Endnotes

Pages:43-63
 
CONTENT
43
Fall 2017
org/research/publication/housing-affordability-gap-extremely-low-income-
renters-2013/view/full_report; The State of the Nation’s Housing 2014 Execu-
tive Summary, joint ctr. for houS. StuDieS of harv. u. 6 (2014), http://www.
jchs.harvard.edu/sites/jchs.harvard.edu/les/sonhr14-color-ch1.pdf; America’s
Housing Affordability Challenges, equitable houS. inSt. (Nov. 2016), https://
www.equitablehousing.org/affordable-housing-challenges.html; Increasing
Pet Friendly Housing, animal Sheltering, https://www.animalsheltering.org/
programs/pets-are-welcome (last visited Dec. 20, 2017).
14
See David Vognar, Animal Welfare, Human Welfare Linked, huffington
poSt (June 1, 2012, 11:22 AM), http://www.hufngtonpost.com/david-vognar/
animal-welfare-poverty-_b_1560440.html; Poor People Should Be Able to
Have Dogs Too, out the front Door (Nov. 22, 2016, 1:09 PM), http://out-
thefrontdoor.com/2016/11/22/poor-people-should-be-able-to-have-dogs-too/.
15
See Vognar, supra note 14.
16
See M. Carrie Allan, 10 Years After Katrina, the Storm That Changed Us,
meDium (Aug. 17, 2015), https://medium.com/@HumaneSociety/reections-
10-years-after-katrina-c970882366d6; Julia Kamysz Lane, Treading Water
(Nov. 2008), https://thebark.com/node/152/3196.
17
See Pets by the Numbers, the humane Socy of the u. S., http://www.
humanesociety.org/issues/pet _overpopulation/facts/pet_ownership_statistics.
html??referrer=https://www.google.com/.
18
See Wayne Pacelle, Pets for Life: Keeping Animals in Loving Homes and
Out of Shelters, a humane nation (Nov. 24, 2014), https://blog.humanesociety.
org/wayne/2014/11/pets-for-life-mentorship-cities.html.
19
See id.
20
See Kate Hodgson, Pets’ Impact on Your Patients’ Health: Leveraging
Benets and Mitigating Risk, 28 j. of the am. boarD of fam. meD. 526 (2015),
http://www.jabfm.org/content/28/4/526.full.
21
See Pets for Life: 2017 Program Report, the humane Socy of
the u.S. 4-10 (2017), https://www.animalsheltering.org/sites/default/
les/content/2017%20Data%20Report_0.pdf [hereinafter PFL 2017
Program Report]; Adia Harvey Wingeld, The Failure of Race-Blind
Economic Policy, the atlantic (Feb. 16, 2017), https://www.the-
atlantic.com/business/archive/2017/02/race-economic-policy/516966/;
Adrian Florido, Black, Latino Two-Parent Families Have Half The
Wealth of White Single Parents, NPR (Feb. 8, 2017, 1:06 PM),
http://www.npr.org/sections/codeswitch/2017/02/08/514105689/
black-latino-two-parent-families-have-half-the-wealth-of-white-single-parents.
22
See PFL 2017 Program Report, supra note 21, at 2-4.
23
See id. at 2, 12.
24
See Jessica L. Decker Sparks et al., Race and ethnicity are not primary
determinants in utilizing veterinary services in underserved communities in the
United States, j. of applieD animal Science, 1-2 (2017), http://dx.doi.org/10.10
80/10888705.2017.1378578.
25
See PFL 2017 Program Report, supra note 21, at 13.
26
See Decker Sparks et al., supra note 24, at 1.
27
See id. at 2.
28
See Julia Thiel, Welcome to the Cook County animal maze,
chi. reaDer (Mar. 25, 2015), https://www.chicagoreader.com/
chicago/cook-county-animal-rabies-control-lost-dogs-john-fritchey/
Content?oid=16997036.
29
See PFL 2017 Program Report, supra note 21, at 12, 16.
30
See id.
31
See id. at 16.
32
See id. at 12.
33
See id. at 8-9.
34
See Daniel Burke, Return-to-Owner: How will you re-evaluate your shel-
ter’s RTO policy to tell a different story?, the humane Socy of the u.S (Mar.
28, 2017), https://www.animalsheltering.org/blog/return-owner.
35
See id.
36
See id.
37
See id.
38
See id.
39
See id.
40
See id. (noting that the Pets for Life team stepped in and paid the fees, giv-
ing Kevin and Boss Lady a happier ending to this situation).
41
Telephone Interview with Amanda Arrington, Director, Pets for Life at The
Humane Society of the United States (Sept. 12, 2017).
42
See id.
43
See Statement on Euthanasia, the humane Socy of the u.S, http://www.
humanesociety.org/about/policy_statements/statement_euthanasia.html.
44
See id.
45
See id.
46
See ASPCA, supra note 2 (noting that approximately 6.5 million compan-
ion animals enter U.S. animal shelters nationwide every year).
47
See income anD poverty, supra note 2, at 12 (pointing out that in 2016
there were 40.6 million people in poverty); houSeholDS anD familieS, supra
note 2, at 5 (estimating that there is an average of 2.58 people per household
which means that there are 15.7 million households in poverty); pet ownerS
Survey, supra note 2, at 6 (demonstrating that each household own on average
1.8 pets (1.49 dogs and 2.0 cats) which is approximately 19 million pets living
in poverty).
48
See generally Leslie Burke, Animals as Lifechangers and Lifesavers: Pets
in the Redemption Narratives of Homeless People, the humane Socy inSt. for
Sci. & policy animal StuDieS repoSitory (2013), http://animalstudiesreposi-
tory.org/cgi/viewcontent.cgi?article=1007&context=acwp_habr (discussing
instances of how pets transformed people’s lives).
11
See USDA Agricultural Projections to 2026, uSDa 39 (Feb. 2017), https://
www.ers.usda.gov/webdocs/publications/82539/oce-2017-1.pdf?v=42788
(reporting that in 2014, Americans consumed 199 pounds per person of beef,
pork, and chicken and projecting that this number will rise to 214 pounds per
person by 2026).
12
See Simon, supra note 10, at xxii (“This development is driven partly by
subsidies, partly by efcient methods of factory farming, and partly by the
industry’s practice of ofoading its costs onto others”).
13
While the suffering of the animals who are exploited and tortured by the
billions in CAFOs and slaughterhouses is not the primary focus of this Article,
it would be unconscionable to proceed without acknowledging their reality.
See, e.g., Farm Animal Welfare: A Closer Look At Animals on Factory Farms,
aSpca, http://www.aspca.org/animal-cruelty/farm-animal-welfare/animals-
factory-farms (last visited Dec. 20, 2017) (describing how female breeding
pigs spend their lives in gestation crates barely larger than their bodies, how
their piglets are taken from them at two to three weeks of age and conned to
enormous (but overcrowded) sheds with no access to fresh air, sunlight, earth,
or even windows, and how they are nally slaughtered after several years of
constant pregnancy and birth); The Editorial Board, No More Exposés in North
Carolina, n.y. timeS (Feb. 1, 2016), https://www.nytimes.com/2016/02/01/
opinion/no-more-exposes-in-north-carolina.html (describing how pigs have
been stabbed, beaten with sledgehammers, and boiled alive at slaughterhouses).
14
See Simon, supra note 10, at xxi (“[M]om-and-pop farms are mostly
gone—either acquired by large corporate operations or plowed under for new
housing subdivisions. For instance, between 1954 and 2007, even as demand
for dairy increased by 40 percent, the number of US dairy farms plummeted
from 2.9 million to 65,000.”); see also Aaron M. McKown, Note, Hog Farms
and Nuisance Law in Parker v. Barefoot: Has North Carolina Become a Hog
Heaven and Waste Lagoon?, 77 n.c. l. rev. 2355, 2355 (1999) (stating that
in North Carolina, “corporate-run hog facilities have forced many independent
hog farms out of business”).
15
See Factory Farm Workers, fooD empowerment project, http://www.
foodispower.org/factory-farm-workers/ (last visited Dec. 20, 2017) (explaining
that CAFO workers are subjected to many health and safety hazards, including
but not limited to exposure to inhalable particulate matter and harmful gases
such as ammonia and hydrogen sulde); id. (explaining that many workers are
undocumented individuals, who CAFO owners seek out “because they are less
likely to complain about low wages and hazardous working conditions.”); see
also Blood, Sweat, and Fear: Workers’ Rights in U.S. Meat and Poultry Plants,
human rightS watch 5253 (2004), https://www.hrw.org/report/2005/01/24/
enDnoteS: cafoS: plaguing north carolina communitieS of color
continued from page 12
44 Sustainable Development Law & Policy
blood-sweat-and-fear/workers-rights-us-meat-and-poultry-plants (discussing
the dire conditions of slaughterhouse work).
16
See infra Part V(B).
17
See infra Section II.
18
See infra Section II.
19
See infra Section III.
20
See Michael L. Cook & Fabio R. Chaddad, Agroindustrialization of the
Global Agrifood Economy: Bridging Development Economics and Agribusiness
Research, 23 agric. econ. 207, 209 (2000) (dening “agribusiness” as “the
sum total of all operations involved in the production and distribution of food
and ber”); Hidden Costs of Industrial Agriculture, union of concerneD Sci-
entiStS, http://www.ucsusa.org/food_and_agriculture/our-failing-food-system/
industrial-agriculture/hidden-costs-of-industrial.html#.WhsTB4Zrzos (last
visited Dec. 20, 2017) (“Industrial agriculture is currently the dominant food
production system in the United States. It’s characterized by large-scale mono-
culture, heavy use of chemical fertilizers and pesticides, and meat production in
CAFOs (conned animal feeding operations). The industrial approach to farm-
ing is also dened by its heavy emphasis on a few crops that overwhelmingly
end up as animal feed, biofuels, and processed junk food ingredients.”).
21
Mark Koba, Meet the “4%”: Small Number of Farms Dominates US,
cnbc (May 6, 2014, 2:45 PM), https://www.cnbc.com/2014/05/06/state-of-
american-farming-big-producers-dominate-food-production.html (noting that
“[l]arge farms with over $1 million in sales account for only 4 percent of all
farms, but 66 percent of sales”).
22
See infra Section V.
23
Wendee Nicole, CAFOs and Environmental Justice: The Case of North
Carolina, 121 envtl. health perSp. A182, A183 (June 1, 2013), https://ehp.
niehs.nih.gov/121-a182/ (citing Focus on Black Belt Counties: Life Conditions
and Opportunities, proceeDingS of a preconference of the profeSSional agri-
cultural workerS conference (Ntam Baharanyi et al. eds., 1993), http://srdc.
msstate.edu/publications/archive/176.pdf); see also Dale W. Wimberley, Qual-
ity of Life Trends In the Southern Black Belt, 1980–2005: A Research Note, 25
j. rural Soc. Sci. 103, 105 (2010).
24
Libby v. Morris et al., Current Conditions and Trends In the Southern
Black Belt, in focuS on black belt countieS: life conDitionS anD oppor-
tunitieS 5, 5 (Ntam Baharanyi et al., eds., 1993), http://srdc.msstate.edu/
publications/archive/176.pdf; see booker t. waShington, up from Slavery:
an autobiography 108 (1901) (“So far as I can learn, the term [“Black Belt”]
was rst used to designate a part of the country which was distinguished by the
color of the soil. The part of the country possessing this thick, dark, and natu-
rally rich soil was, of course, the part of the South where the slaves were most
protable, and consequently they were taken there in the largest numbers. Later,
and especially since the war, the term seems to be used wholly in a political
sense — that is, to designate the counties where the black people outnumber the
white.”).
25
Nicole, supra note 23, at A183.
26
See Ejigou Demissie, Past-Present Conditions and Future Issues In the
Black Belt of the South, in focuS on black belt countieS: life conDitionS anD
opportunitieS 25, 26 (Ntam Baharanyi et al., eds., 1993), http://srdc.msstate.
edu/publications/archive/176.pdf (“[D]uring the period of 1964 to 1967, black
farmers, who constituted about a third of all farms in the South, received only
a fourth of all loans and only a seventh of the total funds from the FmHA.
Furthermore, between 1966 and 1976, the percentage of FmHA farm owner-
ship loans made to black farmers declined from 5.7 percent to 1.5 percent,
suggesting discrimination on the part of FmHA. This agency is part of the local
political machinery and has been the subject of many investigations by the
U.S. Commission on Civil Rights.”); see also Ta-Nehisi Coates, The Case for
Reparations, the atlantic (June 2014), https://www.theatlantic.com/magazine/
archive/2014/06/the-case-for-reparations/361631/ (discussing Associated
Press’s series revealing the theft of African American land since antebellum
period); see generally Thomas W. Mitchell, Destabilizing the Normalization
of Rural Black Land Loss: A Critical Role for Legal Empiricism, 2005 wiS. l.
rev. 557, 561 (2005) (examining legal methods by which African American
landowners were dispossessed of their land in the twentieth century).
27
Nicole, supra note 23, at A183.
28
See id. (“North Carolina went from fteenth to second in hog production
between the mid-1980s and mid-1990s.”).
29
See id. (“[P]eople of color and the poor living in rural communities lacking
the political capacity to resist are said to shoulder the adverse socio-economic,
environmental, or health related effects of swine waste externality without shar-
ing in the economic benets brought by industrialized pork production.”).
30
See Steve wing & jill johnSton, inDuStrial hog operationS in north
carolina DiSproportionately impact african-americanS, hiSpanicS anD
american inDianS 1 (Aug. 29, 2014), https://www.facingsouth.org/sites/default/
les/wing_hogs_ej_paper.pdf (unpublished manuscript).
31
Id. at 6.
32
See Cordon M. Smart, Comment, The “Right to Commit Nuisance” in
North Carolina: A Historical Analysis of the Right-to-Farm Act, 94 n.c. l.
rev. 2097, 2105 (2016) (citing u.S. Dept of agric., 2012 cenSuS highlightS:
hog anD pig farming 1 (2014), http://www.agcensus.usda.gov/Publica-
tions/2012/Online_Resources/Highlights/Hog_and_Pig_Farming/); see Edito-
rial Board, supra note 13 (detailing the cruel practices of the pork industry).
33
calvin harmin, flooD vulnerability of hog farmS in eaStern north
carolina: an inconvenient poop 8 (Nov. 11, 2015), http://thescholarship.ecu.
edu/bitstream/handle/
10342/5143/HARMIN-MASTERSTHESIS-2015.pdf?sequence=1 (unpublished
M.A. dissertation, East Carolina University).
34
Exposing Fields of Filth: Landmark Report Maps Feces-Laden Hog and
Chicken Operations in North Carolina, envtl. working group (June 21,
2016), http://www.ewg.org/research/exposing-elds-lth.
35
harmin, supra note 33, at 16.
36
ananD m. Saxena, the vegetarian imperative 32–33 (2011).
37
robbin markS, ceSSpoolS of Shame: how factory farm lagoonS anD
SprayfielDS threaten environmental anD public health 3 (July 2001),
https://www.nrdc.org/sites/default/les/cesspools.pdf.
38
See Elizabeth Friend, New Maps Detail Scope of NC’s Poultry
and Hog Industries, WUNC (June 24, 2016), http://wunc.org/post/
new-maps-detail-scope-ncs-poultry-and-hog-industries.
39
markS, supra note 37, at 1.
40
Id. at 4.
41
Id. at 12; see also Adam Skolnick, The CAFO Industry’s Impact
on the Environment and Public Health: CAFO Farming Is an
Environmental and Public Health Disaster, Sierra club (Feb. 23,
2017), http://www.sierraclub.org/sierra/2017-2-march-april/feature/
cafo-industrys-impact-environment-and-public-health.
42
See infra notes 43–57 and accompanying text (discussing the impact of
polluted water).
43
Steve Wing et al., Environmental Injustice in North Carolina’s Hog Indus-
try, 108 envtl. health perSp. 225, 225 (2000).
44
Stephen r. hutchinS et al., caSe StuDieS on the impact of concentrateD
animal feeDing operationS (cafoS) on grounD water quality 7–8 (2012).
45
carrie hribar, unDerStanDing concentrateD animal feeDing operationS
anD their impact on communitieS 8–9 (Mark Shultz ed., 2010), https://www.
cdc.gov/nceh/ehs/docs/understanding_cafos_nalboh.pdf (highlighting possible
diseases including, but not limited to: anthrax, leptospirosis, listerosis, salmo-
nellosis, tetanus, histoplasmosis, ringworm, giardiasis, and cryptosporidiosis).
46
hutchinS et al., supra note 44, at 9.
47
Id. at 9–13. “It is estimated that estrogen loads from land application by
livestock manure would account for greater than [ninety percent] of the total
estrogen in the environment . . . .”) Id. at 12.
48
markS, supra note 37, at 36; see also Skolnick, supra note 41.
49
markS, supra note 37, at 23.
50
Exposing Fields of Filth, waterkeeper alliance (Nov. 4, 2016), http://
waterkeeper.org/exposingeldsoflth/.
51
Id.
52
Id.
53
Id.
54
See markS, supra note 37, at 29 (stating that “[l]iquid waste can be over-
applied or inappropriately applied to farm elds through irrigation pivots with
resulting runoff into lakes, rivers, and streams or seepage into groundwater”).
55
hribar, supra note 45, at 4.
56
Id.
57
markS, supra note 37, at 1.
58
hutchinS et al., supra note 44, at 3.
59
See id. at 2.
60
See hribar, supra note 45, at 3 (noting that groundwater is the primary
source of drinking water in the United States, accounting for drinking water in
more than fty-three percent of households).
61
Wing et al., supra note 43, at 225.
62
See id.
45
Fall 2017
63
NCEJN and Allies Respond to Latest Attack by Hog Industry, n.c. envtl.
juStice network (Jan. 6, 2017), https://ncejn.wordpress.com/2017/01/06/ncejn-
and-allies-respond-to-latest-attack-by-hog-industry/ [hereinafter NCEJN].
64
hribar, supra note 45, at 10.
65
Id. at 4 (explaining that elevated nitrates in drinking water are particularly
harmful to these at risk populations).
66
Id. at 10.
67
Id.
68
Id.
69
Id.; Antibiotic Resistance Threats in the United States, cDc 11 (2013),
https://www.cdc.gov/drugresistance/threat-report-2013/pdf/ar-threats-2013-508.
pdf#page=6; see Mary J. Gilchrist et al., The Potential Role of Concentrated
Animal Feeding Operations in Infectious Disease Epidemics and Antibiotic
Resistance, 115 envtl. health perSpectiveS 313, 313–14 (2006).
