Live From the Second World Conference on Bioethics and Animal Rights in Brazil

Elizabeth Bennett

DAY 1 Ola from the Second World Conference on Bioethics and Animal Rights.  First, I would like to say that I am very thankful that Pace Law School and the Center for Environmental Legal Studies provided me with the opportunity to attend this prestigious and world-renowned conference and for all of the conference organizers’ hard work and hospitality.  As the presentations I have attended thus far have been informative and thought-provoking for me, I will do my best to share my experience with you.

Upon arrival, a symphony was playing.  After introductions and honorariums, Professor David Cassuto of Pace Law School and Director of the Brazil-American Institute for Law and Environment (BAILE) spoke about current trends in environmental law and the animal world.  He discussed the intersection of animal and environmental law and how they often clash, despite the many common grounds upon which they merge.  He went on to discuss the legal framework for protecting animals, distinguishing between animal welfarists and animal rights activists, stating that animal welfarists wish for stronger laws, while animal rights activists believe that humans should not use animals at all.  He also pointed out that in the United States legal system, animals are property and the laws concerning animals regulate relationships between humans about animals.  He made an interesting comparison between the appropriateness of humans making laws on behalf of nonhuman animals and politicians enacting laws on our behalf without truly knowing us, what we desire, or how we would like to be protected.  This comparison comes as an interesting response to doubts about human ability and right to make laws about non-human animals when they do not completely understand what animals want or need.

Professor Cassuto also discussed whether animals can be considered “persons” under the law and how this would change the way we protect them.  This served as a great opening to the Conference, as many of the presentations that followed addressed these questions and dealt with similar issues. Continue reading

Looking Within and Without in the Amazon

David Cassuto

I’ve returned from the Amazon where a wonderful time was had by all.  This trip — part of the Pace Law School Comparative Environmental Law class — was a complete success.  We saw toucans, caimans, sloths, monkeys, and all kinds of other wonders, including the Meeting of the Waters.  We lived on a boat that took us up the Rio Negro, one of the major feeder rivers of the Amazon, swam in the coffee colored water, and reconnected with the reasons so many of us went into environmental law.

Of course, the less wonderful was never far from sight.  Our hotel in Manaus had a little “zoo” where animals (including jaguar, giant turtles and others) are imprisoned in small cages so guests can come by and gawk (few do).  The fish served on the boat and everywhere else came from industrial farms, which have arisen to meet growing demand for fish that once proliferated throughout the region.    Continue reading

Animal Law on a Channel Near You

David Cassuto

My colleague, Ralph Stein (a founding member of Pace Law School and frequent commenter on this blog), devoted his most recent community access tv show to animal law.  Watch it here.

NEPA, Preliminary Injunctions, and Animals

David Cassuto

A few days ago, I and a few colleagues from Pace and several other American law schools met at Shanghai Jiao Tong  University School of Law with a number of Chinese academics and members of the Chinese Ministry of Environment.  We were there because the Chinese government wanted our input as it attempts to reshape the country’s environmental law regime to make it more effective and enforceable.  Towards that end, the members of the Ministry were particularly interested in the United States’ National Environmental Policy Act (NEPA).

NEPA requires that federal agencies contemplating an action that could significantly impact the environment do an assessment to determine the scope and nature of those potential impacts.  This involves a preliminary Environmental Assessment (EA) and then, unless the EA makes clear that no significant environmental impact is possible, a full review in the form of an Environmental Impact Statement (EIS).

NEPA is purely procedural in scope; once an agency carries out a proper review, it can go forward with the proposed action regardless of the potential impact.  However, the assessment process often reveals potential mitigation measures and/or legal hurdles that can change or even halt a given project.

My presentation to the Chinese dealt with the 2008 Supreme Court case, Winters v. NRDC (129 S.Ct 365 (2008)).  In Winters, the NRDC filed suit to stop the Navy from using Mid-Frequency Active Sonar (MFA) during exercises off the California coast until it completed an EIS that adequately documented potential harms to marine mammals.  The Navy lost in the lower courts, where the district court issued (and the circuit court upheld) a preliminary injunction staying the exercise pending resolution of the lawsuit.  The Navy asked for and received an emergency exemption from the President’s Council on Environmental Quality (CEQ) relieving it from compliance with NEPA.  The Navy then went back to the lower courts asking that the injunction be lifted.  The lower courts refused – holding that the CEQ’s action violated the separation of powers.  The Navy appealed to the Supreme Court, which reversed on a number of grounds.

Continue reading

Some Blawg News

As regular readers know, I teach animal law both at Pace Law School (which is my academic home) and at Fordham Law School.  The number of students interested in animal law has grown exponentially in the 6 years I have been teaching the course.  Interacting with students — a number of whom have gone on to work in the field — is an ongoing privilege for me.

This semester, I have added a blogging component to the course.  Students will write several posts over the course of the semester.  Contributing to the blawg will introduce them to you and you to them and give us all the benefit of some new voices in the animal law community.  So stand by for some new bloggers.

