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Plants and AnimalsAnimal Cruelty and Interstate Commerce

Animal Cruelty and Interstate Commerce

Animal Cruelty and Interstate Commerce

A sleeper Supreme Court case could impact state climate laws.

A month from now, the Supreme Court will hear a case about an animal cruelty law. It’s not an environmental law case, however the ruling could impact the authority of states to deal with climate change. Odds are that its impact will probably be limited, but you may never be certain of what five Justices might resolve to do on any given day. Cases involving issues like this one are hard to predict because they have a tendency to scramble the same old ideological alliances.

National Pork Producers v. Ross involves Prop 12, adopted by California voters in 2018. It accommodates quite a lot of restrictions on factory farming. One in all the restrictions bans the sale of pork within the state if the sows “lacked sufficient space to lie down, arise, fully extend their limbs, or turn around freely.” Specifically, the sows will need to have no less than 24 square feet of floor space — not that much considering that the common sow is about six feet long and three feet wide (taking on 18 of those square feet). Meat from the sow or her offspring can’t be sold in California if this requirement isn’t met.

The issue is that just about the entire pork sold in California comes from out of state. Virtually not one of the industry would meet California’s seemingly modest requirements. Apparently, typical confinements areas for breeding are pretty very similar to the “tiger cages” the North Vietnamese used to punish U.S. prisoners of war. (Sorry, I’m attempting to keep this post purely descriptive but that slipped in.)  Anyway, the query is whether or not the California ban violates the rights of the pork producers to interact in interstate commerce.

The pork producers have two legal theories. One involves the so-called extraterritoriality doctrine. The essential idea is that states can’t adopt rules which have the sensible effect of regulating outside their borders. The issue is drawing a line, since many laws by a state as big as California have economic impacts elsewhere.  The opposite involves what’s called the Pike balancing test, which says a state law is invalid if its impact on interstate commerce clearly outweighs the advantages of the law.

The Ninth Circuit rejected each claims in long but not very transparent opinion. It rejected the extraterritoriality claim since the law related to sales throughout the state, applied equally to all producers wherever they were situated, and banned just one profitable approach to operation fairly than interfering with the flow of commerce directly. Regarding the balancing test, it concluded that “these alleged cost increases to market participants and customers don’t qualify as a considerable burden to interstate commerce for purposes of the dormant Commerce Clause.”

Listed below are the important thing things experts will probably be waiting for on this case:

  1. Some lower courts have said “extraterritoriality” isn’t the premise for a separate test; it’s only a consider applying other tests reminiscent of the Pike balancing test. Will the Supreme Court keep it as a standalone legal theory?
  2. If it keeps extraterritoriality as a standalone doctrine, how will the Court define extraterritoriality? Lower courts are all around the map on this one.
  3. Once a law is assessed as extraterritorial, is there any possible defense? Or is getting that label “game over.”
  4. Will the change and even reject the Pike balancing test? Some Justices, notably Thomas and Scalia, rejected the legitimacy of this test in prior cases. Will any of the newer Justices adopt this view?

If the state loses on the premise of the Pike issue, that probably won’t mean much because the applying of the balancing test could be very specific to the facts of every case. A ruling on extraterritoriality could possibly be way more significant.  Many state climate change regulations have impacts on other states. For instance, the Ninth Circuit upheld California’s Low Carbon Fuel Standard  against the same legal attack. Like another states, California also imposes  limits on utility purchases of power from fossil fuel plants that apply to generators outside the state. Depending on how broadly the Court defines extraterritoriality, these and other environmental regulations could possibly be in danger.

The National Pork Producers has some special features. The national pork market apparently has some special features that make it inconceivable for a producer to know where their product finally ends up. That’s true from a physicist’s view about electricity, but regulations are based on identifiable market transactions fairly than the actual flow of electrons. Also, unlike carbon emissions from out of state, out-of-state farming practices don’t cause any harm  to people here.

Thus, it could prove this ruling doesn’t have many broader implications. A broad definition of extraterritoriality, nevertheless, could really upset the applecart. Not to say how the Court’s ruling will affect the welfare of the hapless animals who’re the topic of the dispute.


dormant Commerce Clause, extraterritoriality doctrine, interstate commerce, LCFS, renewable energy credits, renewable portfolio standards, state climate regulations, Supreme Court


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