No Humane Slaughter? No Problem (because) No Standing

David Cassuto

The 9th Circuit recently decided Levine v. Vilsack, a case challenging the  ongoing failure of the United States Department of Agriculture (USDA) to include birds under the auspices of the Humane Methods of Slaughter Act (HMSA).  The case was brought by a group of plaintiffs in 2005, claiming that “inhumane methods” of poultry slaughter increased their risks of food-borne illnesses and health and safety dangers and caused “aesthetic injury” to the plaintiff poultry workers.   They sought an order declaring that (1) “USDA’s decision to exclude chickens, turkeys, and other poultry species from the protections provided by the Humane Methods of Slaughter Act of 1958 . . . to be . . . not in accordance with the HMSA of 1958 and the APA;” (2) “declaring unlawful and setting aside USDA’s September 28, 2005 Federal Register Notice containing the agency’s policy statement . . . that the Humane Methods of Slaughter Act of 1958 . . . does not require ‘humane handling and slaughter’ for poultry;” and (3) “enjoining USDA from excluding chickens, turkeys, and other poultry species from the protections provided by the Humane Methods of Slaughter Act of 1958 . . . .”

The district court granted summary judgment to the USDA.  On appeal, the 9th Circuit reversed.  That might seem like good news (Michael Markarian thinks so)  but to my mind … not so much.  The court reversed because of that age-old bugaboo of environmental and animal law: lack of standing.  The court found that of the 3 prong test for standing to sue in federal court (injury-in-fact, causation, & redressability), plaintiffs failed to meet the third prong. 

I’ve blogged before (and written more substantively) about the incoherence of federal standing jurisprudence.  I continue to feel that the doctrine’s unworkability does enormous damage to the law while allowing ongoing harms to continue due to lack of citizen enforcement.

However, here, the primary incoherence lies not with standing doctrine but within the law itself.  Under the circumstances, I am not convinced the court could have decided other than it did.  The redressability requirement means that plaintiffs must show that their injury is likely to be redressed (i.e. remedied) by a favorable decision by the court.  But because of the byzantine, incomprehensibility of the HMSA, that outcome seems not very likely at all.

In 1978, Congress deleted all enforcement provisions from the HMSA but incorporated humane slaughter provisions into the Federal Meat Inspection Act (“FMIA”) (21 U.S.C.§§ 601-95).  Unlike the HMSA , however, the FMIA imposed inspection requirements only for “cattle, sheep, swine, goats, horses, mules, and other equines.”  That list was later repealed and replaced with “amenable species.”  “Amenable species” was defined to include “those species subject to the provisions of this chapter on the day before  November 10, 2005” [a list that did not include birds] as well as “any additional species of livestock that the Secretary considers appropriate.”

What’s the upshot of all this?  Well, even if the plaintiffs succeeded in convincing the court to insist that the USDA do the right thing and include poultry in the HMSA, it still would not mean that there would exist any way to enforce that regulation since the HMSA contains no enforcement mechanism.  The Secretary of Agriculture would have to voluntarily decide that birds were “appropriate” species to include under the enforcement provisions of the FMIA.  Since the court’s reach cannot extend to insisting that the Secretary do so, the plaintiffs’ injury could easily go unredressed.  As a consequence, the court concluded that the lawsuit fails.

Here we have a perfect storm of bad animal law.  The unworkability of federal standing doctrine  in cahoots with a biblically bad law (the HMSA).  The result: billions of birds killed each year with virtually no federal oversight.  Indeed, millions of those slaughtered birds festooned American plates this past afternoon.