The Center for Food Safety (CFS), a sustainable agriculture nonprofit, and seven other plaintiffs are continuing to fight against the eligibility of hydroponics for organic certification with the appeal of a lawsuit they brought against the USDA in 2020. 

CFS initially filed the lawsuit after the USDA denied a rulemaking petition it had submitted to the agency in January 2019. The petition had asked the USDA to engage in rulemaking based on a formal recommendation from the Spring 2010 National Organic Standards Board (NOSB) that said hydroponic operations should not be eligible for organic certification “due to their exclusion of the soil-plant ecology intrinsic to organic farming systems and USDA/NOP regulations governing them.”

When the USDA denied the petition, CFS and a group of organic farmers and stakeholders filed their lawsuit in district court in 2020 seeking a “vacatur of USDA’s unlawful Petition Denial, and injunctive relief barring [USDA] from authorizing organic certification of hydroponic operations under OFPA [the Organic Foods Production Act].”

In March 2021, the US District Court for Northern California ruled against the plaintiff coalition, siding with the USDA and thus continuing to allow hydroponics to be eligible for organic certification. CFS quickly filed a notice of appeal to the Ninth Circuit Court two months later, followed by its brief this past October. 

CFS initially filed the lawsuit after the USDA denied a rulemaking petition it had submitted to the agency in January 2019.

“We chose to appeal the decision because as a result of the court agreeing with USDA, it has resulted in an uneven playing field for the organic crop producers,” says Sylvia Wu, a senior attorney and managing attorney of the California and Hawaii offices of CFS. “Hydroponic operations are now exempt from the soil fertility requirement, which the statute clearly commands for all crop producers. …  It says to be a crop producer and be certified organic, you ‘shall ... foster soil fertility.’”

Sylvia Wu, Senior Attorney and Managing Attorney, California and Hawaii offices of the Center for Food Safety

Wu notes that while the USDA has always allowed hydroponics to be eligible for organic certification, its official position on the matter underwent a major shift in 2019 when it issued its denial of CFS’s petition. Up until that point, says Wu, the USDA had “consistently said hydroponic operations can be certified organic if [they meet] all the requirements of organic production” (which for crop producers includes fostering soil fertility according to 7 U.S.C. § 6513(b)(1)).

However, in its petition denial letter, Wu says, “[USDA] for the first time said that their view is that all hydroponic operations are basically exempt from the soil fertility requirement.” In that letter, the agency stated that the soil fertility requirement was only “applicable to production systems that do use soil.” According to CFS (as stated in its appeal brief), this amounts to “an extra-statutory exemption” and an “unlawful loophole” created by the USDA.

“We chose to appeal the decision because as a result of the court agreeing with USDA, it has resulted in an uneven playing field for the organic crop producers.” – Sylvia Wu

“What's at issue now in the appeal is the district court's agreement that USDA has the authority to [determine that exemption],” says Wu. “Our arguments on our appeal are legal—it goes into a lot of how courts should interpret statutes—but the practical issue that we presented [in our opening brief] is whether or not the district court was correct in upholding USDA’s decision to just exempt an entire industry from a core requirement of organic certification. And we think that the statute’s clear that [USDA] doesn't have the authority to exempt hydroponic operations.”

Currently, CFS is awaiting the USDA’s filing to the Ninth Circuit, which is due February 14. After that, CFS will have the opportunity to respond to the government’s brief, and then a court date for oral arguments will be scheduled for around a year later. “After that, it could be another year—up to another year—before [the Ninth Circuit decides the case],” Wu says. “So it could take a while.”

“The practical issue that we presented [in our opening brief] is whether or not the district court was correct in upholding USDA’s decision to just exempt an entire industry from a core requirement of organic certification. And we think that the statute’s clear that [USDA] doesn't have the authority to exempt hydroponic operations.” – Sylvia Wu

Despite the lengthy legal process, CFS is undeterred. The nonprofit is fully dedicated to the fight against hydroponics in organic ag, which Wu says is an important issue for a couple of reasons. For one thing, it’s affecting the financial wellbeing of the farmer members of the plaintiff coalition—Swanton Berry Farm, Full Belly Farm, Durst Organic Growers, Jacobs Farm del Cabo, and Long Wind Farm. “They’re being outcompeted left and right by hydroponic producers who … can just grow crops in huge warehouses without building biodiversity, without building soil fertility,” she says.

Long Wind Farm

On a more macro level, Wu says this case gets to the very heart of the definition of organic farming. “The word ‘organic’ is talking about organic matter in the soil,” she says. “But now USDA says you can be an organic farmer without that, without doing anything about organic matter.” The result, she says, has been a “dilution of the organic standard,” which is “a really dangerous … path to go on.”

“The word ‘organic’ is talking about organic matter in the soil. But now USDA says you can be an organic farmer without that, without doing anything about organic matter.” – Sylvia Wu

Wu further points out that the farmer plaintiffs in this case are from some of the oldest certified organic farms in the nation and were “there at the table when the organic statute was being written." She says “they're concerned about the … complete disregard of the intent of the organic program that USDA has done here.”

In terms of predicting how the Ninth Circuit will rule, Wu says she has “no expectation at all,” though she adds, “Obviously, we believe we have a really strong case. That's why we decided to appeal the decision.”

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Note: CFS defines hydroponics as soilless agriculture.

To read OPN's 2021 interview with Sylvia Wu, click here.