Health Law Daily Challenge to withdrawal of organic livestock and poultry practices rule to proceed
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Tuesday, March 5, 2019

Challenge to withdrawal of organic livestock and poultry practices rule to proceed

By Jeffrey H. Brochin, J.D.

Although the court found no blanket requirement for USDA to consult with the National Organic Standards Board before making decisions, it would further consider the question of whether the board should have been consulted before the rule was withdrawn.

A federal district court has granted in part and denied in part the United States Department of Agriculture’s (USDA) motion to dismiss a complaint brought by the Organic Trade Association (OTA) challenging the agency’s rules delaying the effective date of the final Organic Livestock and Poultry Practices (OLPP) rule and the subsequent formal withdrawal of that rule. Although the OTA had standing to sue, the court dismissed the challenge to the delay rules, but allowed the challenge to the withdrawal of the OLPP rule to proceed (Organic Trade Association v. USDA February 27, 2019, Collyer, R.).

The Organic Foods Production Act. In 1990, Congress enacted the Organic Foods Production Act (OFPA) (P.L. 101-624) in order to establish national standards governing the marketing of certain agricultural products as organically produced products. The OFPA required the Secretary of Agriculture to establish an organic certification program for producers and handlers of organic agricultural products to ensure that the products were produced and handled in compliance with an organic plan and generally without the use of synthetic chemicals. The program included a National List of approved and prohibited substances as part of the standards for organic production and handling.

National Organic Standards Board. The OFPA required the establishment of a National Organic Standards Board (NOSB) to assist the Secretary in the development of standards for substances to be used in organic production and to advise the Secretary on any other aspects of the implementation of the OFPA. The Board is comprised of 15 members and is drawn from a cross section of consumers, conservationists, scientists, and the organic agricultural industry.

OLPP rule. With the assistance of the NOSB, the USDA has promulgated rules regulating the care of organic livestock, including the 2000 rule requiring organic producers to establish and maintain livestock living conditions which accommodate the health and natural behavior of animals (65 FR 80548). In 2016 the USDA proposed the OLPP rule, after it determined that its organic regulations concerning livestock care needed additional specificity to aid compliance efforts and better meet consumer expectations. On January 19, 2017, President Obama’s last day in office, the USDA published the final OLPP rule (82 FR 7042), which was to become effective on March 20, 2017. However, as part of President Trump’s moratoria on published but not yet effective regulations, the OLPP rule was delayed on various dates until finally withdrawn. The OTA filed suit challenging the delay rules and the withdrawal of the OLPP Rule.

OTA injury of associational standing. The court first examined the issue of whether the OTA had suffered an injury as a result of the withdrawal rule. OTA argued that its members must currently pay for additional private-sector certification when they want to signal to consumers that their standards for animal welfare go beyond what is required by the USDA, but the final OLPP rule would have put all organic producers on the same playing field and made such additional certifications unnecessary. However, because the final OLPP rule was withdrawn, OTA’s members would have to continue to pay for additional certifications. The court therefore found that the OLPP withdrawal injured OTA’s members by depriving them of a benefit they would have otherwise received, and concluded that the OTA had associational standing to challenge the OLPP withdrawal rule on behalf of its members.

Response to presidential moratoria. The court recited presidential moratoria under previous administrations, and noted that such directions from incoming presidents are quintessential exercises of executive authority into which the federal courts are loath to explore. However, the legal issue revolves around how the executive agencies respond to a presidential moratorium in light of the Administrative Procedures Act (APA). The court concluded that the OTA’s complaint against the delay rules was moot and no longer presented an Article III case or controversy because the likelihood of repetition was too speculative, it being overly speculative to predict how executive agencies might respond to a hypothetical future moratorium, and how such rule would affect the OTA or its members. Because the OTA did not show a reasonable expectation or demonstrated probability of a future controversy, the court ruled that there was insufficient evidence in the record to justify an exception to the mootness doctrine.

Challenge to withdrawal rules. Conversely, the court found that the OTA’s allegations that the OLPP withdrawal rule was arbitrary and capricious because it lacked sufficient reason or explanation for reversing course stated a legally sufficient claim against the OLPP withdrawal rule. The OTA argued that the USDA was required to consult with the NOSB while considering and before finalizing the withdrawal rule, and that failure to do so violated the OFPA. The court found no blanket requirement for the USDA to consult with the NOSB when new rules are created affecting organic certification, but stated that the USDA may have been required to consult before taking sweeping action like withdrawing the OLPP rule. The court refused to decide this issue on the current briefing, and allowed this challenge survived dismissal.

The case is No. 1:17-cv-01875-RMC.

Attorneys: William J. Friedman (Wade Grimes Friedman Meinken & Leischner PLLC) for Organic Trade Association. Kari E. D'Ottavio, U.S. Department of justice, for U.S Department of Agriculture.

Companies: Organic Trade Association; Animal Welfare Institute; U.S Department of Agriculture.

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