Court ruling clears way for hydroponics to join National Organic Program

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U.S. District Court in San Francisco ruled this week that USDA was correct in certifying organic hydroponic operations as eligible for the National Organic Program (NOP). It was a victory for the Coalition for Sustainable Organics (CSO) and a defeat for the Center for Food Safety (CFS). It represented traditional organic producers who believe that without using soil, something cannot be organic.

“This case stems from an ongoing debate about whether hydroponics, a form of soil-less agriculture, may be certified organic,” wrote  Chief Judge Richard Seeborg for the U.S. District Court in Northern California.

“In a rulemaking petition, plaintiff Center for Food Safety (CFS) asked the United States Department of Agriculture (USDA) to prohibit the organic certification of hydroponic production systems. USDA declined the request. CFS now seeks a review of the USDA’s denial letter. As set forth in detail below, Defendants’ motion for summary judgment is granted and plaintiffs’ corresponding motion is denied because USDA’s denial of the rulemaking petition reasonably concluded the applicable statutory scheme does not exclude hydroponics from the organic program. Plaintiffs’ motion to complete the administrative record is also denied.”

The ruling affirms USDA’s National Organic Program certification of organic hydroponic operations

Lee Frankel, executive director of the CSO, stated, “Our membership believes that everyone deserves organic. The decision is a major victory for producers and consumers working together to make organics more accessible and the supply more resilient. The COVID-19 pandemic has further increased demand for fresh organic vegetables and fruits as consumers look to healthy foods to bolster their immune systems and protect their family’s health. The court preserves historically important supplies of berries, tomatoes, cucumbers, peppers, mushrooms, leafy greens, herbs, sprouts, and microgreens that are frequently grown using containers or other hydroponic organic systems. In addition, the lawsuit threatened the nursery industry that provides many of the seedlings used by organic growers planting both in open fields as well as greenhouses.”

CFS reacted to the ruling.

“Under the Court’s ruling, hydroponic producers can sell their crops as organic without building soil fertility, yet organic farmers growing food in soil have to meet various soil-building requirements to be certified organic,” said Sylvia Wu, senior attorney with Center for Food Safety and counsel for plaintiffs. “This double standard violates the very purpose of the organic label and is contrary to the federal organic act. We are analyzing all our legal options and will continue to work hard to defend the meaning of the organic label.”

The CFS-led plaintiff coalition in the lawsuit included some of the longest-standing organic farms in the United States, including Swanton Berry Farm, Full Belly Farm, Durst Organic Growers, Terra Firma Farm, Jacobs Farm del Cabo, and Long Wind Farm, in addition to organic stakeholder organizations, such as organic certifier OneCert and the Maine Organic Farmers and Gardeners Association.

In his  written opinion Judge Seeborg stated that “USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA.”

Frankel was pleased that the court ruling clearly affirmed the legitimacy of hydroponic and container production systems under the Organic Foods Production Act (OFPA) that established the USDA National Organic Program. In addition, the ruling also confirmed that USDA was fully within its rights to reject the petition to ban the certification of operations and correctly followed procedures in its handling of the petition.

“We look forward to the organic industry coming together in the wake of this court decision to help strengthen the organic community, continue to enhance the cycling and recycling of natural resources, and promote ecological balance,” continued Frankel. “We are eternally grateful to the teams at USDA and the Department of Justice in effectively defending the work of the National Organic Program.”

Seeborg’s decision was made largely under the federal Administrative Procedures Act. In the opinion, the judge addressed CFS’s arguments in this way:

  • “First, CFS complains USDA excluded every oral comment from the NOSB board meetings regarding the compatibility of hydroponic operations with soil-based regulations. It contends these comments belong in the record both because they stem from deliberations and processes described in the Petition and because the existing record refers to them repeatedly. USDA counters by admitting that while its denial letter purported to rely on “the substantial deliberation and input on hydroponics between 1995 and 2017 from a variety of sources, including the NOSB,” it never claimed to have reviewed every public comment. AR 1377. CFS has not provided anything other than narrative, speculative evidence suggesting USDA must have considered these excerpts because it considered other types of public input on this topic. More importantly, CFS focuses on the excerpts’ impact on the question of hydroponic certification at large rather than the actual denial of their petition.
  • “Second, CFS argues a variety of anti-hydroponics comment letters were improperly left out. It asserts USDA admitted it considered comment letters, but only included a letter in favor of organic certification of hydroponic systems. In particular, CFS highlights a letter from OFPA’s original drafter, Senator Leahy. USDA has conceded that Senator Leahy’s letter should have been included in the Administrative Record and has updated it accordingly. As to the other letters, however, USDA takes the same position as against the excerpts – it did not consider every public comment relating to this longstanding controversial issue. CFS has provided no evidence showing USDA considered each, or even many, of the comments individually in coming to the decision to deny CFS’s petition.
  • Third, CFS argues that the survey responses should be included because USDA considered “deliberation and input on [hydroponics] between 1995 and 2017 from a variety of sources, including . . . public stakeholders[.]” AR 1377. The responses CFS seeks to include indicate some certifiers were willing to certify hydroponic operations. These variances, CFS argues, show how certification of hydroponics has resulted in inconsistent standards. That they may be subject to such an interpretation ultimately has no bearing on whether they were indirectly considered by USDA. Again, the contention that the USDA must have considered these particular survey responses because it considered twenty-three years of “deliberation and input” from a variety of sources is conclusory.

The judge said the USDA made a “structural argument” that was correct.    Under the law, he wrote: “if a production or handling practice is not prohibited or otherwise restricted under [OFPA], such practice shall be permitted unless it is determined that such practice would be inconsistent with the applicable organic certification program.”

He found that “hydroponic systems are nowhere explicitly prohibited” and not among the “prohibited crop production practices and materials” listed. . . .

 

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