Suit Over Organic Waste Rule Change Advances

     SAN FRANCISCO (CN) – A federal judge refused to dismiss a case alleging that U.S. Department of Agriculture unlawfully failed to notify the public about changes to its regulations for organic foods.
     The Center for Environmental Health sued the USDA, the Agricultural Marketing Service and three federal agricultural regulators for violations of the Administrative Procedure Act when it amended the Organic Foods Production Act to allow farmers to compost materials treated with synthetic pesticides, such as lawn clippings.
     The amendment was made in a “guidance” – NOP 5016 – issued in 2010, which allowed for “unavoidable residual environmental contamination,” provided that “any residual pesticide levels do not contribute to the contamination of crops, soil or water.”
     Issuing the decision without notice, the center claimed, violated the APA and harms consumers by “weakening organic integrity, creating inconsistent production standards, and demonstrating arbitrary and capricious application of administrative functions.”
     The USDA moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim, but U.S. Magistrate Judge Jacqueline Corley refused to do so.
     The center argues that NOP 5016 is a legislative rule that triggered the notice and comment requirements of the APA, and Corley said in the ruling that the court “cannot say at the pleading stage that plaintiffs’ legal theories are foreclosed as a matter of law.”
     Although the USDA argued that NOP 5016 has no binding effect because it is part of a handbook with a disclaimer suggesting that its documents are not legally binding, Corley said that “the court is not required to accept the agency’s interpretation of the legal effect of the guidance.”
     She said that the USDA’s argument that the center “failed to allege any specific instances of actual enforcement” to prohibit the use of green-waste compost that contains pesticide residue is a “non-starter,” and she said the department’s argument that the guidance says that green-waste compost only “contains” pesticides if they were directly applied during the composting process “fares no better.”
     “Plaintiffs’ construction of ‘contains’ as meaning ‘includes’ is perfectly possible,” Corley said.
     Furthermore, she said, the center has plausibly alleged that its members face environmental, health and economic injury as a result of the new rule. Those allegations are sufficient to establish standing because “in light of NOP 5016 they cannot discern whether the organic products they purchase are in fact organic or may contain residue of previously banned insecticides.”
     “These harms are just as concrete as the infringement on aesthetic satisfaction found sufficient to establish standing in other environmental contexts,” Corley said.
     She gave the defendants 14 days to file their answer.
     In a statement by the Center for Food Safety – also a named plaintiff in the case – senior attorney George Kimbrell said he applauds the court’s decision.
     “The agency’s unilateral action to allow compost contaminated with pesticides in organic production was contrary to federal rulemaking requirements as well as contrary to high organic standards of integrity,” he said.
     “We will continue to represent the organic community in holding USDA accountable.”
     The defendants could not be reached for comment on Friday.

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