A California federal court has invalidated an amended section of the Organic Foods Production Act that allowed organic producers to use compost materials containing synthetic fertilizers, finding the U.S. Department of Agriculture (USDA) violated the Administrative Procedures Act (APA) by failing to subject the amendment to public notice and comment before it took effect. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered June 20, 2016). Details about the complaint appear in Issue 562 of this Update.
In 2011, USDA issued guidance on the agency’s position allowing the use of fertilizer and compost containing unapproved synthetic materials in the production of organic food. The plaintiffs, three environmental groups, argued that the guidance was a legislative rulemaking—thus triggering requirements of public notice and comment under the APA—while USDA asserted that it had merely clarified a preexisting rule, not changed it. The court sided with the environmental groups, finding the guidance meaningfully changed the approved substances allowed in organic compost and fertilizer, and accordingly vacated the rule and remanded the matter to USDA for compliance with the APA.