Lawsuit against USDA to defend organic advances

In Brief: Organic Livestock + Poultry Practices Rule

The continued success of the organic sector demands that organic standards be robust, consistent and clear in order to stay meaningful.
The Organic Trade Association Board of Directors voted unanimously to file a lawsuit against the U.S. Department of Agriculture over its failure to put into effect new organic livestock and poultry regulations.
OTA’s actions to defend organic have resulted in coast-to-coast media coverage. Check out stories from The Washington Post to The Chicago Tribune to The San Francisco Chronicle to NPR.

MARCH 2022: Lawsuit delayed, alternative regulation proposed

The US District Court in California denied a motion for summary judgement in the case of Center Environmental Health v Vilsack (a similar case to the Organic Trade Association). The US District Court in DC took similar action allowing the USDA to proceed with proposing new organic animal welfare regulation without immediately bringing the previous commented, reviewed and vetted organic animal welfare standard into effect. This unfortunate ruling only applies to the motion for summary judgment and not to the case itself that remains pending at this time. This unnecessary delay continues to hurt organic producers and drive confusion in the marketplace. The revised standard, while not publicly available is expected to be similar to the original rule but with an unnecessarily long 15 year implementation period. The Organic Trade Association plans to appeal this ruling and also actively awaits the delayed publication of the Organic Livestock and Poultry Standards.

JUNE 2021: Motion for Summary Judgement

The Organic Trade Association has asked the U.S. District Court for the District of Columbia to immediately vacate the Department of Agriculture’s 2018 withdrawal of the Organic Livestock and Poultry Practices (OLPP) final rule, and to order USDA to reinstate the organic animal welfare regulation that was published in the closing days of Sec. Tom Vilsack’s prior tenure at USDA.

While we welcome Secretary Vilsack’s statement last week (below) that the department will re-evaluate the prior administration’s withdrawal of the fully vetted organic animal welfare regulation, and affirmed its commitment to outdoor access for laying hens, the policy statement alone won’t guarantee a swift end to this harm. We need to have a legal ruling.

In our motion for summary judgment filed on June 18, we argue that USDA fundamentally dismissed the intent of Congress regarding the department’s authority over organic animal welfare, failed to follow the Administrative Procedures Act which governs the process by which federal agencies develop and issue regulations, and buried the economic benefits of the OLPP regulation while inflating its costs.

JUNE 2021: Vilsack announcement

Speaking live at the Organic Trade Association Annual Membership Meeting, on June 16, to over 250 members, U.S. Department of Agriculture Secretary Tom Vilsack vowed to resolve the ongoing issue over USDA’s failure to implement a critical and fully vetted organic animal welfare regulation. The day after his comments to our members, Vilsack announced the department would draft a new rule that will address the Trump administration’s outlier interpretation of the authority of USDA regarding organic animal welfare regulations, and also disallow the use of porches for outdoor access in organic poultry operations. We welcomed Secretary Vilsack’s acknowledgment that animal welfare belongs in organic, and birds belong outside. This has been in the Courts since 2017 when the Organic Trade Association took legal action to defend organic standards. We hope that USDA’s acknowledgment facilitates a full and timely resolution of this litigation. The next court filing deadline is June 18.

MAY 2021: Joint status report

In a joint status report, the Organic Trade Association and the U.S. Department of Agriculture asked the U.S. District Court for the District of Columbia to lift the stay of proceedings in the trade association's animal welfare lawsuit against the USDA. The Organic Trade Association is asking the Court to rule on the merits of the litigation promptly.

APRIL 2021: 30-day extension requested

In the ongoing lawsuit by the Organic Trade Association against the USDA over the agency’s withdrawal of the Organic Livestock and Poultry Production (OLPP) rule, the trade association and USDA jointly requested the court on April 21 for a 30-day extension in the deadline of a joint status report “to allow for continued discussions to resolve or narrow the litigation.” The filing also noted that on April 9, the Organic Trade Association and the USDA met, along with the Center for Environmental Health (which has a similar case pending in California), and that the CEH and OTA have proposed settlement options in writing to USDA, and that USDA will be responding to those options shortly.