70
hribar, supra note 45, at 10. But see Gilchrist et al., supra note 69, at 313
(noting that estimates suggest up to eighty-seven percent of all antibiotic use in
the United States is for livestock animals).
71
Gilchrist et al., supra note 69.
72
cDc, supra note 69, at 11.
73
hribar, supra note 45, at 10.
74
Id. (citing Marc Kaufman, Worries Rise Over Effect of Antibiotics in
Animal Feed: Humans Seen Vulnerable to Drug-Resistant Germs, waSh. poSt,
A01 (Mar. 17, 2000), http://www.washingtonpost.com/wp-srv/WPcap/2000-
03/17/071r-031700-idx.html (explaining that eating the esh of animals who
have been fed antibiotics further increases one’s risk of developing antibiotic
resistance)).
75
Id. at 7 (explaining that, in addition to carbon dioxide, the methane and
nitrous oxide emitted from cow manure are signicant greenhouse gasses);
cafo Subcomm. of the mich. Dept of envtl. quality toxicS Steering grp.,
concentrateD animal feeDlot operationS (cafoS) chemicalS aSSociateD
with air emiSSionS 8 (May 10, 2006) [hereinafter cafo Subcomm.].
76
hribar, supra note 45, at 3.
77
See markS, supra note 37, at 1, 17; see also Sarah C. Wilson, Comment,
Hogwash! Why Industrial Animal Agriculture is Not Beyond the Scope of Clean
Air Act Regulation, 24 pace envtl. l. rev. 439, 441 (2007) (highlighting the
health impacts of such emissions).
78
CAFOs Ordered to Report Hazardous Pollution, waterkeeper alliance
(Apr. 11, 2017), http://waterkeeper.org/cafos-ordered-to-report-hazardous-pollution/.
79
See markS, supra note 37, at 26.
80
NIOSH Warns: Manure Pits Continue to Claim Lives, cDc (July 6, 1993),
https://www.cdc.gov/niosh/updates/93-114.html [hereinafter Manure Pits].
81
markS, supra note 37, at 19 (citing Manure Pits, supra note 80).
82
See id. at 26.
83
Wilson, supra note 77, at 445 (citing Sierra club, clean water & fac-
tory farmS: reportS & fact-SheetS: air pollution from factory farmS,
http://www.sierraclub.orgfactoryfarms/ factsheets/air.asp (last visited Oct. 24,
2007)).
84
cafo Subcomm., supra note 75, at 4.
85
hribar, supra note 45, at 6.
86
Id.; cafo Subcomm., supra note 75, at 6.
87
Id.
88
Irena Buka et al., The Effects of Air Pollution on the Health of Children,
11 paeDiatr chilD health 513, 513 (2006); see hribar, supra note 45, at 5
(“While all community members are at risk from lowered air quality, children
take in [twenty to fty percent] more air than adults, making them more sus-
ceptible to lung disease and health effects.”) (citing Michael T. Kleinman, The
Health Effects of Air Pollution on Children 1 (2000) (unpublished manuscript),
http://www.aqmd.gov/docs/default-source/students/health-effects.pdf; Julia R.
Barrett, Hogging the Air: CAFO Emissions Reach into Schools, 114 envtl.
health perSp. A241, A241 (2006)).
89
hribar, supra note 45, at 5–6.
90
Id. (citing Maria. C. Mirabelli et al., Race, Poverty, and Potential Exposure
of Middle-School Students to Air Emissions from Conned Swine Feeding
Operations, 114 envtl. health perSp. 591-96 (2006) (internal citations
omitted)).
91
Id. at 11.
92
Nicole, supra note 23, at A183.
93
NCEJN, supra note 63 (internal quotation omitted).
94
Nicole, supra note 23, at A183.
95
hribar, supra note 45, at 8.
96
Id. at 11.
97
Id. (citing Joseph A. Herriges et al., Living With Hogs in Iowa: The Impact
of Livestock Facilities On Rural Residential Property Values, 81 lanD econ.
530, 541 (2005)).
98
Id.
99
Id.
100
See infra note 129 and accompanying text.
101
Nicole, supra note 23, at A185 (citing Pat Stith & Joby Warrick, Murphy’s
Laws: For Murphy, Good Government Means Good Business, the newS &
obServer (Feb. 22, 1995), http://www.pulitzer.org/winners/news-observer-
raleigh-nc-work-melanie-sill-pat-stith-and-joby-warrick; McKown, supra note
14, at 2355 n.3); see Gray Jernigan, What to do When State Regulation Stinks,
waterkeeper magazine 33 (2015), http://waterkeeper.org/app/uploads/2016/01/
WKMagSummer15r14-small1.pdf.
102
Clean Air Act, 42 U.S.C. §§ 7401–7671 (2016).
103
Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2016);
History of the Clean Water Act, EPA, https://www.epa.gov/laws-regulations/
history-clean-water-act (last visited Dec. 20, 2017) (noting the legislation came
to be known as the Clean Water Act following the 1972 amendments to the
Federal Water Pollution Control Act of 1948).
104
J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law,
27 ecology l. q. 265, 267 (2000) (“Congress has actively prevented [the
intersection of environmental law and farming] through a nearly unbroken
series of decisions to exclude farms and farming from the burdens of federal
environmental law, with states mainly following suit. Congress has erected . . .
a vast ‘anti-law’ of farms and the environment.”).
105
33 U.S.C. § 1251(a); see also id. § 1362(7) (dening “navigable waters” as
“the waters of the United States, including the territorial seas”).
106
DaviD m. bearDen et al., cong. reSearch Serv., rl 30798, envtl. lawS:
SummarieS of major StatuteS aDminiStereD by the envitl. prot. agency
Summary (2013).
107
§ 1342.
108
§ 1311.
109
See § 1362(6) (dening “pollutant” as “dredged spoil, solid waste, incin-
erator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded equip-
ment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water”).
110
§ 1362(14) (dening a “point source” as “any discernible, conned and
discrete conveyance, including but not limited to any pipe, ditch, channel, tun-
nel, conduit, well, discrete ssure, container, rolling stock, concentrated animal
feeding operation, or vessel or other oating craft, from which pollutants are
or may be discharged,” and exempting “agricultural stormwater discharges and
return ows from irrigated agriculture” from the denition of “point source”);
40 C.F.R. § 122 (2012) (stating that nonpoint sources are governed by state
water quality programs); see generally clauDia copelanD, cong. reSearch
Serv., rl 32947, air quality iSSueS & animal agric.: a primer 8 (2014).
111
See bearDen et al., supra note 106, at 29-30 (“While the CWA addresses
federal enforcement, the majority of actions taken to enforce the law are
undertaken by states, both because states issue the majority of permits to
dischargers and because the federal government lacks the resources for day-to-
day monitoring and enforcement. Like most other federal environmental laws,
CWA enforcement is shared by EPA and states, with states having primary
responsibility. However, EPA has oversight of state enforcement and retains
the right to bring a direct action where it believes that a state has failed to take
timely and appropriate action or where a state or local agency requests EPA
involvement”); see generally u.S. Dept of agric. & nat. reS. conServation
Serv., part 651 agric. waSte mgmt. fielD hanDbook 1–4 (2009) (“Most
States have been granted full NPDES permitting authority by the EPA with
oversight of State operations provided by the EPA. Where States do not have
permitting authority, a variety of arrangements for permitting have been made.
They range from the EPA doing all permitting to the EPA issuing permits for
certain categories of pollutants (or operations) and the State issuing the permits
for other categories.”).
112
40 C.F.R. § 122 (2012); see National Pollutant Discharge Elimination
System Permit Regulation and Efuent Limitation Guidelines and Standards for
Concentrated Animal Feeding Operations (CAFOs), 68 Fed. Reg. 7176 (codi-
ed at 40 C.F.R. Pts. 9, 122, 123, 412) (“Today’s nal rule revises and claries
the Environmental Protection Agency’s (EPA) regulatory requirements for con-
centrated animal feeding operations (CAFOs) under the Clean Water Act. This
nal rule will ensure that CAFOs take appropriate actions to manage manure
effectively in order to protect the nation’s water quality. Despite substantial
46 Sustainable Development Law & Policy
improvements in the nation’s water quality since the inception of the Clean
Water Act, nearly 40 percent of the Nation’s assessed waters show impairments
from a wide range of sources. Improper management of manure from CAFOs is
among the many contributors to remaining water quality problems. Improperly
managed manure has caused serious acute and chronic water quality problems
throughout the United States. Today’s action strengthens the existing regulatory
program for CAFOs.”).
113 Id.; copelanD, supra note 110, at 8.
114
copelanD, supra note 110, at 8.
115
See id. (stating about 15,500 CAFOs are covered nationwide); see also
npDeS cafo permitting StatuS report—national Summary enDyear
2016, EPA (Dec. 31, 2016), https://www.epa.gov/sites/production/les/2017-04/
documents/tracksum_endyear2016_v2.pdf (stating that in North Carolina, only
fourteen CAFOs out of the state’s 1,222 have NPDES permits).
116
See Adam S. Carlesco, Hiding the Ball: The Sidestepping of National Pol-
lution Discharge Elimination System Permitting Requirements by Concentrated
Animal Feeding Operations, 5 j. animal & envtl. l. 43, 48 (2014) (citing 33
U.S.C. §§ 1362(14); 1342(l)(1)); see also Copeland, supra note 110, at 9 (“The
rule contains a performance standard which prohibits discharges from regulated
CAFOs except in the event of wastewater or manure overows or runoff from
an exceptional 25-year, 24-hour rainfall event.” (emphasis added)); Wilson,
supra note 77, at 450 (“‘Agricultural stormwater discharges’ from farmlands
are not considered discharges for purposes of the CWA. Considering that it is
during storms when much of the runoff from farms occurs (including manure
that is sprayed on elds), the stormwater exemption effectively forms a shield
from CWA regulation for agriculture.”).
117
See Christine L. Rideout, Where are All the Citizen Suits?: The Failure of
Safe Drinking Water Enforcement in the United States, 21 health matrix 655,
671 (2011) (discussing 42 U.S.C. §§ 300f–300j-26 (2016) and showing that the
Safe Drinking Water Act also fails to regulate runoff).
118
Waterkeeper Alliance v. EPA, 399 F.3d 486, 524 (2d Cir. 2005) (directing
the EPA to remove the requirement that all CAFOs obtain NPDES permit);
Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 745 (5th Cir. 2011) (direct-
ing the EPA to remove the requirement that CAFOs that “propose to discharge”
apply for NPDES permits).
119
Many states, especially those with powerful CAFO industries, fail to prop-
erly administer the NPDES program and enforce the CWA. Without the states
doing their part to regulate CAFOs, EPA cannot possibly achieve the goal of the
CWA. Carlesco, supra note 116, at 22 (“EPA found that the Iowa Department
of Natural Resources was not properly conducting inspections to determine
whether unpermitted CAFOs needed permits, assessing adequate penalties
against CAFOs, or issuing NPDES permits when appropriate.”).
120
See id. at 60-61 (noting the EPA proposed a new version of the CAFO
Rule in 2011 requiring “CAFOs to report facility-specic information in order
to help the EPA properly implement the NPDES program and ensure CAFO
compliance with CWA requirements.”); see also id. (discussing 76 Fed. Reg.
65,431, Oct. 21, 2011) (stating that proposal, grounded in the authority granted
to EPA under section 308 of the CWA, was two-fold when it went up for public
review and comment. First, the proposal would require CAFOs to provide basic
identifying information to EPA, such as the name and contact information for
the owner. Second, the proposal would allow EPA to use section 308 authority
to get information from CAFOs that are located in areas struggling with water
quality issues likely caused by CAFOs; id. (“[The] EPA would use existing data
to point to ‘focus watersheds’ with abnormally high nitrogen and phosphorous
content likely originating from animal agriculture sources”); id. at n.110 (citing
76 Fed. Reg. 65,431, Oct. 21, 2011) (“[A]llow the EPA to identify and permit
CAFOs that discharge, conduct education and outreach on best management
practices, estimate pollutant loads by facility and geographical area, and assist
in allocation of resources for compliance enforcement.”); id. (citing Proposed
NPDES CAFO Reporting Rule Q&A, envtl. prot. agency, Oct. 2011) (noting
ultimately, EPA withdrew the rule on July 13, 2012).
121
epa, introDuction to the clean water act 2 (2011), https://cfpub.epa.
gov/watertrain/pdf/modules/introtocwa.pdf; see Cmty. Ass’n for Restoration
of the Env’t, Inc. v. Cow Palace, LLC, 80 F. Supp. 3d 1180 (E.D. Wash. 2015)
(extending RCRA to agriculture by holding that manure can, under some
circumstances, qualify as “solid waste” under RCRA); see also Rachel Fullmer,
A Cow Palace Coup: Expanding the Reach of RCRA to Combat Agricultural
Pollution, 28 geo. envtl. l. rev. 501, 503 (2016); see generally bearDen et
al., supra note 106, at 27 (noting that the 1987 CWA amendments encourage
states to “pursue groundwater protection activities as part of their overall
nonpoint pollution control efforts.”); Solid Waste Disposal Act, 42 U.S.C. §§
6901–6992k (2016) (known as the Resource Conservation and Recovery Act
following the 1976 amendments of the Solid Waste Disposal Act).
122
See J. Nicholas Hoover, Can’t You Smell That Smell? Clean Air Act Fixes
for Factor Farm Air Pollution, 6 Stan. j. animal l. & poly 1, 10 (2013)
(citing 42 U.S.C. § 7409 (2012) (criteria pollutants, which are sulfur dioxide,
carbon monoxide, ozone, nitrogen dioxide, lead, and PM); see also § 7412
(hazardous air pollutants); § 7411 (stationary sources)).
123
bearDen et al., supra note 106, at Summary.
124
Id.
125
Id. at 3.
126
See id. (requiring State Implementation Plans (“SIP”) “to translate[]
national ambient standards into emission limitations and other control measures
that govern individual sources of air pollution; the SIP is enforceable as both
state and federal law. The CAA details the basic content of SIPs: enforceable
emission limitations, other control measures, monitoring requirements, and
schedules for compliance”); see also Copeland, supra note 110, at 11 (“[P]
ermit requirements differ for sources in attainment and non-attainment areas.
In attainment areas, major emitting facilities must install the ‘best available
control technology’ (BACT) for each regulated pollutant, as determined on a
case-by-case basis. Facilities in non-attainment are subject to stricter measures.
There, they must comply with the ‘lowest achievable emission rate’ (LAER),
which requires, in addition to stringent emissions requirements, that the regula-
tor weigh benets of new sources against their environmental costs.”); see also
Hoover, supra note 122, at 11 (citing 42 U.S.C. §§ 7475, 7503, 7475(a)(4),
7479(3)).
127
bearDen et al., supra note 106, at 3.
128
Id.; copelanD, supra note 110, at 11.
129
The CAA does not provide a blanket exception for agricultural activities.
Hoover, supra note 122, at 11 (citing 67 Fed. Reg. 63, 556–57) (explaining that
the EPA has stated that CAFOs “plainly t the denition of stationary source”)
(internal quotations omitted).
130
copelanD, supra note 110, at 2 (demonstrating that there is a lack of
reliable data on CAFO emissions, so it is possible that more CAFOs exceed
thresholds than are currently known. “Resolving questions about CAFOs’ con-
tribution to total air pollution and corresponding ecological and possible public
health effects is hindered by a lack of adequate, accurate, scientically credible
data on air emissions.”).
131
Id.
132
74 Fed. Reg. 56,260 (Oct. 30, 2009) (codied at 40 C.F.R. Parts 86, 87,
89).
133
See megan StubbS, cong. reSearch Serv., rl 41622, envtl. regulation
& agric. 4–5 (2014) (highlighting Congress’ use of the appropriations process
to effectively block the rule).
134
See copelanD, supra note 110, at 3 (describing the need for increased
data).
135
Id.
136
Animal Feeding Operations Consent Agreement and Final Order, 70 Fed.
Reg. 4958 (Jan. 31, 2005).
137
See copelanD, supra note 110, at 3 (detailing the development process of
EPA’s rule).
138
Id.
139
Id. at 3–4 (noting that, under the agreement, CAFOs were also largely
exempt from the reporting requirements of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) and the Emergency
Planning and Community Right to Know Act (EPCRA); see Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C.
§§ 9601–9675, 11001–11050 (2012) (stating EPA nalized this exemp-
tion in late 2008); see also 73 Fed. Reg. at 76,948 (Dec. 18, 2008). But see
Waterkeeper Alliance v. EPA, 853 F.3d 527, 530 (D.C. Cir. 2017) (overturning
the EPA rule). It remains to be seen whether EPA will enforce CERCLA and
EPCRA against CAFO owners and operators.
140
copelanD, supra note 110, at 5 (“EPA has authority under CAA Section
114 to require that AFOs provide emission monitoring data, without the need to
provide an industry-wide exemption.”).
141
Id. at 10.
142
Id. at 11 (citing envtl. integrity project, hazarDouS pollution from
factory farmS: an analySiS of epa’S natl air emiSSionS monitoring
StuDy Data (Mar. 2011), http://www.environmentalintegrity.org/documents/
HazardousPollutantsfromFactoryFarms.pdf).
143
Hoover, supra note 122, at 15 (citing 76 Fed. Reg. 3060, 3061 (Jan. 19,
2011)).
47
Fall 2017
144
See infra Section IV.
145
William Aldred’s Case, 77 Eng. Rep. 816, 816 (1611).
146
Smart, supra note 32, at 2098.
147
Id.
148
1979 N.C. Sess. Laws 140, 140–41 (codied as amended at n.c. gen.
Stat. §§ 106-700 to 106-701 (2016)).
149
Smart, supra note 32, at 2099.
150
Id. at 2099-2100.
151
Id.
152
Id. at 2101.
153
Id.
154
See Erica Hellerstein, The N.C. Senate Overrides Cooper’s HB 467 Veto,
Hog-Farm-Protection Bill is Law, the inDep. weekly (May 11, 2017), https://
www.indyweek.com/news/archives/2017/05/11/the-nc-senate-overrides-
coopers-hb-467-veto-hog-farm-protection-bill-is-law (“[T]he twenty-six federal
lawsuits . . . were led by a North Carolina-based law rm against a $14 billion
Chinese-owned multinational corporation on behalf of mostly low-income
African-American plaintiffs.”).
155
Smart, supra note 32, at 2101 (citing Complaint at 1, McMillon et al v.
