Brooks Law Digest: Factory Farming

Twenty-five groups have filed a petition with the Environmental Protection Agency asking the agency to regulate pig and dairy operations under the Clean Air Act. The petition also requests the agency make an official finding that methane emissions from animal agriculture “contribute significantly to” air pollution.

In a case brought by the United Food and Commercial Workers Union, a Minnesota federal judge has held that the USDA’s Food Safety and Inspection Service’s adoption of the New Swine Inspection System (eliminating line speed limits) violated the Administrative Procedure Act because the agency rejected extensive public comment and eliminated line speed limits without considering the impact on worker safety.

A federal judge has granted the Occupational Safety and Health Administration’s request to dismiss a lawsuit brought against it by workers in the meatpacking industry seeking a writ of mandamus to compel the agency to obtain a court order directing a meatpacking plant “to abate imminent dangers to its employees related to the transmission of COVID-19.” The court determined that the relevant section of the Occupational Safety and Health Act “affords employees relief only in those instances where the Secretary has been presented with a finding of imminent danger by an OSHA inspector and has arbitrarily and capriciously rejected the recommendation to take legal action.”

Nevada Assembly Bill 399 would prohibit the confinement of a hen used to produce eggs in an enclosure that is not a cage-free housing system. The bill would also prohibit confining a hen in a cage-free housing system that has “less than one square foot of usable floor space per egg-laying hen if the cage-free housing system provides egg-laying hens with unrestricted access to elevated flat platforms in a multi-tiered aviary or partially slatted system” or one that has less than “one and one-half square feet of usable floor space per egg-laying hen if the cage-free housing system does not provide unrestricted access to elevated flat platforms in a single-level, all-litter floor system.” The bill would additionally prohibit “farm owners or operators” from selling or transporting eggs or egg products without having been issued a certificate by the state Department of Agriculture that those products were produced by an egg-laying hen who was confined in a manner that complies with the bills requirements.

Senate Bill 713, the “Safe Line Speeds During COVID-19 Act of 2021,” would direct the Secretary of Agriculture to temporarily suspend current and future waivers that allow for increased line speeds or reduced inspection staffing at meat and poultry slaughterhouses. The bill would also formally suspend implementation of the “New Swine Slaughter Inspection System” detailed in the final rule published in the Federal Register on October 1, 2019 and mandate a review of actions taken by federal agencies in response to the COVID–19 pandemic “to determine the effectiveness of those actions in protecting animal, food, and worker safety.” The full text of the bill is available here.

A federal judge has denied the United States Department of Agriculture’s Motion to dismiss a case brought by the Humane Society of the United States, Farm Sanctuary, and Mercy for Animals alleging that the agency’s adoption of a response plan to avian flu is a violation of the Administrative Procedure Act, the National Environmental Procedure Act, and the Council on Environmental Quality regulations.

A new study by Oliver Lazarus, Sonali McDermid, and Jennifer Jacquet published in Climatic Change, “The Climate Responsibilities of Industrial Meat and Dairy Producers,” evaluates the largest meat and dairy companies’ commitments to positive change and transparency regarding climate.

Maine House Bill 760 would remove the exemption that categorizes agricultural workers separately from “employees.” This change would ensure agricultural workers are covered by laws that place limits on mandatory overtime and set minimum wage and overtime rates.

A note in the Georgetown Environmental Law Review by Ryan Levandowski, “Polluting ‘til the Cows Come Home: How Agricultural Exceptionalism Allows CAFOs Free Range for Climate Harm,” outlines the ramifications of agricultural exceptionalism in the climate context and explores alternatives to regulation.

Utah Governor Spencer Cox has signed into law Senate Bill 147 which will prohibit the confinement of egg-laying hens in an enclosure that is not a cage-free housing system or that has less usable floor space per hen than as required by the 2017 edition of the United Egg Producers' Animal Husbandry Guidelines for U.S. Egg-Laying Flocks: Guidelines for Cage-Free Housing. To qualify as a cage-free housing system an environment must provide egg-laying hens “enrichments that allow them to exhibit natural behaviors including, at a minimum, scratch areas, perches, nest boxes, and dust bathing areas.” The law will also prohibit the sale or transport of eggs or egg products that a business owner knows or should have known were produced by an egg-laying hen that was confined in a manner prohibited by the law. The prohibitions take effect on January 1, 2025, and the state Department of Agriculture and Food is required to prepare a report to the state legislature on “efforts taken by farm owners and operators to come into compliance” with the pending prohibition by November 2023.