Animal welfare advocates are terribly excited over a recent decision of the New Jersey Supreme Court. According to a press release from The Humane Society of the United States and Farm Sanctuary, two of the petitioners in the case:
The New Jersey Supreme Court today struck down the New Jersey Department of Agriculture’s regulations exempting all routine husbandry practices as “humane” and ordered the agency to readdress many of the state-mandated standards for the treatment of farm animals.
In this monumental case, the Court ruled that factory farming practices cannot be considered humane simply because they are widely used, setting a legal precedent for further actions to end the most egregious abuses on factory farms throughout the U.S. The Court also rejected the practice of tail-docking cattle, and the manner in which the NJDA had provided for farm animals to be mutilated without anesthesia.
“This is a major victory for farm animals in New Jersey, and will pave the way for better protections of farm animals nationwide,” said Gene Baur, president and co-founder of Farm Sanctuary. “Setting a legal precedent in a unanimous vote that clarifies that commonly used practices cannot be considered humane simply because they are widely used will build on our momentum in challenging the cruel status quo on factory farms.”
In addition to striking down the agency’s sweeping exemption for “routine husbandry practices,” the Court further held that tail docking could not be considered humane, and the manner in which mutilations without anesthesia including castration, de-beaking and de-toeing could not be considered humane without some specific requirements to prevent pain and suffering. The Court made clear that the decision to permit these practices as long as they are done by a “knowledgeable person” and in a way to “minimize pain” could not “pass muster.”
“This decision will protect thousands of animals in New Jersey, and also calls into question some of the worst factory farm abuses practiced throughout the country,” said Jonathan Lovvorn, vice president of animal protection litigation for The Humane Society of the United States. “All animals deserve humane treatment, including animals raised for food.”
Unfortunately, this excitement is not warranted. When one reads the actual opinion, one gets a very different picture.
HSUS, Farm Sanctuary, and the other petitioners made several arguments.
First, the petitioners argued that the regulations that were adopted by the New Jersey Department of Agriculture should be invalidated in their entirety because they did not comply with the meaning of “humane” standards for farm animals as contemplated by the New Jersey statute that required the regulations in the first place and because the regulations did not even accord with the meaning of “humane” that the agency itself adopted.
The New Jersey Supreme Court rejected that argument and declined to invalidate the regulations in their entirety.
Second, the petitioners challenged the inclusion in the regulations of “safe harbor” language that would treat as “humane” those “routine husbandry practices.”
The Court agreed on this point, but its holding was very limited. The Court held that the regulations defined “routine husbandry practices” in part as “those techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agents for the benefit of animals, the livestock industry, animal handlers and the public health.” But the agency produced no evidence either that it actually considered what those institutions teach or that the agency considered whether those techniques that are taught rest in any way on a concern about animal welfare.
The Court made clear how little the agency had to do to avoid the problem:
As an example, the Department could have reviewed the curriculum and faculty at a number of land grant colleges, universities, and veterinary schools and identified some where animal welfare concerns resulted in teaching of practices that meet the Department’s definition of humane. Had it done so and had it then used those institutions as its safe harbor yardstick, there would be no basis for a challenge. Indeed, had the Department reviewed and relied on practices taught at Rutgers School of Environmental and Biological Sciences, formerly known as Cook College, and, perhaps, a veterinary school in New York or Pennsylvania, there would likely be no warrant for our interference. Instead, it accepted, without analysis, the practices that are taught in every veterinary school, land grant college, and agricultural extension agent not only in this state, but in the rest of the country and, it would appear, wherever they might be found around the globe. Although some of those institutions might teach or require practices that are far more humane than do our own, nothing in the record suggests that all of them will meet the standard set by our Legislature.
That is, the Court made clear that if the agency complies with these minimal requirements, the deference normally accorded by courts to administrative agencies will, in effect, insulate the agency decision from review.
Third, the petitioners challenged particular practices permitted by the regulations. The Court held that there was no evidence to support the agency’s decision that tail docking of cattle was acceptable as not inhumane given that both the American Veterinary Medical Association and the Canadian Veterinary Medical Association–and the American Association of Bovine Practitioners, which the Court characterized as “the industry trade group”–were all critical of the practice. But the Court was clear that if the agency could support its decision to allow tail docking with evidence that it actually provides some benefit and can be performed in a manner that is regulated to ensure that it is “humane” (a standard that requires very little), that would be a different matter.
The petitioners also challenged the agency decision to permit the castration of swine, horses, and calves, the de-beaking of chickens and turkeys, and the toe-trimming of turkeys. The petitioners claimed that these procedures are only necessary because animals are kept in intensive conditions and, in addition, that these procedures are done without anesthesia.
The Court declined to examine the conditions of confinement and held:
Although there are other management techniques that might achieve the desired results without employing these particular methods, there is sufficient credible evidence in the record to support the agency’s conclusion that these techniques can be performed in a humane manner and should be permitted.
The only problem identified by the Court was that the agency required that these procedures be “performed in a sanitary manner by a knowledgeable individual and in such a way as to minimize pain.” The Court held that this regulation was too vague and that the agency had to specify in some way what a “knowledgeable” person is, what a “sanitary manner” is, and how these procedures should be done so as “to minimize pain.” The Court indicated that the agency could determine that the benefits of these procedures outweighed any pain to the animals or that the procedures should be done at a particular age or with a particular instrument. All that was required was that the agency adopt some standard.
The petitioners challenged the gestation crate for pigs and the veal crate. The Court rejected that challenge and upheld the agency’s decision to allow these forms of confinement.
Finally, the Court made clear that it was not banning any practice:
To be sure, we have concluded that the “routine husbandry practices” and the “knowledgeable individual and in such a way as to minimize pain” safe harbors cannot be sustained as written, but neither of these determinations effects a ban on any of the particular practices.
Therefore, although farmers cannot rely on the safe harbors in the regulations that would effectively insulate them from prosecution for any violations of the law, they may continue as before and it is up to whether the enforcement authority in New Jersey seeks to challenge these practices as violative of the anticruelty law. In the meantime, if the New Jersey Department of Agriculture gets its act together and does the minimal amount required by the Court, it can reinstate its “routine husbandry practices” and “knowledgeable individual and in such a way as to minimize pain” safe harbors and farmers will be insulated from any legal challenge.
In 1996, the New Jersey legislature required that there be regulations to ensure the “humane” treatment of animals used for food. The 2008 New Jersey Supreme Court decision demonstrates how little must be done to satisfy the 1996 requirement. Indeed, the decision is nothing more than a road map provided by the Court to the Department of Agriculture to help the latter craft regulations that ensure that the 1996 standard means as little as possible. Any suggestion that this decision is “monumental” or that it represents setting “a legal precedent for further actions to end the most egregious abuses on factory farms throughout the U.S.” is, in my view, most charitably characterized as extreme hyperbole.
Gary L. Francione
© 2008 Gary L. Francione