MARCH 2021: Lawmakers, broad coalition urge reinstatement

A letter sent to the White House from four senior lawmakers called upon the administration to reinstate the Organic Livestock and Poultry Practices Final Rule (OLPP) following the Trump administration’s withdrawal and subsequent four-year legal battle to block its implementation. The letter to President Joe Biden was signed by Senators Patrick Leahy of Vermont and John Tester of Montana, and Representatives Chellie Pingree of Maine and Peter DeFazio of Oregon. Leahy and DeFazio are the original two authors of the Organic Foods Production Act, and Tester and Pingree are longtime organic farmers.

In a letter sent on Tuesday to Susan Rice, Director of the U.S. Domestic Policy Council, a broad coalition of interest groups called for the withdrawal of the OLPP final rule to be reversed.

In related developments in the ongoing lawsuit by the Organic Trade Association against the USDA over the agency’s withdrawal of the OLPP rule, the trade association and USDA jointly requested the court on March 22 for a 30-day extension in the deadline of a joint status report, saying the two parties have conferred on several occasions in the last 30 days regarding a potential amicable resolution and that an additional stay is appropriate to continue discussions.

DECEMBER 2020: Motion Granted

The Organic Trade Association on Tuesday was granted a stay of proceedings in its animal welfare lawsuit against the U.S. Department of Agriculture. Responding to a request filed last week by the trade association to halt any further legal process in the case until the incoming Biden administration is in place, the court set a new briefing schedule that will place the case wholly in the new administration’s hands. Under the new schedule, the timeline for further legal filings by the Organic Trade Association and USDA now runs from Feb 19, 2021, through May 4, 2021, which is the deadline for a final filing by USDA.

Laura Batcha, Executive Director and CEO of the Organic Trade Association welcomed the court’s decision, saying “This is a sensible decision. This case will be resolved on President-elect Biden’s watch. We are confident that organic will prevail, and that organic standards will continue to advance.”

NOVEMBER 2020: Update

Our lawsuit against the U.S. Department of Agriculture to uphold organic animal welfare standards and implement the Organic Livestock and Poultry Practices (OLPP) final regulation has moved to its final stages. On Tuesday we filed an updated complaint to the court laying out our case from the time of the filing of our original lawsuit in September of 2017 to the most recent developments in the lawsuit. In our “Third Amended Complaint,” the Organic Trade Association said that in delaying and ultimately rescinding the OLPP final regulation, USDA acted in an illegal and capricious way, based its action on seriously flawed data and economic assumptions, and was tainted by an “irrevocably closed mind.” We are requesting that the court rule the USDA’s rescission of the OLPP rule unlawful, and to issue an order making the OLPP effective. USDA has until Nov. 16 to file a response to the association’s amended complaint.

From the beginning, we knew this lawsuit would be complex and lengthy, but upholding organic standards and working to advance organic is our mission and our responsibility. We remain confident that the court will rule in our favor, and that the organic sector will continue to advance.

OCTOBER 2020: Update

On Oct 15, the U.S. District Court lifted the stay in the Organic Trade Association’s lawsuit against the USDA over its failure to implement final organic animal welfare rules. The court also laid out a calendar of court-ordered deadlines for further legal filings by the trade association and USDA. The timeline runs November 3, 2020, through February 22, 2021, which is the deadline for a final filing by USDA. The Organic Trade Association looks forward to the court’s final ruling. We fully anticipate a ruling in the our – and the organic sector’s -- favor that will allow organic standards to advance.

