San Diego’s City Council passed a Climate Action Plan that includes a commitment to reduce the city’s meat- and dairy-related emissions by 20 percent. The commitment also includes plans to build out energy infrastructure by electrifying the municipal fleet and capturing methane at wastewater treatment plants.
Issue 151: August 15, 2022
This Week's Spotlights
Legislative Updates - Enacted Municipal Actions
Federal Court Case Law Updates
Pork Industry Sues Massachusetts over Anti-Animal Cruelty Laws
Restaurant and hospitality trade groups and the National Pork Producers council sued the Massachusetts Attorney General and the Commissioner of the Massachusetts Department of Agricultural Resources to enjoin enforcement of a Massachusetts state law pending the Supreme Court’s review of Proposition 12, a similar California statute. The Massachusetts state law, aimed to prevent farmed animal cruelty, was scheduled to take effect August 15th. The pork industry has asked for urgent injunctive relief, claiming pork and bacon shortages if the Massachusetts law is allowed to take effect.
Federal Judge Rules NMFS Violated Federal Law and Risked Endangered Orcas
A federal judge in Washington ruled in favor of Plaintiff Wild Fish Conservancy, finding that the National Marine Fisheries Services (NMFS) violated the Endangered Species Act and the National Environmental Policy Act by approving commercial fishing off the coast of Alaska. The court found that NMFS’s approval risked the safety of endangered orca whales in Washington waters by decreasing salmon populations and leaving the orcas with insufficient prey for survival. The judge adopted a September 2021 report and recommendation by a magistrate judge that found that NMFS’s biological opinion was flawed in its finding that the impacts of commercial fishing on salmon populations would be offset by mitigation programs.
Conservation Groups Sue FWS Seeking ESA Protection for Gray Wolves
The Center for Biological Diversity, the Humane Society of the United States, and the Sierra Club sued the U.S. Fish & Wildlife Service (FWS) for missing its deadline to decide whether gray wolves in the northern Rocky Mountains warrant federal protection under the Endangered Species Act (ESA). The lawsuit follows a petition submitted to FWS seeking ESA protection for gray wolves in the Northern Rocky Mountains following the enactment of state laws in Idaho and Montana that legalized use of night vision scopes, strangulation snares, private contractors and other methods to kill wolves.
Harvard’s Animal Law & Policy Clinic Files Amicus Brief in Supreme Court’s Prop 12 Case
Harvard Law School’s Animal Law & Policy Clinic (the “Clinic”) filed an amicus brief on behalf of multiple animal protection organizations and law professors in support of California’s Proposition 12––California’s 2018 referendum-based law that prohibits the in-state sale of pork, veal, and egg products if the animals were subjected to certain inhumane confinement practices. The Clinic and amici argue that Proposition 12 serves important local benefits to Californians by preventing complicity with cruel practices and allowing Californians to avoid eating the products of such harm. Their brief illustrates the brutality of the confinement practices addressed by Proposition 12 with photo and video evidence. On August 8th, the State of California and a coalition of Intervenor Animal Protection Groups further urged the Supreme Court to uphold Proposition 12 as a constitutional exercise of California’s police powers. The case is scheduled for oral argument before the U.S. Supreme Court on October 11, 2022.
Agency Updates
USDA Proposes Changes to Organic Foods Production Act Regulations
The United States Department of Agriculture's (USDA) Agricultural Marketing Service proposes to amend the organic livestock and poultry production requirements by adding new provisions for livestock handling, transport for slaughter, and avian living conditions. The agency also is proposing expanding and clarifying existing requirements covering livestock care and production practices and mammalian living conditions. The USDA is accepting public comments through October 11, 2022.
International Updates
New Zealand Proposes Tax on Livestock Methane Emissions
A draft proposal in New Zealand aims to address methane emissions linked to climate change by requiring farmers to start paying for their livestock’s emissions starting in 2025. If the plan is adopted, New Zealand would become the first country in the world to charge farmers for the methane emissions emanating from their livestock. The plan would also incentivize farmers to use feed additives to reduce emissions or plant trees on their land to offset the environmental damage.
