On Wednesday, the Organization for Competitive Markets (OCM), a Nebraska-based think tank that focuses on agriculture and trust policy, announced it had filed a lawsuit to reinstate the Farmer Fair Practices rules. Also known as the GIPSA rules, they were withdrawn by the United States Department of Agriculture (USDA) in October before they ever went into effect. The move was celebrated by big meat industry players, who said they feared the rules would lead to more lawsuits. It also sparked widespread outcry from advocacy groups, who said they had hoped the Trump administration would protect independent farmers from corporate interests. OCM is being represented by Democracy Forward, a foundation that uses litigation to challenge the Executive Branch.
Here’s the quickest-possible recap of the withdrawn rules: They were mandated by the 2008 Farm Bill, then negotiated for a few years, then repeatedly blocked through riders in appropriations bills until Obama was on his way out of office. In January of this year, days before the Trump team took over, the outgoing administration finally issued a watered-down version of its rules via one interim final rule and two proposed rules. Had they been implemented, they would’ve made it easier for farmers to sue the Tysons and Perdues of the world, made unequal and unfair treatment of farmers illegal, and set boundaries in the notorious tournament system meat companies use to buy poultry. Read my colleague Joe Fassler’s explanation of why contract farmers are often the most powerless part of the supply chain here.
OCM’s complaint challenges USDA’s decision, claiming in the lawsuit that the agency “re-stacked the deck for multinational meat packing corporations at the expense of independent farmers.”
The lawsuit makes three arguments against the agency’s reversal: First, it says the agency misinterpreted the legal precedent set by four circuit courts on farmers’ rights to sue meat companies. Second, it disputes USDA’s claim that the public didn’t get enough chances to comment on the rules—in fact, it says, they were published following a 61,000-comment process and drew almost 2,000 more comments after they were published.
The lawsuit’s third argument is the easiest to understand: “USDA entirely failed to account for the fact that parts of those rules were statutorily mandated by the 2008 Farm Bill.” By withdrawing the rules, the agency essentially said, “eh, not going to happen.”
The lawsuit is a “petition for review,” meaning its purpose is to prompt the court—in this case the U.S. Court of Appeals in the Eighth Circuit—to look at USDA’s decision and decide whether or not the agency followed the rules.
As I reported last month, Agriculture Secretary Sonny Perdue recently eliminated GIPSA as a standalone agency. It will now be housed under the Agricultural Marketing Service. Advocates worry that nesting it under a marketing agency, rather than a regulatory agency, will further weaken the entity’s support for small and independent farmers.