SEPTEMBER 2020: Update

In the latest legal developments in the trade association’s lawsuit against USDA over the agency’s withdrawal of the Organic Livestock and Poultry Practices (OLPP) final rule, the Organic Trade Association and USDA recently agreed that the March 12 court-ordered stay in the case, including the remand period granted to USDA to correct its economic analysis, should be lifted. However, the Organic Trade Association and USDA do not agree on a timeline for the court to make its final ruling. USDA continues to try to drag this case out. The Organic Trade Association, meanwhile, is urging the court to rule on the legal issues expeditiously and not waste more valuable time, saying it is time to allow organic standards to advance.

MAY 2020: Organic Trade Association Again Refutes USDA claim that Costs of Animal Welfare Rule Exceed Benefits

The Organic Trade Association on May 26 soundly invalidated the Department of Agriculture’s economic analysis of the benefits of the Organic Livestock and Poultry Production (OLPP) final rule, proving multiple flaws in USDA’s analysis that demonstrated a concerted pattern by the department to skew and cherry-pick statistics in order to support its withdrawal of the organic animal welfare rule. In official comments filed in the Federal Register, the Organic Trade Association and an expert economist’s report revealed numerous errors in the USDA’s report and identified a pattern of erroneous manipulation of economic variables that intentionally understated the benefits of the OLPP Rule and overstated the costs. The association’s economic analysis targets and refutes specific data points used in USDA’s cost-benefit calculation for organic egg production that USDA had intentionally changed so that the cost-benefit calculation would result in higher costs and lower benefit. To further refute USDA’s manipulated variables, the Organic Trade Association collected organic flock production records for 5.6 million organic hens to show that actual productivity is higher and morality rates are lower than what USDA proposed in its report. Despite the short 30-day comment period, the association developed a strong data-driven case that proves that benefits of the OLPP Rule clearly exceed the costs, and that USDA’s withdrawal of the OLPP rule is unsubstantiated.

Download Comments & Attachments:

APRIL 2020: USDA opens 30-day comment period on OLLP economic analysis

The U.S. Department of Agriculture published its Economic Analysis Report of the Organic Livestock and Poultry Production (OLPP) final rule and final rule withdrawal in the Federal Register and is requesting public comment to its analysis over the next 30 days. USDA is responding to a Court order on March 12 that agreed with the Organic Trade Association’s lawsuit against USDA that the OLPP final rule was withdrawn by this administration based on a flawed analysis. Finding that USDA had voluntarily conceded the Organic Trade Association charges rather than proceed to judgment, the court ordered the matter returned to USDA for a 180-day period for the agency to correct its errors. Although thirty days is a very short period of time to fully assess and develop helpful responses to the almost two dozen errors that USDA notes in its analysis, the Organic Trade Association is prepared to engage with its members and use the expertise of economists to develop an informed and accurate response.

MARCH 2020: Court gives USDA 180 days to fix its modeling errors in Organic Trade Association animal welfare lawsuit

The U.S. District Court for the District of Columbia agreed with the Organic Trade Association’s lawsuit against USDA that the Organic Livestock and Poultry Practices (OLPP) final rule was withdrawn by this administration based on a flawed analysis. Finding that USDA had voluntarily conceded OTA’s charges rather than proceed to judgment, the court ordered the matter returned to USDA for a 180-day period to see if USDA can fix its economic modeling errors. After two and half years of litigation, in a plain-spoken and direct ruling U.S. District Judge Rosemary Collyer said the Organic Trade Association’s lawsuit identified “the administrative process at its never-ending worst.” The court noted “ten years of work” preceded the publication of the OLPP final rule, and thereafter USDA delayed the rule’s effective date three times before publishing the fatally flawed Withdrawal Rule. Referring to USDA’s concession as having come “suddenly” after USDA asked for two extensions to respond on the merits, the court decided it would “ensure timely action,” by setting a 180-day deadline, instead of granting the department the open-ended timeframe that it had requested.

