by Michelle Pardo
Last week, a federal district court in the Northern District of California granted in part and denied in part the United States Department of Agriculture’s (USDA’s) motion to dismiss a lawsuit brought by a coalition of environmental and animal rights organizations which sought to challenge the USDA’s withdrawal of a rule requiring new standards for raising, transporting and slaughtering organic animals. Center for Environmental Health, et al. v. Perdue (No. 3:18-cv-01763-RS, N.D. Cal.). The plaintiffs, various organic and environmental groups, together with the Humane Society of the United States and the Animal Legal Defense Fund, had sued the federal government over its withdrawal of a hotly-debated and commented upon Rule that proscribed animal welfare standards for livestock and poultry. The crux of the legal debate is whether the Organic Foods Production Act’s (“OFPA”) central purpose is to regulate the restriction of synthetic and harmful substances from organic products (such as limitations on the use of pesticides, hormones and supplements, and medications) and whether this purpose provides the statutory basis for regulating “stand-alone concerns about animal welfare”. Environmental groups had advocated that “organic” status should guarantee a wide array of health, environmental and animal welfare standards, including new and detailed standards for space requirements. Others like the National Association of State Departments of Agriculture (NASDA) countered that the Rule “flies in the face of modern, peer-reviewed science on animal husbandry practices” and would impose significant costs and biosecurity risks to the poultry industry. During the USDA’s comment process, NASDA stated:
“[t]he structure and text of the OFPA . . . contain no hint that USDA may impose ‘welfare’ or ‘living condition’ requirements that are not thoroughly and rigorously justified as necessary for animal health care”.
Other groups like the American Farm Bureau Federation commented that the Rule was an example of the USDA’s “regulatory creep” and noted that neither the common dictionary definition of “organic” nor the regulatory definition suggests “that animal well-being is inherently part of an organic production system.”
The trial judge, after determining that “at least one of the plaintiff organizations” (Center for Food Safety) had properly alleged standing (allowing the others to legally “piggyback” on their standing and remain in the case), rejected the plaintiffs argument that the government’s decision to withdraw the Rule based, in part, on a cost-benefit analysis, was prohibited, stating that the Supreme Court has held that agencies are permitted to consider costs in crafting regulations “in the face of congressional silence or ambiguity”. The court also rejected plaintiffs’ argument that the agency’s failure to consult with the National Organic Standards Board (“NOSB”) on the withdrawal of the Rule violated OFPA. The court found no such requirement that the Secretary of Agriculture had to consult with the NOSB prior to deciding to withdraw a rule. The plaintiffs’ case is permitted to go forward, however, on the theory that the agency has never before engaged in rulemaking for the organic program without consulting with NOSB, and such a failure to due so may support a challenge that the agency’s action was “arbitrary and capricious”. As plaintiff’s complaint is unclear on exactly what theory supports their factual allegations, the court allowed plaintiffs to “reformulate” and amend their claim under the arbitrary and capricious standard within 21 days of its decision.
Should plaintiffs choose to amend their complaint, the case will proceed. Whether industry groups stand poised to assist the court with amicus curiae (“friend of the court”) briefs in support of the concerns implicated by the Rule remains to be seen.