Why I Sued the USDA

Delcianna J. Winders, Academic Fellow, Animal Law & Policy Program, Harvard Law School

This piece originally appeared in The Hill.

 

As a longtime animal law practitioner, I’ve represented various parties in lawsuits against the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS). But I’d never sued the agency—or anyone else—myself. Until this past Monday.

Like many, I was stunned when the USDA deleted thousands of Animal Welfare Act-related records from its website. The same day that the blackout occurred, law reviews opened up their submission season and I was gearing up to submit two pieces scrutinizing the USDA’s implementation of the Animal Welfare Act through close analysis of the now-deleted records. If the agency’s goal had been to stymie my work, it couldn’t have timed things better.

Of course, the records weren’t wiped from the website because of me. But why were they? According to the USDA, they were deleted “[b]ased on [its] commitment to being transparent, remaining responsive to our stakeholders’ informational needs, and maintaining the privacy rights of individuals.” The first two proffered bases are beyond Orwellian. The third is specious at best. Thousands of the records that the agency deleted have nothing to do with individuals with privacy rights but, corporations and universities that have no such rights. Moreover, the USDA already redacted information before posting records.

usda-acis

There has been much speculation about what might lie behind the agency’s decision to shield its practices from scrutiny. We won’t know the real impetus until the agency produces records about that decision. But the bottom line is that the blackout is unlawful regardless of the motivation. It violates the Freedom of Information Act’s (FOIA) mandate that agencies post records online, including frequently requested records. Before the USDA began posting Animal Welfare Act inspection reports online years ago, it acknowledged that they “were the most frequently requested APHIS records under FOIA.”

As the Supreme Court has recognized repeatedly, the core purpose of the Freedom of Information Act is “to open agency action to the light of public scrutiny” and to facilitate “the citizens’ right to be informed about what their government is up to.” Central to this purpose is ensuring that “information that sheds light on an agency’s performance of its statutory duties” is publicly available.

Public scrutiny of the USDA’s performance of its duties under the Animal Welfare Act is especially important given its utter failure to fulfill the purposes of the Act. As the USDA’s own Office of Inspector General has repeatedly and consistently found, the agency has implemented the law ineffectively, leaving countless animals to suffer. The most recent Inspector General audit found that the USDA “did not make the best use of its limited resources” in enforcing the Animal Welfare Act; failed to follow its own criteria in closing dozens of cases involving grave violations like animal deaths; grossly reduced penalties, rendering them a mere cost of doing business; and failed to adequately monitor animal experiments, reducing assurances that animals receive “basic humane care and treatment.” Time and time again the Office of the Inspector General has made similarly damning findings. Indeed, the most recent audit notes that three prior audits had found that “enforcement of AWA was ineffective” and that the miniscule penalties being assessed “did not deter violators.” My research confirm that these problems persist.

The USDA’s egregious and longstanding disregard of its statutory duties screams out for more—not less—oversight.

This is especially true given the deep public interest in animal welfare, made clear yet again by the overwhelming outcry in the days following the blackout. When the Animal Welfare Act was passed in the mid-1960s, Congress had received more mail about animal welfare than civil rights and the Vietnam War combined.  As the U.S. Court of Appeals for the District of Columbia has recognized, “Congress acted with the public’s interests in mind” in passing and amending the Animal Welfare Act. Animal welfare is also deeply bipartisan, as a letter to President Trump from nearly 100 hundred House members on both sides of the aisle demanding that the records be restored online makes clear.

When Sen. Robert Dole (R-Kan.) led the charge in passing important amendments to the Animal Welfare Act in 1985, he emphasized the “need to ensure the public that adequate safeguards are in place to prevent unnecessary abuses to animals, and that everything possible is being done to decrease the pain of animals during experimentation and testing.” The new administration should be working hard to fulfill this still unmet need—not to aggravate the situation. That’s why I’ve sued the USDA.

A survey of animal law; are animals ‘things’?

Kathleen Stachowski   Other Nations

url“In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.”
~Abraham Lincoln

Two items of possible interest to readers of this blog:

Excerpt: “As the role of animals in society and the economy has evolved, and more recently, as scientific research has revealed more about animals’ cognitive abilities and social development, public sensibility has changed dramatically, often leaving outmoded law behind. As a result, lawyers worldwide have begun searching for innovative ways to make animals more visible to the law: strengthening and enacting new anti-cruelty statutes, improving basic protections, and, in some more radical cases, challenging animals’ property status itself in an effort to grant them fundamental rights.”  Continue reading

Call for Papers: The Ethics of Eating Animals

David Cassuto

This call for papers comes from my new homies at the Oxford Centre for Animal Ethics:

The Ethics of Eating Animals

24-27 July 2016 at St Stephen’s House, Oxford

The Summer School is being organised by the Oxford Centre for Animal Ethics in partnership with the French animal society, One Voice. 

