August 2024 Animal Law Update: A Redistribution of Regulatory Power

Cases about animals rarely reach the United States Supreme Court. NPPC v. Ross—the case about California’s sales ban on certain meat products—was a notable exception. But the Supreme Court still actively shapes animal law through its opinions, in quiet but potent ways. This past term, it was for the worse. The Court landed two blows—the first, which is the focus of this month’s column, redistributes agency power and hurts the government’s ability to pass regulations, most notably environmental regulations. (The second, which I will discuss next month, deprives nonprofits of access to the courtroom.)

Climate change or Global warming? A Redistribution of Agency Power

Have you ever heard someone deny Global warming, pointing out that it’s colder now in fill-in-the-blank place? To avoid concussions from banging my head against a wall, I’ve learned to refer to it as Climate change. It’s more comprehensive, in any case; global warming is one critical weather change among many, including extreme storms, oceanic disruptions, and droughts.

A case called Chevron v. NRDC is this year’s legal equivalent of Global warming. It’s a key element to the Supreme Court changing the regulatory state, but it’s just a piece of the bigger picture that most people are not discussing.

Chevron, in broad strokes, strengthened agencies’ ability to implement regulations. For those less familiar with the administrative state, it works like this: Congress passes statutes (e.g., the Clean Water Act) that give agencies guidelines, and then the agencies pass regulations (e.g., water-quality regulations) in line with their interpretation of the statutes. Under Chevron, courts deferred to agencies’ interpretations of relevant statutes, making it harder for industry players to challenge regulations. Agencies no longer get this benefit of the doubt, so their regulations are more vulnerable to attack. Among other agency setbacks, it will be harder now for the EPA to protect the environment.

I don’t want to discount the loss of Chevron. If you have noticed a lot of fuss about it over the last few months, it’s warranted. Chevron is one of the most cited cases in U.S. Supreme Court History, and thirty years later, the U.S. Supreme Court has done away with it. But a narrow focus on Chevron misses the forest for the trees. Specifically, in a vacuum, it is easy to chalk up the Court’s opinion to a skepticism of agency power. Agencies aren’t in the Constitution, the argument goes, so it’s time to rein them in. But a bigger picture look at the Court’s cases does not reveal a wholesale pull-back on agency power—an approach that, while unappealing to many democrats, would come with plenty of pros as well as cons. For example, agencies like the FDA and USDA inadequately enforce existing laws to protect animals, and oftentimes, nonprofits must sue to force an agency’s hand. These lawsuits have always been challenging, and an across-the-board weakening of the administrative state could have opened doors to better outcomes in these lawsuits. As it turns out, however—and despite the rhetoric on both sides of the aisle—the Supreme Court does not seem to be blanketly weakening the administrative state.

Enter Trump v. United States, which is an important and confusing case in its own right, due to its implications for (ex) presidential immunity. But most importantly to animal and environmental lawyers, it emphasizes the nearly-inviolable enforcement discretion of the executive branch . . . which includes agencies. In English, this case entrenches agencies’ power to refuse to enforce laws. The panoptic takeaway then, from this term, is an advancement of a deregulatory agenda. At center stage, the Supreme Court has diminished agencies’ ability to act. But at the same time, the Supreme Court has bolstered agencies’ ability to sit back and do nothing at all.

• June 2024 Animal Law Updates: Pigs, Ducks, Gas Stations, & Abortion
• May 2024 Animal Law Updates: The Gambit and the Other Shoe
• April 2024 Animal Law Updates: Investigations and the Law
• March 2024 Animal Law Updates: A New Age of Animal Law
• February 2024 Animal Law Updates: Don’t Drain the Swamps
• Animal Law Updates: 2023’s Biggest News and Trends for Animals in Court
• November 2023 Animal Law Updates: Will Animals be Recognized as Family Members in South America?
• October 2023 Animal Law Updates: Big Money
• September 2023 Animal Law Updates: A Small Petition With Big Implications
• August 2023 Animal Law Update: Go Local
• 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

Easy Ways to Help the Planet:

• Eat Less Meat: Download Food Monster, the largest plant-based Recipe app on the App Store, to help reduce your environmental footprint, save animals and get healthy. You can also buy a hard or soft copy of our favorite vegan cookbooks.
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• Reduce Your Fast Fashion Footprint: Take initiative by standing up against fast fashion Pollution and supporting sustainable and circular brands like Tiny Rescue that raise awareness around important issues through recycled zero-waste clothing designed to be returned and remade repeatedly.
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