–David Cassuto

New Peer Review Format at Pace Environmental Law Review

I have mentioned before that, in my view, environmental law and animal law are inseverably linked.  In the spirit of bridging the counter-productive gulf between between the two disciplines, I note the following announcement from the Pace Environmental Law Review:

Pace Environmental Law Review is

Raising the Bar with

Peer Review

As of August 1, 2009, Pace Environmental Law Review (PELR) will use a new Peer Review process to select articles for publication.  Submissions will be reviewed internally and then forwarded to a select group of Peer Reviewers – academics, practitioners, and

experts in the field, including members of Pace Law School’s world-renowned environmental law faculty.  The Peer Review process will offer new and distinctive opportunities to foster continued debate and reflection upon some of the most pressing

topics within the field of environmental law. Articles selected for publication will benefit from:

  • Expedited editorial processing of 8 to 10 weeks from acceptance.
  • Single-article hard copy publication.
  • Inclusion in a bound volume distributed to PELR’s wide-ranging list of subscribers.

All articles submitted to PELR must be original scholarship and not previously published.

Established in 1982, PELR was one of the first scholarly environmental law journals.

We invite authors to submit articles either via ExpressO or directly in either MSWord or

PDF format to the PELR Development & Acquisitions Editor at pelracq@law.pace.edu.

for more information please visit our website at

http://www.law.pace.edu/pelr

–David Cassuto

Content Cows Come from Cariocas, not California

Whenever I talk to someone about becoming a vegetarian, I have to be very conscious of the argument I present. I usually start by letting people ask me questions about my own lifestyle, rather than come off as an agenda pusher.  But where we go from there is another matter. We can talk about environmental impact, moral rights, human health problems, or even if said person approves of the food system we have. I do not think, however, that I have ever had a productive conversation with someone unacquainted with animal rights about the emotional injustice of factory farms, and that is unfortunate.

Emotions are tricky, even restricted to humans. We find it difficult at times to emphasize with our friends during trying periods, let alone with millions of other humans continents away, whose plights make most of our troubles trivial. Perhaps it is no wonder that many people cannot understand the emotions of farmed animals. An inability to understand these emotions, however, is no excuse not to try, or more egregiously, to dismiss them as nonexistent.

Earlier this month, I was able to travel to Brazil as part of the Comparative Environmental Law class here at Pace Law School.  The class is team-taught taught by Professor Cassuto at Pace and via teleconference with Professor Romulo Sampaio (Pace LLM ’06, SJD expected ’09) of the Getulio Vargas Foundation School of Law in Rio de Janeiro.  We spent the first three months of the semester learning about water law and other environmental concerns shared by, and unique to both countries.

During the trip, we spent time in the Pantanal, the world’s largest wetland. While I was there, I had the opportunity to see Brazilian cattle in several settings. Brazilian cows, with their marked humps, looked a bit alien to me on first impression. I met a few while in Campo Grande, at a rodeo. Walking around the fair grounds, I came across a pavilion where about a dozen cows were standing, some sitting, and some lying down. Some mothers even had their calves with them. I come from a rural New Jersey county, so seeing cows up close is nothing new. Still, it was refreshing to see an animal that many Americans never meet, save for meat. True, these cows were to be sold, and most of them would face a similar fate as their American cousins, but at least these cows had breathed in air that was not contaminated with their own waste and the smell of disease. They were standing in hay, some with their children, and though some backed away from me when I approached, others were inclined to give my hair an authentic “cow-lick”.

I hesitate to say these cows were happy. They certainly looked more content than the tragic faces I have seen in factory farm documentaries. Still, I am not an animal behaviorist, and I do not know if what I observe is true. I recently finished Jeffrey Moussaieff Masson’s The Pig Who Sang to the Moon: The Emotional World of Farm Animals. While I enjoyed the various stories about animal behavior, Masson reaches too many conclusions about animal personalities that are over-romanticized and unsupported, and I do not want to come across in the same manner. That is the danger of the emotional argument. Many of us who empathize with animals and experience spontaneous discomfort with, and moral outrage towards factory farms have difficultly marshalling those impressions into an effective argument for someone who does not. Moral rights and atrocious conditions arguments can be explained, but saying that a cow should be let outside because she will be happier will not convince doubters, either to the veracity or the relevance of the position.

While we were out in the heart of the Pantanal, I took a morning to explore several of the fields surrounding our lodgings. I say “fields,” but this being the Pantanal, there were not just wide grasslands, but also thick groves of trees, marshes, and terrain of unparalleled beauty. In one field, I came upon a herd of cows grazing along the road. They also saw me, and immediately, without a sound save for their hooves, the formed a line across my path several meters ahead of me. The calves peaked out between the adults’ legs, while they all stared at me. I took a circuitous path around them; cows in numbers, no matter how benign, are intimidating. As I rounded them, they shifted almost imperceptivity so the herd remained facing me. On my way back through the field, the same proceeding unfolded. Feeling bolder, this time I took a step towards the herd. Several dozen eyes watched me. I took another step, and then as one, they all bolted in a hasty retreat until they were a hundred yards away. I’m not sure what I expected them to do, but I didn’t want to give chase, and I walked on. Looking back, I saw a bull I had not noticed before come out of the trees. He watched me walk, and when I had gone down the path, he bellowed towards the herd, which then casually made its way back to where I had been, and resumed grazing. Relating this experience back to Prof. Sampaio, he stated simply, “Oh yes. The cows here are very curious.”

