January 14, 2019

Federal Courts Deal a Series of Blows to Big Ag

U.S. District Court nullifies Iowa’s ag-gag law, while U.S. Supreme Court decides not to hear challenges to the nation’s strongest state animal protection laws

Last week, a U.S. District Court declared Iowa’s ag-gag law unconstitutional, making it the fourth measure of its broad type to be struck down in part or in whole in the last two years. This series of judicial decisions marks an enormous setback for agribusiness interests and their political allies who revived a strategy within the last decade to make it illegal for animal advocates to conduct undercover investigations at factory farms and slaughter plants.

The Iowa statute, enacted in 2012 after former governor and current U.S. Ambassador to China Terry Branstad signed it, sought to bar efforts by animal advocates to obtain employment at agriculture facilities. Judge Gritzner granted summary judgement to the plaintiffs who challenged the law, concluding that it is overbroad and chilled First Amendment freedoms. “Defendants have produced no evidence that the prohibitions of § 717A.3A are actually necessary to protect perceived harms to property and biosecurity,” wrote Judge Gritzner in rejecting the argument that the state had a compelling interest in passing a statute aimed at stopping animal advocates, food safety watchdogs, and journalists from documenting the treatment of animals at commercial agricultural facilities.

Gritzner’s decision comes in the top pork- and egg-producing state in the nation, with more than 15 million pigs and 60 million laying hens. The ruling follows similar ones that have invalidated ag-gag laws in Idaho, Utah, and Wyoming. Kudos to the legal team at the Animal Legal Defense Fund who led and executed the legal strategy that produced this series of outstanding outcomes.

These laws came about because of the frustration by agribusiness interests over clandestine investigations that have exposed abuses of pigs, chickens, turkeys, cattle, and even dogs at puppy mills. Undercover investigators from a series of national organizations recorded images of pregnant sows being jammed in crates that do not allow them to turn around; laying hens piled into small wire cages that inhibit the birds from extending their wings; and other farm animals dragged by chains, hit with pipes, and kicked, thrown, stomped, and strangled.

In an earlier century, the methods of turning animals into meat often happened right in the heart of our biggest cities – with consumers seeing and hearing the sounds and smells emanating from stockyards in Kansas City and Chicago to the slaughter plants in Cincinnati (aka, Porkopolis) and New York City (with one area still known as the Meat Packing District).

Over time, most of these operations migrated from the cities to the hinterlands, with that shift enabled by game-changing advances in cooling (refrigeration) and transportation (railways). These changes would make it more difficult, in the century that followed, for average consumers to understand the plight of animals raised for food. With the animals out of sight and often out of mind, consumers would be less inclined to think too much about the moral implications of their purchasing habits. Combined with the Big Ag’s power to ward off any meaningful regulation, this sensory separation from agriculture would ease the path for industry to operate unhindered.

Today, the separation is not just a matter of distance, but also actual obstructions. Many industrial-style farms keep the animals indoors for their entire lives, with no federal regulation of the treatment of the animals until they arrive at the slaughter plant. Most farm animals are confined in factory-farm warehouses and they never feel sunlight on their backs or soil beneath their feet. No one is watching for 99 percent of the time that the animals are alive except the people who have a financial stake in keeping things the way they are.

It’s been these undercover investigations that have pulled the curtain back on an industry that careened out of control on animal treatment and treated the animals as little more than meat-, milk-, and egg-producing machines. Very few farm operators intentionally abused the animals, but they presided over and accepted a system that had a fundamental level of ruthlessness in rearing animals for the plate. They valued fast growth and production, and, in the process, they subordinated other societal values, such as animal welfare, environmental protection, food safety, and even the defense of the family farmer. The investigations that called out these inherent problems in their production and animal disassembly systems infuriated Big Ag.

Rather than embrace legal standards to guarantee minimum standards of care, the industry has tried to make criminals of people who show what’s really happening. In addition, they’ve kept up their efforts to defeat or nullify laws that forbid extreme confinement, intentional overfeeding or starving of animals, or manhandling them in the run-up to slaughter. It was that latter strategy that prompted more than a dozen state attorneys general – seeking to curry political favor from big agriculture – to sue in federal court to nullify the few comprehensive state animal protection laws that are on the books.

Just two days before Gritzner’s ruling on the Iowa ag-gag statute, the Supreme Court of the United States declined to take up two cases initiated by attorneys general from the Midwest and South that sought to invalidate California and Massachusetts anti-confinement laws and a third case related to a separate California statute that forbids the force feeding of ducks and geese to produce pate de foie gras. The Supreme Court’s actions allow these state farm animal protection laws to be implemented, even as critics of the measures plot their next maneuvers. In all three cases, Noel Francisco, the Solicitor General of the United States and the Trump Administration’s top lawyer for the federal courts, urged the Supreme Court to deny consideration of these cases.  Francisco argued that the states were well within their authority in passing legislation to restrict the sale of animal products that are derived from inhumane practices. Kudos to him and his team for his important briefs that were undoubtedly influential with the justices.

To be clear, the justices haven’t set legal precedent on the commerce clause and federal preemption questions at issue in the battle over farm animal protection laws. They simply decided not to take up the cases, letting federal appellate court rulings stand that have adjudicated these important legal questions.

When you add it all up, it is clear that agribusiness interests seem to be running out of options. A month ago, the Congress passed the 2018 Farm bill but lawmakers jettisoned a provision championed by controversial Congressman Steve King, R-Iowa, to nullify state animal protection laws such as the ones in California and Massachusetts. King reintroduced his “Protect Interstate Commerce Act” last week , but it is almost certainly going nowhere in the new Congress, where Democrats control the House and will look unfavorably on his proposal or just about any other one that he touches.

While the courts are consistently siding with animal protection advocates, and federal lawmakers have no interest in enacting the King amendment, voters are reinforcing that they are hardly enamored with factory farming. In November 2018, California voters, in a landslide, strengthened state laws that forbid extreme confinement and restrict the sale of animal products that come from farms that don’t treat the animals decently. Californians not only want to keep their laws, but that they want them to be stronger and even more protective of animals.

The passage of Prop 12 was the fifth successive statewide ballot measure to win approval, starting with Florida’s ban on gestation crates in 2002.  Meanwhile, in the last six years, more than 250 major food retailers – from Costco to Walmart to McDonald’s — have pledged to phase out their purchases of pork and eggs from farms that put the animals in crates or cages that inhibit the animals from moving more than a few inches. (Meanwhile other major fast-food companies, such as White Castle and Carl’s Jr., are adding vegan burgers to their offerings.)

There are many challenges ahead for animal advocates battling for farm animals– in the courts and elsewhere. Agribusiness remains a formidable presence in politics, commerce, and culture. But the momentum against factory farming is unmistakable, and the American public seems to have a strong appetite for change when it comes to the treatment of animals, including those raised for food.

Leave a Reply