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In August 2022, One Green Planet tracked key legal developments that are improving (or, in some cases, threatening) the lives and well-being of animals. This month, we’re previewing two major cases to keep an eye on in the Supreme Court of the United States.

1. The Scope of the Clean Water Act (Sackett v. Environmental Protection Agency)

The Clean Water Act (CWA)—the federal statute addressing water Pollution—is one of the most important environmental statutes.  Its purpose is to prevent, reduce, and eliminate Pollution in the nation’s water.  And to achieve that goal, it requires permits for the discharge of any pollutant from a “point source” (i.e., a  “discernible, confined, and discrete” source of Pollution as compared with, e.g., rainwater runoff) into “Waters of the United States.”  In other words, without a permit, no one may lawfully pollute U.S. waters.

Now, the key question before the Supreme Court is: what are the Waters of the United States? If “Waters of the United States” is defined narrowly, then no matter how strong the CWA’s protections may be, they will not protect most bodies of water or the wildlife that needs those waters to survive.

The definition of “Waters of the United States” has been litigated for decades. Specifically, it came before the Supreme Court in 2006—but at that time, the court was divided about how to rule.  A plurality of the court (4 of the 9 justices) would have significantly narrowed the definition and confined the reach of the CWA.  But without a fifth Justice to reach a majority, they were unable to achieve this outcome.  Now, with a conservative supermajority on the Supreme Court (including three Justices from the 2006 plurality), it seems likely that the Court in Sackett could narrow the scope of the CWA. One Green Planet will provide updates as they occur.

2. Prop 12 (National Pork Producers Council v. Ross)

NPPC v. Ross is one of the rare animal welfare cases to reach the Supreme Court.  It stems from Prop 12—a California law (passed by California voters) that prevents the sale of eggs, pork, or veal, if the egg-laying hens, mother pigs, or veal calves were confined under certain “cruel” conditions.  To be sure, OGP takes the position that raising and slaughtering animals for food, under any conditions, is cruel—and that even the enhanced “welfare” conditions in California are cruel and inadequate.  Nevertheless, California’s law prevents some of the most egregious forms of cruelty—such as gestation crates, which are so small that mother pigs cannot so much as turn around for the entirety of their lives.  Simply by addressing animal interests, and ensuring these minor mercies, California has taken a step in a positive direction.

To the extent California’s Prop 12 is confined to California, it does not create any legal issues.  However, under the U.S. Constitution’s Commerce Clause, only Congress—not the states—can regulate interstate commerce.  The National Pork Producers Council (NPPC) is arguing that, because pork producers in other states sell their products in California, California is illegally regulating those out-of-state producers.  California—alongside Animal rights and welfare groups such as The Humane Society of the United States, Animal Legal Defense Fund, Animal Equality, The Humane League, Farm Sanctuary, Compassion in World Farming USA, and Animal Outlook, argue that California is simply regulating in-state sales, in a manner that states have always been permitted to regulate.

The stakes of NPPC v. Ross are high.  The federal government severely under-protects animals, so state laws are often the only—or at least the most effective—way to establish protections for animals.  In general, conservative legal theorists (like the majority of the Supreme Court) favor state sovereignty; this case will indicate whether, and to what extent, that proclivity extends to state protection of Animal rights and welfare interests.

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For previous Animal Law Updates on One Green Planet:

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