USDA responds to lawsuit over hydroponics in organic program

The USDA this month filed a legal reply to a lawsuit over its policy allowing hydroponic grow operations to be certified as organic.

The March 2 lawsuit brought by the Center for Food Safety (CFS), a group of growers and other organizations, stems from the USDA’s denial of an earlier legal rulemaking petition from CFS asking the Department of Agriculture to prohibit hydroponic operations from being certified as organic.

“It’s not really an argument about which one is a better system, which one is more efficient, but about what Congress had mandated and what the organic community had envisioned when they created this special organic system,” said Sylvia Wu, the attorney for the plaintiffs in the lawsuit. “It’s really about the lack of soil fertility building of hydroponic systems.”

The defendants – U.S. Secretary of Agriculture Sonny Perdue, Bruce Summers who heads up the USDA’s Agricultural Marketing Service, and Jennifer Tucker, Deputy Administrator of the National Organic Program – submitted a legal answer May 11 in the U.S. District Court’s northern California District. Their defenses, as submitted by in the document, are that “the court lacks subject matter jurisdiction” and “the Administrative Procedure Act does not entitle plaintiffs to the relief sought.” According to the document, “certifiers have certified organic hydroponics operations since the beginning of the program and continue to certify organic hydroponics operations.”

The San Diego, California-based Coalition for Sustainable Organics (CSO), which advocates for the use of containerized growing systems in the National Organic Program (NOP), said in a press release it was “heartened” by the legal action.

“The lawsuit takes aim at all container systems,” Lee Frankel, executive director of the CSO, said in the press release. “The requested decertification of organic growers would include everything from microgreens grown in a tray using soil to tomatoes grown with plastic lining under the planting bed to berries grown in a pot to leafy greens grown in a circulating water system.”

Wu disagreed with that description of the lawsuit.

“In my opinion that’s not fair,” she said. “There are ways you can grow container systems using soil that build soil fertility, just as I think one could argue there are ways if you take aquaponics systems, for example, there is a cycling of nutrients in those systems that’s not present in hydroponics, where manmade nutrients end up just being sprayed on crops and injected into crops. It’s one direction, versus a systematic, wholistic approach that is envisioned and required by organic farming principals.”

CSO said the lawsuit could limit the availability of fresh organic fruits, vegetables, herbs and mushrooms

“Demand for organic produce has grown even stronger in recent weeks as consumers are looking for ways to strengthen their immune systems by avoiding unwanted chemicals, hormones and antibiotics in their diet,” Frankel said. “We oppose this lawsuit and support the most recent vote of the National Organic Standards Board to not make containers and hydroponic production methods prohibited practices. … If producers, marketers, and retailers truly support bringing healthy food to more consumers, especially in light of the pressures many households are facing as a result of the recent economic contraction, they must speak out against these efforts to restrict supplies.”

Wu noted that National Organic Standards Board, which advises the USDA and NOP on policy matters, in April 2010 recommended that hydroponic operations should not be certified as organic.

“On the other hand, the statute makes it clear that there needs to be soil fertility building requirements for it to adhere to organic principals,” she said. “Hydroponic growing may have a lot of other advantages, and they can make other claims to the marketplace to the consumers. I don’t think, even in the organic community, people are saying hydroponic systems are bad. The question is whether or not they deserve the organic seal. And I think legally, and from the statute, and from the voice of those that represent the organic community, their view is, it does not.”

Above, a hydroponic greenhouse used to produce organic greens. Photo: USDA/Lance Cheung

USDA sued for allowing organic certifications for soil-less growing