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Organic group responds in lawsuit against USDA

A USDA motion to dismiss a lawsuit over its delays in implementing new organic livestock and poultry standards hinges on a lack of evidence of injury and failure to state a claim on which relief can be granted.
Carol Ryan Dumas

Capital Press

Published on February 19, 2018 10:08AM

The Organic Trade Association has sued the USDA over the delay of its organic rules for livestock and poultry.

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The Organic Trade Association has sued the USDA over the delay of its organic rules for livestock and poultry.

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The Organic Trade Association has filed its response to USDA’s motion to dismiss a lawsuit over repeated delays in implementing new organic livestock and poultry standards.

“USDA’s motion to dismiss the Organic Trade Association’s lawsuit would be unremarkable except for its clear failure to consider the overwhelming public support for the delayed rule,” OTA said in a statement.

OTA’s legal response argues for a strong National Organics Board role and grounds for going forward with necessary improvements to the organic standards.

The lawsuit, filed in U.S. District Court in Washington, D.C., in September, alleges USDA violated the Organic Food Production Act and unlawfully delayed the rule’s effective date.

It also alleges USDA violated the Administrative Procedure Act and abused its discretion by proposing action to indefinitely delay or kill the rule and issued repeated delays without any public process.

OTA is asking the court to reverse USDA’s decision to delay implementation and eliminate its proposed options to further delay, rewrite or permanently shelve the rule, making it effective immediately.

The rule was finalized in the final days of the Obama administration and set to go into effect March 20, 2017. A regulatory freeze by incoming President Donald Trump delayed implementation until May 19, 2017.

USDA delayed implementation again until Nov. 14, 2017, citing significant policy and legal issues warranting further review. In November, the agency again delayed implementation until May 14, 2018, and published a notice to solicit public comment on whether to implement the rule or suspend, delay or withdraw it.

In December, the agency announced it intended to withdraw the rule, saying it exceeds its statutory authority.

USDA’s Agricultural Marketing Service reported it received more than 47,000 comments on the four options, with more than 40,000 (including more than 34,600 form letters) supporting implementation.

Only 28 comments supported withdrawal, a few supported suspension and one supported delay. Other comments didn’t indicate a clear preference.

OTA believes USDA seeks dismissal of the lawsuit “to avoid explaining to America’s organic producers and consumers why it is blocking necessary rule clarifications and the strengthening of organic production practices,” OTA stated.

USDA’s motion, however, claims OTA lacks standing because it pleads no facts showing that it or its members have suffered or will suffer any injury as a result of the delays.

“OTA advances abstract and unsubstantiated concerns that consumers might lose confidence in organic certification … but the undisputed facts show no actual or imminent danger of that occurring,” the motion states.

It also argues that several of OTA’s claims are moot, including challenges to the first two delay rules on the basis they were issued without notice and comment. Those rules are no longer operative, having been replaced with the third rule in November, which delayed the effective date until May of this year.

In addition, USDA provided notice and an opportunity to comment on the rule that delayed implementation until November 2017. Even if the court were to find justiciable controversy, OTA’s complaint should be dismissed because it failed to state a claim on which relief can be granted, the motion argues.

OTA rebuts those arguments in its legal response and stated on Friday it believes it will prevail in court.


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