National Organic Program
In case you didn’t notice, we are deep into election season. Discussion of Supreme Court vacancies, presidential debates, and local races abound. Even with all the focus on the election, the rest of the world hasn’t stopped. The same is true for ag law. This edition of the Harvest includes discussion of ag-related bills moving through the Ohio General Assembly, federal lawsuits involving herbicides and checkoff programs, and some wiggle room for organic producers who have had a hard time getting certified with all the pandemic-related backups and shutdowns.
Changes to Ohio Drainage Law considered in Senate—The Ohio Senate’s Agriculture & Natural Resources Committee continues to hold hearings on HB 340, a bill that would revise drainage laws. The bill was passed in the house on June 9, 2020. The 157 page bill would amend the current drainage law by making changes to the process for proposing, approving, and implementing new drainage improvements, whether the petition is filed with the board of the Soil and Water Conservation District, the board of county commissioners, or with multiple counties to construct a joint county drainage improvement. The bill would further apply the single county maintenance procedures and procedures for calculating assessments for maintenance to multi-county ditches and soil and water conservation districts. You can find the current language of the bill, along with a helpful analysis of the bill, here.
Purple paint to warn trespassers? Elsewhere in the state Senate, SB 290 seems to be moving again after a lengthy stall, as it was recently on the agenda for a meeting of the Local Government, Public Safety & Veterans Affairs Committee. If passed, SB 290 would allow landowners to use purple paint marks to warn intruders that they are trespassing. The purple paint marks can be placed on trees or posts on the around the property. Each paint mark would have to measure at least three feet, and be located between three and five feet from the base of the tree or post. Furthermore, each paint mark must be “readily visible,” and the space between two marks cannot be more than 25 yards. You can see the text, along with other information about the bill here.
Environmental groups look to “Enlist” more judges to reevaluate decision. In July, the U.S. Court of Appeals for the Ninth Circuit decided it would not overturn the EPA registration for the herbicide Enlist Duo, which is meant to kill weeds in corn, soybean, and cotton fields, and is made up of 2,4-D choline salt and glyphosate. Although the court upheld registration of the herbicide, it remanded the case so that EPA could consider how Enlist affects monarch butterflies. The court found that EPA failed to do this even though it was required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). On September 15, 2020, the Natural Resources Defense Council (NRDC) and other groups involved in the lawsuit filed a petition to rehear the case “en banc,” meaning that the case would be heard by a group of nine judges instead of just three. If accepted, the rehearing would involve claims that the EPA did not follow the Endangered Species Act when it made the decision to register Enlist Duo.
R-CALF USA has a “beef” with federal checkoff program. Earlier this month, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) sued the United States Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. R-CALF USA has filed a number of lawsuits involving the Beef Checkoff program over the years, including several that are on-going. Their argument, at its most basic, is that the Beef Checkoff violates the Constitution because ranchers and farmers have to “subsidize the private speech of private state beef councils through the national beef checkoff program.” In this new complaint, R-CALF USA alleges that when USDA entered into MOUs (memorandums of understanding) with private state checkoff programs in order to run the federal program, its actions did not follow the Administrative Procedure Act (APA). R-CALF USA argues that entering into the MOUs was rulemaking under the APA. Rulemaking requires agencies to give notice to the public and allow the public to comment on the rule or amendment to the rule. Since USDA did not follow the notice and commenting procedures when entering into the MOUs, R-CALF USA contends that the MOUs violate the APA. R-CALF USA further argues that did not consider all the facts before it decided to enter into the MOUs, and therefore, the agency’s decision was arbitrary and capricious under the APA. You can read R-CALF USA’s press release here, and the complaint here.
Flexibility for organics during COVID-19. Back in May, due to COVID uncertainty and state shutdowns, the Risk Management Service (RMS) stated that approved insurance providers “may allow organic producers to report acreage as certified organic, or transitioning to organic, for the 2020 crop year if they can show they have requested a written certification from a certifying agent by their policy’s acreage reporting date.” RMS’s original news release can be found here. In August, RMS extended that language. The extension will provide certification flexibility for insurance providers, producers, and the government in the 2021 and 2022 crop years. Other program flexibilities may apply to both organic and conventional producers. Information on those can be found here.
The Center for Food Safety (CFC), along with other groups and a number of organic farms, filed a lawsuit early this month claiming that USDA violated the Organic Foods Production Act (OFPA) when it allowed hydroponically-grown crops to bear the “Certified Organic” label. In January 2019, CFC filed a legal petition asking USDA to create regulations which would ban hydroponic operations from using the organic label. USDA denied the petition, and CFC’s current lawsuit also alleges that USDA’s denial violated the Administrative Procedure Act (APA). CFC asks the U.S. District Court for the Northern District of California to vacate USDA’s denial of their petition and to bar the agency from certifying any hydroponic operations as organic. The complaint can be found here.
