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From here on out, almost everything we have known about how the USDA manages the National Organic Program is potentially off the table.
As a result of recent Supreme Court decisions, Big Ag and corporate lobbyists can now use their power, teams of lawyers and endless funding to challenge every administrative action or rule — unless that action or rule has been specifically spelled out in federal legislation, approved by Congress.
It is not hyperbole to say that our industry can no longer be viewed as reliably secure.
CHEVRON AND CORNER POST
Many years ago, Congress passed the Organic Foods Production Act of 1990 (OFPA) and created a framework for the National Organic Program, which empowered the USDA to manage the program and establish the many individual rules and ingredients to be allowed in organic that were not specifically addressed under OFPA.
However, this past June, the Supreme Court overturned a long-standing precedent, Chevron USA, Inc. v. Natural Resources Defense Council, that federal judges would defer to federal government agencies when a federal law or rule was ambiguous.
This means that if legally challenged, the USDA will no longer receive deference on questions of what Congress meant in OFPA.
What immediately comes to mind is genetic engineering and whether this could soon be allowed in organic. After all, when you look at OFPA and search for the term “genetic engineering,” it is nowhere to be found. As such, given the Chevron doctrine ruling, this would now seem to be in play if it were challenged in court.
George Kimbrell, co-executive director and legal director at Center for Food Safety, has a more nuanced view of the Supreme Court’s recent actions.
“Specific rule-making issues like GMOs fall under broad delegation of powers to USDA in OFPA, and ever since the very beginning, the intent of organic standards has been to exclude GMOs. More generally, to the extent that the chemical companies have new tools to attack existing rules, so do we. This is also a chance for us to further things in new ways and go after rulings of government agencies that have created real harm.”
While the Chevron doctrine has received the bulk of the media attention, Center for Food Safety’s George Kimbrell believes that the Supreme Court’s ruling of Corner Post (Corner Post Inc. vs. Board of Governors of the Federal Reserve System) has the potential to create much more damage.
“There is effectively no longer any limitations period to challenge agency regulations, and litigants can create new entities or find new plaintiffs whenever they miss a statutory deadline. This creates considerable uncertainty for agencies, interested parties and society, where any rule in the federal code can perpetually be challenged by new plaintiffs.”
A NEW ORGANIC IN 2024 AND BEYOND
The Supreme Court rulings, however, do cut both ways and allow challenges to USDA decisions that many people in organic believe are unjust.
One prime example is hydroponics.
Section 6513 b-1 of the Organic Foods Production Act of 1990 is very clear about the role and importance of soil, something that the USDA appears to ignore. The provision says that:
An 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.
Many industry executives feel that the USDA’s allowance of hydroponics is an egregious violation of OFPA, and the Supreme Court rulings may now provide a new and very strong legal avenue to reverse this policy.
One other consequence of the Supreme Court rulings is that the USDA may be afraid to take any significant administrative or rule-making action moving forward, fearing a lawsuit.
For the last few decades, only a small number of stakeholders have been actively engaged in the politics and rule-making of organic, and if the industry, by and large, continues to assume that much greater engagement is not essential, Big Ag and their special interest groups can use their leverage to substantially determine what the future of organic looks like.
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With gratitude, 
Max Goldberg, Founder |
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