Legislative Updates
Pending Federal Actions
200 Groups Urge the Senate to Reject NEPA Changes
In a letter to the U.S. Senate, two hundred environmental, wildlife conservation, and indigenous groups urged the U.S. Senate to oppose a resolution they characterize as undermining the core provisions of the National Environmental Policy Act (NEPA). The resolution opposes new rules from the Biden administration which include requirements for agencies to review actions for the impacts of climate change and the cumulative impacts of federal actions. The coalition argues these rules are necessary to offset carbon emissions by 2050, and provide clean energy and climate infrastructure to disadvantaged communities.
Bill Would Establish National Wildlife Refuge in Southern California
Senate Bill 4669, would establish the “Western Riverside National Wildlife Refuge” in Riverside, California. The bill was introduced by Senators Dianne Feinstein and Alex Padilla and has been referred to the Senate Committee on Environment and Public Works.
Pending State Actions
New Jersey Bill Would Eliminate Landowner Consent for State Deer Management
New Jersey Senate Bill 2967 would prohibit the Fish and Game Council and Division of Fish and Wildlife from requiring written consent of private landowners in relation to “community-based deer management plans proposing alternative control methods” The bill’s terms state that for private lands located inside, or within two thousand feet of, a deer management area, no written consent could be required “in order for a law enforcement officer, an animal control officer, an agent thereof, or another authorized person to access or enter upon such private lands for the purposes of retrieving a deer darted for sterilization, or for other purposes associated with the authorized implementation of the deer management plan.” The bill has been referred to the Senate Committee on Environment and Public Works.
Enacted Municipal Actions
San Diego City Council Passes Meat Reduction Policy
San Diego’s City Council passed a Climate Action Plan that includes a commitment to reduce the city’s meat- and dairy-related emissions by 20 percent. The commitment also includes plans to build out energy infrastructure by electrifying the municipal fleet and capturing methane at wastewater treatment plants.
Pending Municipal Actions
Alameda County Ordinance Would Regulate Treatment of Animals in Rodeos
Alameda County, California is considering an ordinance that would ban the tackling, tripping, or milking of bovine animals for entertainment as well as the use of spurs and straps. The Alameda County Board of Supervisors will vote on the proposed ordinance in September.
Case Law Updates
Federal Court Updates
Pork Industry Sues Massachusetts over Anti-Animal Cruelty Laws
Restaurant and hospitality trade groups and the National Pork Producers council sued the Massachusetts Attorney General and the Commissioner of the Massachusetts Department of Agricultural Resources to enjoin enforcement of a Massachusetts state law pending the Supreme Court’s review of Proposition 12, a similar California statute. The Massachusetts state law, aimed to prevent farmed animal cruelty, was scheduled to take effect August 15th. The pork industry has asked for urgent injunctive relief, claiming pork and bacon shortages if the Massachusetts law is allowed to take effect.
Federal Judge Rules NMFS Violated Federal Law and Risked Endangered Orcas
A federal judge in Washington ruled in favor of Plaintiff Wild Fish Conservancy, finding that the National Marine Fisheries Services (NMFS) violated the Endangered Species Act and the National Environmental Policy Act by approving commercial fishing off the coast of Alaska. The court found that NMFS’s approval risked the safety of endangered orca whales in Washington waters by decreasing salmon populations and leaving the orcas with insufficient prey for survival. The judge adopted a September 2021 report and recommendation by a magistrate judge that found that NMFS’s biological opinion was flawed in its finding that the impacts of commercial fishing on salmon populations would be offset by mitigation programs.
Conservation Groups Sue FWS Seeking ESA Protection for Gray Wolves
The Center for Biological Diversity, the Humane Society of the United States, and the Sierra Club sued the U.S. Fish & Wildlife Service (FWS) for missing its deadline to decide whether gray wolves in the northern Rocky Mountains warrant federal protection under the Endangered Species Act (ESA). The lawsuit follows a petition submitted to FWS seeking ESA protection for gray wolves in the Northern Rocky Mountains following the enactment of state laws in Idaho and Montana that legalized use of night vision scopes, strangulation snares, private contractors and other methods to kill wolves.