I do believe that animals have emotions, and I think they are more similar to humans’ than they are foreign. Curiosity, enjoyment of what one is doing, and fear are all emotions we understand, and all of these were expressed in those animal’s faces. I believe that the cows I saw in the Pantanal and in Campo Grande were happier and lived a fuller life than the cows in American CAFOs, enough so that when I saw the meat served to my classmates at lunch in Rio, it seemed a little less like a badge of societal excess. This is not to say that Brazil isn’t in danger of going the way of the United States; I am writing a paper on that very issue. Yet no matter how I address animal protection laws and meat export rates, there is very little room in a sustainability argument for an appreciation of happy cows. Thus I leave my musings here, in a less structured format, where I am free to believe that the Pantanal’s roaming cattle are content; if nothing else, they made me smile.

Seth Victor

Blogging from the Animal Moot

I blog from Cambridge, MA, where tomorrow the National Animal Law Moot Court Competition begins.  I have the honor of participating as a judge – something I have done for each of the last 5 years.  This year’s competition is sponsored by Lewis & Clark Law School’s Center for Animal Law Studies in collaboration with the Animal Legal Defense Fund (ALDF).  It is hosted (as it has been since its inception) by Harvard Law School’s Student Animal Legal Defense Fund (SALDF).  Law schools from all over the country will participate – a testament to the growing recognition of animal law as a legal discipline as well as to student interest in the field.  For the final round, Judges D. Brooks Smith of the 3rd Circuit, Susan P. Graber of the 9th Circuit and Lee H. Rosenthal of the Southern District of Texas will preside.

I’m delighted to report that Pace Law School will field teams in both the moot court and the closing argument competition for the second consecutive year.  Go teams!  My rooting interest aside (and, of course, I will not judge any rounds in which Pace is involved), this competition routinely features some of the best student advocacy it has ever been my privilege to witness.  This year will no doubt produce more of the same.

The moot problem involves the applicability of the federal 28 Hour Law (requiring that no animal be transported for more than 28 hours without food, water or rest) to chickens.  This is a live issue; a number of federal laws, including the Humane Methods of Slaughter Act and the Animal Welfare Act exclude birds from their coverage and the legislative history of the 28 Hour Law offers little clarity on the matter.  Another issue centers on whether the 28 Hour Law preempts state anti-cruelty statutes for animals involved in interstate transport.  It’s an interesting set of issues that require advocates to grapple both with the stark, unlovely reality of the animal transport industry and with the law’s apparent indifference to same.

dnc

The IUCN and Animal Advocacy

I write this post from Barcelona where I am attending the World Conservation Congress, the quadrennial meeting of the International Union for the Conservation of Nature. The IUCN is a unique coalition of countries, NGOs, and others whose common cause is protection of the environment. I am a member of the delegation representing Pace Law School’s Center for Environmental Legal Studies, which is a member of the IUCN. My delegation forms part of the 8000 or so people who have converged on Barcelona for 10 days of meetings and politicking aimed at setting environmental policy for the world for the next four years. Last night featured an address from 2006 Nobel Laureate, Mohammad Yunus and today we heard from Ted Turner.

What does it have to do with animals? Well, that’s exactly the issue. Animal advocacy, which should be front and center at a congress like this, is instead relegated to subtext. Many sessions focus on endangered species, ecosystem and habitat management, and marine mammal protections but nothing specifically treats animal welfare for its own sake, ethics or rights. That gap underscores an issue about which I intend to blog a fair bit in coming days – the schism between the animal and environmental communities and if and how it can be healed.

At first blush, it is hard to see why friction should arise between those whose passion is environmental protection and those for whom animals (who both live in and form part of the environment) come first. One would expect synergy and cooperation between linked causes. Alas, no. Here at the IUCN, for example, animal advocacy cannot even find a place at the table. Not long ago, the International Fund for Animal Welfare (IFAW) applied for membership but was denied because its mission did not align with IUCN’s stated goals of supporting indigenous groups’ right to hunt and of sustainable take policies.

I find this exclusionary policy baffling. Nowhere is the “big tent” approach more necessary or urgent than in the realm of environmental protection. IFAW (and other animal advocacy groups) may have a different set of goals than those who support hunting but both find common cause in IUCN’s larger mission of the conservation of nature. Excluding those who support the protection of animals because they are sentient, self-aware beings whose lives matter for their own sake is divisive and unnecessary. It ignores enormous areas of agreement among the parties and sows dissension instead of unity.

I consider myself both an environmental and an animal advocate. Yet, I do not find common cause with everyone or every issue in either community. In my view, those differences create strength and diversity rather than problems. By contrast, rigid doctrinal requirements undermine momentum towards shared goals and create needless friction among would-be allies.

I intend to raise this issue everywhere I can in the next week and a half and to see what I can do to put in on the agenda for the future. Further bulletins as events warrant.

David Cassuto