Murphy-Brown, LLC, Docket No. 7:14-cv-00181 (E.D.N.C. Aug. 21, 2014)).
156
Hellerstein, supra note 154; see generally Jonathan Drew, Legislators Sig-
nicantly Change Hog Farm Liability Bill, u.S. newS (Apr. 10, 2017), https://
www.usnews.com/news/best-states/north-carolina/articles/2017-04-10/legisla-
tors-signicantly-change-hog-farm-liability-bill (noting that the bill originally
applied to the pending suits against Murphy-Brown, LLC, but updated version
did not apply to pending suits).
157
See Ken Fine & Erica Hellerstein, State Representative Jimmy Dixon
Collected $115,000 from Big Pork, Then Tried to Make the Industry’s Legal
Troubles Go Away, the inDep. weekly (Apr. 5, 2017), https://www.indyweek.
com/indyweek/state-representative-jimmy-dixon-collected-115000-from-
big-pork-then-tried-to-make-the-industrys-legal-troubles-go-away/
Content?oid=5799999 (“According to campaign nance records, over the
course of his career Dixon has received more than $115,000 from Big Pork,
including: $9,500 from the N.C. Pork Council; more than $20,000 from the
Maxwell family, which owns the Goldsboro Milling Company, the tenth-largest
swine producer in the United States; $9,000 from Walter Pelletier and $3,000
from John Pike, both of whom also have ties to Goldsboro Milling; $37,500
from Prestage Farms; and $36,250 from donors associated with Murphy-
Brown, the company facing more than two dozen federal lawsuits that this
legislation would effectively negate.”).
158
Christina Cooke, NC GOP Protects Factory Farms’ Right to Pol-
lute, civil eatS (May 5, 2017), http://civileats.com/2017/05/09/
north-carolina-factory-farms-lose-effort-to-limit-pollution-lawsuits/.
159
Hellerstein, supra note 154.
160
Legislature Proposes Protecting Polluters over People, n.c. Envtl. JuSt.
network (Apr. 6, 2017), http://www.ncejn.org (citing n.c. gen. Stat. § 1-539
(2016)).
161
Hellerstein, supra note 154.
162
Id.
163
See Mark Bittman, Who Protects the Animals?, n.y. timeS (Apr. 26, 2011),
https://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/
(dening the term “ag-gag” as a portmanteau of “agriculture” and “gag,”).
164
Factory Farms & “Ag-Gag” Laws, animal legal Def. funD (2014),
http://aldf.org/wp-content/uploads/2014/08/Ag-Gag-brochure-web.pdf.
165
Jeffrey Vizcaino, Sinclair’s Nightmare: SLAPPing Down Ag-Gag
Legislation as Content-Based Restrictions Chilling Protected Free
Speech, 7 j. animal & envtl. l. 49, 50-51 (2015-2016) (citing Jen-
nifer Molido, Undercover Investigations Help Protect Farmed Ani-
mals, animal legal Def. funD (Mar. 31, 2015), http://aldf.org/blog/
undercover-investigations-help-protect-farmed-animals/).
166
See Ag-Gag Legislation by State, aSpca, https://www.aspca.org/animal-
protection/public-policy/ag-gag-legislation-state (last visited Oct. 24, 2017)
(noting Kansas was the rst to pass ag-gag legislation in the early 1990s. Today,
ag-gag legislation has either been introduced or already passed into law in more
than twenty states.); see also Animal Legal Def. Fund v. Otter, No. 1:14-cv-
00104-BLW, 2015 U.S. Dist. LEXIS 102640, at *6-7 (D. Idaho Aug. 3, 2015)
(declaring a major victory for animal advocates, an Idaho federal district court
struck down that state’s ag-gag law as an unconstitutional restriction on the
First and Fourteenth Amendments).
167
2015 N.C. Sess. Laws 50 (codied at n.c. gen. Stat. § 99A-2 (2016)).
168
Taking Ag-Gag to Court, animal legal Def. funD, http://aldf.org/cases-
campaigns/features/taking-ag-gag-to-court/ (last visited Oct. 24, 2017) (noting
Governor Pat McCrory vetoed the law, but the North Carolina legislature over-
rode his veto).
169
Id. at 2 (emphasis added).
170
Coalition Sues North Carolina over Constitutionality of “Anti-Sunshine”
Law, animal legal Def. funD (Jan. 13, 2016), http://aldf.org/press-room/press-
releases/coalition-sues-north-carolina-over-constitutionality-of-anti-sunshine-
law/ (noting a coalition of advocacy organizations sued North Carolina,
challenging the ag-gag law on First and Fourteenth Amendment grounds); see
also Complaint for Declaratory and Injunctive Relief Concerning the Constitu-
tionality of a State Statute, PETA v. Cooper, No. 16-cv-25 (M.D. N.C. Jan. 13,
2016) (challenging the provision).
171
See Christina Cooke, The Battle for Transparency on North Carolina
Factory Farms, civil eatS (June 26, 2017), https://civileats.com/2017/06/26/
transparency-north-carolina-factory-farms/.
172
Michele M. Merkel, EPA and State Failures to Regulate CAFOs Under
Federal Environmental Laws: Outline of Remarks Prepared for the National
Commission on Industrial Farm Animal Production Meeting on September
11, 2006, envt integrity, http://environmentalintegrity.org/pdf/publications/
EPA_State_Failures_Regulate_CAFO.pdf (last visited Oct. 24, 2017).
173
Skolnick, supra note 41.
174
Id.
175
Id.
176
Id.
177
Sara Peach, What to Do About Pig Poop? North Carolina Fights a Rising
Tide, natl geographic (Oct. 30, 2014), http://news.nationalgeographic.com/
news/2014/10/141028-hog-farms-waste-pollution-methane-north-carolina-
environment/ (highlighting that Duplin County alone is occupied by 530 pig
CAFOs which, collectively, are large enough to conne 2.35 million pigs).
178
Skolnick, supra note 41 (stating that Smitheld Foods was the world’s
largest pig producer before the corporation sold out to WH Group).
179 AFO Program Summary, n.c. Dept of envt quality, https://deq.nc.gov/
about/divisions/water-resources/water-resources-permits/wastewater-branch/
animal-feeding-operation-permits/afo-program-summary (last visited Dec. 20,
2017) (citing n.c. gen. Stat. § 143-215.10B(a)) (noting an operation is also
regulated as an AFO if it “has a liquid animal waste management system that
discharges to the surface waters of the State.”).
180
Id.
181
Id. (stating only existing CAFOs are eligible for permitting under the
General Permit if they use the lagoon and sprayeld waste management system.
New or expanded CAFOs must be permitted through a separate process).
182
Id. (mentioning community members fought this renewal without success);
see infra Section V.
183
Skolnick, supra note 41; see also supra note 48 and accompanying text
(discussing water pollution in the New River).
184
See supra note 48 and accompanying text.; AFO Program Summary, supra
note 179.
185
AFO Program Summary, supra note 179; see also Skolnick, supra note
41 (noting that the only way to start a new CAFO in North Carolina today is to
use proper sewage treatment, which the industry states is cost-prohibitive and
acknowledging that this victory followed relentless hard work on the part of the
community); infra Section V.
186
Jernigan, supra note 101, at 34 (“Most hog operations in North Carolina
operate under a State General Permit, which supports the assumption that pol-
lutants, including fecal bacteria and nutrients, stay on site. The permit allows
the industry to ush hog feces and urine into open, unlined pits and then to
spray this ‘liquid manure’ onto nearby elds under the pretext of it being used
as fertilizer. The problem is that there is too much of the waste being produced
for the soil or crops to absorb it all. Much of the waste runs off the elds, which
are extensively ditched to facilitate drainage in the low-lying coastal plain,
and the waste contaminates nearby waters. It also drifts as a noxious mist onto
neighboring properties.”).
187
AFO Program Summary, supra note 179.
188
Jernigan, supra note 101, at 35; see discussion infra section V.
189
Skolnick, supra note 41 (noting that as of February 2017, DEQ had issued
only eighty-one nes over the previous ve years, and the nes averaged
$4,207.75).
190
am. farm bureau feDn, http://www.fb.org/ (last visited Dec. 20, 2017)
(depicting photos of rolling green hills, white faces, and the American ag on
their homepage); see also id. (“Farm Bureau is committed to working through
48 Sustainable Development Law & Policy
our grassroots organizations to enhance and strengthen the lives of rural Ameri-
cans and to build strong, prosperous agricultural communities.”); Hoover, supra
note 122, at 9 (citing Wilson, supra note 77, at 451) (“The industry . . . carries
out marketing campaigns that perpetuate the image of the small American
farmer and avoid environmental issues, adding to the regulatory challenge.”).
191
Travis Madsen et al., Growing Inuence: The Political Power of Agribusi-
ness and the Fouling of America’s Waterways, envt am. reSearch & policy
ctr, 16 (Feb. 4, 2011), http://www.environmentamerica.org/sites/environment/
les/reports/Growing-Inuence—-low-res.pdf.
192
Id.
193
Angela Bowman, WOTUS Survives, gulf coaSt cattleman (Jan. 20,
2016), http://www.gulfcoastcattleman.com/wotus-survives/.
194
Hoover, supra note 122, at 9.
195
Madsen et al., supra note 191, at 18.
196
Id. at 18-19.
197 Agribusiness Sector Prole 2016, openSecretS.org: ctr for reSponSive
politicS, https://www.opensecrets.org/lobby/indus.php?id=A&year=2016 (last
visited Dec. 20, 2017).
198 Agribusiness Top Recipients, openSecretS.org: ctr for reSponSive poli-
ticS, https://www.opensecrets.org/industries/recips.php?ind=A&cycle=2016&re
cipdetail=P&mem=N&sortorder=U (last visited Dec. 20, 2017).
199
Simon, supra note 10, at 89.
200
Sue Sturgis, Civil Rights Battle Over N.C. Hog Industry Regulation Heats
Up as Negotiations Break Down, facing S. (Mar. 9, 2016), https://www.facing-
south.org/2016/03/civil-rights-battle-over-nc-hog-industry-regulatio (statement
of Elizabeth Haddix) (“[DEQ] has clearly been captured by the industry. . .
[which] is the opposite of how government is supposed to work.”).
201
Id.
202
Pat Stith et al., Boss Hog: The Power of Pork, the newS & obServer (Feb.
19, 1995), http://archive.pulitzer.org/archives/5892.
203
Jernigan, supra note 101, at 33; see generally supra notes 28 and 173–177
and accompanying text (discussing the rapid rise of North Carolina pork indus-
try in the 1980s).
204
Jernigan, supra note 101, at 34 (quoting Naeema Muhammad, director of
the North Carolina Environmental Justice Network).
205
Id. at 33.
206
Id. at 33–34.
207
Id. at 34.
208
See Skolnick, supra note 41, at 7–8; see generally Wing, et al., supra note
43 and accompanying text (discussing Professor Wing’s research).
209
See Skolnick, supra note 41.
210
Grant Awards Database, EPA, https://yosemite.epa.gov/oarm/igms_egf.nsf
/9e9c2a5934a808d585256fb6006df292/2bad6665e2b5ab7785257d6f0071d5e4!
OpenDocument&ExpandSection=4&Click= (last updated Oct. 1, 2017) (noting
the EPA helped fund this study through a small grant to REACH).
211
Skolnick, supra note 41.
212
See id. (noting that residents were instructed to ll out journals twice each
day).
213
Id.
214
Id.
215
Id.
216
See id.; Christopher D. Heaney et al., Source Tracking Swine Fecal Waste
in Surface Water Proximal to Swine Concentrated Animal Feeding Operations,
511 Sci. total envt 676, at 3, 7 (2015), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC4514616/pdf/nihms708856.pdf (discussing the results of water
sampling study).
217
See Skolnick, supra note 41.
218
Id. (quoting Devon Hall, cofounder of REACH).
219
See Jernigan, supra note 101, at 35.
220
See Skolnick, supra note 41.
221
See id.
222
See Lisa Sorg, EPA to NC DEQ: “Grave Concerns” About
Swine Industry’s Intimidation of Minority Residents, n.c. poly
watch (Jan. 25, 2017), http://www.ncpolicywatch.com/2017/01/25/
epa-nc-deq-grave-concerns-swine-industrys-intimidation-minority-residents/.
223
See Skolnick, supra note 41.
224
See id.
225
Sue Sturgis, A Step Toward Environmental Justice in North Carolina’s
Hog Country, facing S. (Feb. 3, 2017), https://www.facingsouth.org/2017/02/
step-toward-environmental-justice-north-carolinas-hog-country.
226
See Jernigan, supra note 101, at 34-35.
227
Id. at 35 (quoting Naeema Muhammad, director of the North Carolina
Environmental Justice Network); see generally AFO Program Summary, supra
note 179 and accompanying text.
228
See Marianne Engelman Lado & Jocelyn D’Ambrosio, Complaint Under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, 40 C.F.R. Part 7,
earthjuStice (Sept. 3, 2014), http://earthjustice.org/sites/default/les/les/
North-Carolina-EJ-Network-et-al-Complaint-under-Title-VI.pdf.
229
See id. (discussing Title VI, 42 U.S.C. § 2000d (2016), which prohibits
states from discriminating based on race, color, or national origin regarding
state programs that receive federal tax dollars).
230
See 40 C.F.R. Part 7 (2016).
231
See id. §§ 7.3-7.35.
232
See Jernigan, supra note 101, at 35.
233
See Sorg, supra note 222 (explaining the grave concerns about the swine
industry’s intimidation of minority residents).
234
Id.
235
Steve Holt, Is Rural North Carolina the Next Flint? Groups Say People
of Color There Bear the Brunt of Hog Farm Pollution, civil eatS (Mar. 23,
2016), http://civileats.com/2016/03/23/is-north-carolina-the-next-int-groups-
say-the-hog-industry-disproportionate-impacts-on-people-of-color-in-the-state/
(quoting Elizabeth Haddix, attorney at the University of North Carolina Center
for Civil Rights) (“They sent it to EPA saying that they wanted to be involved
in the mediation, which was a surprise to us because we had been instructed by
EPA that the very fact that we were in settlement negotiations should remain
condential. This is a community that has suffered a lot of retaliation and
intimidation from the pork industry.”).
236
Id.
237
Id.
238
Lisa Sorg, EPA Ofce of Civil Rights Investigating Intimidation Claims
Against DEQ, n.c. policy watch (Sept. 21, 2016), http://www.ncpolicywatch.
com/2016/09/21/epa-ofce-of-civil-rights-investigating-intimidation-claims-
against-deq-national-producers/.
239
Id. “[T]his didn’t make me feel good to know that they were there. They
could have been writing down all of our [license] tag numbers. I felt exposed
and that other community representatives were exposed.”) (quoting Naeema
Muhammad, acting director of NCEJN).
240
See Sorg, supra note 222 (explaining the grave concerns about the swine
industry’s intimidation of minority residents).
241
Id.
242
Letter from Marianne Engelman Lado, Senior Staff Attorney, and Alexis
Andiman, Assoc. Attorney, Earthjustice, to Lilian Dorka, Deputy Dir., Acting
Assistant Dir., Ofce of Civil Rights, EPA (July 11, 2016) (http://www.ncpoli-
cywatch.com/wp-content/uploads/2016/09/July-11-2016-Letter-from-enviros-
to-EPA-OCR.pdf).
243
Id. at 1.
244
Id. at 9 (explaining one such story of Violet Branch, who has lived on her
land in Duplin County since 1943. She lives with two miles of ten hog facili-
ties. A state agency told her to stop drinking water from her well. Shortly after,
a CAFO operator came to her home “with their industry spokesperson” and
insinuated she was “out to get” the operator. She stated that she believed they
were attempting to intimidate her. The industry spokesperson asked her if she
had ever considered moving); see Sturgis, supra note 225 (describing another
incident of intimidation against an elderly African American woman).
245
See Sorg, supra note 222.
246
Id.
247
Id.
248
Id.
249
Id.
250
Letter of Concern from Lilian Dorka, Dir., External Civil Rights Compli-
ance Ofce, Ofce of Gen. Counsel, EPA to Marianne William G. Ross, Jr.,
Acting Secretary, N.C. Dep’t of Envtl. Quality (Jan. 12, 2017) [hereinafter
Letter of Concern from Lilian Dorka] (https://assets.documentcloud.org/docu-
ments/3381929/NCDEQ-Letter-of-Concern-from-EPA.pdf).
251
Id. at 1.
252
Id. at 8.
253
Id.
254
Sorg, supra note 222; see Sorg, supra note 238 (noting the unlikelihood
“that the EPA’s Ofce of Civil Rights will nd in favor of the environmental
groups. As the Center for Public Integrity reported last year, that ofce has
determined just one nding of discrimination—from hundreds led—in
[twenty-two] years”) (citing Environmental Justice, Denied, ctr. for pub.
49
Fall 2017
integrity, https://www.publicintegrity.org/environment/environmental-justice-
denied (last visited Dec. 20, 2017).
255
Sorg, supra note 222.
256
Matt Flegenheimer and Michael Barbaro, Donald Trump Is Elected Presi-
dent In Stunning Repudiation of the Establishment, n.y. timeS (Nov. 9, 2016),
https://www.nytimes.com/2016/11/09/us/politics/hillary-clinton-donald-trump-
president.html?_r=0.
257
Jennifer Steinhauer, Republicans, Buoyed by Trump’s Performance,
Keep Control of Senate, n.y. timeS (Nov. 9, 2016), https://www.nytimes.
com/2016/11/09/us/politics/republican-senate.html; House Election Results:
G.O.P. Keeps Control, n.y. timeS (Feb. 10, 2017), https://www.nytimes.com/
elections/results/house.
258
Memorandum from David A. Bloom, Acting Chief Fin. Ofcer, EPA, to
Acting Gen. Counsel, Acting Assistant Adm’rs, Inspector Gen. Chief of Staff,
& Acting Reg’l Adm’rs, EPA (Mar. 21, 2017).
259
Juliet Eilperin et al., New EPA Documents Reveal Even Deeper Proposed
Cuts to Staff and Programs, waSh. poSt (Mar. 31, 2017), https://www.
washingtonpost.com/news/energy-environment/wp/2017/03/31/new-epa-
documents-reveal-even-deeper-proposed-cuts-to-staff-and-programs/?utm_
term=.5030c31e220d.
260
In His First 100 Days, Cooper Has Made A Strong Start By Follow-
ing a Positive Agenda, the newS & obServer (Apr. 10, 2018), http://www.
newsobserver.com/opinion/editorials/article143824124.html (specifying how-
ever, that Governor Cooper faces a veto-proof majority in the state legislature).