Conservation Group Sues FWS for 6-Year Delay in Protecting Habitat for Listed Species
The Center for Biological Diversity sued the U.S. Fish & Wildlife Service (FWS) for failing to protect critical habitat for forty-nine endangered Hawaiian Islands species that FWS listed on September 30, 2016. CBD argues that the agency’s six-year delay violates the Endangered Species Act’s “non-discretionary mandate” for concurrent critical habitat designation and puts endangered plants and animals at greater risk of extinction.
Conservation Group Takes Action For FWS’s Failure to Protect Lesser Prairie Chickens
The Center for Biological Diversity delivered a sixty-day notice of intent to sue the U.S. Fish & Wildlife Service for failing to finalize its proposed rule to protect lesser prairie chickens and their habitats.
Harvard’s Animal Law & Policy Clinic Files Amicus Brief in Supreme Court’s Prop 12 Case
Harvard Law School’s Animal Law & Policy Clinic (the “Clinic”) filed an amicus brief on behalf of multiple animal protection organizations and law professors in support of California’s Proposition 12––California’s 2018 referendum-based law that prohibits the in-state sale of pork, veal, and egg products if the animals were subjected to certain inhumane confinement practices. The Clinic and amici argue that Proposition 12 serves important local benefits to Californians by preventing complicity with cruel practices and allowing Californians to avoid eating the products of such harm. Their brief illustrates the brutality of the confinement practices addressed by Proposition 12 with photo and video evidence. On August 8th, the State of California and a coalition of Intervenor Animal Protection Groups further urged the Supreme Court to uphold Proposition 12 as a constitutional exercise of California’s police powers. The case is scheduled for oral argument before the U.S. Supreme Court on October 11, 2022.
Agency Updates
FSIS Announces Recall of Nearly 20,000 Pounds of Meat Pizzas
The U.S. Department of Agriculture Food Safety and Inspection Service announced that Danny’s Sub and Pizza, a Florida-based business, is recalling 19,275 pounds of frozen meat pizza produced in a facility that is not federally inspected. The pizzas were shipped to retail stores in Florida and Texas.
Conservation Group Seeks ESA Protection for Butterfly Species in Nevada
The Center for Biological Diversity (CBD) petitioned the U.S. Fish & Wildlife Service to grant Endangered Species Act protection to the bleached sandhill skipper, a butterfly that is only found in a single alkali meadow in Humboldt County, Nevada. CBD argues that the butterfly could face extinction if a proposed geothermal project proceeds in the area.
NMFS Seeks Comments on ESA Permit Application Relating to Sea Turtles
The National Marine Fisheries Service (NMFS) announced receipt of an Endangered Species Act permit application from Dr. Paul Jobsis of the University of the Virgin Islands, who seeks to conduct scientific research on green, hawksbill, and loggerhead sea turtles. NMFS is accepting public comments through September 7, 2022.
NMFS Seeks Comments on MMPA Permit Application Relating to Dolphins
Dr. Randall Wells at Chicago Zoological Society’s Sarasota Dolphin Research Program has applied to the National Marine Fisheries Service (NMFS) for a Marine Mammal Protection Act permit to conduct research on bottlenose dolphins and Atlantic spotted dolphins. NMFS is accepting public comments through September 7, 2022.
USDA Proposes Changes to Organic Foods Production Act Regulations
The United States Department of Agriculture's (USDA) Agricultural Marketing Service proposes to amend the organic livestock and poultry production requirements by adding new provisions for livestock handling, transport for slaughter, and avian living conditions. The agency also is proposing expanding and clarifying existing requirements covering livestock care and production practices and mammalian living conditions. The USDA is accepting public comments through October 11, 2022.
USDA Seeks Extension on Information Collection for Egg and Poultry Infectious Diseases
The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service is requesting an extension of approval of an information collection associated with the regulations for: 1) the importation of table eggs from regions where Newcastle disease or highly pathogenic avian influenza is considered to exist; and 2) the exportation of poultry and hatching eggs from the United States. The USDA is accepting public comments through October 11, 2022.
Researcher Applies to NMFS for Permit to Research North Atlantic Right Whales
Dr. James Hain of Woods Hole, Massachusetts, has applied to the National Marine Fisheries Service (NMFS) for a permit to conduct research on North Atlantic right whales. NMFS is accepting public comments through September 8, 2022.
