NRDC Lawsuit May End Factory Farming as We Know It

By Yevgeny Shrago

One of the major ethical issues of the twenty-first century already is and will almost certainly continue to be what rights to accord to animals.  The debate has already been joined by well-respected philosophers and critically acclaimed writers and will continue to move from the caricature of a Birkenstock-wearing, dreadlocked punchline into the mainstream. But at the moment, the strength of the agribusiness industry allows it to influence state legislatures to pass exemptions from animal cruelty laws for farm animals and toenact ag-gag rules preventing photography of factory farms on national security grounds.  Today’s successes in promoting animal rights will come from the principle that what’s good for animals is frequently good for people too.

Enter the Natural Resources Defense Council, whose Litigation Director, Mitch Bernard, was kind enough to come speak to Harvard Law students on Tuesday. NRDC has filed suit in the Southern District of New York, asking the court to compel the Food and Drug Administration to complete a rule it proposed over thirty years ago that would withdraw approval for the use of subtherapeutic doses of antibiotics in animals unless the FDA finds such use to be safe.  Given the overwhelming evidence in studies conducted both by the FDA and by other regulators internationally, as well as actual statements by FDA and Health and Human Services administrators noted in the complaint, these subtherapeutic doses almost certainly cause increased drug resistance in bacteria.  These bacteria can then be transferred to humans in several ways, including ingestion after insufficient cooking, contact with the live animals, and runoff of animal waste and byproducts into waterways (which is another enormous problem).

The reason for using antibiotics in this way is that animals living in cramped, unsanitary conditions, like those on factory farms, are far more likely to develop all sorts of unsavory diseases.  By administering the antibiotics prophylactically, agribusiness producers can maximize the number of healthy animals they can produce per square foot.  The logical implication here is that if such use of antibiotics is banned, it will no longer be feasible to farm at such dense concentrations.  Although this would be a huge victory for animal welfare, the NRDC lawsuit carefully disclaims any such ends, firmly stating that its only interest is protecting human welfare.

Of course, prevailing is not guaranteed.  As the government noted in its cross-motion for summary judgment, courts tend to give government agencies huge deference in determining whether their organic statute requires them to regulate or simply grants them discretion to do so.  The FDA could also simply issue a final finding that subtherapeutic doses are safe and force NRDC to re-litigate under the specter ofChevron and Skidmore deference. And even if the FDA caves, Congress could always change the law, although this will raise political costs and potentially help push factory farming to the forefront of public consciousness.  Regardless of the actual outcomes, this litigation will raise the profile of factory farming and the dangers it creates not just for animals, but for humans as well.

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