261
See, e.g., N.C. State Conference of NAACP v. McCrory, 831 F.3d 204,
242 (4th Cir. 2016) (reversing and remanding to district court with directions to
enjoin North Carolina election reform law that imposed photo ID requirement
and other barriers to voting because weight of evidence indicated the law was
motivated by discriminatory intent of North Carolina General Assembly), cert
denied, 137 S. Ct. 1399 (2017); see generally Adam Liptak & Michael Wines,
Strict North Carolina Voter ID Law Thwarted After Supreme Court Rejects
Case, n.y. timeS (May 15, 2017), https://www.nytimes.com/2017/05/15/us/
politics/voter-id-laws-supreme-court-north-carolina.html?mcubz=3 (“The
Supreme Court on Monday refused to revive a restrictive North Carolina voting
law that a federal appeals court had struck down as an unconstitutional effort to
‘target African-Americans with almost surgical precision.’”).
262
See, e.g., Covington v. North Carolina, 316 F.R.D. 117, 129–30 (M.D.N.C.
2016) (nding that evidence supports a conclusion of racial gerrymandering in
North Carolina), appeal led, No. 16-649 (Nov. 14, 2016); Harris v. McCrory,
159 F. Supp. 3d 600, 611–12 (M.D.N.C. 2016) (stating North Carolina redis-
tricting was predominantly motivated by race and constituted impermissible
gerrymandering in violation of Equal Protection Clause), appeal led sub nom.
Cooper v. Harris, No. 15-1262 (Feb. 8, 2016).
263
See supra notes 261–262 (highlighting various legal challenges).
far less—than they ever have. The most astounding genetic changes have been
those of chickens. In 1925, chickens reached a weight of two and a half pounds
in sixteen weeks; today, they reach a weight of almost six pounds in six weeks
(while consuming less than half the feed per pound of weight gained). It’s
miraculous but torturous.”).
5
The Business of Broilers, pew charitable truStS 3, http://www.pewtrusts.
org/~/media/legacy/uploadedles/peg/publications/report/businessofbroilersre-
portthepewcharitabletrustspdf.pdf (last visited Dec. 13, 2017) [hereinafter The
Business of Broilers].
6
See leSley j. rogerS, the Development of brain anD behavior in the
chicken 184 (1995) (explaining that the certain brain structures of chickens are
similar to mammals).
7
Lori Marino, Thinking chickens: a review of cognition, emotion, and
behavior in the domestic chicken, 20.2 animal cognition 128, 131, 137
(2017), https://link.springer.com/content/pdf/10.1007%2Fs10071-016-1064-4.
pdf [hereinafter Thinking Chickens]; see Sentience in Farm Animals: Poultry
Chickens, think Differently about Sheep, http://www.think-differently-about-
sheep.com/sentience%20in%20farm%20animals%20poultry%20chickens.htm
(last visited Dec. 13, 2017) [hereinafter Sentience in Farm Animals] (describing
chickens as intelligent, complex creatures that will bravely defend their young
from aggressors).
8
See Sentience in Farm Animals, supra note 7, at 138-39.
9
See id. at 131-34.
10
See Thinking Chickens, supra note 7; Robert Grillo, Chicken Behavior: An
Overview of Recent Science, free from harm (Feb. 7, 2014), http://freefrom-
harm.org/chicken-behavior-an-overview-of-recent-science/ (noting that chicken
communication skills may be comparable to some primates).
11
See amy j. fitzgeralD, animalS aS fooD: (re)connecting proDuction,
proceSSing, conSumption, anD impactS 16 (2015) (emphasizing that 97% of
U.S. livestock are CAFO raised); Daniel imhoff, cafo: the trageDy of
inDuStrial animal factorieS xiii (2010) (stating that the purpose of factory
farming is to bred animals for rapid growth and high outputs of animal products
such as meat and milk).
12
See imhoffe, supra note 11, at xii–xv (explaining that animals in CAFOs
exist in unnatural conditions without fresh-air or sunlight and are reduced to
units of production by corporate agribusiness); see also Putting Meat on the
Table: Industrial Farm Animal Production in America, pew commn on inDuS.
farm animal proD. 22 (2008), http://www.pewtrusts.org/~/media/assets/2008/
pcifap_exec-summary.pdf.
13
See imhoffe, supra note 11, at xii–xv.
14
Regulatory Denitions of Large CAFOs, Medium CAFOs, and Small
CAFOs, envtl. prot. agency, https://www.epa.gov/sites/production/les/2015-
08/documents/sector_table.pdf (last visited Dec. 13, 2017).
15
See Animal Welfare for Broiler Chickens, natl chicken council, http://
www.nationalchickencouncil.org/industry-issues/animal-welfare-for-broiler-
chickens/ (last visited Dec. 13, 2017) [hereinafter Animal Welfare for Boiler
Chickens] (comparing industry practice with CAST requirements).
16
Id.
17 See id. (“Traditionally, a ock of broilers consist of about 20,000 birds in a
growout house that measures 400 feet long and 40 feet wide, thus providing an
area of about 16,000 square feet, or eight-tenths of a square foot per bird. As the
birds age, they grow into this space.”).
18
See A Closer Look at Animals on Factory Farms, am. Socy for the
prevention of cruelty to animalS, https://www.aspca.org/animal-cruelty/
farm-animal-welfare/animals-factory-farms#Chickens (last visited Dec. 13,
2017) [hereinafter A Closer Look] (explaining that the physical conditions for
chickens in factory farms may cause heart failure, leg weakness, trouble breath-
ing, and chronic pain).
19
See Cheryl L. Leahy, Large-Scale Farmed Animal Abuse and Neglect: Law
and Its Enforcement, 4 j. animal l. & ethicS 63, 64 (2011) (arguing that fac-
tory farm conditions also impact the environment and resource consumption).
20
See generally gary l. francione & robert garner, the animal rightS
Debate: abolition or regulation? 48-49 (2010); Lorraine Mitchell, Impact
of Consumer Demand for Animal Welfare on Global Trade, in changing
Structure of global fooD conSumption anD traDe 80 (2001) (describing the
various consumer animal rights movements that have resulted from consumer
awareness ranging from cessation of animals in economic activity to improved
treatment and welfare for animals used in food production).
21
See Hope Bohanec, Factory Farming vs. Alternative Farming: The
Humane Hoax, free from harm (Mar 6, 2014), http://freefromharm.org/
animal-products-and-ethics/factory-farming-alternative-farming/ (explaining
that even animals harvested outside of large factory farms are still typically
subjected to cruel practices).
22
See mark eSSig, leSSer beaStS: a Snout-to-tail hiStory of the humble
pig 253 (2015) (noting that the world of humane farming has produced a “new
tribe” of consumers willing to pay a great deal as long as the animal is treated
well before dying at a welfare certied slaughterhouse); see also Memorandum
from Bob Meadow & Joshua Ulibarri, Lake Research Partners, to Interested
Parties, Broiler Chicken—Online Survey Public Memo 1 (Apr. 2017), https://
www.aspca.org/sites/default/les/publicmemo.aspca_.broilerchicken2013.pdf
(“Once consumers learned more about these conditions, concern about chicken
enDnoteS: the “fowl” practice of humane labeling: propoSeD amenDmentS to feDeral StanDarDS govern-
ing chicken welfare anD poultry labeling practiceS
continued from page 26
50 Sustainable Development Law & Policy
welfare increased dramatically, as did consumers’ desire to purchase humanely
raised chickens (including purchasing chicken at a higher price).”).
23
See, e.g., am. humane aSSn, 2014 humane heartlanD farm animal
welfare Survey 7 (2014) (reporting that 75% of survey participants are will-
ing to pay more for “humanely raised” products); see also Lindsay Walton &
Kristen King Jaiven, Regulating Concentrated Animal Feeding Operations
for the Well-Being of Farm Animals, Consumers, and the Environment, what
can animal law learn from environmental law? 95 (Randall S. Abate ed.,
2015) (“[H]umanely raised animal products . . . are often more expensive than
their factory-farmed counterparts, partly because their prices more accurately
reect the “true cost” of the product.”).
24
See Animal Welfare Act, 7 U.S.C. § 2132 (2012); Humane Methods of
Livestock Slaughter Act of 1978, 7 U.S.C. § 1901 (2012); 7 U.S.C. § 80502
(1994) (transportation of animals); see generally Labeling Guideline on
Documentation Needed to Substantiate Animal Raising Claims for Label
Submissions, u.S. Dept of agric. fooD Safety & inSpection Ser. 8 (2016),
https://www.fsis.usda.gov/wps/wcm/connect/6fe3cd56-6809-4239-b7a2-
bccb82a30588/RaisingClaims.pdf?MOD=AJPERES (“FSIS has not dened
these claims in regulations or policy guidelines. For animal welfare claims,
such as ‘Raised with Care’ or ‘Humanely Raised’ FSIS will only approve a
claim if a statement is provided on the label showing ownership and including
an explanation of the meaning of the claim for consumers.”).
25
FSIS Compliance Guideline for Label Approval, fooD Safety & inSpection
Serv. 3-15, https://www.fsis.usda.gov/wps/wcm/connect/6fe3cd56-6809-4239-
b7a2-bccb82a30588/RaisingClaims.pdf?MOD=AJPERES (last visited Dec.
12, 2017) (detailing the guidelines to document the humane practice, but not
providing a standard for which to grade those practices on).
26
7 U.S.C. § 2132(g)(1) (2012) (“This term excludes birds, rats of the genus
Rattus, and mice of the genus Mus, bred for use in research; horses not used for
research purposes; and other farm animals, such as, but not limited to, livestock
or poultry used or intended for use as food or ber, or livestock or poultry used
or intended for use for improving animal nutrition, breeding, management, or
production efciency, or for improving the quality of food or ber. With respect
to a dog, the term means all dogs, including those used for hunting, security, or
breeding purposes”).
27
See Hemy v. Perdue Farms, Inc., No. 11-888, 2013 WL 1338199, at *1
(Mar. 31, 2013) (noting that the company utilized misleading marketing prac-
tices by advertising its products as “Humanely Raised” and using the phrase
“USDA Process Veried” to charge premium prices for chickens that were
raised under the same conditions as non-“Humanely Raised” chickens); see
also Frequently Asked Questions, certifieD humane, http://certiedhumane.
org/how-we-work/frequently-asked-questions/#15 (last visited Dec. 13, 2017)
(“[i]t is more expensive to raise farm animals humanely, and so it usually does
cost a little more to buy Certied Humane® foods”).
28
See Hemy, No. 11-888, 2013 WL 1338199 at *1 (discussing allegations that
Perdue Farms falsely labeled certain products as “humane” and charged higher
prices).
29
See Michael Lipkin, Purdue Accused of Lying about ‘Humane’ Chicken
Treatment, law 360 (Oct. 24, 2013, 10:20 PM), http://www.law360.com/
articles/483243/perdue-accused-of-lying-about-humane-chicken-treatment.
30
See Nicolas Kristof, Abusing Chickens We Eat, n.y. timeS (Dec. 3, 2014),
https://www.nytimes.com/2014/12/04/opinion/nicholas-kristof-abusing-chick-
ens-we-eat.html?_r=0 (discussing the conditions at Purdue’s “Humane” farms);
Chicken Production supra, note 4 (overviewing the conditions of farm factory
chickens).
31
See Hope Bohanec, Factory Farming vs. Alternative Farming: The
Humane Hoax, free from harm (Mar. 6, 2014), http://freefromharm.org/
animal-products-and-ethics/factory-farming-alternative-farming/.
32
Dan Charles, Can You Trust That Organic Label On
Imported Food?, npr (July 23, 2014, 6:14 PM), https://
www.npr.org/sections/thesalt/2014/07/23/334073167/
can-you-trust-that-organic-label-on-imported-food.
33 Press Release, Council for Agric. Sci. & Tech., Process Labeling of Food:
Consumer Behavior, the Agricultural Sector, and Policy Recommendations
(Oct. 7, 2015), http://www.cast-science.org/news/?process_labeling_of_food_
consumer_behavior_the_agricultural_sector_and_policy_recommendations&sh
ow=news&newsID=20802.
34
R. Post et al., A Guide to Federal Food Labeling Requirements for Meat,
Poultry and Egg Products, u.S. Dept of agric. fooD Safety & inSpection
Service (2007), https://www.fsis.usda.gov/shared/PDF/Labeling_Require-
ments_Guide.pdf
35
Label Confusion: How “Humane” and “Sustainable” claims on meat
packages deceive consumers, animal welfare inSt. (May 2014),
https://awionline.org/sites/default/les/products/AWI-FA-FoodLabelRe-
port-05072014.pdf.
36
21 U.S.C. § 602 (2012) (stating that the unwholesome, adulterated, misla-
beled, or deceptively packaged articles can be sold at lower prices and compete
unfairly with the wholesome, not adulterated, and properly labeled and pack-
aged articles to the detriment of consumers and the public generally).
37
Emily Field, Perdue, Kroger Agree to Settle Chicken Labeling Suits,
law 360 (Oct. 14, 2014, 6:44 PM), http://www.law360.com/articles/586798/
perdue-kroger-agree-to-settle-chicken-labeling-suits.
38
Id.
39
Id.
40
Karen Davis, The Need for Legislation and Elimination of Electrical
Immobilization, uniteD poultry concernS, http://www.upc-online.org/slaugh-
ter/report.html (last visited Dec. 13, 2017).
41
See infra Part I.
42
See generally The Business of Broilers, supra note 5; Chickens Used for
Meat, farm Sanctuary, https://www.farmsanctuary.org/learn/factory-farming/
chickens/ (last visited Dec. 13, 2017) (noting typical chickens in the meat
industry rapidly grow to “market weight” with lights constantly kept on to
stimulate eating, causing them to suffer from deformities, and the chickens,
spend their lives conned in overcrowded factories on oors covered in feces
and urine).
43
See infra Part IIC.
44
Press Release, Perdue Farms Inc., Maryland Governor Honors Jim Perdue
for Sustained Leadership (Mar. 15, 2010), https://www.perduefarms.com/news/
press-releases/maryland-governor-honors-jim-perdue-for-sustained-leadership/).
45
Accord America’s Largest Private Companies, forbeS http://www.forbes.
com/companies/perdue/ (last visited Dec. 11, 2017) (reporting Forbes 2017
rankings for American’s Largest Private Companies where Perdue ranks 50th).
46
See generally Press Release, Perdue Farms Inc., Perdue Launches Recipe
Dedication to Support Susan G. Komen for the Cure (Oct. 1, 2010), https://
www.perduefarms.com/news/press-releases/perdue-launches-recipe-dedication-
program-to-support-susan-g-komen-for-the-cure/.
47
Field, supra note 37.
48 Melanie Warner, Perdue’s “Humanely-Raised’ Chicken: The Latest Mis-
leading Food Claim, cbS newS (May 21, 2010), http://www.cbsnews.com/
news/perdues-humanely-raised-chicken-the-latest-misleading-food-claim/.
49
Overview, natl chicken council, http://www.nationalchickencouncil.org/
about-ncc/overview (last visited Dec. 12, 2017) (The NCC’s Animal Welfare
Guidelines and Audit Checklist include guidance for housing space, feed, water,
veterinary attention, proper handling, humane slaughter, and breeding.)
50
Id.
51
See Warner, supra note 48.
52
See Kristof, supra note 30.
53 Jim Perdue. Chairman, Perdue Farms, youtube (July 11, 2011), https://
www.youtube.com/watch?v=2a8x_8liZWA.
54
Id.
55
Id.
56
See Harrison Jacobs, Perdue Farmer Reveals How Bad Life Is For His
‘Humanely Raised’ Chickens, buS. inSiDer (Dec. 10, 2014, 3:51 PM), http://
www.businessinsider.com/the-truth-about-humanely-raised-chicken-2014-12.
57
Id.
58
Id.
59
Id.
60
Id. (leaving the oor of the barn to be covered with feces and urine).
61
Meat Chickens, homeSteaD organicS (2003), http://www.homesteadorgan-
ics.ca/meat-chickens.aspx (noting that breeds such as Meat King and White
Cornish Crosses are marketed as broilers at 8-10 weeks of age).
62 The Business of Broilers, supra note 5; Jacqueline Howard, Chickens
Look Way Different Today, And Here’s the Reason Why, huffington poSt
(Oct. 21, 2014), http://www.hufngtonpost.com/2014/10/21/chickens-bred-
bigger_n_5983142.html (citing a study by the University of Alberta demon-
strating that broiler chicken breeds are four times larger today than the industry
standard breeds in 1957).
63 Gaverick Matheny & Cheryl Leahy, Farm-Animal Welfare, Legislation,
and Trade, 70 l. & contemp. probS. 325, 330 (2007), https://scholarship.law.
duke.edu/cgi/viewcontent.cgi?article=1415&context=lcp.
64
Id.
51
Fall 2017
65
R.F. Wideman et al., Pulmonary Arterial Hypertension (Ascites Syndrome)
in Broilers: A Review, 92 poultry Sci. 64–83 (2013), https://academic.oup.
com/ps/article-lookup/doi/10.3382/ps.2012-02745.
66
Id.
67
j. mench, meaSuring anD auDiting broiler welfare 3-5 (C.A. Weeks &
A. Butterworth eds., 2004).
68
17 Chicken Facts the Industry Doesn’t Want You to Know, free
from harm (Aug. 28, 2014), http://freefromharm.org/animalagriculture/
chicken-facts-industry-doesnt-want-know/.
69
See Roberto A. Ferdman, The not-so-humane way ‘humanely raised’ chick-
ens are being raised, waSh. poSt (Dec. 8, 2014), https://www.washingtonpost.
com/news/wonk/wp/2014/12/08/the-not-so-humane-way-humanely-raised-
chickens-are-being-raised/?utm_term=.0049e1e701d1.
70
Id.
71
Wideman et al., supra note 65, at 67.
72
Big Liver and Spleen Disease, the poultry Site (2004), http://www.
thepoultrysite.com/diseaseinfo/12/big-liver-and-spleen-disease (explaining that
accelerated growth and overcrowding causes latency and big liver and spleen
disease).
73
Stephen R. Collett et al., Overview of Sudden Death Syndrome of Broiler
Chickens, merck veterinary manual, http://www.merckvetmanual.com/
mvm/poultry/sudden_death_syndrome_of_broiler_chickens/overview_of_sud-
den_death_syndrome_of_broiler_chickens.html (last visited Dec. 12, 2017).