What do “hydroponic” and “organic” mean anyway?
Many of you are probably familiar with hydroponic and organic growing, but since the terms are very important in this lawsuit, it’s worth reviewing them before we continue.
The USDA, on its National Agricultural Library website, defines “hydroponics” as “growing plants in a nutrient solution root medium.” In other words, hydroponic plants can be grown in mediums such as sand, gravel, and water with additional nutrients. Simply put, hydroponic plants are not grown in the soil.
OFPA (available here) says in order to sell or label an agricultural product as “organically produced,” the product must: 1) have been produced and handled without the use of synthetic chemicals, except as otherwise provided; (2) except as otherwise provided in this chapter and excluding livestock, not be produced on land to which any prohibited substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the agricultural products; and (3) be produced and handled in compliance with an organic plan agreed to by the producer and handler of such product and the certifying agent. Thus, for a plant to be “organic,” it must meet these criteria.
CFC’s argument under OFPA
In their lawsuit, CFC is principally concerned with the third part of the organic requirements listed above—that in order to be labeled as organic, an agricultural product must be “produced and handled in compliance with an organic plan.” Organic plans, in turn, must also meet a number of requirements. One of those requirements is that the “organic plan shall contain provisions designed to foster soil fertility, primarily through the management of the organic content of the soil through proper tillage, crop rotation, and manuring.” At its most basic, CFC’s argument is that fostering soil fertility is an integral and required part of the OFPA, and therefore, plants not grown in actual soil cannot meet all the requirements necessary for organic certification. In other words, since hydroponics by definition are not grown in soil, hydroponic farmers can’t foster soil fertility. As a result, CFC maintains that since fostering soil fertility is required in order for plants to be labeled “organic,” hydroponically-grown plants can’t be organic. By allowing hydroponics to be labeled organic, CFC asserts that USDA is in violation of the OFPA.
CFC’s argument under the APA
The plaintiffs also contend that USDA’s denial of their 2019 petition violated the APA. The APA (you can find the relevant chapter here) is the law that federal agencies must follow when writing and adopting regulations. Under the APA, courts have the power to overturn agency actions if they are arbitrary, capricious, an abuse of discretion, or are otherwise unlawful. Additionally, courts can overturn agency actions when they go beyond the authority given to the agency by Congress. Here, CFC argues that USDA’s denial of their petition was arbitrary and capricious and not in accordance with the law. Basically, they are arguing that USDA violated the APA by ignoring the soil fertility language that Congress included in OFPA.
What’s USDA’s take?
USDA’s denial of CFC’s petition gives us a little insight into what the agency’s response to the lawsuit might include. The agency claims that the National Organic Program (NOP) has allowed hydroponic operations to be certified organic in the past. Furthermore, USDA counters that the statutory and regulatory provisions that refer to “soil” do not require every organic plant to be grown in soil. Instead, they say the provisions are simply “applicable to production systems that do use soil.”
The court will certainly have a lot to sift through in this lawsuit. USDA still has to respond to the complaint, and hydroponic operations might throw their support behind the agency’s cause. We’ll be keeping an eye on what happens and will make sure to keep you updated!
Written by: Ellen Essman and Peggy Hall
October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law. From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:
Federal judge upholds Missouri’s meat labeling law—for now. Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry. As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit. However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law. He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them. In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech. This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.
Oregon goes for cage-free egg law. In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens. A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas. As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens. The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.
City can ban backyard chickens, says court. The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property. The appellant was eventually informed that keeping his hens was in violation of the city code. A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.” Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health. For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional. To read the decision in its entirety, click here.
EPA proposes controversial Renewable Fuel Standard rule. On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020. The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels. Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane. In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners. The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less. On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019. Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.
New H-2A labor certification rule is in effect. The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules. A new rule addressing labor certification for H-2A became effective on October 21, 2019. The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites. State Workforce Agencies will also promote awareness of H-2A jobs. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
And more rules: National Organic Program rule proposals. The USDA has also made two proposals regarding organic production rules. First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling. The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available. That comment period closes on December 17, 2019. Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020. The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Great Lakes restoration gets a boost from EPA. On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI). The plan will be carried out by federal agencies and their partners through fiscal year 2024. Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes. The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects. Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem. You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!