Litigation strategies that target systemic change for farmed animals and the plant-based food industry play a critical role in transforming the food system. Working in tandem with other sectors of the farmed animal protection movement, litigators are challenging laws and regulatory practices that inhibit reforming the animal agriculture industry or further loosen its accountability requirements.
The animal agriculture industry, strongly dominated by corporate interests, has immense political influence on legislators. This influence has enabled the expansion of confined animal feeding operations (CAFOs), discouraged enforcement of animal welfare standards, and limited advancement of laws addressing the industry’s negative externalities. Though this influence has resulted in the passage of few laws offering protections to farmed animals, creative litigation strategies allow advocates to oppose this industry and force it to change aspects of its practices. Working within the court system, which is more shielded from political influence and lobbying than legislatures and government agencies, allows lawyers to hold the industry accountable under environmental laws, food safety laws, and other applicable laws that pertain to industrial animal agriculture.
A single lawsuit can impact whether a major change to the food system occurs. For example, Prop 12 in California, a strong farmed animal protection law requiring that pork, eggs, and veal sold in California must not have been raised in facilities using intensive confinement, has faced legal challenges from the animal agriculture industry since California voters approved it on the ballot in 2018. NGOs working on behalf of farmed animals have been defending Prop 12 in various capacities since that time, including by intervening in a lawsuit filed by the North American Meat Institute against the State of California that made its way to the Supreme Court, who declined to review it in 2021.
Funding litigation related to farmed animals and plant-based foods is critical to dismantling the factory farm stronghold in the US. In addition to providing continued funding for known litigation strategies, such as those discussed below, funding should also be directed toward new approaches deployed by NGOs and law school clinics that have the potential to secure major gains for the farmed animal protection movement.
Overview of Farmed Animal Law
State and federal laws in the United States offer only limited protections for farmed animals. All farmed animals are exempt from the federal Animal Welfare Act; no federal laws regulate how the nine billion farmed animals killed in the United States annually are raised. Poultry, which account for at least 98% of animals raised for food, are not protected under the federal statutes that provide minimal protections for other farmed animals, including the Humane Methods of Slaughter Act and the Twenty-Eight Hour Law.
Federal StatuTES ProtectIng Farmed Animals
The Humane Methods of Slaughter Act, passed by Congress in 1958, requires the slaughter of farmed animals to adhere to “humane” standards. For non-religious slaughter, this standard requires animals to be “rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut.” This law is weakly enforced, and poultry are not specifically included. The industry norm for poultry slaughter, live-shackle slaughter, inflicts high levels of suffering and does not ensure birds are rendered insensible to pain.
The Twenty-Eight Hour Law, passed by Congress in 1873, regulates minimal aspects of the transportation of animals. Under this statute, animals generally may not be confined for more than 28 hours during transport without being unloaded to receive food, water, and rest. The statute is riddled with broad exemptions from this requirement, such as a permissible extension to 36 hours when requested by the transporter and an allowance for animals to be confined for more than 28 hours when they cannot be unloaded due to “accidental or unavoidable causes.”
Congress has failed to pass reforms for the treatment of farmed animals in recent decades, despite a rising consensus among the US public that animals raised for food should be given more welfare protections and recent calls within the Senate to address the expansion of confined animal feeding CAFOs. State laws also do not adequately address how animals are raised and slaughtered. Though some states have enacted welfare laws that limit the cruelest intensive-confinement practices, such as the use of battery cages and veal crates, many states provide no protections for farmed animals and exclude them from laws addressing animal cruelty.
This narrow slate of protective laws provides challenges for lawyers and NGOs seeking to hold the animal agriculture industry accountable for the harms it inflicts upon animals and society. Therefore, legal advocates for farmed animals use a range of litigation strategies in this endeavor. In addition to litigation focused on cruelty, legal advocates challenge the constitutionality of ag-gag laws and label laws impacting plant-based food companies, bring environmental suits to reduce CAFO pollution and expansion, and sue government agencies for failing to carry out their congressional and legal mandates to regulate CAFOs.
Leading NGOs litigating on behalf of farmed animals and alternative proteins include The Animal Legal Defense Fund, Animal Outlook, The Humane Society of the United States, Legal Impact for Chickens, The Richmond Law Group, The American Society for the Prevention of Cruelty to Animals, and The Good Food Institute. Law school clinics also file farmed animal litigation. These clinics allow law students to work directly on cases and gain practical legal skills while working under the supervision of professors and fellows.
Avenues of Litigation
Below are three avenues of litigation that impact the animal agriculture industry. Each approach aims to protect farmed animals and the actors seeking to help them by challenging state legislatures, companies, or regulatory agencies. These approaches contribute to food system transformation by helping to limit industrial animal agriculture’s continued harm to animals, pollution of the environment, and damage to public health.