74
Billy M. Hargis, Ascites Syndrome in Poultry, merck veterinary manual,
http://www.merckvetmanual.com/poultry/miscellaneous-conditions-of-poultry/
ascites-syndrome-in-poultry (last visited Dec. 13, 2017).
75
Collett et al., supra note 73.
76
Buried Alive: COK Investigation Uncovers Shocking Cruelty to Chickens
at NC Factory Farm, compaSSion over killing, http://cok.net/inv/pilgrims/
(last updated Aug. 6, 2014) [hereinafter Buried Alive].
77 kriShan pal, DiSeaSeS of poultry 306-24 (2015).
78
Casey W. Ritz, Mortality Management Options for Georgia Poultry Grow-
ers, univ. of ga. coop. extenSion 1, 3 (Apr. 2009), https://secure.caes.uga.edu/
extension/publications/les/pdf/B%201244_2.PDF.
79
See id.; Jacobs, supra note 56.
80
See Ferdman, supra note 69.
81
Id.
82
A Closer Look, supra note 18.
83
Id.
84
jameS v. craig, DomeStic animal behavior, 243-44 (1981).
85
Id.
86
Overview of the United States Slaughter Industry, u.S. Dept of agric.
(Oct. 27, 2016), http://usda.mannlib.cornell.edu/usda/current/SlauOverview/
SlauOverview-10-27-2016.pdf.
87
Fred LaSenna, For Chicken Farms, Have Slaughterhouse, Will Travel,
cnbc (Nov. 17, 2013, 2:27 PM), https://www.cnbc.com/2013/11/17/for-
chicken-farms-have-slaughterhouse-will-travel.html (noting there is a shortage
of slaughterhouses in the United States, thus small–scale producers (less
than 37,500) in remote areas often have to travel long distance from farm to
the slaughterhouse with one driver hauling chickens from Georgia to South
Carolina).
88
49 U.S.C. § 80502 (2012).
89
See 7 U.S.C. § 2132(g) (2012) (excluding “farm animals” including poultry
from protection under the statute); Farmed Animals and the Law, animal legal
Def. funD, http://aldf.org/resources/advocating-for-animals/farmed-animals-
and-the-law/ (last visited Dec. 13, 2017) [hereinafter Farmed Animals and
the Law] (indicating that the USDA claims the rule does not apply to poultry
and, even if it did, the rule is rarely enforced); Edward Lotterman, Why no one
mourns the loss of the family chicken farm, FeD gazette (Apr. 1, 1998), https://
www.minneapolisfed.org/publications/fedgazette/why-no-one-mourns-the-loss-
of-the-family-chicken-farm (noting that poultry were likely excluded from the
law since, at the time of passage, selling poultry products outside of the family
farm was uncommon).
90
See Farmed Animals and the Law, supra note 89.
91
National Chicken Council Brief on Stunning Chickens, natl chicken
council, http://www.nationalchickencouncil.org/national-chicken-council-
brief-on-stunning-of-chickens/ (last visited Dec. 8, 2017); Sara Shields &
Mogan Raj, An HSUS Report: The Welfare of Birds at Slaughter, the humane
Socy of the u.S. 1, http://www.fao.org/leadmin/user_upload/animalwelfare/
HSUS—The%20Welfare%20of%20Birds%20at%20Slaughter.pdf (last visited
Dec. 13, 2017) [hereinafter HSUS Report].
92
See HSUS Report, supra note 91, at 1,6.
93
Id. at 5-6.
94
Id. at 6.
95
See Poultry Slaughter 2016, supra note 3, at 8-9.; Farm Sanctuary &
Animal Welfare Institute, Petition to issue regulations under the Poultry Prod-
ucts Inspection Act 14 (Dec. 17, 2013), https://www.fsis.usda.gov/wps/wcm/
connect/e138fe1a-d380-42b2-88b7-f24a11ed7d7f/Petition-AWI-PPIA-121713.
pdf?MOD=AJPERES (citing that as birds enter the water, many organisms
including feces, salmonella, and campylobacter, are released and inhaled by the
live birds causing cross-contamination).
96
Buried Alive, supra note 76.
97
Food Labels Survey 2016 Nationally-Representative Phone Survey, con-
Sumer reportS natl reSearch ctr. 4 (Apr. 6, 2016), http://greenerchoices.
org/wp-content/uploads/2016/08/2016_CRFoodLabelsSurvey.pdf (“Many con-
sumers think a humanely raised claim on eggs, dairy and meat currently means
the farm was inspected to verify this claim (82%), the animals had adequate
living space (77%), the animals were slaughtered humanely (71%), the animals
went outdoors (68%), the animals were raised in houses with clean air (65%),
or the animals were raised without cages (57%). Accordingly, a greater percent-
age of consumers believe this claim should mean that the farm was inspected
to verify this claim (88%), the animals had adequate living space (86%), the
animals were slaughtered humanely (80%), the animals were raised in houses
with clean air (78%), the animals went outdoors (78%), or the animals were
raised without cages (66%)”).
98
Anne Bucher, Kroger, Perdue Farms Settle Chicken Labeling Class Action
Lawsuits, top claSS actionS (Oct. 15, 2014), http://topclassactions.com/
lawsuit-settlements/lawsuit-news/42213-kroger-perdue-farms-settle-chicken-
labeling-class-action-lawsuits/.
99
Id.
100
Settlement Reached in Lawsuit Concerning Perdue Chicken Labeling,
the humane Socy of the u.S., (Oct. 13, 2014), http://www.humane-
society.org/news/press_releases/2014/10/Perdue-settlement-101314.
html?credit=web_id98471502.
101
Id.
102
Id.
103
See Complaint at ¶ 1, Ortega v. Kroger Co., CASE NO. 2:14-cv-1949
(C.D. Cal. 2014).
104
Id. at ¶¶ 77-79.
105
Id. at ¶ 4 (asserting that production codes included on Simple Truth brand
chicken indicate that its chicken is produced by Perdue Farms’ at its Cromwell,
Kentucky facility).
106
Stephanie Strom, Perdue Aims to Make Chickens Happier and More Com-
fortable, n.y. timeS (June 26, 2016), https://www.nytimes.com/2016/06/27/
business/perdue-aims-to-make-chickens-happier-and-more-comfortable.html/.
107
See id.
108
Id.
109
Id.
110
Id.
111
Compare Livestock Slaughter 2016 Summary, u.S. Dept of agric. (Apr.
2017) (adding up the number of cattle, hogs, and sheep annually slaughtered
together is in the millions and is less than the number of chickens annually
slaughtered which is in the billions), with Poultry Slaughter 2016 Summary,
U.S. Dept of agric. (Feb. 2017) (demonstrating that the number of chickens
slaughtered annually is close to 9 billion); see also The United States Meat
Industry at a Glance, the n.a. meat inSt., https://www.meatinstitute.org/
index.php?ht=d/sp/i/47465/pid/47465 (last visited Dec. 1, 2017); Farm
Animal Statistics: Slaughter Totals, the humane Socy of the u.S., http://
www.humanesociety.org/news/resources/research/stats_slaughter_totals.
html?referrer?referrer=https://www.google.com/ (last updated June 25, 2015).
112
See Veronica Hirsch, Detailed Discussions of Legal Protections of the
Domestic Chicken in the United States and Europe, animal legal & hiStori-
cal ctr. (2003), https://www.animallaw.info/article/detailed-discussion-legal-
protections-domestic-chicken-united-states-and-europe (discussing the limited
federal and state regulations governing poultry use).
113
Jai-Rui Chong, Wood-Chipped Chickens Fuel Outrage, L.A. timeS (Nov.
22, 2003), http://articles.latimes.com/2003/nov/22/local/me-chipper22.
114 Call to Compassion: Reections on Animal Advocacy from the World’s
Religions 249 (Lisa Kemmerer, Anthony J. Nocella ed., 2008).
115
See id. (noting that the farm owners were following professional advice
rather than acting with malice).
52 Sustainable Development Law & Policy
116
Animal Welfare Act, u.S. Dept of agric., https://www.nal.usda.gov/awic/
animal-welfare-act (last visited Dec. 13, 2017); see generally 7 U.S.C. § 2131
(2012).
117
The Animal Welfare Act–Public Law 89-544 Act of August 24, 1966, u.S.
Dept of agric., https://www.nal.usda.gov/awic/animal-welfare-act-public-law-
89-544-act-august-24-1966 (last visited Dec. 13, 2017).
118
Animal Welfare Act Amendments of 1970, Pub. L. No. 91-579, 84 Stat.
1560 (codied as amended at 7 U.S.C. § 2132(g) (dening the term animal).
119
DonalD D. bell, commercial meat anD chicken proDuction: anatomy of
the chicken 41 (5th ed. 2002).
120
7 U.S.C. § 2132(g) (“The term ‘animal’ . . . excludes . . . farm animals,
such as, but not limited to livestock or poultry, used or intended for use as food
or ber, or livestock or poultry used or intended for use for improving nutrition,
breeding, management, or production efciency, or for improving the quality of
food or ber.”).
121
7 U.S.C. § 1901 (1958).
122
Id.
123
Id. § 1902(a).
124
Levine v. Vilsack, 587 F.3d 986, 989 (9th Cir. 2009).
125
Id. § 1904(b).
126
Humane Methods of Livestock Slaughter Act of 1958, ch. 72, § 3, 72 Stat.
862, 862, repealed by Humane Methods of Livestock Slaughter Act of 1978, ch.
72, § 5, 92 Stat. 1069, 1069.
127
Compare Humane Methods of Livestock Slaughter Act of 1958, ch. 72, §
3, 72 Stat. 862, 862, with Humane Methods of Livestock Slaughter Act of 1978,
ch. 72, § 5, 92 Stat. 1069, 1069.
128
Humane Methods of Livestock Slaughter Act of 1978, ch. 72, 92 Stat.
1069, 1069.
129
Id.
130
See id.
131
See id. § 2(b) (extending humane slaughter to “cattle, sheep, swine, goats,
horses, mules, and other equines”).
132
Id.
133
7 U.S.C. § 1904(b) (2012).
134
Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. 56,624, 56,624
(Sept. 28, 2015) (reminding the public that “poultry must be handled in a man-
ner that is consistent with good commercial practices, which means they should
be treated humanely”).
135
Id.
136
Id.
137
Id. (“poultry products are more likely to be adulterated if, among other
circumstances, they are produced from birds that have not been treated
humanely, because such birds are more likely to be bruised or to die other than
by slaughter”).
138
See Levine v. Vilsack, 587 F.3d 986, 990-91 (9th Cir. 2009) (holding that
Levine lacked standing due to the repeal of the legislation that made USDA
responsible for the Plaintiff’s injury).
139
See id. at 991.
140
Bruce Friedrich, Still in the Jungle: Poultry Slaughter and the USDA, 23
N.Y.U. envtl. l.j. 247, 252-53 (2015) (stating that the USDA does not extend
FMIA protection to birds, giving poultry no protection from inhumane treat-
ment under federal law).
141
Working to Make Slaughter More Humane for Poultry, am. welfare inSt.
19 (2014), https://awionline.org/awi-quarterly/2014-winter/working-make-
slaughter-more-humane-poultry [hereinafter AWI, Working].
142
Freidrich, supra note 140, at 263.
143
Levine, 587 F.3d at 988.
144
See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 864
(1984) (deciding that where legislative delegation to agency on particular ques-
tion was made by Congress, the court may not substitute its own construction
of statutory provision for reasonable interpretation made by administrator of
agency).
145
See 21 U.S.C. § 451 (2012).
146
See id. § 454.
147
Statement of Interim Labeling Guidance Documentation Needed to Sub-
stantiate Animal Production Claims for Label Submission, 78 Fed. Reg. 66,826
(proposed Nov. 7, 2013) (to be codied at 9 C.F.R. pt. 317, 318, 320, 327, 331,
381, 412, and 424) [hereinafter of Interim Labeling Guidance].
148
See 21 U.S.C. § 457 (stating that the Secretary delegates the ability to
regulate poultry product labeling under the Act).
149
u.S. Dept of agric. fooD Safety inSpection Serv., fSiS StatuteS anD
your role, 1 (Nov. 6, 2013) [hereinafter Your Role].
150
See 21 U.S.C. § 451 (2012).
151
Id.
152
Interim Labeling Guidance, supra note 147 (describing the role of the Sec-
retary of Agriculture as the gatekeeper for proper labeling of meat and poultry
products).
153
Freidrich, supra note 140, at 258.
154
Your Role, supra note 149, at 16.
155
21 U.S.C. § 458 (a)(2).
156
Id. § 453 (g)(3)-(5).
157
Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. 56,624 (Sept. 28,
2005).
158
Philip G. Chambers & Temple Grandin, Guidelines for Humane Handling,
Transport and Slaughter of Livestock, fooD & agric. org. of the u.n., regl
off. for aSia & the pac. 6 (2001), http://www.fao.org/3/a-x6909e.pdf.
159
See Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. at 56,264
(“[P]oultry products are more likely to be adulterated if, among other circum-
stances, they are produced from birds that have not been treated humanely,
because such birds are more likely to be bruised or to die other than by slaugh-
ter”); see also Denitions, 7 U.S.C. § 2132 (g) (2012) (explaining the term
“animal” in the statute).
160
u.S. Dept of agric. fooD Safety & inSpection Serv., pub. no. 6100.3,
ante-mortem anD poSt-mortem poultry inSpection (2011) [hereinafter
Directive].
161
Id. at 3.
162
Id.
163
AWI, Working, supra note 141.
164
u.S. Dept of agric. fooD Safety & inSpection Serv., human hanDling
verification for liveStock anD gooD commercial practiceS for poultry,
30-26 (Nov. 29, 2016) [hereinafter Humane Handling Verication].
165 u.S. Dept of agric. fooD Safety & inSpection Serv., pub. no. 44-16,
inStructionS for writing poultry gooD commercial practiceS noncompli-
ance recorDS anD memoranDum of interview letterS for poultry miS-
treatment 1 (June 27, 2016) [hereinafter Instructions] (describing the duties
of Inspection Program Personnel who are FPP employees trained to record
instances of non-compliance and establish the GCP records).
166
Id. (stating that “in poultry operations, following GCP, including employ-
ing humane methods of handling and slaughtering, increases the likelihood of
producing unadulterated product”).
167 Humane Handling Verication, supra note 164, at 30-27.
168
Id.
169
Id. at 30-28.
170
AWI, Working, supra note 141, at 18 (discussing the USDA’s failure to
provide adequate guidelines to regulate and oversee FPPs even with existing
guidelines for the poultry industry).
171
Id.
172
Id. at 18-19.
173
Animal Welfare Institute, Petition to issue regulations under the Poultry
Products Inspection Act to regulate practices and actions that result in adulter-
ated poultry products 8 (Dec. 17, 2013), https://www.fsis.usda.gov/wps/wcm/
connect/e138fe1a-d380-42b2-88b7-f24a11ed7d7f/Petition-AWI-PPIA-121713.
pdf?MOD=AJPERES.
174 See id. (nding that the two most common problems of birds dying other
than by slaughter and inadequate cutting were due to the common practice of
improper handling and the placement of live birds in “dead on arrival” bins).
175
21 U.S.C. § 453 (h)(1) (2012).
176
Your Role, supra note 149, at 2, 14-17.
177
Animal Welfare Institute, Petition to Amend Labeling Regulations under
the Federal Meat Inspection Act and the Poultry Products Inspection Act to
Require Third-Party Certication for the Approval of Animal Welfare and
Environmental Stewardship Claims 8 (May 2014), https://www.fsis.usda.gov/
wps/wcm/connect/5bdab0ca-8072-480b-9bd9-c9bc04b56531/Petition-AWI-
Labeling-0514.pdf?MOD=AJPERES [hereinafter Petition to Amend Labeling]
(stating that the FSIS is responsible for safeguarding the country’s marketable
supply of meat, poultry, and processed egg products to ensure that they are
“safe, wholesome, and correctly labeled and packaged” and if needed, they
have the power to rescind or refuse approval of labels and marks).
178
Id. at 9 (claiming that the test to determine if a company’s testimonial
evidence is lacking because the FSIS explained that animal welfare and envi-
ronmental stewardship claims “should be dened according to the company’s or
53
Fall 2017
producer’s standard” to clearly state to consumers how animals were raised and
what the terms mean).
179
Id.
180 Id. at 10.
181
Id. at 22.
182
Id. at 8-9.
183
Id. at 9; see also Treatment of Live Poultry Before Slaughter Notice, 70
Fed. Reg. 187, (Sept. 28, 2005) (referring to the compliance of the NCC Animal
Welfare Guidelines and Audit Checklist which has been widely used and is
consistently revised).
184
Animal Raising Claims Transcript of Record, u.S. Dept of agric. fooD
Safety & inSpection Serv. 15 (Oct. 14, 2008), https://www.fsis.usda.gov/
wps/wcm/connect/50bdbb61-f293-4e4c-90d5-ac819a16ca03/Animal_Rais-
ing_Claims_101408.pdf?MOD=AJPERES.
185
Id. at 13.
186
Organic Certication, u.S. Dept of agric., econ. reSearch Serv., http://
www.ers.usda.gov/topics/natural-resources-environment/organic-agriculture/
organic-certication.aspx (last visited Dec. 13, 2017) (explaining that the
demand for organic agriculture began in response to large-scale plant-based
agricultural practices).
187
Jessica Ellsworth, The History of Organic Food Regulation 3 (2001)
(unpublished Third Year Paper at Harvard Law School) (on le with the Har-
vard University Library System).
188
Id. at 5.
189
Id. at 6.
190
Id. at 5-6.
191
Id. at 6.
192
Id. (noting that producers were motivated to mislabel food as organic
because consumers were likely to pay more for organic products).
193
7 U.S.C. § 6501 (1990).
194
National Organic Program, u.S. Dept of agric., agric. mktg. Serv.,
https://www.ams.usda.gov/about-ams/programs-ofces/national-organic-
program (last visited Dec. 13, 2017).
195
Ellsworth, supra note 187, at 14.
196
Id. at 23 (stating that the term “organic” will no longer be questioned and
that the national organic standards will protect the integrity of the organic
product including the prohibited use of irradiation, sewage sludge, or genetic
engineering in anything labeled organic).
197
Id. at 7.
198
Natural Resource Management, u.S. Dept of agric., natl agric.
library, https://www.nal.usda.gov/afsic/natural-resource-management-0 (last
visited Dec. 13, 2017).
