removed from the list of approved organic farming substances every five years, absent a 2/3 majority vote by the National Organic Standards Board.

In 2013, the sunset provision was changed allowing nonorganic materials to remain on the list indefinitely, unless the board specifically votes them off.

U.S. District Judge Haywood Gilliam found the plaintiffs failed to allege they suffered a concrete injury due to the government’s rule change.

In his Oct. 9 ruling, Gilliam pointed to a 2009 Supreme Court decision, Summers v. Earth Island Institute, which found a group challenging a U.S. forestry rule failed to show how the regulation posed an “imminent and concrete harm” to the plaintiffs.

In that case, the plaintiffs also claimed that being denied an opportunity to comment caused injury, but the Supreme Court ruled “deprivation of a procedural right without some concrete interest that is affected by the deprivation – a procedural right in vacuo – is insufficient to create Article III standing.”

Gilliam said he saw no “meaningful distinction” between that case and the Center for Food Safety’s challenge to the organic foods sunset provision.

The plaintiffs had cited a 2005 First Circuit ruling, Harvey v. Veneman, which found the plaintiff, an organic farmer, could challenge the USDA’s organic farming rules because he said they would “degrade the quality of organically labeled foods.”

Gilliam said the plaintiffs did not plead the same type of injury in their complaint, but instead alleged the sunset review procedures – when applied in the future – would cause a weakening of the organic label.

“But even setting this factual distinction aside, plaintiffs’ reading of Harvey would necessarily contradict the Supreme Court’s decision in Summers, which this court is required to follow,” Gilliam wrote in his 5-page ruling.

In a separate lawsuit filed in the Northern District of California, a judge denied the USDA’s motion to dismiss the Center for Food Safety’s complaint over a rule permitting the conditional use of two insecticides in organic food production.

“They have alleged that the decision undermines the labeling of a product as organic such that they will now have to undertake additional concrete steps to ensure that the products they consume do not contain synthetic materials; the same is true for the farmers who will have to undertake additional steps to ensure their compost is pesticide free,” U.S. District Judge Jacqueline Scott Corley wrote in her Sept. 29 ruling.

Gilliam concluded the plaintiffs failed to allege the same concrete injuries in their complaint over the sunset provision, namely that the regulation affected the status of any particular substance.

The judge dismissed the complaint without prejudice, giving the Center for Food Safety the chance to file its first amended complaint within 21 days.

Center for Food Safety attorney Paige Tomaselli said the plaintiffs are still weighing their options following the ruling but will likely file an amended complaint or otherwise address the court’s order on standing.

“Plaintiffs maintain that they have standing to challenge USDA’s sunset rule,” said Tomaselli.

A USDA spokesman said the agency is “pleased” with the ruling and that it announced the sunset review changes to increase public engagement and transparency, and to provide more opportunity for public comment and participation.

“USDA strongly supports organic agriculture, and is committed to establishing a level playing field that protects all organic farms and businesses,” said the spokesman. “Public participation and comments are vital to USDA’s work in organic agriculture.” 

This article appeared first at Courthouse News