Defensive Litigation
One avenue of litigation challenges the constitutionality of state laws impacting farmed animals, farmed animal advocates, and the plant-based food industry. This defensive litigation seeks to strike down harmful new state laws propelled by the animal agriculture industry, such as “ag-gag laws” and label laws that place special restrictions on the plant-based food industry.
Ag-gag laws “penaliz[e] whistleblowers who investigate the day-to-day activities of industrial farms, including the recording, possession or distribution of photos, video and/or audio at a farm.” State legislatures, caving to pressure from the animal agriculture industry, have introduced ag-gag bills in half of US states in the past several decades. Many of these ag-gag laws have been defeated before becoming law or have been struck down as unconstitutional in the court system. Ag-gag laws currently exist in six states.
States’ ag-gag laws infringe upon free speech and allow the harm to animals on factory farms to occur outside of the public eye, which helps the industry evade accountability. Thus, a broad coalition of legal advocacy groups, including animal protection, consumer rights, food safety, and whistleblower protection organizations, have challenged the constitutionality of ag-gag laws. These lawsuits argue ag-gag laws violate the right to free speech, the right to a free press, the right for US residents to petition their government, and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
A second category of defensive litigation is challenging the constitutionality of plant-based label laws, which impose new labeling requirements and restrictions on plant-based meat, dairy, seafood, and egg products. Label laws, supported heavily by the animal agriculture industry, are intended to deter the sale of cultivated and plant-based alternative products and limit their potential to compete with animal-based products. The “Real Meat Act” in Montana, for example, prohibits labeling a product as “meat” unless the product is “derived from the edible flesh of livestock or a livestock product.”
Opponents of these laws argue they are unconstitutional because they violate plant-based food companies’ rights. Opponents contend that label laws “are a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products” and that additional labeling legislation “does nothing to protect the public from potentially misleading information, and creates consumer confusion where none existed before in order to impede competition.”
A label law in Arkansas has been struck down following a decision in federal court. However, more state legislatures are contemplating label laws, and a similar federal bill was introduced in both the House and Senate in 2019 (though it has not been re-introduced in Congress’s current legislative session). Label laws remain a viable threat to the plant-based and cultivated meat industries.
Environmental Litigation
Violations of federal and state environmental laws and regulations are the basis of a second avenue of litigation that impacts farmed animals and the animal agriculture industry.
CAFOs cause environmental degradation by releasing harmful toxins into the air and water. Hog farms, for example, release waste from hogs into “manure lagoons,” basins designed to hold and treat the animals’ wastewater. Throughout the year, CAFOs spray this manure mixture onto neighboring fields, contaminating above-ground waterways and creating airborne particles that land in surrounding properties. Manure lagoons also often overflow during heavy rains onto neighboring properties, polluting underground drinking water sources and exposing nearby communities to contamination from residues of antibiotics, estrogens, bacteria, pesticides, heavy metals, and protozoa.
With the rise of extreme storms hitting North Carolina, a state with 9 million hogs, hog farms have flooded extensively on multiple occasions. These floods have caused manure and the bodies of drowned pigs to flow into local waterways and onto private property, creating public health and environmental hazards. Poultry, beef, and dairy factory farms also release waste that pollutes surrounding properties on a continual basis and acutely during major storms, which endangers public health and damages neighboring properties.
The law offers limited avenues to hold CAFOs accountable for these hazardous environmental impacts. The federal Clean Water Act, which regulates discharges of pollutants into navigable waterways in the US, regulates CAFOs’ water pollution. CAFOs are only able to discharge pollutants (up to a certain threshold) if they receive a permit. Subsequently, the government is required to monitor CAFOs’ discharges to ensure compliance with their permits under the Clean Water Act.
Under the Clean Water Act’s “citizen suit” provision, citizens adversely affected by illegal water pollution discharges may bring suit against the polluter, as well as the regulatory agency, if it fails to properly enforce regulations against the polluter. Often, state environmental agencies overlook or limitedly address CAFOs’ illegal water pollution discharges that exceed the limits of their permits. In these instances, citizens wishing to redress these environmental harms are left with the burden of monitoring illegal discharges and bringing suit to compensate for CAFOs’ pollution and environmental agencies’ neglect.
State and federal regulatory agencies’ enforcement of applicable laws against CAFOs has historically been weak. Moreover, federal regulatory agencies have exempted CAFOs from federal environmental laws on several occasions. Environmental and animal protection NGOs have legally challenged these exemptions. For example, ALDF joined a lawsuit against the Environmental Protection Agency (EPA) that challenged the EPA’s exemption of “all but the largest CAFOs from the Emergency Planning and Community Right-to-Know Act‘s (EPCRA) requirement that pollution from animal waste be reported to state and local governments, and the public.” The lawsuit argues that the EPA violated the Administrative Procedure Act by failing to undertake proper rulemaking prior to finalizing the EPCRA exemptions, as well as that the exemption fails to keep the public safe by allowing CAFOs to avoid reporting pollution from animal waste. Given the documented environmental and community harms from CAFOs, especially during major storm emergencies, it is vital that legal advocates continue to monitor and challenge legal exemptions given to CAFOs.
