Posted on May 20, 2020 by Sustainable Food News

Judge urges settlement in organic hydroponics lawsuit

Due to pandemic, judge says scheduling of 'civil matters in this court going forward remains highly uncertain'

The federal judge in a landmark lawsuit challenging the U.S. Department of Agriculture’s decision to allow hydroponic operations to be certified organic has asked the parties to explore a possible settlement due to the Covid-19 pandemic.

“As a result of the current pandemic, the scheduling of civil matters in this court going forward remains highly uncertain,” Judge Richard Seeborg for the U.S. District Court for the Northern District of California wrote in his order on Monday.

Earlier this month, the USDA responded to the lawsuit, requesting that the federal court dismiss the case.

The lawsuit was filed on March 2 (Case #: 3:20-cv-1537) by some of the nation’s largest organic produce growers as well as organic certifiers and the Center for Food Safety (CFS), a nonprofit consumer watchdog.

The use of hydroponic production systems in organics, which are food production methods that use water-based nutrient solutions without any soil, is a hot-button issue that has split the organic foods industry, with one side advocating for soil-based organic production only and the other citing ambiguity in federal regulations that should allow certification of soil-less growing operations.

The USDA’s National Organic Program (NOP) stated in January 2018 that certification of all hydroponic, aquaponic, and aeroponic operations is allowed under organic regulations, “and has been since the National Organic Program began.”

At the time, the Organic Farmers Association (OFA) called the agency’s statement “revisionist history, and an incorrect interpretation of organic law.” The OFA wrote to the Secretary of Agriculture asking for a retraction of the policy statement.

Advocates for prohibiting hydroponics in organic products cite a 2010 NOSB recommendation to not allow organic hydroponic production because the systems are not soil-based. Canada and Mexico prohibit hydroponics from organic, and the European Parliament voted to end the organic certification of hydroponic products in April.

Those in favor of certified-organic hydroponics point to the Organic Foods Production Act of 1990 (OFPA), which proponents say does not include specific provisions for hydroponic production but allows such operations to be certified anyway, as long as they comply with existing requirements for organic crop production.

In January 2019, CFS filed a formal legal petition with the USDA asking the agency to prohibit hydroponic operations under federal organic standards.

The CFS said at the time that there were 41 operations certified organic for hydroponic crop production, with at least 25 of them using systems that are entirely water-based with plant roots submerged in fertilized water, nutrient solution, or aquaponic effluent.

The USDA denied the petition in June 2019.

The lawsuit alleges that the USDA violated the federal Administrative Procedure Act (APA) and the OFPA in denying CFS’ petition.

The plaintiffs argue that hydroponic operations violate organic standards for failing to build heathy soils, and that the OFPA requires farms to build soil fertility in order to be certified organic. Finally, the plaintiffs argue that hydroponics cannot comply with federal organic standards because hydroponic crops are not grown in soil.

The USDA shrugged off most of the allegations in the lawsuit either denying them or painting them as “plaintiffs’ characterizations of and legal conclusions about the OFPA and USDA regulations.”

The plaintiffs – Swanton Berry Farm, Full Belly Farm, Durst Organic Growers, Terra Firma Farm, Jacobs Farm del Cabo, and Long Wind Farm, as well as USDA-accredited organic certifiers OneCert and the Maine Organic Farmers and Gardeners Association (MOFGA) – are asking the court to stop USDA from allowing hydroponically-produced crops to be sold with the USDA’s organic label.

In addition to attorneys’ fees and costs, the plaintiffs are also seeking declaratory relief establishing that the petition denial violates OFPA, and that USDA’s rationale for denying the petition and allowing organic certification of hydroponic operations is “arbitrary and capricious, and contrary to law under the APA.”

The USDA said in its response to the lawsuit, and request to dismiss the suit, that the district court “lacks subject matter jurisdiction,” and the APA “does not entitle plaintiffs to the relief sought.”

Prior to his order on Monday, Judge Seeborg had scheduled an in-person initial case management conference for June 11 in San Francisco, requesting a case management statement by June 4.

Now, the parties are instructed to meet and confer by telephone within 30 days of Judge Seeborg’s order on Monday “to discuss the prospect of case resolution and by that date to file a joint report regarding the status of the case.”

“At this juncture, no assurances can be given as to when civil trials can be resumed, and if so, whether a further suspension due to public health developments will be necessary,” Judge Seeborg said in his order. “Accordingly, it would seem to be an optimal time for the parties to initiate or renew an exploration of possible settlement or some other form of alternative dispute resolution.”

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