199
Sustainable Table — Organic Agriculture, grace commcn founD. fooD
prog., http://www.sustainabletable.org/253/organic-agriculture (last visited
Dec. 13, 2017).
200
Ann H. Baier, Organic Certication of Farms and Businesses Producing
Agricultural Products, u.S. Dept of agric. agric. mktg. Serv. (Nov. 2012),
http://extension.wsu.edu/spokane/wp-content/uploads/sites/33/2014/10/USDA-
organic-cert-summary.pdf.
201
Becoming a Certied Operation, u.S. Dept of agric., agric. mktg.
Serv., http://www.ams.usda.gov/services/organic-certication/faq-becoming-
certied (last visited Dec. 13, 2017).
202
Organic Certication Fees, cal. certifieD organic farmerS, http://www.
ccof.org/certication/fees (last visited Dec. 13, 2017).
203
Id.
204
Organic Certication Cost Share Programs, u.S. Dept of agric., agric.
mktg. Serv., http://www.ams.usda.gov/services/grants/occsp (last visited Dec.
13, 2017) (demonstrating how producers often compare the cost of production
divided by the area used to grow then dividing that number by pounds har-
vested of that item).
205
Id.
206
Organic Agriculture: Frequently Asked Questions, fooD & agric. org.
of u.n., http://www.fao.org/organicag/oa-faq/oa-faq5/en/ (last visited Dec. 13,
2017).
207
u.S. Dept of agric. nat. agric. Stat. Serv., poultry–proDuction anD
value, Summary 5, 14, (Apr. 2015).
208
Per Capita Consumption of Poultry and Livestock, 1965 to Estimated
2016, in Pounds, nat. chicken council (2012), http://www.nationalchicken-
council.org/about-the-industry/statistics/per-capita-consumption-of-poultry-
and-livestock-1965-to-estimated-2012-in-pounds/.
209
7 U.S.C. § 2132(g) (2012) (“Animals covered under this Act include any
live or dead cat, dog, hamster, rabbit, nonhuman primate, guinea pig, and any
other warm-blooded animal determined by the Secretary of Agriculture for
research, pet use or exhibition.”).
210
See generally, Animal Welfare Act, Pub. L. No 91-579, 84 Stat. 1560 §
2(g) (1970) (amending the 1966 original to expressly exclude poultry). the Act
was amended to include psychological enrichment, and In 2002. If chicken
were added to these protections they could be covered under mandatory federal
regulations, and although it the Act is not guarantee humane treatment for all
chickens, it can help to mitigate some of the abuse they endure).
211
Id. (noting the amendments to the AWA added warm-blooded animals to its
protections to help eliminate the suffering endured by warm-blooded animals).
212
Farmed Animals and the Law, supra note 89.
213
See u.S. Dept of agric., fooD Safety & inSpection Serv., humane
hanDling of liveStock anD gooD commercial practiceS in poultry 1, 22 (Jan.
2015) (recognizing that GCP approaches are currently voluntary on the part of
the industry).
214
21 U.S.C. § 451 (2012) (claiming that “unwholesome, adulterated, or mis-
branded poultry products impair the effective regulation of poultry products”).
215
7 U.S.C. § 1901 (2012) (detailing Congressional reasoning for law).
216
Mary L. Azcuenaga, The Role of Advertising and Advertising Regulation in
the Free Market, Turkish Association of Advertising Agencies, (Apr. 8, 1997),
(“Advertising that distorts the market by disseminating false or deceptive
claims These claims may induce consumers to purchase goods or services that,
had the consumers not been misled by the deceptive advertising, they would not
have chosen to buy. When this happens, the government may need to step in to
restore the integrity of the market. It may take various steps, including case-by-
case law enforcement to prevent false and deceptive advertising and issuance of
regulations to address particular practices that mislead consumers about mate-
rial attributes of goods and services in the market.”).
217
E.g., 21 U.S.C. § 607(d) (2012); 21 U.S.C. § 457(c); Lanham Act, 15
U.S.C. § 1125(a)(1)(A)-(B) (2012).
218
u.S. Dept of agric. fooD Safety & inSpection Serv., fooD Safety
anD inSpection Service labeling guiDeline on Documentation neeDeD to
SubStantiate animal raiSing claimS for label SubmiSSionS 2016 (Sept.
2016), https://www.fsis.usda.gov/wps/wcm/connect/6fe3cd56-6809-4239-
b7a2-bccb82a30588/RaisingClaims.pdf?MOD=AJPERES [hereinafter Service
labeling guiDeline] (noting “[The Food Labeling Compliance Guideline] is for
establishments that are designing or modifying meat or poultry product labels
with animal raising claims.” And therefore they do not apply to those producers
who do not raise such claims).
219
E.g., 7 U.S.C. § 2131 (2012); 49 U.S.C. § 80502 (2012); Humane Methods
of Slaughter Act, 7 U.S.C. § 1901 (1978).
220
See generally Pet Adoptions Rise, Shelter Deaths Fall as Ad Council
Launches Second Wave of Historic Pet Adoption Campaign, aD council
(Nov. 15, 2011), https://www.adcouncil.org/News-Events/Press-Releases/Pet-
Adoptions-Rise-Shelter-Deaths-Fall-as-Ad-Council-Launches-Second-Wave-
of-Historic-Pet-Adoption-Campaign (noting the effectiveness of the Shelter Pet
Project, a series of advertisements released by The Ad Council in conjunction
with The Humane Society of the United States and Maddie’s Fund, in reducing
euthanasia of shelter pets by 10% since its promotion in 2009 “Despite a bleak
economy, the percentage of pets in homes that were adopted from animal shel-
ters and rescue groups has risen from 27 percent to 29 percent in the last two
years, with the number of healthy and treatable pets losing their lives for lack of
a home dropping from 3 million to 2.7 million.”).
221
Azcuenaga, supra note 216.
222 Levine v. Vilsack, 587 F.3d 986, 989 (9th Cir. 2009) (“The [PPIA] . . .
among other things, gave USDA authority to inspect poultry producers for
compliance with health and sanitary requirements, required inspection of poul-
try after slaughter, established labeling requirements for poultry products, and
allowed for withdrawal of inspections for noncompliance and the imposition of
civil and criminal penalties for the sale of adulterated products.”).
223
u.S. Dept of agric., fooD Safety & inSpection Serv., fSiS aS a public
health regulatory agency: regulatory framework (Sept. 24, 2012).
224
21 U.S.C. § 458 (2012).
225
See u.S. Dept of agric. fooD Safety & inSpection Serv., guiDebook
humane hanDling of liveStock anD poultry 12 (2009) (stating that poultry
be slaughtered with good commercial practices, in a manner that ensures that
poultry are treated humanely).
226
the humane Socy of the u.S. 1 (Sept. 2004), http://www.humanesociety.
org/assets/pdfs/Gas_killing.pdf (last visited Dec. 13, 2017) [hereinafter
54 Sustainable Development Law & Policy
Controlled Atmosphere Killing] (contrasting controlled-atmosphere killing with
electric immobilization).
227
Kimberly Kindy, USDA plan to speed up poultry-processing lines
could increase risk of bird abuse, waSh. poSt (Oct. 29, 2013), https://www.
washingtonpost.com/politics/usda-plan-to-speed-up-poultry-processing-lines-
could-increase-risk-of-bird-abuse/2013/10/29/aeeffe1e-3b2e-11e3-b6a9-
da62c264f40e_story.html?utm_term=.f6d96e02d705 (“the [USDA] considers
electried and gas stunning to be humane provided the systems are properly run
and maintained.”).
228
See Charlotte Berg & Mohan Raj, A Review of Different Stunning Methods
for Poultry—Animal Welfare Aspects (Stunning Methods for Poultry), 5.4 ani-
malS 1207, 1212 (Nov. 30, 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC4693211/; Controlled Atmosphere Killing, supra note 226, at 1-2; see also
William Neuman, New Way to Help Chickens Cross to Other Side, n.y. timeS
(Oct. 21, 2010), http://www.nytimes.com/2010/10/22/business/22chicken.html.
229
Controlled-Atmosphere Killing, supra note 226, at 1 (“Controlled Atmo-
sphere Killing is carried out by passing birds in their transport crates through
a chamber containing gas. This gas is not poisonous, but causes death by
anoxia.”).
230
Id. at 1-2.
231
Id. at 2.
232
See Neuman, supra note 228 (“The gas technology is expensive. Each
company said it would cost about $3 million to convert their operations and
more over time to run the systems. That makes it a hard sell in a commodity-
oriented industry that relies on huge volumes and low costs to turn narrow
margins into prots.”).
233
Controlled-Atmosphere Killing, supra note 226, at 2 (discussing cost-
savings associated with controlled-atmosphere killing).
234
21 U.S.C. § 453(h) (2012).
235 Victory for Honest Food Labels, compaSSion in worlD farming (Nov. 12,
2015), https://www.ciwf.com/news/2015/11/usda-no-longer-verifying-factory-
farm-chicken-as-humane (spotlighting the outrage some consumers had with
the USDA’s labeling of Perdue’s chickens considering the conditions exposed
in Watts’video).
236
Id.
237
See generally Service labeling guiDeline, supra note 218 (discussing the
requirements for obtaining the necessary label but not dening the terms).
238
Dena Jones, American Humane Certied Is Out of Step on the Meaning
of “Humane, huffington poSt (July 28, 2015), http://www.hufngtonpost.
com/dena-jones/american-humane-certied-is-out-of-step-on-the-meaning-of-
humane_b_7859634.html (indicating that marketing materials and animal care
standards are inconsistent with the public’s perception of what is “humane”).
239
Animal Welfare: What Is It?, am. veterinary meD. aSSn (2010), https://
www.avma.org/KB/Resources/Reference/AnimalWelfare/Pages/what-is-ani-
mal-welfare.aspx [hereinafter Animal Welfare: What Is It] (citing the existence
of various means of measuring animal welfare, including but not limited to
“health, productivity, behavior, and physiological responses”).
240
Barry Bouseld & Richard Brown, Animal Welfare, 1.4 agric, fiSherieS
& conServation Dept. newSletter (nov. 2010), https://www.afcd.gov.hk/
english/quarantine/qua_vb/les/AW8.pdf.
241
Animal Welfare: What Is It, supra note 239 (detailing the AVMA denition
of what a good state of welfare for an animal entails).
242
Organic Production/Organic Food: Information Access Tools, u.S. Dept
of agric. (Apr. 2016), https://www.nal.usda.gov/afsic/organic-productionor-
ganic-food-information-access-tools (making the “USDA Certied Organic”
label available to producers that met the National Organic Program’s (NOP)
standards for “production, handling, and processing of organically grown agri-
cultural products”).
243
Animal Welfare Act, Pub. L. No 91-579, 84 Stat. 1560 § 2(g) (1970) (high-
lighting the AWA’s lack of proper denitions for important terms).
244
Organic Certication, u.S. Dept of agric., https://www.ers.usda.gov/
topics/natural-resources-environment/organic-agriculture/organic-certication/
(last visited Dec. 13, 2017). (“USDA’s Agricultural Marketing Service
implemented a National Organic Program in 2002 as a way to support organic
farmers and processors and provide consumer assurance. USDA harmonized
the differing standards among dozens of State and private certication organiza-
tions that had emerged by the late 1990s, and continues to update rules on
organic production and processing.”).
245
Id. (commenting on the importance of improving the AWA’s denitions of
important terms).
246
The 5-Step Animal Welfare Program, global animal p’Ship, https://global-
animalpartnership.org/5-step-animal-welfare-rating-program/ (last visited Dec.
13, 2017) [hereinafter The 5-step Animal Welfare Program] (relying on good
management practices and genetics along with an evaluation of the animals’
well-being to generate a comprehensive welfare rating).
247
Id. (demonstrating the ability of the program to remove ambiguity from
welfare standards).
248
See Katherine Courage, 80% of Meat Labels Could Be Meaningless,
Exclusive Report Says, time (May 14, 2014), http://time.com/99296/80-of-
meat-labels-could-be-meaningless-exclusive-report-says/ (explaining the results
of inadequate standards and enforcement against companies claiming to meet
high environmental standards on their labels).
249
In Attempt to Fowl Up Consumers, Perdue Crows Humanely Raised,
animal welfare inSt. (Oct. 2, 2017), https://awionline.org/awi-quarterly/2010-
summer/attempt-fowl-consumers-perdue-crows-humanely-raised (explaining
Perdue’s false labeling of chicken products despite any action to meet humane
standards).
250
Shouldn’t “Humane” Labels be Accurate?, animal welfare inSt. (May
14, 2014), https://awionline.org/archived-action-ealerts/shouldnt-humane-
labels-be-accurate (describing AWI’s work to allow companies to place humane
labels on products only if they support their claims by meeting standards).
251
Petition to Amend Labeling, supra note 177, at 15-17, 29-30.
252
See Meat Inspector Shortage Puts America’s Food Safety in Question, pub-
lic newS Serv. (Sept. 5, 2017), http://www.publicnewsservice.org/2017-09-05/
health-issues/meat-inspector-shortage-puts-americas-food-safety-in-question/
a59287-1 (warning of possible consequences for the U.S. food supply resulting
from USDA’s inability to ll inspector positions).
253
Petition to Amend Labeling, supra note 177, at 25 (petitioning that the
FMIA and the PPIA require third-party certication).
254
Id. at 22.
255
Farm Animal Welfare: An Assessment of Product Labeling Claims, Industry
Quality Assurance Guidelines and Third Party Certication Standards, farm
Sanctuary 87 (Dec. 2000), http://thehill.com/sites/default/les/FarmAnimal-
WelfareReport_0.pdf (detailing the duties and responsibilities of third-party
claims in order to produce unbiased results).
256
What is the MSC?, marine StewarDShip council, https://www.msc.org/
about-us/what-is-the-msc (last visited Dec. 13, 2017) [hereinafter What is the
MSC?].
257
Ganapathiraju Pramod et al., Estimates of Illegal and Unreported Fish in
Seafood Imports to the USA, 46 marine policy 102, 102 (2014) (describing the
drastic effects of illegal shing as it continues ood the global market).
258
Hannah Furlong, DNA Tests Bolster Credibility of MSC-Labeled Seafood,
SuStainable branDS (Mar. 16, 2016), http://www.sustainablebrands.com/
news_and_views/supply_chain/hannah_furlong/dna_test_results_bolster_cred-
ibility_msc_labelled_seafood (describing the toll illegal, unreported, and
unregulated shing takes on the labeling of sh products).
259
What is the MSC?, supra note 256.
260
Lucy Anderson, From Ocean to Plate: How DNA Testing Helps to Ensure
Traceable Sustainable Seafood, marine StewarDShip council 3 https://www.
msc.org/documents/chain-of-custody-documents/from-ocean-to-plate (last
visited Dec. 12, 2017).
261
See generally Daniel Zwerdling, Is Sustainable-Labeled Seafood
Really Sustainable?, natl pub. raDio (Feb. 11, 2013), http://www.npr.
org/2013/02/11/171376509/is-sustainable-labeled-seafood-really-sustainable
(tracing the work and critiques of the MSC through their commitment to ensure
sustainable sheries).
262
MSC Fisheries Standard, marine StewarDShip council (May 1, 2010),
https://www.msc.org/about-us/standards/sheries-standard/msc-environmental-
standard-for-sustainable-shing (assessing the sustainability and management
of a shery).
263
Id. (minimizing environmental impact principle).
264
Id. (proving effective management is the third principle required by MSC
Fisheries Standard).
265 MSC Chain of Custody Standard, marine StewarDShip council, https://
www.msc.org/about-us/standards/chain-of-custody-standard (last visited Dec.
13, 2017)) (“The MSC Chain of Custody Standard is a traceability and segrega-
tion standard that is applicable to the full supply chain from a certied shery
or farm to nal sale. Each company in the supply chain handling or selling an
MSC certied product must have a valid MSC Chain of Custody certicate.
This assures consumers and seafood-buyers that MSC labeled seafood comes
from a certied sustainable shery.”).
55
Fall 2017
266
From Ocean to plate: How DNA testing helps to ensure traceable, sustain-
able seafood, marine StewarDShip council 8 (Mar. 2016), https://www.msc.
org/documents/chain-of-custody-documents/from-ocean-to-plate.
267
Id. (including record keeping, unannounced audits, and DNA testing in the
traceability standard).
268
Id.
269
Id. (requiring each certier to carry out unannounced audits for at least 1%
of their clients).
270
Id. at 3 (portraying the success the MSC labelling efforts have had).
271
Kimberly Warner et al, Oceana Study Reveals Seafood Fraud Nationwide,
oceana (Feb. 2013), http://oceana.org/reports/oceana-study-reveals-seafood-
fraud-nationwide (encouraging the establishment of a comprehensive and
transparent traceability system).
272
What Does the Blue MSC Label Mean?, marine StewarDShip council
(Aug. 15, 2011), https://20.msc.org/what-we-are-doing/our-approach/what-
does-the-blue-msc-label-mean (explaining the blue label is based on a scientic
set of requirements and is only applied to wild sh or seafood from sheries
that have been independently assessed and separated from non-certied
seafood).
273
Petition to Amend Labeling, supra note 177, at 19.
274
See Julia Kirby, Trust in the Age of Transparency, harv. buS. rev. (Aug.
2012), https://hbr.org/2012/07/trust-in-the-age-of-transparency.
275
What is Ag-Gag Legislation?, am. Socy for the prevention of cruelty
to animalS, https://www.aspca.org/animal-protection/public-policy/what-ag-
gag-legislation (last visited Dec. 13, 2017).
276
Ben McClure, The Importance of Corporate Transparency, inveStopeDia,
http://www.investopedia.com/articles/fundamental/03/121703.asp?lgl=rira-
baseline (last visited Dec. 13, 2017) (discussing the value of disclosure and
simplicity to the consumer for companies and their investors).
277
The 5-step Animal Welfare Program, supra note 246 (providing a third-
party verication of transparency through a rigorous process of setting and
approving standards).
278
See Stephanie Clifford, Would You Like a Smile With That?, n.y. timeS
(Aug. 6, 2011), http://www.nytimes.com/2011/08/07/business/pret-a-manger-
with-new-fast-food-ideas-gains-a-foothold-in-united-states.html (demonstrating
Pret a Manger’s use of rewards through evaluation to positively affect behavior
that can be applied to all industries).
