The USDA is urging a federal appeals court to reject arguments that organic crops must be grown in soil and never with hydroponic production methods.

Critics claim that organic certification should be revoked from hydroponic operations because they cannot foster soil fertility as required by law.

The 9th U.S. Circuit Court of Appeals must now decide whether a lawsuit opposed to hydroponics in organic agriculture was wrongly dismissed last year.

Several soil-based organic farms and affiliated nonprofit groups have asked the 9th Circuit to overturn the judge’s conclusion that hydroponic operations don’t need to comply with the soil-building requirement of organic law.

“The words ‘organic’ and ‘organic farming’ refer to soil organic matter. So soil-building is the foundation of the environmental benefits that consumers associate with the organic label,” said Sylvia Wu, an attorney for the Center for Food Safety nonprofit, during recent oral arguments.

In hydroponic systems, plants commonly grow in containers filled with a soil-less medium, such as perlite, and are fed with liquid nutrient solutions.

The USDA, which enforces organic regulations, countered that the Organic Foods Production Act’s soil fertility rule simply isn’t intended to apply to hydroponic production.

The agency’s interpretation is more plausible than the claim that OFPA’s soil health provision is meant to ban organic hydroponics entirely, said Daniel Winik, attorney for the federal government.

“That would have been a surpassingly strange way for Congress to create a soil requirement, if soil were as central to organic production as plaintiffs suggest,” he said.

Hydroponics have been debated in organic agriculture for years, with the National Organic Standards Board originally recommending that USDA ban such methods in 2010 but then voting down a similar motion in 2017.

In 2019, the USDA rejected a petition that demanded hydroponic methods be prohibited, concluding that soil-fertility regulations need only pertain to soil-based organic operations. The Center for Food Safety and other plaintiffs then filed their lawsuit claiming the denial violated OFPA.

Critics believe hydroponically grown crops have benefitted large “corporate” greenhouse operators while flouting organic law and philosophy.

Organic producers who rely on such methods believe that opponents are using an overly restrictive definition of organic agriculture to suppress competition in the industry.

Last year, Chief U.S. District Judge Richard Seeborg in San Francisco sided with USDA, ruling that it’s entitled to deference in allowing soil-less methods in organic agriculture.

Though critics claim the OFPA prohibits organic hydroponics, the law doesn’t actually mention such methods, Seeborg said. Despite its requirement to improve soil health, the statute “doesn’t compel any action” regarding hydroponics, Seeborg said.

“One soil fertility provision nestled in one paragraph of one subsection cannot alter the character of the entire statute,” he said.

The Center for Food Safety claims the ruling was wrongly decided, arguing that USDA’s refusal to ban hydroponics has undermined OFPA’s purpose of ensuring consistency in the organic market.

“We have two sets of identical tomatoes, except only some of them live up to the true meaning of organic,” Wu said.

The USDA argues that the legislative history of the OFPA supports the conclusion that hydroponics aren’t bound by the soil health provision required in organic farm plans.

“There’s very good reason to think that organic plan requirements for crop production farm plans don’t apply to hydroponic operations,” Winik said.