Using Environmental Laws To Protect Animals
The Need for Creative Litigation in Animal Law
Animal advocates need to be creative litigators. There are few laws offering any meaningful protection for animals and those that do either do not permit private enforcement or require counsel to identify a human plaintiff that meets the constitutional and prudential standing requirements. The door to the courthouse can be an awfully difficult journey when the real party harmed is a nonhuman animal.
Limitations of Existing Animal Protection Laws
The Animal Welfare Act (the “AWA”) is the most comprehensive federal law protecting animals. The AWA requires minimum standards of care and treatment for certain species bred for commercial sale, used in research and testing, transported commercially or exhibited to the public (e.g., zoos and circuses). It offers no protection for animals raised for food or other uses. Enforcement is left to the USDA and the law has no citizen suit provision. Audits by the Office of Inspector General have shown instances where the USDA refused to issue fines for violations, failed to push for collection of the fines that actually were issued, arbitrarily lowered penalties and otherwise cooperated with offenders. The Department of Agriculture also continuously requests inadequate funding from Congress to perform its inspection and enforcement duties.
State animal cruelty statutes require the treatment of animals to rise to the level of criminal conduct and, with rare exception, can only be enforced by government prosecutors. So, many acts of cruelty are not investigated or prosecuted and, even when they are, they involve almost exclusively domestic animals because most states exempt animals used in agriculture and research from the reach of their anti-cruelty statute.
Environmental Laws as a Tool for Animal Protection
Because of the dearth of broad-based animal protection statutes and the lack of any citizen suit provisions in the laws that do exist, animal advocates often use environmental laws to get into court to try to protect animals.
The Clean Water Act
The Clean Water Act regulates discharge of pollutants into United States waters and implements a permit system through the National Pollution Discharge Elimination System. Concentrated Animal Feeding Operations (“CAFO’s”), more commonly referred to as factory farms, are “point sources” requiring a permit. Large scale livestock facilities produce an enormous amount of waste Ð about 500 million tons a year. The primary means used to dispose of that waste Ð spraying it onto croplands or storing it in open-air waste pits called lagoons Ð often results in leaks, spills and runoff that pollutes ground and surface water and creates a health risk to both people and wildlife. Animal advocates have filed suit against CAFOs under the Clean Water Act and, while often not obtaining a complete victory, they have obtained some beneficial results for the environment and the animals, both livestock and wildlife in the surrounding area.
The Humane Society of the United States (HSUS) has targeted the foie gras industry as unusually cruel for many years. Although the New York anti-cruelty statute does not contain a broad exemption for agricultural practices, it still relies on a prosecutor in the County to prosecute a large business for producing a legal product. For that reason, the HSUS used the Clean Water Act to sue Hudson Valley Foie Gras and bring to light the fact that, not only do foie gras production methods require the force feeding of ducks through a metal tube, the production facility dumps large amounts of waste into local waterways. As a result of the lawsuit, many people learned about the methods used in foie gras production and New York state fined Hudson Valley Foie Gras for violating the state environmental law more than 800 times. In forcing compliance with the Clean Water Act, lawsuits such as the one HSUS brought could indirectly benefit animals in that the practices that result in high amounts of discharge (like overcrowding) might have to be reduced or eliminated to come into compliance.
The Clean Air Act
The Clean Air Act has a citizens suit provision that gives citizens a right to sue when they have been harmed or aggrieved by a polluter. In addition to their effect on waterways, CAFOs emit air pollution. The emissions are sometimes so noxious that they cause obvious symptoms in animals and agricultural workers that can be painful and sometimes even fatal. Swine facilities have the potential to produce the most air pollution. The waste disposal systems that swine facilities use allow the waste to drop through slats in the floor into a large pit, where massive amounts of waste release more than forty poisonous gases. A large percentage of workers at these facilities experience respiratory symptoms including headaches and shortness of breath. Manure pits are agitated before emptying, increasing the exposure.
Poultry factory farms are also major contributors to airborne pollutants including ammonia emissions. Large amounts of urine and high temperatures combined to promote bacterial growth, releasing noxious levels of ammonia. Unlike the Clean Water Act where the effect is more indirect on the quality of life for animals, suits under the Clean Air Act can have a direct impact on the animals because their quality of life is profoundly affected by the chemicals in the air they breathe. In addition, the quantity of pollutants in the air is directly related to the number of animals in the space so compliance may require giving each animal more space.
Lawsuits designed to compel compliance with the Clean Air Act could result in better ventilation systems being implemented, larger quarters, different waste disposal methods or fewer animals in the facility.
The National Environmental Policy Act
The National Environmental Policy Act (“NEPA”) established the Council on Environmental Quality and requires federal agencies to consider the environmental impact of any proposed project as well as weigh the viability of reasonable alternatives. Although NEPA does not provide for citizens suits, it provides a mechanism for concerned citizens and scientists to weigh in on the decision-making process. . Sometimes, as was the case with the dredging of a lagoon in the San Francisco Bay area proposed by the Army Corps of Engineers, public participation in the NEPA process can cause a project to be cancelled. The Bolinas Lagoon not only provided important habitat for shorebirds, waterfowl and fish but also was a part of the migratory path of endangered steelhead and Coho salmon. The transparent process mandated by NEPA allowed concerned citizens to put a stop to the dredging project.
The Migratory Bird Treaty Act
The Migratory Bird Treaty Act (“MBTA”) makes it unlawful without a waiver to take, capture, hunt, kill or sell almost 1100 species of migratory birds. While it is a criminal statute without a citizens suit provision, recent litigation has demonstrated its power to support private claims of harm to birds.
Conclusion
Where the front door is not available because there is no statute specifically protecting the interests of animals, advocates can often rely on the statutes regulating environmental impacts to go through the side door and, in the process, gain at least some protection for wild and domestic animals. While the remedies available may not be a perfect match for the harms sought to be abated, use of environmental statutes serves the dual purpose of providing some, albeit imperfect, protection for animals while informing the public of the offending conditions that gave rise to the suit.
