By: Amanda Nichols, Ocean and Coastal Law Fellow, National Sea Grant Law Center
On March 21, several environmental nonprofits filed a complaint against the USDA and others in federal court challenging its withdrawal of the Organic Livestock and Poultry Practices (OLPP) rule. The rule was previously finalized by the Obama administration in January 2017, and sought to strengthen the minimum welfare requirements for animals on organic farms. Specifically, the rule would have created higher standards for the handling, transport, and slaughter of organic-certified livestock. After delaying the final rule’s effective date three times, the USDA under the Trump administration formally withdrew it on March 13.
In their complaint, the plaintiff organizations first argue the USDA wrongly claimed it lacked authority to regulate welfare practices such as minimum spacing requirements and quality of outdoor space provided to organic poultry. Instead, the plaintiffs allege this rationale is a new USDA interpretation that runs contrary to the plain language of the Organic Foods Production Act (OFPA), which unambiguously requires the USDA to promulgate additional standards for the care of livestock based on the recommendations of the National Organic Standards Board (NOSB). The complaint alleges the USDA’s current position totally reverses its historic interpretation of its own standard-setting authority under OFPA, is not a permissible interpretation of OFPA’s requirements, and violates the Administrative Procedure Act (APA).
Second, the complaint challenges the USDA’s withdrawal rationale regarding regulatory burdens and costs to producers that the OLPP rule may have imposed. The complaint alleges that this justification runs contrary to economic evidence before the USDA, and ignores the benefits (including non-economic benefits) of strong and consistent organic standards, as intended by OFPA. Furthermore, the plaintiffs argue that OFPA does not grant the USDA the authority to refuse to promulgate organic standards based on costs to producers or a lack of “market failure.” Because of this and considering the withdrawal order actually constitutes a USDA rule in itself, the complaint alleges the move exceeded the USDA’s authority under OFPA and also violated the APA.
Finally, the plaintiff organizations argue that the USDA did not consult with NOSB regarding its proposed withdrawal of OLPP, and also failed to explain its deviation from NOSB’s earlier recommendation to promulgate the rule. In contrast, the USDA has stated it believes it has no duty to consult with the board at every phase of the rulemaking process. The complaint argues these failings constitute violations of OFPA and, once again, the APA.
Critics of the USDA’s actions have expressed concern that the agency’s seemingly new interpretation of its own authority could allow for widespread withdrawals of previously enacted rules, such as the “Access to Pasture” rule for cows passed in 2010. These critics also worry the rule withdrawal will benefit merely a small handful of large egg producers who don’t wish to alter operations to meet higher welfare standards. However, the USDA maintains it lacks authority to regulate livestock welfare practices in the organic sector, and reiterates the regulatory burdens and costs to producers that implementation of the OLPP final rule could impose. If the plaintiffs’ claims are successful, they desire to have the court set aside or vacate the USDA’s withdrawal, followed by reinstating the final OLPP rule as promulgated in 2017.