Regulatory Litigation
A third avenue for addressing the harms of industrial animal agriculture and protecting farmed animals is bringing suit against federal regulatory bodies tasked with ensuring agricultural food safety and security, such as the United States Department of Agriculture (USDA).
The USDA is a department within the federal government made up of 29 agencies. USDA “provide[s] leadership on food, agriculture, natural resources, rural development, nutrition, and related issues based on public policy, the best available science, and effective management.” One of the 29 agencies within USDA is the Food Safety and Inspection Service (FSIS), which is tasked with ensuring food safety within the animal agriculture industry. FSIS is required to uphold the mandates of the Federal Meat Inspection Act, the Poultry Products Inspection Act, and the Egg Products Inspection Act. Additionally, FSIS regulates livestock slaughter (excluding poultry) pursuant to the Humane Methods of Slaughter Act.
USDA has the authority to promulgate regulations to ensure the mandates within federal agriculture laws are upheld. Congress may also direct USDA to investigate and regulate on a specific topic. When USDA and its agencies fail to act accordingly, animal protection organizations and other NGOs have sued to compel them to perform their duties.
For example, the Animal Law Litigation Clinic at Lewis & Clark Law School represented animal protection organizations[1] in a suit filed against USDA and FSIS in 2020 for their failure to investigate, report on, and promulgate regulations regarding nonambulatory pigs. Annually, over half a million pigs arrive at slaughterhouses unable to walk due to poor health conditions. These pigs have endured gruesome injuries and are more susceptible to carrying disease than ambulatory pigs.
Due to the public health and welfare concerns associated with nonambulatory livestock, in 2002 Congress directed the Secretary of Agriculture within USDA “to investigate and report on nonambulatory livestock, including pigs, and, based on findings, promulgate regulations as needed to ensure the humane treatment, handling, and disposition of those animals.”[2] The agencies undertook this directive and subsequently promulgated regulations to prohibit the slaughter of nonambulatory cattle and calves but have failed to do the same for nonambulatory pigs.
The lawsuit alleges that “Defendants’ failure to investigate and report to Congress on nonambulatory pigs in defiance of this directive violates the HMSA [Humane Methods of Slaughter Act] and constitutes agency action unlawfully withheld and unreasonably delayed in violation of the” Administrative Procedure Act. Plaintiffs have asked the Court to compel USDA and FSIS to comply with Congress’ mandate to investigate nonambulatory pigs, send a report to Congress, and promulgate regulations for the treatment and disposition of nonambulatory pigs.[3]
Conclusion
The litigation strategies discussed above demonstrate the variety of ways lawyers work toward dismantling the animal agriculture industry and protecting farmed animals. It is crucial for funders to provide robust support for animal law because litigation is one of the core levers used in systemic approaches addressing the harms of industrial animal agriculture.
Providing support for litigation strengthens other areas of the animal protection movement. Lawyers are in the trenches, often unseen by the broader movement, working to prevent lawmakers from clawing back the limited protections animals have gained and tediously challenging the laws and regulations that allow the animal agriculture industry to evade accountability.
Legal advocacy has made—and continues to make—the work of animal advocates, as well as plant-based food companies, more feasible. Lawyers opposing the animal agriculture industry often work in tandem with legislative specialists, scientists and academics, and NGOs that mobilize grassroots supporters across the country. With increased funding for litigation, successful strategies will continue springing up that chip away at the legislative and regulatory stronghold of the animal agriculture industry in the US.
[1] The Lewis & Clark Law School’s Animal Law Litigation Clinic assisted Farm Sanctuary, Animal Legal Defense Fund, Animal Outlook, Animal Welfare Institute, Compassion in World Farming, Farm Forward, and Mercy for Animals with this litigation.
[2] H.R.2646 – Farm Security and Rural Investment Act of 2002
[3] The lawsuit also focuses on the agencies’ improper review of Plaintiffs’ 2014 petition for rulemaking, which was intended to force the agencies to act on Congress’ 2002 directive and prohibit the slaughter of nonambulatory pigs. The agencies denied this petition without reviewing the evidence presented and issued information that contradicted reporting by other federal actors and organizations about the incidents and risks associated with nonambulatory pigs. Plaintiffs’ lawsuit argues that this denial was not in accordance with the law, which requires agencies to consider the evidence within a petition for rulemaking and make a decision that is not arbitrary, capricious, or an abuse of discretion.