Papers are invited in English and French from academics world-wide on any aspect relating to the ethics of eating animals, including philosophical and religious ethics, historical, legal, psychological, scientific, and sociological perspectives. Potential topics include the morality of killing, the suffering of animals in food production, the portrayal of animals as meat, meat eating and climate change, the environmental impact of industrial farming, the utilisation of meat substitutes, in vitro meat and strategies for change.
Continue reading

NYS Bar Association Animal Law Writing Competition

David Cassuto

Attention Law Students:

ANNOUNCEMENT OF THE 2014 NEW YORK STATE BAR ASSOCIATION COMMITTEE ON ANIMALS AND THE LAW STUDENT WRITING COMPETITION

The Committee on Animals and the Law of the New York State Bar Association is very pleased to announce the Seventh Annual Student Writing Competition.  The deadline for submission is July 1, 2015.

The Committee on Animals and the Law was established to provide information resources for the New York State Bar Association’s members and the public about non-human, animal related humane issues, which arise from and have an effect upon our legal system.  This competition seeks to foster legal scholarship among law students in the area of animals and the law.  This competition provides law students with an incentive and opportunity to learn more about this area of law.

Law students (which include J.D., L.L.M. Ph. D., and S.J.D. candidates) are invited to submit to the Committee on Animals and the Law an article concerning any area of Animal Law.  All submissions will be reviewed by a panel of attorneys and other professionals practicing or otherwise involved in animal law.  The winner will be chosen in accordance with the attached rules.  The first place winner will receive $1,000. and a certificate of achievement.  The second place winner will receive $500. and a certificate of achievement.

Pace Environmental Law Review Special Issue on Animal Law

David Cassuto

I am delighted to announce that The Pace Environmental Law Review has published an issue dedicated exclusively to animal law.  It is the first Environmental Law Review to do so and its publication marks a tremendous step forward for both disciplines.  The articles are available for download via Digital Commons.  The Table of Contents is below.   Continue reading

Global Animal Law Conference in Barcelona, Spain

David Cassuto

Pardon the partial self-interest, but the below-mentioned conference (at which I will be speaking) has all the makings of a faboo event.  I spoke at the First Global Animal Law Conference back in 2002 (I believe) and it was great.  The field has grown enormously in the intervening decade and this conference reflects that growth.

The 2nd Global Animal Law Conference will be held in Barcelona, Spain on July 10-11, 2014. Our goal is to bring together some the best legal minds from around the world to discuss the many and varied animal law issues and challenges that so many of us face.

Over the two-day Conference we expect to have more than 25 speakers from over 15 countries, most of whom are internationally known law professors who have taught and written on animal issues. The Conference is limited to 180 attendees, and will be conducted entirely in in English. 

The history of the 1st Global Conference, ten years ago, suggests that this will be an important event for all attendees who seek to expand their own network of personal connections, develop global strategies to improve animal welfare and increase their understanding of our diverse cultures and legal systems around the world. Continue reading

Animallaw.com: Research Tool for Animal Lawyers, Students and Advocates

By: A. Rivard, J.D. candidate, Pace Law School

Animallaw.com

 What is Animallaw.com?

Animallaw.com is a comprehensive, free website that serves as a resource and clearinghouse for information on animals and the law. The website is available for the benefit of attorneys, law students, engaged constituents and all other animal advocates. Animallaw.com is entirely funded by the National Anti-Vivisection Society and sponsored by The International Institute for Animal Law (IIAL), a not-for-profit organization comprised of internationally renowned attorneys and judges. IIAL provides animal law programs, workshops, online resources such as Animallaw.com and offers grants as well. A disclaimer can be found on IIAL’s site, which states that it is neither licensed to practice animal law nor give legal advice. Rather, the mission of IIAL is to encourage, at the international level, the development of legal scholarship and advocacy skills on behalf of animals and as a result enhance the development of animal protection laws.

Is there Bias?

The International Institute for Animal Law, along with many animal advocates including animal law attorneys Continue reading