Organic Farmer and Sunset Lawsuits Update

January 18th, 2017

Cornucopia Seeks Organic Justice

[This article was previously published in the winter issue of The Cultivator, Cornucopia’s quarterly newsletter.]

by Will Fantle
Codirector at The Cornucopia Institute

Source: Adobe Stock

The USDA is seeking to dismiss the lawsuit filed by Cornucopia challenging two of the agency’s appointments to the 15-member National Organic Standards Board.

Cornucopia alleges that two of the board’s four farmer seats are occupied by full-time agribusiness executives, rather than farmers. Congress explicitly reserved four seats on the board for individuals who “own or operate” organic farms.

As a result of one of our FOIA lawsuits, Cornucopia secured NOSB application documents. They revealed that neither Carmela Beck (a full-time Driscoll’s employee) nor Ashley Swaffar (then a full-time employee of Arkansas Egg) provided any documentary evidence indicating that they owned or managed an organic farm.

Their appointments “fit a pattern of actions taken by the USDA to make the National Organic Program friendlier to the needs of agribusiness  interests,” observed Mark Kastel, Cornucopia’s codirector.

The USDA argues that Cornucopia lacks “standing” to bring the matter to court. Professors, with assistance from law students at Georgetown University Law Center and the Institute for Public Representation, are representing Cornucopia and preparing the response to the USDA.

Two organic farmers who had applied for appointment to the NOSB during the years that Beck and Swaffar were appointed are also parties to Cornucopia’s lawsuit. A decision on standing will occur late this year.

The USDA also sought to dismiss, on standing, the lawsuit challenging their arbitrary and unilateral changes made in 2013 to the Sunset review process for synthetic materials allowed for temporary use in organic food and agriculture.

Cornucopia is one of 15 plaintiffs who filed the lawsuit in April of 2015 with the Center for Food Safety (CFS), providing the legal expertise to pursue the case.

In September, Federal Judge Haywood S. Gilliam, Jr. rejected the USDA’s motion. He determined that Cornucopia and the 14 other organic stakeholders had plausible claims of injury from the USDA’s Sunset actions.

Interestingly, the judge encouraged the parties to seek an out-of-court settlement on the case. CFS then presented a proposal on behalf of the 15 stakeholders to the USDA.

The offer, in part, asked the USDA to reinstate the previous Sunset materials review process, require a formal rulemaking for any changes to it, and expedite review of the 25 materials that would have been removed from organics, but instead remain in use due to USDA’s arbitrary new Sunset rules.

The USDA rejected the settlement offer. The case now moves to full legal arguments with a decision expected in the spring of 2017.

The changes to Sunset cut to the heart of the NOSB’s ability to determine what materials can be used for growing and processing organic food.

Synthetic and nonorganics materials approved for use now, according to the USDA, are permanently on the National List of allowed substances, rather than approved for a temporary five-year period of usage.

Sunset, and the subsequent removal of materials from the National List, was intended by Congress to be an incentive for innovation in organics.

A supermajority of the NOSB always had the ability to renew the listing of a substance after it had sunset from the National List.

This meant that a broad majority of the various stakeholders represented on the board had to agree that the material was essential, did not harm human health, and did not harm the environment, after examining evidence presented to them in order to relist it for another five-year period.

The USDA’s 2013 unilateral revision to the process now means that the sun never sets on a material unless a supermajority of the board thinks it should – that’s an extremely high bar and an impediment to innovation.

Unless the court challenge rolls back the USDA’s changes, a minority of six of the 15 NOSB members dictates materials policy.

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