279
See 7 C.F.R. Part 205 (2000) (codifying that making false statements or
knowingly selling or labeling products as organic that are non-compliant with
the Organic Foods Production Act of 1990 may be subject to criminal prosecu-
tion and nes); EQIP Organic Initiative, u.S. Dept of agric., https://www.
nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1047337.pdf (last visited
Dec. 13, 2017) (discussing how EQIP Organic Initiative offers nancial aid and
helps producers implement conservation practices to support the environmental
sustainability of their organic operations).
280
Matteo Tonello, The Business Case for Corporate Social Responsibility,
harv. l. f. (June 26, 2011), http://corpgov.law.harvard.edu/2011/06/26/the-
business-case-for-corporate-social-responsibility/ (discussing tangible benets
to business organizations engaging in CSR initiatives).
281
Michael J. Maloni & Michael E. Brown, Corporate Social Responsibility
in the Supply Chain: An Application in the Food Industry, 68 J. buS. ethicS 1,
44 (2006) (discussing the importance of larger food companies backing up their
CSR claims).
282
Id.
283
Candice Elliot, Economic Boycotting, liSten money matterS, https://
www.listenmoneymatters.com/economic-boycotting/ (last visited Dec. 13,
2017) (considering the history and potential for political and economic advan-
tages of boycotting a company that performs poorly).
284
Sandro Castaldo, The Missing Link Between Corporate Social Responsibil-
ity and Consumer Trust: The Case of Fair Trade Products, 84 J. buS. ethicS
1, 7 (2009) (investigating the link between consumer perception and intention
regarding a company’s CSR).
285
Perdue Farms Announces Animal Care Improvements and Commits to
Future Advancements, Perdue Farms, fooD mfg. (July 17, 2017), https://www.
foodmanufacturing.com/news/2017/07/perdue-farms-announces-animal-care-
improvements-and-commits-future-advancements (“We know that trust is
earned by responding to consumers and other stakeholders, and that includes a
willingness to make signicant changes,” said Jim Perdue, chairman of Perdue
Farms. “It’s not easy, and it requires commitment, resources and time. But
people expect more from Perdue, and we have to keep improving”).
286
Gary Mickelson, Tyson Foods Receives an ‘A’ for New Corporate
Responsibility Report, globe newSwire (Feb. 5, 2013, 10:00 AM), https://
globenewswire.com/news-release/2013/02/05/520978/10020599/en/Tyson-
Foods-Receives-an-A-for-New-Corporate-Responsibility-Report.html (refer-
encing Tyson’s history of poor environmental performances and their efforts
to improve through new initiatives such as the program “Farmcheck,” which is
aimed at improving the well-being of animals on their independent farms).
287 Id.
288
Id.
289
Fee Schedule, certifieD humane 2 (June 1, 2013), http://certiedhumane.
org/wp-content/uploads/pdfs/Fee%20Schedule.13.2E.pdf (showing the prices
and details of the improvements needed to become certied as humane).
290
Id. at 1.
291
Daniel brennan, corporate Social reSponSibility: the corporate
governance of the 21St century 121 (2005) (“[C]orporations with the highest
public proles are the most vulnerable to bad publicity and disaffected con-
sumer reaction.”).
292
The Cost Of Organic Food[:] A New Consumer Reports Study Reveals
How Much More You’ll Pay[;] Hint: Don’t Assume That Organic Is Always
Pricier, conSumer reportS (Mar. 19, 2015, 12:00 PM), http://www.consumer-
reports.org/cro/news/2015/03/cost-of-organic-food/index.html (providing price
point comparisons of conventional and organic food sources).
293
Dena Jones, Poultry Industry Misleads the Public About the Humaneness
of Slaughter, fooD Safety newS (Apr. 7, 2015), http://www.foodsafetynews.
com/2015/04/poultry-industry-misleads-the-public-about-the-humaneness-of-
slaughter/#.Wdcl1GTysUs (discussing the lower-than-expected standards of the
poultry industry and their negative effects on chickens and the consumer).
294
AWI, Working, supra note 141.
295
See Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. 56624,
56625 (Sept. 28, 2005); Jones, supra note 293 (noting that the USDA encour-
aged the poultry industry to adhere to Good Commercial Practices (GCP),
which it dened as the poultry industry’s voluntary, minimal animal handling
guidelines).
296
See Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. at 56,624-25
(stating that the PPIA claims a bird is more likely to become adulterated if it
is slaughtered inhumanely, despite the fact that the FSIS provided no related
statutes).
297
See Instructions, supra note 165 (providing notice of instructions of
inspection standards for poultry GCP).
298
Id.
299
Jones, supra note 293 (discussing the lower-than-expected standards of the
poultry industry and their negative effects on chickens and the consumer).
300
See Instructions, supra note 165.
301
Id.
302
See id. (providing instructions of inspection standards for poultry GCP).
303
Id.
304
21 U.S.C. § 458 (2012).
305
Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. 56,624, 56,624
(Sept. 28, 2015) (noting the proper way poultry must be handled under PPIA).
306 Jacobs, supra note 56.
307
See 21 U.S.C. § 461(a); see also 21 U.S.C. § 676 (stating that distribution
of adulterated chickens subject the culprit to imprisonment and/or nes).
56 Sustainable Development Law & Policy
1 Maya Wei-Haas, Burp by Burp, Fighting Emissions from Cows,
natl geographic (Aug. 3, 2015), https://news.nationalgeographic.
com/2015/08/150803-cows-burp-methane-climate-science/.
2
Id.
3
See Lee Morgan, Farting cows blow up barn after deadly
buildup of methane gas inside, n.y. Daily newS (Jan. 29,
2014, 7:29 AM), http://www.nydailynews.com/news/world/
farting-cows-blow-barn-build-methane-article-1.1594986.
4
Id.
5
Teodora Zareva, This Is How You Turn Cow Fart Gas Into
Energy, big think (2014), http://bigthink.com/design-for-good/
this-is-how-you-turn-cow-fart-gas-into-energy.
6
Id.
7
Id.
8
Zareva, supra note 5.
9
Id.; El gas de las vacas puede alimentar un motor, inta informa (Oct.
11, 2013), http://intainforma.inta.gov.ar/?p=19084 [hereinafter El gas];
Bridgette Meinhold, Argentina’s “Methane Backpacks” Turn Cow Farts
into Green Energy, ecouterre (May 9, 2014), http://www.ecouterre.com/
argentinas-methane-backpacks-turn-cow-farts-into-green-energy/.
10
Zareva, supra note 5.
11
See id.; see also Backpacks measure cows’ methane, bbc newS eng. (Jan.
26, 2010), http://www.bbc.co.uk/news/uk-england-10765803.
12
See El gas, supra note 9; Meinhold, supra note 9.
13
See generally European Convention for the Protection of Vertebrate
Animals Used for Experimental and Other Scientic Purposes, Mar. 18, 1986,
E.T.S 123 [hereinafter Vertebrate Animals].
14
Id. Part I, Article 1.
15
Zareva, supra note 5.
16
Id.
17
See El gas, supra note 9; see Meinhold, supra note 9.
18
Vertebrate Animals, supra note 13.
19
Id. Part I, Article 2(a)(i), (c)-(f).
20 Id. Part I, Article 3; Part II, Article 5(1)-(4).
21
See generally Zareva, supra note 5; see also Meinhold, supra note 9.
22 See generally Vertebrate Animals, supra note 13, at Part I, Article 4; Part
II, Article 6(1)-(2).
23 Id. Part I, Article 4.
24 Id. Part II, Article 6(1)-(2).
25
See generally International Convention for the Protection of Animals,
Proposed Apr. 4, 1988, https://www.animallaw.info/treaty/international-conven-
tion-protection-animals (an agreement on animal rights internationally that was
proposed but not ratied); see also Universal Declaration On Animal Welfare
(UDAW), Proposed 2011, https://www.globalanimallaw.org/database/universal.
html (an unratied international agreement with support from forty-six govern-
ments, 330 animal groups, and 2 million individuals).
26
See generally Vertebrate Animals, supra note 13.
27
See generally Kyoto Protocol To The United Nations Framework Conven-
tion On Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37
I.L.M. 22; Paris Agreement United Nations Framework Convention on Climate
Change, Dec. 12, 2015, U.N. Doc FCCC/CP/2015/10/Add.1, 1 C.P. 21.
enDnoteS: the fartS hearD ‘rounD the worlD: where cow-tapping fallS on the international agenDa of
SuStainable Development
continued from page 29
utilized); Fish Meal, FAO, http://www.fao.org/wairdocs/tan/x5926e/x5926e01.
htm (last visited Dec. 20, 2017) (describing the manufacture, storage, composi-
tion, and use of sh meal as well as the problem of air pollution from sh meal
plants).
19
See fao, the State of worlD fiSherieS anD aquaculture 2 (2016),
http://www.fao.org/3/a-i5555e.pdf [hereinafter State of worlD fiSherieS
2016].
20
See id. at 172.
21
See id. at 171.
22
See id. at 172.
23
Compare State of worlD fiSherieS 2016, supra note 19, with FAO, the
State of worlD fiSherieS anD aquaculture (1995), http://www.fao.org/tem-
pref/docrep/fao/009/v5550e/v5550e00.pdf.
24
Fish meal, or shmeal, is the name for the product derived from sh fed to
other animals. See Fish Meal, FAO, http://www.fao.org/wairdocs/tan/x5926e/
x5926e01.htm (last visited Dec. 20, 2017).
25
See Cynthia J. Thomson, The Market for Fishmeal and Oil in the United
States: 1960-1988 and Future Prospects, 31 calcofi rep. 124, 124 (1990),
https://swfsc.noaa.gov/publications/CR/1990/9064.PDF (noting the high use of
sh meal for poultry feed).
26
See IFFO, iffo poSitional Statement: iS aquaculture growth put-
ting preSSure on feeD fiSh StockS? & iS the growth of aquaculture being
reStricteD by finite SupplieS of fiShmeal & fiSh? 3 (Feb. 2013) http://www.
iffo.net/system/les/Is%20aquaculture%20growth%20putting%20pressure%20
on%20feed%20sh%20stocks%20FINAL%20Feb%202013%20formatted_1.
pdf (demonstrating changing use of sh meal for in pig, chicken, and aquacul-
ture products).
27
See id.
28
See id.
29
See generally Capture Fisheries, fiSherieS & aquaculture Dept, http://
www.fao.org/shery/capture/en (last visited Dec. 20, 2017) (regarding wild
caught or capture); Aquaculture, fiSherieS & aquaculture Dept, http://www.
fao.org/shery/aquaculture/en (last visited Dec. 20, 2017) (providing informa-
tion about aquaculture generally).
30
See generally Glen Spain, Aquaculture: Keep it Onshore, fiShermenS
newS (Jan. 2016), http://pcffa.org/wp-content/uploads/2016/05/FN0116_
PCFFA.pdf (overview of onshore aquaculture).
31
See generally Basic Questions About Aquaculture, noaa fiSherieS, http://
www.nmfs.noaa.gov/aquaculture/faqs/faq_aq_101.html (last visited Dec. 20,
2017) (describing hatcheries).
32
Sustainable Aquaculture, ocean founDation, https://www.oceanfdn.org/
resources/sustainable-aquaculture (last visited Dec. 20, 2017) (description of
near shore aquaculture systems).
33
See, e.g., About Us, open blue cobia, http://www.openblue.com/open-
ocean-aquaculture (last visited Dec. 20, 2017) (describing Open Blue’s use of
deep water “SeaStations”); Rebecca R. Gentry, Offshore Aquaculture: Spatial
Planning Principles for Sustainable Development, 7 ecology & evolution 733
(2016) (describing of Open Blue’s deep ocean farms).
34
See generally Aquaculture, NOAA, http://www.nmfs.noaa.gov/aquacul-
ture/faqs/faq_aq_101.html (last visited Dec. 20, 2017) (providing information
about United States aquaculture regulations generally); Aquaculture, european
commn, https://ec.europa.eu/sheries/cfp/aquaculture_en (last visited Dec. 20,
2017) (explaining that some countries are only recently beginning to develop
aquaculture regulations); FAO, Kenya Gazette Supplement No. 156: Fisheries
Management and Development Act, 2016 (Sept. 9, 2016), http://extwprlegs1.
fao.org/docs/pdf/ken160880.pdf (providing Kenya’s sheries laws as an
example of diversity within the global regulations); Fisheries Law, hg.org
legal reSourceS, https://www.hg.org/sheries-law.html (last visited Dec. 20,
2017) (listing different laws, agencies, and organizations regarding shing).
35
See Overshing, worlD wilDlife funD, https://www.worldwildlife.org/
threats/overshing (last visited Dec. 20, 2017); fact Sheet: ocean fiSh farm-
ing can hurt commercial fiShing, fooD & water watch (July 2008), https://
www.foodandwaterwatch.org/sites/default/les/ocean_sh_farming_commer-
cial_fs_july_2009.pdf; see generally Fisheries Impact on the Ecosystem, fao,
enDnoteS: cruelty to human anD nonhuman animalS in the wilD-caught fiShing inDuStry
continued from page 38
57
Fall 2017
http://www.fao.org/docrep/006/y4773e/y4773e05.htm (last visited Dec. 20,
2017) (noting the damages that aquaculture could cause to local environment
and its respective ecology).
36
See Brian Tomasik, How Wild-Caught Fishing Affects Wild-Animal Suffer-
ing, eSSayS on reDucing Suffering (last updated Feb. 8, 2017), http://reducing-
suffering.org/wild-caught-shing-affects-wild-animal-suffering/; Destructive
Fishing Practices and Bycatch, Slow fooD, http://slowfood.com/slowsh/
pagine/eng/pagina.lasso?-id_pg=43 (last visited Dec. 20, 2017); Fish Farming,
animal ethicS, http://www.animal-ethics.org/animal-exploitation-section/
animals-used-food-introduction/sh-farming/ (last visited Dec. 20, 2017); see
generally fiSh feel, http://shfeel.org/ (last visited Dec. 20, 2017) (describing
how industrial shing hurts aquatic animals).
37
See Debra M. Lambert et al., Guidance on Fishing Vessel Risk Assessments
and Accounting for Safety at Sea in Fishery Management Design, noaa 18,
22 (Aug. 2015), http://www.nmfs.noaa.gov/sfa/publications/technical-memos/
nmfs_osf_tm2.pdf; OSHA, commercial fiShing: fall protection Safety fact
Sheet (2011), https://www.osha.gov/Publications/fallprotectionsafety-com-
mercialshing-factsheet.pdf; Safety for Fisherman – Home, FAO, http://www.
fao.org/shery/safety-for-shermen/en/ (last visited Dec. 20, 2017) (noting the
dangers posed to workers) [hereinafter Safety for Fishermen].
38
See Vanda Felbab-Brown, The Vanishing Vaquita and the Challenges
of Combating Wildlife Trafcking, brookingS (June 5, 2017), https://www.
brookings.edu/blog/order-from-chaos/2017/06/05/the-vanishing-vaquita-
and-the-challenges-of-combating-wildlife-trafcking/; Fishing Problems:
Poor Fisheries Management, worlD wilDlife funD, http://wwf.panda.org/
about_our_earth/blue_planet/problems/sheries_management/ (last visited Dec.
20, 2017); Fisheries, green factS, https://www.greenfacts.org/en/sheries/l-
2/07-regulation.htm (last visited Dec. 20, 2017); see generally Valentin Schatz,
Marine Fisheries Law Enforcement Partnerships in WatersUunder National
Jurisdiction: The Legal Framework for Inter-State Cooperation and Public-
Private Partnerships with Non-Governmental Organizations and Private Secu-
rity Companies, 32 ocean yearbook 1 (2018), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2987883 (noting key difculties that exist in policing
shing industry).
39
See State of worlD fiSherieS 2016, supra note 19, at 2.
40
Id. (noting the limited consumption of farmed sh in the past and the
growth in consumption of farmed sh today).
41
Id. at 70-79.
42
Id. at 5.
43
fao, fooD outlook: biannual report on global fooD marketS 8 (June
2017), http://www.fao.org/3/a-i7343e.pdf (predicting increase in output of
farmed nsh and other sh) [hereinafter fooD outlook].
44
State of worlD fiSherieS 2016, supra note 19, at 5.
45
fooD outlook, supra note 43, at 8 (projecting the expansion in amount of
wild caught sh).
46
Id. at 7.
47
Id.
48
Alison Mood, Worse Things Happen at Sea: The Welfare of Wild-Caught
Fish, fiShcount 70 (2010), http://www.shcount.org.uk/published/standard/
shcountfullrptSR.pdf; Fishery Statistical Collections: Global Capture Produc-
tion, fao, http://www.fao.org/shery/statistics/global-capture-production/3/en
(last visited Dec. 20, 2017).
49
A. Mood & P. Brooke, Estimating the Number of Fish Caught in Global
Fishing Each Year, fiSh count 14 (2010), http://shcount.org.uk/published/std/
shcountstudy.pdf.
50
See id. (“[T]he number of sh represented by an average annual recorded
capture tonnage . . . does not include sh caught in unrecorded capture nor
the unaccounted numbers of sh that escape from shing gear but are fatally
stressed or injured in the process.”); Daniel Pauly & Dirk Zeller, Catch Recon-
structions Reveal That Global Marine Fisheries Catches Are Higher Than
Reported and Declining, 7 nature comm. 1, 1–6 (Jan. 19, 2016), https://www.
nature.com/articles/ncomms10244.pdf.
51
Mood & Brooke, supra note 49, at 13.
52
See Overshing, wwf, https://www.worldwildlife.org/threats/overshing
(last visited Dec. 20, 2017) (stating that the makeup of marine communities
is changing with an increase in prey marine species due to targeted shing of
predator marine species) [hereinafter Overshing]; see also Fisheries Impact
on the Ecosystem, fao, http://www.fao.org/docrep/006/y4773e/y4773e05.htm
(last visited Oct 22, 2017) (nding that a decrease of marine predators, includ-
ing tuna or sharks, could lead to an abnormally large amount of marine prey
animals, which could create problems with the food chain and composition of
species).
53 fooD outlook, supra note 43, at 8.
54
State of worlD fiSherieS 2016, supra note 19, at 5.
55
Id. at 11, table 2.