The Organic Trade Association welcomes a court-ordered deadline because of USDA’s willingness to drag out the rule-making process and thwart the will of the organic industry. We urge USDA to carry out its legal responsibility as the steward for the American organic program in a fair, transparent and expeditious manner. The Organic Trade Association took this action against USDA in support of organic standards, and we are fully prepared for the court to render a verdict when the record is complete in 180 days. At the end of the day and despite this delay, we are more confident than ever that our arguments will prevail and that the will of the industry will be served. We are confident that the OLPP will ultimately be reinstated.

When the USDA takes its first public action, we’ll be prepared to engage the membership.

OCTOBER 2019: Organic Trade Association advances court battle to defend organic standards

The Organic Trade Association asked the U.S. District Court to rule in its favor on its organic livestock welfare lawsuit in its motion for summary judgment filed October 31. The association argues that USDA’s refusal to recognize its statutory authority to promote the improved livestock care practices on organic farms that are in the rescinded rule and its refusal to consult with the National Organic Standards Board, are a radical departure from past administrations, and are actions that flatly contradict the intent of Congress in the Organic Foods Production Act. The association further challenged USDA’s opaque assumptions over the cost and benefits of the approved regulation. Read more.

Motion for Summary Judgment filed by Organic Trade Association

AUGUST 2019: Date set for final arguments in Organic Trade Association’s organic animal welfare lawsuit

The U.S. District Court for the District of Columbia has confirmed a schedule for final arguments in the Organic Trade Association’s lawsuit against the U.S. Department of Agriculture over its failure to put into effect new organic livestock standards. The Organic Trade Association is confident about the strength of this case, and now the case is moving forward. We are eager to make our case to uphold the advancement and integrity of organic standards. It’s been almost two years since the Organic Trade Association took action to defend the organic seal and organic standards by filing this case against the USDA. Since that time, the USDA has tried unsuccessfully to get our case dismissed, to challenge our legal standing to file the case, and to prevent the case from moving forward, all to no avail. We look forward to having this matter be resolved so that the organic sector can continue to advance and that consumers can continue to trust in the Organic seal.

FEBRUARY 2019: Court advances Organic Trade Association’s organic animal welfare lawsuit

The Organic Trade Association hailed the ruling by the U.S. District Court for the District of Columbia that the association has presented solid arguments that the U.S. Department of Agriculture’s failure to put into effect new organic livestock standards has caused harm to the organic sector, and that the association has the legal standing to contest the agency’s withdrawal of the rule.

“The court has recognized the harm to organic producers, to organic businesses, and to the integrity of the Organic seal that the USDA’s arbitrary and capricious stance against this important organic standard has already had, and the potential for even greater damage,” said Laura Batcha, CEO and Executive Director of the Organic Trade Association. “Our case will now advance. We are confident our case is strong and we look forward to winning this legal battle to uphold organic standards.” Read the press release.

OCTOBER 2018: Organic Trade Association welcomes judge’s decision to hear animal welfare case.

The Organic Trade Association on Thursday welcomed the decision by the U.S. District Court for the District of Columbia today to hear the association’s case against the U.S. Department of Agriculture (USDA) over the agency’s failure to put into effect new organic livestock standards.

"We are delighted the court has agreed to hold a hearing despite the USDA's objections. Our case is moving forward,” said Laura Batcha, CEO and Executive Director of the Organic Trade Association. “We are also encouraged that the court will hear our challenge to the entire, year-long pattern of unlawful conduct by USDA. The Organic Trade Association believes that beginning with the first delay that was undertaken without an opportunity for public notice and comment shortly after the current administration took office, until the final withdrawal of the Organic Livestock and Poultry Production rule in March 2018, that USDA has engaged in a pattern of misconduct that can only be corrected by a federal court." Read the press release.

APRIL 2018: Organic Trade Association ups challenge to USDA withdrawal of animal welfare rule

The Organic Trade Association this week ratcheted up its court battle against the U.S. Department of Agriculture over the agency’s failure to put into effect new organic livestock standards, with two of America’s most influential animal welfare groups joining the association in its ongoing legal fight to uphold the integrity of organic standards. In a new filing that revised the original complaint against USDA to reflect the department’s move to withdraw the rule, the Organic Trade Association was joined by the American Society for the Prevention of Cruelty to Animals (ASPCA) and the Animal Welfare Institute (AWI) as co-plaintiffs in the suit. Read the press release.

