Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

Organic industry and animal welfare organizations filed a second amended complaint against the United States Department of Agriculture (the Department) on April 11, 2018 in the United States District Court for the District of Columbia. The Organic Trade Association, the American Society for the Prevention of Cruelty to Animals, and the Animal Welfare Institute (collectively “plaintiffs”) filed suit against the Department after the March 13, 2018 withdrawal of the Organic Livestock and Poultry Practices (OLPP) final rule. You can read the second amended complaint in its entirety here.

Background on the Organic Food Products Act

Congress enacted the Organic Food Products Act (OFPA) in 1990 in response to a rising patchwork of state and private organic production and processing standards. Congress directed the Department to develop and implement the new standards, and created an expert citizen-advisory board named the National Organic Standards Board (NOSB). The OFPA directed the Department to develop detailed regulations to guide the implementation of the standards for organic livestock products under the Act.

The Department published the National Organic Program Final Rule (NOP), a voluntary labeling program, in December 2000, nearly ten years after the passage of OFPA. The NOP acknowledged the Department’s anticipation that additional NOSB recommendations and public comment would be necessary in the future for the development of space requirements. Plaintiffs provide that the OLPP would have extended and clarified existing organic livestock production requirements by addressing “care and production practices, transport, slaughter, and living conditions for organic livestock and poultry.” (See 82 Fed. Reg. at 7043).

Background on the Organic Livestock and Poultry Practices Rule

The Department published the Organic Livestock and Poultry Practices Rule (Proposed OLPP) on April 16, 2016 and provided the proposed rule would “maintain consumer trust in the value and significance of the USDA organic seal, particularly on organic livestock products” by setting clear and consistent standards for organic livestock practices.” (See 81 Fed. Reg. at 21998). The Department went on to provide that these guidelines were “needed and broadly anticipated by most livestock producers, consumers, trade groups, certifying agents” and the Office of Inspector General.

The Organic Livestock and Poultry Practices Final Rule (OLPP) was published on January 19, 2017. The rule added requirements for the production, transport, and slaughter of organic livestock and poultry. The rule also added provisions for outdoor access and space for organic poultry production, resolving ambiguities about outdoor poultry access.

The OLPP was originally set to take effect on March 20, 2017, but was delayed three times. The first delay was ordered on February 9, 2017, delaying the effective date until May 19, 2017. After President Trump’s inauguration on January 20, 2017, White House Chief of Staff Reince Priebus issued a “Memorandum for the Heads of Executive Departments and Agencies” which temporarily postponed regulations that had been published in the Federal Register but had not yet taken effect for an additional 60 days. The second delay delayed the effective date an additional 180 days, citing “significant policy and legal issues.” A third stay of the effective date was issued on November 14, 2017, delaying the effective date to May 14, 2018.

Plaintiffs in this action filed the First Amended Complaint on December 8, 2017, challenging each of the three delay rules. On December 18, 2017, the Department published a Proposed Withdrawal of the OLPP.  The Department provided that it now believes the OFPA does not authorize the animal welfare provisions of the OLPP, rather, additional regulatory standards should be limited to health care practices and not expanded to encompass stand-alone animal welfare concerns. (See 82 Fed. Reg. at 59,998). Additionally, the Department cited mathematical errors in the calculation of benefits, such that it could no longer find economic justification for the OLPP final rule. The withdrawal of the final rule was published on March 13, 2018.

Plaintiff’s Claims for Relief

Plaintiffs first allege that the Department’s actions were arbitrary and capricious and in excess of statutory authority, in violation of the OFPA and the APA. These alleged violations occurred with the first and second delay rules without publishing a notice of proposed rulemaking or providing an opportunity for public comment, and without adequate justification. Plaintiffs allege an additional violation occurred when the third delay rule was published that failed to disclose the legal authority to which it intended to rely to amend the OLPP, failed to disclose that the Department intended to reconsider the OLPP and ultimately rescind it, and failed to provide technical reports and documents it ultimately relied on in its rescission. Plaintiffs next challenged the Withdrawal Rule on similar grounds of reversing course without adequate explanation. Plaintiffs finally challenge the Department’s failure to consult with and obtain a recommendation from the NOSB.

Plaintiffs request the United States District Court for the District of Columbia to enter a declaratory judgment that the Department’s first, second, and third delay rules, and the Withdrawal Rule, exceeded the Department’s statutory authority under the OFPA and were arbitrary, capricious, and an abuse of discretion. Plaintiffs ask the court to vacate and set aside these rules and issue an order that the OLPP is effective, enjoining the Department from any further delays in implementation.