August 2023 Animal Law Update: Go Local

Every month, One Green Planet covers important issues in animal law.  Often we’ll analyze an exciting case or piece of legislation, but this month we are stepping back to explain a bigger-picture theme—one that is increasingly front-and-center in high-profile animal law cases.  The theme is attacks on state and local protections for animals.  Why do these laws matter so much?  And why is the animal agriculture industry so keen on attacking them?

A Reminder: Why State and Local Laws Matter for Animals

As I wrote in our June 2023 Animal Law Update, state laws matter for animals because federal laws (more or less) do not.  The federal 28-Hour Law, for example, makes it illegal to transport animals for 28 hours without giving them a break . . . meaning 27 hours in the back of a truck is lawful.  That’s what we’re dealing with on a national scale, so it’s up to states and their localities to do better.

One of the most famous state laws protecting animals is California’s Prop 12, which passed by ballot measure in 2018, and which sets minimum space requirements for certain animals raised for food.  For example, Prop 12 prohibits the use of gestation crates for sows.  The requirement extends to both companies raising animals in California and companies selling products in California (even if they raise the animals elsewhere).  

If you’ve read our May 2023 Animal Law Update, then you’re familiar with NPPC v. Ross, the Supreme Court case that recently upheld Prop 12 against a lawsuit by the pork industry.  In describing the ruling, I wrote that gestation crates are indescribably cruel—imagine never being able to raise your arms or fully turn around—and reducing their use will decrease the suffering of animals. But I also noted that Prop 12 could lead consumers to think pigs in California are happy, whereas in reality, animals raised for food lead miserable lives regardless of whether they are raised in gestation crates.   

Source: Animal Outlook/YouTube

So, the Supreme Court decision in NPPC v. Ross is most important for animals not because it makes them less miserable, but because it upholds state rights to pass stronger laws protecting animals.  If states know they can pass stronger laws protecting animals—as they should after NPPC v. Ross—they’re more likely to take action.  

We can already see this playing out on the east coast.  New Jersey recently passed a law like Prop 12 prohibiting intensive confinement practices.  And New York has proposed a similar law.  So everything is moving in a good direction, right?  

Well, not everything.  The agriculture industry still has a few cards it can play, and rest assured it is playing them. 

How is the Ag Industry Challenging State and Local Protections for Animals

I’ll contradict myself here, slightly.  I said above that the industry still has a few “cards” to play—plural—but most of these cards are the same cards repackaged in fancy new clothing.  The industry argument is that local laws like Prop 12 aren’t local because they affect companies that raise animals across the country.   According to the industry, this kind of extraterritorial regulation violates the U.S. Constitution—one way or another.  And a state law is invalid if it violates the U.S. Constitution. 

In NPPC v. Ross, for example, the pork industry argued that Prop 12 violates an inferred Constitutional provision called the Dormant Commerce Clause.   In a recent challenge to Massachusetts Question 3—Massachusetts’ version of Prop 12—pork producers allege the law violates the Dormant Commerce Clause as well as the Privileges and Immunities Clause, the Full Faith and Credit Clause, and the Import-Export Clause.  In other words, the industry is throwing everything but the kitchen sink. 

This kind of “extraterritoriality” argument plays out on a smaller scale, as well.  Recently, New York City passed a foie gras ban, and foie gras producers in upstate New York claimed the ban violated state law.  Why?  Because according to the producers, NYC’s ban improperly regulates agriculture in a different New York county.  NYC came out on top after the most recent motion, but the case is still far from over. 

The takeaway, then, is that courts to date have upheld local animal-protection laws, particularly those aimed at local sales.  But the industry is still barking up the same tree and likely won’t stop anytime too soon. 

And then there’s Congress

The ag industry does have one more trick up its sleeve.  Not only can courts invalidate state laws under the Constitution, but Congress can also pass federal legislation that wipes them away.  This is because of the Constitution’s Supremacy Clause, which effectively says that federal law beats state law.  So, since the industry is losing in court, it’s running begging to Congress.  That brings us to the June 2023 column, and my plea to everyone to oppose the EATS Act—proposed federal legislation that would wipe out Prop 12 and similar state laws.  Of course, if the EATS Act is enacted, the posture flips and animal lawyers can challenge it as unconstitutional.  For the time being, however, let’s hope it doesn’t come to that. 

Speak Up Tee By Tiny Rescue: Animal Collection

For previous Animal Law Updates, be sure to check out:

• July 2023 Animal Law Update: Someone is Suing the FBI?
• June 2023: Animal Law Updates
• May 2023: Animal Law Updates
• April 2023: Animal Law Updates
• March 2023: Animal Law Updates
• February 2022: Animal Law Updates
• January 2022: Animal Law Updates
• A Look at 2022’s Biggest Moments for Animals in Court

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