Organic Trade Ass'n v. U.S. Dep't of Agric., Civil Action No. 17-1875 (RMC)

Decision Date27 February 2019
Docket NumberCivil Action No. 17-1875 (RMC)
Citation370 F.Supp.3d 98
Parties ORGANIC TRADE ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.
CourtU.S. District Court — District of Columbia

William J. Friedman, Pro Hac Vice, Andrea M. Downing, Wade, Grimes, Friedman, Meinken & Leischner, PLLC, Alexandria, VA, William Lawton, Meyer Glitzenstein & Eubanks LLP, Washington, DC, for Plaintiff.

Kari E. D'Ottavio, Serena Maya Schulz Orloff, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

On January 19, 2017, the last day of the administration of former President Barack Obama, the United States Department of Agriculture (USDA) issued the final Organic Livestock and Poultry Practices Rule (Final OLPP Rule), which made more stringent the regulations that govern the certification of livestock as "organic" by USDA. On January 20, 2017, the first day of the administration of President Donald Trump, the White House directed executive agencies to delay implementation of all pending regulations that had not yet become effective, which included the Final OLPP Rule. USDA thereafter issued "Delay Rules" in February, May, and November 2017, each further delaying the effective date of the Final OLPP Rule. Eventually, on March 13, 2018, USDA formally withdrew the Final OLPP Rule.

The Organic Trade Association (OTA) challenged the delays to the effective date of the Final OLPP Rule in September 2017, while the November Delay Rule was open for public comment and not yet finalized. Between then and now, the Complaint has twice been amended and now also includes a challenge to the withdrawal of the rule. The government moves to dismiss the Second Amended Complaint.

OTA opposes. Having studied the parties' briefs, the Court finds OTA has standing to sue but will dismiss its challenge to the Delay Rules.

I. BACKGROUND
A. The Organic Food Products Act

Congress enacted the Organic Food Products Act (OFPA) in 1990 "to establish national standards governing the marketing of certain agricultural products as organically produced products"; "to assure consumers that organically produced products meet a consistent standard"; and "to facilitate interstate commerce in fresh and processed food that is organically produced." 7 U.S.C. § 6501. Consistent with this purpose, the OFPA requires the Secretary of Agriculture to "establish an organic certification program" for producers and handlers of organic agricultural products to ensure that those products are "produced and handled in compliance with an organic plan" and, as a general matter, "without the use of synthetic chemicals."1 7 U.S.C. §§ 6503(a), 6504(1) and (3). Each organic operator must develop and follow an "organic plan," which is defined as:

a plan of management of an organic farming or handling operation that has been agreed to by the producer or handler and the certifying agent and that includes written plans concerning all aspects of agricultural production or handling described in this chapter including crop rotation and other practices as required under this chapter.

7 U.S.C. § 6502(13). One touchstone of the organic program is the "National List of approved and prohibited substances that shall be included in the standards for organic production and handling." Id. § 6517(a); see also S. Rep. No. 101-357, at 298 (1990) (hereinafter "Senate Report") ("Most consumers believe that absolutely no synthetic substances are used in organic production. For the most part, they are correct and this is the basic tenet of this legislation."). The National List touches virtually all aspects of the organic foods market, including organic crop production, 7 U.S.C. § 6508, organic animal production, id. § 6509, and organic handling practices, id. § 6510. Producers that do not satisfy the standards established under the OFPA may not market their products as organic, on pain of civil and criminal enforcement. Id. § 6519(c).

To aid the Secretary in this undertaking, the OFPA required the establishment of "a National Organic Standards Board ... to assist 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]." Id. § 6518(a). The National Organic Standards Board (occasionally, "Board") has 15 members appointed for staggered terms and drawn from a cross section of consumers, conservationists, scientists, and the organic agricultural industry. Id. § 6518(b) and (d). The Board "shall provide recommendations to the Secretary regarding the implementation" of the OFPA. Id. § 6518(k). Indeed, Congress regarded the National Organic Standards Board "as an essential advisor to the Secretary on all issues concerning [the OFPA] and anticipate[d] that many of the key decisions concerning standards [would] result from recommendations by this Board." Senate Report at 296.

Although "generally responsible for advising the Secretary on all aspects" of the OFPA, the National Organic Standards Board is "[s]pecifically ... responsible for evaluating substances for inclusion on the Proposed National List." Id. at 297. Thus, the National List must be "based upon a proposed national list or proposed amendments ... developed by" the Board, and the Secretary may not add exemptions to the National List that are not included on the proposed national list developed by the Board. 7 U.S.C. § 6517(d)(1) and (2). Nothing requires the Secretary to adopt recommendations made by the National Organic Standards Board in other areas related to the OFPA. However, the Secretary has historically consulted the Board on all rulemaking affecting organic standards. Resp. in Opp'n to the Gov't's Mot. to Dismiss, Ex. 3, Decl. of Tom Chapman (Chapman Decl.) [Dkt. 16-3] ¶ 28.