[SECOND AMENDED] COMPLAINT FILED BY ORGANIC TRADE ASSOCIATION

MARCH 2018: Organic Trade Association blasts USDA withdrawal of organic animal welfare rule

The Organic Trade Association on March 12, 2018 strongly condemned the U.S. Department of Agriculture (USDA) for its withdrawal of the Organic Livestock and Poultry Practices regulation, saying the Department had – without regard for public comment and without respect for legal authorities -- irresponsibly thwarted a fully vetted regulation overwhelmingly supported by the organic industry and the public.

The association said it is intensifying its efforts in the courts to resolve the issue, and that it will be immediately amending its official complaint against USDA to challenge the Department’s latest attempt to kill the rule. The Organic Trade Association noted that last week it requested that oral arguments now be heard on its lawsuit against USDA over the Department’s failure to put into effect the new organic livestock standards. Read the press release.

FEBRUARY 2018: Organic Trade Association rebuts USDA motion to dismiss animal welfare lawsuit

The Organic Trade Association on February 16, 2018 issued a statement in response to the U.S. Department of Agriculture’s motion to dismiss the Organic Trade Association’s lawsuit challenging USDA’s delay of the Organic Livestock and Poultry Practices final rule: “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’s response argues for a strong National Organic Standards Board role and grounds for going forward with the necessary improvements to the organic standards. Read Organic Trade Association’s response and complete statement regarding the motion to dismiss.

Supporting the Organic Trade Association in the suit are organizations representing organic livestock farmers, brands, organic retailers, and consumers. Their declarations of support for the Organic Trade Association’s claims in the lawsuit provide real-world evidence of harm resulting from USDA’s refusal to follow through on organic animal welfare provisions. Meanwhile, Senator Patrick Leahy (D-VT) and Congressman Peter DeFazio (D-OR)—the original visionaries who introduced the Organic Foods Production Act of 1990 (OFPA) in Congress—submitted a comment to the Federal Register showing the environment of the time and intentions of legislators when OFPA was adopted in 1990. Here are the additional declarations submitted along with the Organic Trade Association’s response to the U.S. Department of Agriculture’s motion to dismiss.

JANUARY 2018: Organic Trade Association (joined by more than 70,000 organic advocates) filed comments in opposition to the proposed withdrawal of animal welfare standards in organic.

In an outrageous move, the U.S. Department of Agriculture has said that they intend to withdraw the Organic Livestock and Poultry Practices final rule. This USDA action goes against the overwhelming support of organic farmers, businesses, and consumers to advance animal welfare standards in organic. The Organic Trade Association is dismayed at USDA's proposal to withdraw the rule and rollback organic animal care standards. USDA opened a scant 30-day public comment period on the proposal (deadline Jan 17) and along with more than 70,000 organic advocates, OTA has filed comments. Read our media statement and view our final comments.

OTA Final Comments: Filed 1/17/18

NOVEMBER 2017: Organic Trade Association responds to USDA's announcement delaying the rule by amending its complaint

On November 9, 2017, USDA pre-published an announcement in the Federal Register that the Organic Livestock and Poultry Practices final rule would be further delayed until May 14, 2018. The Organic Trade Association responded by amending its complaint and strengthening the call for the final animal welfare rule to move forward.

In defense of the integrity of the USDA Organic seal and of organic standards, the Organic Trade Association in September filed a lawsuit against the U.S. Department of Agriculture seeking judicial review of the delay of final organic livestock production rules. The lawsuit is pending and the USDA must answer it by mid-November.

