By Nicholas Orr*
The Argentine-American lemon wars have returned to federal district court.[i] On May 17, 2017 the US Citrus Science Council, joined by five other co-plaintiffs[ii], brought an action against the U.S. Department of Agriculture (“USDA”), Sonny Perdue, Secretary of Agriculture, and Kevin Shea, Administrator of the Animal and Plant Health Inspection Service (“APHIS”), challenging the recent decision to allow the importation of Argentinian lemons into the United States.[iii] On October 25, 2017, Judge Lawrence J. O’Neill of the Eastern District of California issued a memorandum decision on the Defendants’ motion to dismiss.[iv] Of the six counts alleged in the complaint, five survived.[v] The current lawsuit, however, represents only the most recent legal challenge by the domestic citrus industry, though it is just the latest incident in a long battle to protect against foreign pests and competition.
Argentinian lemons were first quarantined and barred importation by the Secretary of Agriculture in 1947 for sweet orange scab, a fungal disease, based on the fear that the imported lemons could act as a vector for fungus to enter the United States.[vi] Almost five decades later, in 1993, Argentina officially requested that APHIS revise the existing ban and allow for the importation of citrus from the Argentinian States of Catamarca, Jujuy, and Tucumán.[vii] At that time, two citrus pests existed in those regions that were not in the United States: citrus black spot and sweet orange scab.[viii] APHIS denied Argentina’s request, finding that either pest free regions must be established or treatments for the pests approved.[ix] Based on additional research conducted by Argentina, in 2000, APHIS published a final rule allowing the importation of fruit from Catamarca, Jujuy, and Tucumán.[x] Citrus growers in California responded by filing a complaint challenging APHIS’s conclusions as “arbitrary and capricious.”[xi] At summary judgment, the court found for the California and Arizona lemon growers in Harlan Land Co. v. U.S. Department of Agriculture.[xii]
In 2012, Argentina renewed the dispute with the World Trade Organization (“WTO”) as a part of a “bilateral tit-for-tat” involving trading concerns between the two countries.[xiii] Under the WTO agreement, Argentina alleged that the United States’ measures constituted an unlawful ban on Argentinian citrus fruits.[xiv] In 2016 in the closing days of the Obama Administration, after officials from APHIS visited the Argentinian States of Catamarca, Jujuy, Salta, and Tucumán, the decision to allow Argentinian lemons was revisited.[xv] However, upon taking office, the Trump Administration suspended the decision in January and issued another stay in March.[xvi] After President Donald Trump met with Argentinian President Mauricio Macri, the ban was lifted.[xvii]
Argentinian lemons represent a very real threat to the United States lemon industry because of the risk of introducing harmful and also because of the increased competition. The revised order allowing the importation of Argentinian lemons lists a number of species of pests that the regulations are designed to control:
Brevipalpus chilensis, the Chilean false red mite; B. californicus, the citrus flat mite, B. obovatus, the scarlet tea mite, and B. phoenicis, the false spider mite . . . Ceratitis capitata, the Mediterranean fruit fly; Cryptoblabes gnidiella, the honeydew moth; Elsinoë australis, the causal agent of sweet orange scab disease; Gymnandrosoma aurantianum (Lima), the citrus borer; and Xanthomonas citri subsp. citri (ex Hasse) Gabriel et al., the causal agent of citrus canker disease.[xviii]
The regulation requires that “lemons must be packed for export to the continental United States in pest-exclusionary packinghouses” and that “[p]rior to packing, the lemons must be washed, brushed, and surface disinfected for E. australis and X. citri and in accordance with the operational workplan, treated with an APHIS–approved fungicide, and waxed.”[xix] Nevertheless, pests remain a significant concern for California and Arizona growers since the domestic citrus industry is already struggling to contain the spread of the Asian citrus psyllid, the main carrier of citrus greening disease that has already devastated Florida’s orange industry.[xx]