With the assistance of the National Organic Standards Board, USDA has promulgated a series of rules regulating the care of organic livestock.2 For example, in 2000 USDA promulgated the National Organic Program Rule (Organic Program Rule), 65 Fed. Reg. 80,548 (Dec. 21, 2000), an extensive set of regulations covering a wide variety of organic production practices, which required organic producers to "establish and maintain livestock living conditions which accommodate the health and natural behavior of animals, including ... [a]ccess to the outdoors, shade, shelter, exercise areas, fresh air, and direct sunlight suitable to the species, its stage of production, the climate, and the environment." Id. at 80,645. In 2010, USDA followed up the Organic Program Rule with the 2010 Access to Pasture Rule, 75 Fed. Reg. 7154 (Feb. 17, 2010), which reaffirmed and clarified the requirements for outdoor access.

In April 2016, USDA proposed the OLPP Rule, after it determined that its organic regulations concerning livestock care needed "additional specificity and clarity to better ensure consistent compliance by certified organic operations" and to "better satisfy consumer expectations that organic livestock meet a uniform and verifiable animal welfare standard." 81 Fed. Reg. 21,956 (Apr. 13, 2016). USDA also noted that lack of uniform implementation requirements for the Organic Program and Access to Pasture Rules resulted in "variation in the manner in which the regulations are applied." Id. at 21,958. USDA elaborated:

For example, in organic poultry production, outdoor access ranges from extensive pasture to roofed enclosures, i.e. , porches with no access to soil or vegetation. This disparity in amounts of outdoor access has economic implications for producers and lessens consumer confidence in the organic label.

Id.

On January 19, 2017, after a decade of internal work and administrative review, including public notice and comment, USDA published the Final OLPP Rule, which addressed "care and production practices, transport, slaughter, and living conditions for organic livestock and poultry." 82 Fed. Reg. 7042, 7043 (Jan. 19, 2017). The Final OLPP Rule was to become effective on March 20, 2017, and was to be fully implemented by March 2018, except that outdoor access requirements for organic broiler operations were to be implemented by March 2020, and outdoor access requirements for organic egg operations were to be implemented by March 2022. Id.

Although the Final OLPP Rule regulated multiple practices, outdoor access for mammals and especially for birds was "a prominent issue." Id. Indeed, as part of its Regulatory Impact Analysis and Final Regulatory Flexibility Analysis (RIA), USDA predicted that the costs and benefits of the Final OLPP Rule would depend largely on the outdoor access and living space requirements for poultry. Mot. to Dismiss, Ex. F, RIA [Dkt. 43-7] at 12-13. Such requirements were the subject of several negative comments to the proposed OLPP Rule. See, e.g. , Mot. to Dismiss, Ex. B, Nat'l Ass'n of State Dep'ts of Agric. Comment to OLPP Rule [Dkt. 43-4] at 4 (arguing that the proposed OLPP Rule would "impose significant costs and production challenges on organic producers"). USDA ultimately determined that the benefits associated with the proposed OLPP Rule outweighed the costs of compliance.

B. Delay and Withdrawal

On January 20, 2017, Reince Priebus, then-Chief of White House Staff in the newly-inaugurated Trump Administration, issued a moratorium directing departments and agencies in the Executive Branch to, inter alia , postpone for 60 days the effective date of any regulations that had been published in final form in the Federal Register but not yet taken effect, so that the new administration would have an opportunity to "review questions of fact, law, or policy they raise." Mem. for the Heads of Exec. Dep'ts and Agencies (Trump Moratorium), 2017 WL 280678, at *1 (Jan. 20, 2017). The Trump Moratorium further encouraged agencies to consider, where appropriate, additional rules, subject to public notice and comment, which could delay previously-final regulations...

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3 cases
  • Organic Trade Ass'n v. United States Dep't of Agric.
    • United States
    • U.S. District Court — District of Columbia
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    ...of the organic certification program. 7 U.S.C. § 6518(k)(1); Organic Trade Ass'n v. U.S. Dep't of Agriculture (“Organic Trade Ass'n I”), 370 F.Supp.3d 98, 101 (D.D.C. 2019). On April 13, 2016, the USDA published its proposed OLPP Rule pursuant to the OFPA. See National Organic Program; Orga......
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    ...the settlement agreement in that case and to enjoin implementation of the November 2021 Rule. That motion remains pending. [8] In Organic Trade Association, the agencies delayed the effective date of a rule, then promulgated a new final rule that withdrew the original rule before the expira......

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