The Organic Trade Association has anticipated a further "walk back" by the government of fourteen years of work to improve and clarify organic animal agriculture regulations. Any steps by USDA to unwind the changes to federal organic regulations are being taken against a backdrop of nearly universal support among the organic community, animal welfare advocates and consumers for the rules that USDA has now rejected. We will continue this fight in the court, where a federal judge will now evaluate whether the Administration has wrongly ignored the laws that require consultation with the National Organic Standards Board and those requiring informing the public and providing consumers a chance to comment on organic policies before they take effect.

We will see the department in court and are confident that we will prevail on this important issue for the organic sector.

[FIRST AMENDED] COMPLAINT FILED BY ORGANIC TRADE ASSOCIATION

SEPTEMBER 2017: Organic Trade Association takes the U.S. Department of Agriculture to court over organic animal welfare rule

On September 13, 2017, the Organic Trade Association took action to defend the organic seal and organic standards by filing a lawsuit against the U.S. Department of Agriculture over its failure to put into effect new organic livestock standards. Read the press release announcing OTA's lawsuit.

The suit alleges the U.S. Department of Agriculture violated the Organic Foods Production Act, and unlawfully delayed the effective date of the final livestock standards that were developed by industry and in accordance with the processes established by Congress, and with abusing the agency’s discretion by ignoring the overwhelming public record established in support of these organic standards. The trade association further contends that the Trump Administration’s Regulatory freeze order issued to federal agencies on Jan. 20, 2017, should not apply to organic standards because they are voluntary and are required only of those farms and businesses that opt in to be certified organic.

“We are standing up on behalf of the entire organic sector to protect organic integrity, advance animal welfare, and demand the government keep up with the industry and the consumer in setting organic standards.”

–Laura Batcha, Executive Director and CEO of the Organic Trade Association.

Supporting the Organic Trade Association in the suit, as groups harmed by this protracted government inaction, are organizations representing organic livestock farmers, organic retailers and consumers.

Batcha said the Organic Trade Association’s duty to protect the U.S. organic sector and enable it to advance, to uphold the integrity of the organic seal and to honor the consumer trust in that seal compelled the association – on behalf of the organic industry -- to take the legal action against the administration.

“The organic industry takes very seriously its contract with the consumer and will not stand aside while the government holds back the meaningful and transparent choice of organic foods that deliver what the consumer wants,” said Batcha. “The government’s failure to move ahead with this fully-vetted regulation calls into question the entire process by which organic regulations are set – a process that Congress created, the industry has worked within, and consumers trust.”

“The viability of the organic market rests on consumer trust in the USDA organic seal, and trust that the organic seal represents a meaningful differentiation from other agricultural practices,” said Batcha, who noted that the board of the Organic Trade Association voted unanimously to initiate the lawsuit.

How did we come to this critical action?

BACKGROUND ON ORGANIC LIVESTOCK & POULTRY PRACTICES RULEMAKING

The lawsuit filed by the Organic Trade Association alleges:

• That USDA has violated the Administrative Procedure Act because the repeated delays were issued without any public process.

• That USDA has violated the Administrative Procedure Act and abused its discretion by proposing action to indefinitely delay or kill the rule, in stark contrast to the established public process.

• That USDA has violated the Organic Foods Production Act and its consultation provisions enacted to apply in just these circumstances for industry and public stakeholders to revise, refine, and advance organic standards via a well defined process.

• That the Trump Administration Executive Order freezing regulations should not apply to the voluntary industry-driven organic standards that allow for busineesses to opt in or out.

The lawsuit also describes the extensive public process and overwhelming record used to develop the standards and details the faulty appeals decision from USDA on the use of “porches” to comply with the existing outdoor access requirments of the standard that have resulted in an unlevel playing field.

The Organic Trade Association asks the court to reverse the agency’s decisions to delay and eliminate options proposed by USDA to further delay, rewrite, or permanently shelve the rule -- thereby making the final livestock rule effective immediately, as written.

Declaration: Pete and Gerry's Declaration: NCG Declaration: ACA

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