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Judge dismisses lawsuit over synthetic organic inputs

The USDA didn’t violate administrative law by changing the procedure for evaluating synthetic substances in organic farming, according to a federal judge.
Mateusz Perkowski

Capital Press

Published on May 25, 2018 12:47PM

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A federal judge has dismissed a lawsuit that argued the USDA made it easier for synthetic materials to continue being used by organic farmers.

The USDA has changed how it evaluates synthetic organic inputs but this isn’t a “final agency action” that can be challenged under the Administrative Procedure Act, so U.S. District Judge Haywood Gilliam, Jr., has ruled that he lacks jurisdiction in the case.

The complaint was filed by 14 organic and environmental groups, which claimed the USDA had effectively made it harder for synthetic substances to be excluded from organic production.

Synthetic substances in organic farming undergo a “sunset” process every five years under which the National Organic Standards Board recommends they either be retained or excluded.

Traditionally, the NOSB would automatically recommend eliminating a synthetic substance unless two-thirds of its 15 members voted to keep it on the organic materials list.

In 2013, however, the USDA switched the voting procedure so that a synthetic substance stayed on the list unless two-thirds of the NOSB voted to remove it.

Due to this change, a synthetic substance would not be recommended for elimination from organic farming even if a nine-person majority of the board favored its removal.

The Center for Food Safety and other plaintiffs worried the new procedure would undermine the integrity of the USDA’s organic program and discourage the development of natural alternatives to synthetic inputs.

Their lawsuit claimed that USDA didn’t follow the proper “open and transparent” rulemaking process by failing to notify the public and accept comments about the new voting procedure, thereby violating the Administrative Procedure Act.

However, the judge has decided the new procedure isn’t subject to these full rulemaking requirements because the USDA can ultimately override the board’s recommendation to remove or keep a synthetic substance.

The new procedure has “no binding outcome or definitive result” and thus isn’t a final agency action, so concerns about synthetic materials in organic food “may never materialize” regardless of the NOSB’s recommendation, Gilliam said.

“These scenarios illustrate that it would be premature for the Court to intervene at this stage,” he said.

If they file a lawsuit against the “wrongful renewal” of a synthetic substance, the plaintiffs can still object to the “procedural harms” of the USDA’s new process, he said.


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