USDA Adds Three African Countries to List of Countries Affected by Bird Flu
The U.S. Department of Agriculture (USDA) published notice that it has added Lesotho, Botswana, and Benin to the list of regions that USDA considers to be affected by highly pathogenic avian influenza.
NMFS Considers Marine Mammal Protection Act Permit Application for Research Purposes
Matson Laboratory of Manhattan, Montana, has applied to the National Marine Fisheries Service (NMFS) for a permit to import, export, and receive marine mammal parts for scientific research. NMFS is accepting public comments through September 9, 2022.
San Diego Power Company Applies to FWS for Multi-Decade ESA Permit
San Diego Gas & Electric has applied to the U.S. Fish & Wildlife Service (FWS) for an incidental take permit (ITP) that would cover forty-one protected species through the year 2050. FWS is accepting public comments on the ITP application through September 9, 2022.
FWS Considers Multiple Endangered Species Act Permit Applications
The U.S. Fish & Wildlife Service (FWS) has received multiple Endangered Species Act permit applications for activities intended to enhance wild populations of protected mammals, fish, insects, plants, and amphibians. FWS is accepting public comments through September 12, 2022.
FDA Proposes Information Collection to Help Prevent Spread of BSE Through Animal Feed
The Food and Drug Administration (FDA) is proposing an information collection relating to regulations providing that “animal protein derived from mammalian tissue (with some exclusions) is not generally recognized as safe for use in ruminant feed.” These regulations require renderers, feed manufacturers, and others involved in feed and feed ingredient manufacturing and distribution to maintain written procedures specifying the cleanout procedures or other means and specifying the procedures for separating products that contain or may contain protein derived from mammalian tissue from all other protein products from the time of receipt until the time of shipment. The FDA’s information collection aims to better prevent the spread of bovine spongiform encephalopathy and other diseases by determining the degree of compliance with the regulation by such entities. The FDA is accepting public comments on the proposed information collection through September 12, 2022.
International Updates
New Zealand Proposes Tax on Livestock Methane Emissions
A draft proposal in New Zealand aims to address methane emissions linked to climate change by requiring farmers to start paying for their livestock’s emissions starting in 2025. If the plan is adopted, New Zealand would become the first country in the world to charge farmers for the methane emissions emanating from their livestock. The plan would also incentivize farmers to use feed additives to reduce emissions or plant trees on their land to offset the environmental damage.
Mercy for Animals Latin America Releases Undercover Investigation of Mexican Hatchery
Mercy for Animals Latin America released footage from a new undercover investigation of a Mexican hatchery. The footage shows live chicks being thrown into garbage receptacles to slowly suffocate.
Academic Updates
Harvard Report Analyzes Potential Impact of Supreme Court’s Prop 12 Case
The Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School released a comprehensive report, “Potential Reverberations of Pork Producers’ Commerce Clause Challenge Before the Supreme Court” revealing the potential wide-ranging impacts of a case the United States Supreme Court will hear in its coming term, National Pork Producers Council v. Ross. The case concerns pork producers’ challenge under the Commerce Clause of the U.S. Constitution to California’s Proposition 12, the 2018 law that requires that certain meat products and eggs sold in the state meet minimum humane, health, and safety standards. As the report authored by Research Fellow Kelsey Rinehart Eberly explains, the Supreme Court’s consideration of the case not only presents a serious threat to animal protection laws nationwide, but also carries implications for the ability of states, counties, and cities to enact public health, consumer protection, and environmental measures.
Other Updates
Target Commits to 100% Cage-Free Eggs by 2025
In Target’s updated Food Animal Welfare Commitments, the company committed to "transition to only cage-free shell eggs by 2025.” As of the end of 2021, 57% of Target’s sales of shell eggs, and 100% of their sales of liquid eggs, “came from cage free or better systems.”
Start-Up Raises Funds for “Humane” Fish Slaughter
U.S.-based Shinkei Systems has announced raising $1.3 million in funding to develop a less painful method of fish harvesting. Shinkei has automated a means of quickly slaughtering fish, to prevent them from the conventional methods of suffering by suffocation on fishing boats.
The US Edition of the Animal Law Digest is published weekly with the support of the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School.