Furthermore, the importation of Argentinian lemons also threatens the domestic market. Analysis by APHIS suggests that proposed importation of 18,000 metric tons of lemons for Argentina would decrease the price by 4 percent and the “[c]onsumer welfare gains of about $25 million would outweigh producer welfare losses of about $22 million, resulting in a net welfare gain of about $3 million.”[xxi] Though the proposed rule argues that the Argentinian lemons would enter the market only in the California and Arizona off-season, because lemons can be stored in cold storage for months, the competition will be direct.[xxii]
The complaint filed by the law firm WilmerHale on May 17, 2017, on behalf of the plaintiffs alleges six counts against the USDA.[xxiii] All center on the compliance, and lack thereof, of the government’s procedural requirements with the Plant Protection Act (“PPA”), the Administrative Procedure Act, National Environmental Policy Act, and the Regulatory Flexibility Act.[xxiv]
In reviewing the complaint, the plaintiffs argued they have standing under the doctrine of competitor standing, that “the challenged [regulatory] action has caused him injury in fact, economic or otherwise.”[xxv] The Court held that “as lemon growers involved in the national market, will face economic injury as a result of the importation of Argentine lemons . . . they have constitutional standing to pursue Counts I, II, IV, and VI.”[xxvi] Furthermore, the plaintiffs argue they have “environmental standing based on the risk that imported Argentine lemons will cause certain diseases, such as Citrus Black Spot, to spread to domestic lemon crops.”[xxvii] The court agreed: “[p]laintiffs have standing under this theory to pursue Counts I, II, IV, V, and VI.”[xxviii] However, the Court found that the plaintiffs did not have standing to bring Count III, “failure to use notice and comment procedures to amend, and failure to provide reasoned decision-making in amending, the rule to restrict importation to northeastern ports under the PPA and APA,” because while the “Plaintiffs may have adequately alleged a procedural violation with respect to the Amendment, [ ] they have not alleged a procedural injury” and therefore “lack standing to pursue Count III.”[xxix]
The American-Argentine dispute over the importation of Argentinian lemons will continue—too much is at stake for both parties. The American growers see the risk of foreign pests and the possibility of market erosion as direct threats to the continued viability of the industry. The intractable positions mean that one party, in the end, is likely to be left with an acid taste.
*Nicholas Orr is a Junior Editor on MJEAL. He can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] The author has minority stake in Oro Del Norte, LLC, a lemon and avocado farm located in Los Posas Valley, Somis, CA.
[ii] US Citrus Sci. Council v. United States Dep’t of Agric., No. 1:17–cv–00680–LJO–SAB,
017 WL 4844376, slip op. at *1 (E.D.Cal. October 25, 2017) (joined by Santa Paula Creek Ranch; CPR Farms, Green Leaf Farms, Inc., Bravante Produce, and Richard Bagdasarian, Inc.)
[vi] See 7 C.F.R. § 319.28(b) (1947).
[vii] See Harlan Land Co. v. U.S. Dep’t of Agric, 186 F. Supp. 2d 1076, 1079 (E.D. Cal. 2001).
[xii] Id. at 1098.
[xiii] M. F., The Argentine-American Lemon War of 2001-2017, The Economist (Jun. 5, 2017), https://www.economist.com/blogs/economist-explains/2017/06/economist-explains-1.
[xiv] See Request for Consultations by Argentina, United States — Measures Affecting the Importation of Fresh Lemons, WTO DS448 (Sept 3, 2012), https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds448_e.htm.
[xv] Charlie Devereux & Toluse Olorunnipa, Trump ‘Favorably Disposed” to Resuming Argentine Lemon Imports, Bloomberg (Apr. 27, 2017), https://www.bloomberg.com/news/articles/2017-04-27/trump-favorably-disposed-to-resuming-argentine-lemon-imports.
[xviii] See 7 C.F.R § 319.56-76 (2017).
[xix] 7 C.F.R § 319.56-76(c)(1), (3) (2017).
[xx] Louis Sahagun, Insects and Disease are Ravaging the Southland’s Urban Trees. Who’s Going to Stop Them?, L.A. Times, (May 5, 2017), http://www.latimes.com/local/california/la-me-trees-change-20170427-story.html; John Holland, Citrus Pests turns up in Modesto, The Modesto Bee, (July 11, 2016), http://www.modbee.com/news/business/agriculture/article88898952.html.
[xxi] Importation of Lemons from Northwest Argentina, 81 Fed. Reg. 28,758 (May 10, 2016) (to be codified at 7 C.F.R § 319.56-76).
[xxii] US Citrus Sci. Council, slip op. at *6.
[xxiii] Id. at *3.
[xxv] Id. at *4 (citing Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)).
[xxvi] US Citrus Sci. Council, slip op. at *7.
[xxviii] Id. at *8.
[xxix] Id. at *11, *10.