56
See generally Ian Johnston, Fish Are Sentient Animals Who Form
Friendships and Experience ‘Positive Emotions,’ Landmark Study Suggests,
inDepenDent (Mar. 31, 2017), http://www.independent.co.uk/news/science/sh-
sentient-animals-friends-positive-emotions-study-study-source-ethics-eating-
pescaterians-vegans-a7660756.html; see also Donald M. Broom, Considering
Animals’ Feelings, animal Sentience 8-9 (2014), http://animalstudiesrepository.
org/cgi/viewcontent.cgi?article=1015&context=animsent (asserting that sh
have the capacity to feel pain); Nathan Runkle, New Scientic Study: Crabs,
Lobsters, and Other Aquatic Animals Feel Pain, mercy for animalS (Jan. 18,
2013), http://www.mercyforanimals.org/new-scientic-study-crabs-lobsters-
and-other-aquatic-animals-feel-pain (commenting that hermit crabs and prawns
display behaviors of pain avoidance); Culum Brown, Fish Intelligence, Sen-
tience & Ethics, animal StuDieS repoSitory (2015), http://animalstudiesreposi-
tory.org/cgi/viewcontent.cgi?article=1074&context=acwp_asie (stating that sh
suffering from pain demonstrate lack of attention to stimuli).
57
See Robert W. Elwood & Laura Adams, Electric Shock Causes Physi-
ological Stress Responses in Shore Crab, Consistent with Prediction of Pain,
royal Socy pub. (2015), http://rsbl.royalsocietypublishing.org/content/roy-
biolett/11/11/20150800.full.pdf (concluding that decapods exhibit the requisite
behavioral and physiological responses to aversive stimuli to indicate pain in
animals); see also Barry Magee & Robert W. Elwood, Shock Avoidance by Dis-
crimination Learning in the Shore Crab Avoidance by Discrimination Learning
in the Shore Crab (Carcinus maenas) is Consistent with a Key Criterion for
Pain, 216 j. of experimental biology 353, 357 (2013), http://jeb.biologists.org/
content/jexbio/216/3/353.full.pdf (nding that crabs presented with two loca-
tions changed their previous preferred location based on learning which loca-
tion administered a shock and this is indicative, though not denitive, of their
ability to experience pain); Jennifer A. Mather & Claudio Carere, Cephalopods
are the Best Candidates for Invertebrate Consciousness, animal Sentience 2
(2016), http://animalstudiesrepository.org/cgi/viewcontent.cgi?article=1127&
context=animsent (stating cephalopods have been accepted by neuroscientists
as sentient animals); Gary Armstrong, How is Nociceptive ‘Pain’ Processed by
Squid?, 216 j. of experimental biology vii (2013), http://jeb.biologists.org/
content/jexbio/216/17/vii.full.pdf (stating cephalopods have complex nervous
systems that allow them to interact socially and learn); Roger J. Crook, Squid
Have Nociceptors That Display Widespread Long-Term Sensitization and Spon-
taneous Activity After Bodily Injury, 33 j. of neuroScience 10021, 10024-25
(June 12, 2013), http://www.jneurosci.org/content/jneuro/33/24/10021.full.pdf
(stating that squid, like mammals, demonstrate adaptive responses to injuries
and could potentially experience pain due to lingering activity in nociceptors
after injuries); Olivia N. Werner, Is the Lobster Worth Considering?, 33 j. of
neuroScience 5, 11 (2013), http://www.jneurosci.org/content/33/24/10021.full
(stating that lobsters could feel pain). But see Jean S. Auplay et al., Arm Injury
Produces Long-Term Behavioral and Neural Hypersensitivity In Octopus, 558
neuroScience letterS 137, 141 (2013), http://www.sciencedirect.com/science/
article/pii/S0304394013009932 (concluding that octopuses “respond to noxious
stimuli with reex avoidance that probably does not require higher cognitive
processing” and although octopuses arms and mantles contain sensory units
that conduct noxious stimulation to higher processing center, whether is there is
pain associated with noxious sensory input is unclear).
58
See Lynne U. Sneddon, Pain in Aquatic Animals, animal StuDieS
repoSitory (2015), http://animalstudiesrepository.org/cgi/viewcontent.
cgi?article=1054&context=acwp_asie (stating that sh, crustaceans, and
mollusks (1) demonstrate behavioral responses to potentially painful events,
and (2) that all three have at least most of the criteria needed to experience
pain); Lynne U. Seddon, Pain Perception In Fish: Indicators and Endpoints,
animal StuDieS repoSitory (2009), http://animalstudiesrepository.org/cgi/
viewcontent.cgi?article=1010&context=acwp_aff (concluding “sh are capable
of nociception and appear to experience a negative affective state”); see also
Isabelle Maccio-Hage, Pain in Fish, fair-fiSh (2005), http://www.fair-sh.ch/
media/ler_public/c8/41/c841966b-11d3-4673-9476-fbd93c5ab3c6/tmpim-
port0eseir.pdf (asserting that sh demonstrate their ability to feel pain through
changes in behavior when confronted with noxious stimuli); Brown, supra
note 56 (stating that sh have the requisite “hardware” to feel pain); Culum
Brown, How Fish Think and Feel, And Why We Should Care About Their
Welfare, wilDlife auStl. 13-14 (Mar. 2016), https://www.researchgate.net/
58 Sustainable Development Law & Policy
publication/297577331_How_sh_think_and_feel_and_why_we_should_care_
about_their_welfare (nding that brain structures in sh include areas thought
to be involved in emotional and cognitive functions); John Webster, Fish are
Sentient Beings, 14, 17-22 (2009), http://www.shcount.org.uk/published/low/
shcountchapter3LR.pdf (concluding sh are sentient animals, meaning they
are capable of feeling fear and pain, and they do so via pain receptors, or noci-
ceptors, which connect to the brain).
59
See franciS crick memorial conference, the cambriDge Declaration on
conSciouSneSS (July 7, 2012), http://fcmconference.org/img/CambridgeDecla-
rationOnConsciousness.pdf (concluding that non-human animals, including
octopuses, possess neurological substrates that create consciousness).
60
See Brown, supra note 56 (asserting that sh may be capable of self-
awareness as demonstrated by their ability to recognize themselves through
smell).
61
See Lester R. Aronson, Orientation and Jumping Behaviour in the Gobiid
Fish Bathygobious Soporator, 1486 Am. Museum Noviates 1, 17-18 (1951),
http://digitallibrary.amnh.org/bitstream/handle/2246/3993//v2/dspace/ingest/
pdfSource/nov/N1486.pdf?sequence=1&isAllowed=y (stating that goby sh
use their memory of the surrounding topography when they are trapped in
pools of water during low tides and can retain such memory for two weeks);
Brown, supra note 56 (stating sh have demonstrated a capacity for long
term memory by nding and remembering a certain way to avoid negative
stimuli); A. Gómez et al., Relational and Procedural Memory Systems in the
Goldsh Brain Revealed by Trace and Delay Eyeblink-Like Conditioning, 167
pSychology & behavior 332, 338-340 (2016), https://www.researchgate.net/
publication/308978310_Relational_and_procedural_memory_systems_in_the_
goldsh_brain_revealed_by_trace_and_delay_eyeblink-like_conditioning (nd-
ing that memories of sh go further than just spatial knowledge or maps; like
mammals, sh can form memories that connect stimuli to events); S. Perathoner
et al., Potential of Zebrash as a Model for Exploring the Role of the Amygdala
in Emotional Memory and Motivational Behavior, 94 j. of neuroScience reS.
445, 446, (2016), https://www.researchgate.net/publication/292949100_Poten-
tial_of_zebrash_as_a_model_for_exploring_the_role_of_the_amygdala_in_
emotional_memory_and_motivational_behavior.
62
See V.A. Braithwaite & P. Boulcott, Pain Perception, Aversion and Fear
in Fish, 75 DiSeaSeS of aquatic organiSmS 131, 136-37 (2007), http://www.
int-res.com/articles/dao_oa/d075p131.pdf (concluding that sh may feel suf-
fering based on the ndings that: sh and mammals respond to aversive stimuli
in similar ways; and sh have the ability to remember and anticipate aversive
stimuli); Catarina I.M. Martins et al., Behavioural Indicators of Welfare in
Farmed Fish, 38 fiSh phySiology & biochemiStry 17, 31 (2010), http://link.
springer.com/article/10.1007/s10695-011-9518-8 (stating that research in cogni-
tive, neuromatic, and emotional areas of sh behavior show sh are sentient
beings); Victoria A. Braithwait & Felicity Huntingford, Variation in Emotion
and Cognition Among Fishes, 26 j. agric. & envtl ethicS 7 (2011), https://
www.researchgate.net/publication/257576371_Variation_in_Emotion_and_
Cognition_Among_Fishes (nding some species of sh do have to cognitive
abilities to experience emotions); Sonia Rey et al., Fish Can Show Emotional
Fever: Stress-induced Hyperthermia in Zebrash, royal Socy pub. (2015),
http://rspb.royalsocietypublishing.org/content/royprsb/282/1819/20152266.full.
pdf (concluding sh have the capacity for stress-induced hyperthermia and that
indicates sentience or consciousness).
63
Lucie H. Salwiczek et al., Adult Cleaner Wrasse Outperform Capuchin
Monkeys, Chimpanzees and Orangutans in a Complex Foraging Task Derived
from Cleaner – Client Reef Fish Cooperation, 7.11 ploS one 1, 5 (2012),
http://journals.plos.org/plosone/article/le?id=10.1371/journal.
pone.0049068&type=printable.
64
Ulrike E. Siebeck, Fish are Flexible Learners Who Can Discriminate
Human Faces, animal Sentience 2 (2017), http://animalstudiesrepository.org/
cgi/viewcontent.cgi?article=1194&context=animsent; see Cait Newport et al.,
Discrimination of Human Faces by Archersh (Toxotes Chatareus), Sci. rep.
(June 7, 2016), http://www.nature.com/articles/srep27523 (stating that sh can
learn at least some aspects of human facial recognition).
65
Brown, supra note 56.
66
See generally jonathan balcombe, what a fiSh knowS: the inner liveS
of our unDerwater couSinS 177, 195-199 (2016) (stating that sh learn from
other species, engage in deception, and protect their eggs and their fry).
67
See Animal Protection Laws of the United States of America and Canada,
animal legal Def. funD, http://aldf.org/resources/advocating-for-animals/
animal-protection-laws-of-the-united-states-of-america-and-canada/ (last
visited Dec. 20, 2017) (discussing state anti-cruelty laws with states that do not
include aquatic animals in their protection).
68
Mood & Brooke, supra note 49, at 14.
69
See Mood, supra note 48, at 71 (explaining that about one trillion sh are
caught each year).
70
P. J. Ashley & L. U. Sneddon, Pain and Fear in Fish, in fiSh welfare 49,
53–68 (Edward J. Branson ed., 2008).
71
See id. at 68 (discussing the results of various studies suggesting that
“[sh] wellbeing is adversely affected by potentially painful and fearful situa-
tions”); see infra Section II (discussing the abilities of sh).
72
Victoria A. Braithwaite & Philip Boulcott, Can Fish Suffer?, in fiSh wel-
fare 78, 88 (Edward J. Branson ed., 2008).
73
Ashley & Sneddon, supra note 70, at 49.
74
Mood & Brooke, supra note 49, at 4–5.
75
See Petri Suuronen, Mortality of Fish Escaping Trawl Gears 21 (FAO,
Fisheries, Technical Paper No. 478, 2005), http://www.fao.org/docrep/008/
y6981e/y6981e00.htm (explaining that all major shing gear types can cause
some injury to sh).
76
See Mood, supra note 48, at 71; Kieran Kelleher, Discards in the World’s
Marine Fisheries: An Update iv (FAO Fisheries Technical Paper 470, 2005),
http://www.fao.org/3/a-y5936e.pdf (stating that 8% of the catch is discarded);
Harish, How Many Animals Does a Vegetarian Save?, counting animalS (Mar.
16, 2015), http://countinganimals.com/how-many-animals-does-a-vegetarian-
save (stating that due to American consumption of seafood, an estimated 14 to
32 million animals are caught as bycatch every year). A discussion on how to
reduce bycatch is outside the scope of this paper.
77
Neville G. Gregory, Fish, in animal welfare anD meat Sci. 195 (1998).
78
Id. at 198.
79
Id.
80
Id.
81
Id.
82
Id.
83
Id. at 195.
84
Mood & Brooke, supra note 49, at 33–34.
85
See id. at 37 (explaining that when sh are hauled on board, the sh can be
injured, crushed, severely exhausted, or attacked by predators when caught);
A.P. Farrell et al., Physiological Status of Coho Salmon (Oncorhynchus kisutch)
Captured in Commercial Nonretention Fisheries, 57 canaDian j. fiSherieS &
aquatic ScienceS. 1668, 1668 (2000) (explaining that after being captured, 303
adult coho salmon were found to be in a state of severe metabolic exhaustion
after arriving onboard).
86
Mood & Brooke, supra note 49, at 37.
87
S.J. Lockwood et al., The Effects of Crowding on Mackerel (Scomber
Scombrus L.) — Physical Condition and Mortality, 2 fiSherieS reS. 129, 145
(1983).
88
See Mood & Brooke, supra note 49, at 33 (explaining that sh may die
from “skin and scale damage incurred from collisions with other sh and with
the net walls”).
89
Gregory, supra note 77, at 195–96.
90
Mood & Brooke, supra note 49, at 40.
91
See Farrell et al., supra note 85, at 1677 (explaining that gillnet caught sh
maybe exhausted before they come onboard); Gregory, supra note 77, at 199
(explaining that gillnets cause considerable damage to skin and scales); Mood
& Brooke, supra note 49, at 41 (explaining that sh can be caught in the net for
a long time, which can prevent sh from breathing, cause skin and scales dam-
ages, and severe exhaustion).
92
Mood & Brooke, supra note 49, at 5.
93
Id. at 41-42.
94
See Gregory, supra note 77, at 199 (explaining that gafng loose sh
causes additional damage to the sh).
95
Mood & Brooke, supra note 49, at 40.
96
F.S. Chopin et al., A Comparison of the Stress Response and Mortality
of Sea Bream Pagrus Major Captured by Hook and Line and Trammel Net,
28.3 fiSherieS reSearch 277, 285–87 (1996); see G.E. Vander Haegen et al.,
Survival of Spring Chinook Salmon Captured and Released in a Selective Com-
mercial Fishery Using Gill Nets and Tangle Nets, 68 fiSherieS reS. 123, 123,
128–29 (2004) (bleeding is more common when sh are captured by gillnets
than tangle nets).
97
Chopin et al., supra note 96, at 277, 285-86 (“No sh survived longer than
18 h of capture by trammel net.”).
98
Mood & Brooke, supra note 49, at 44.
59
Fall 2017
99
Id. at 47.
100
Id.; Gregory, supra note 77, at 199–200.
101
john webSter, animal welfare: limping towarDS eDen 22122 (James
K. Kirkwood et al. eds., 2d ed. 2005).
102
Farrell et al., supra note 85, at 1669.
103
Gregory, supra note 77, at 196.
104
Mood & Brooke, supra note 49, at 49.
105
Id.; see also Gregory, supra note 77, at 196 (explaining that because the
hook is barbless, the sh disengages from the hook at the end of the swing).
106
Mood & Brooke, supra note 49, at 52.
107
Id.
108
Id. at 53.
109
Id. at 55.
110
Id.; see also R.G. Cole et al., Selective Capture of Blue Cod Parapercis
Colias by Potting: Behavioural Observations and Effects of Capture Method on
Peri-mortem Fatigue, 60 fiSherieS reS. 381, 381 (2003).
111
Mood & Brooke, supra note 49, at 58; Gregory, supra note 77, at 201.
112
Mood & Brooke, supra note 49, at 58.
113
Id. at 66; see also D. Robb & S. Kestin, Methods Used to Fish: Field
Observations and Literature Reviewed, 11 animal welfare 269, 270-73 (2002)
(explaining how sh are killed by removal from water, having their gills cut
and then put back in the water, or having parts or all of their internal organs
eviscerated).
114
See Mood & Brooke, supra note 49, at 66.
115
Id.
116
Robb & Kestin, supra note 113, at 270, 272.
117
See id. at 271 (timing for loss of brain function is based on the differential
between the ambient sh temperature and the temperature of the ice); Mood &
Brooke, supra note 49, at 66.
118
See Kelly Levenda, Legislation to Protect the Welfare of Fish, 20 Animal
L. 119, 127, 136-37 (2013).
119
See Mood & Brooke, supra note 49, at 62-63 (chumming and impaling
baitsh on hooks should be avoided to reduce use and suffering).
120
See id. at 62–63.
121
See id. at 41, 43, 62.
122
See id. at 45.
123
See id. at 62.
124
See Gregory, supra note 77, at 201; see Mood & Brooke, supra note 49, at
28, 61–63.
125
See Mood & Brooke, supra note 49, at 61.
126
See id. at 68; see generally Humane Slaughter of Livestock, 9 c.f.r. §
313.30 (2017) (recognizing that being rendered unconscious before being killed
is required for some farmed land animalsnot chickens, although they make up
the majority of land animals killed for consumption).
127
See Mood & Brooke, supra note 49, at 61.
128
Id.
129
Id.
130
Id.
131
Id. at 69.
132
State of worlD fiSherieS 2016, supra note 19, at 8.
133
Id.
134
Id.
135
See id. at 3, 7.
136
See id. at 5-6.
137
u.n., tranSforming our worlD: the 2030 agenDa for SuStainable
Development 6 (2015), https://sustainabledevelopment.un.org/content/docu-
ments/21252030%20Agenda%20for%20Sustainable%20Development%20web.
pdf [hereinafter tranSforming our worlD].
138
Id. at 5.
139
State of worlD fiSherieS 2016, supra note 19, at 5.
140
Id.
141
See id.
142
tranSforming our worlD, supra note 137, at 14-18.
143
Id. at 13.
144
Total justice for animals within our food system would mean not unneces-
sarily killing them for consumption.
145
See Sustainable Development Goal 14, u.n. SuStainable Dev. knowleDge
platform, https://sustainabledevelopment.un.org/sdg14 (last visited Dec. 20,
2017) (stating the specic goals to be achieved within a timeframe); see gener-
ally UNDP Support to the Implementation of the Sustainable Development
Goals, u.n. Dev. programme, http://www.undp.org/content/undp/en/home/
librarypage/sustainable-development-goals/undp-support-to-the-implementa-
tion-of-the-2030-agenda/ (last visited Dec. 20, 2017) (discussing the program’s
policy initiatives to end poverty while reducing inequalities and exclusionary
measures in place around the world).
146
See generally UNDP Support to the Implementation of the Sustainable
Development Goal 14, u.n. Dev. programme SuStainable Dev. goalS 6, 1-10
(Jan. 2016), http://www.undp.org/content/dam/undp/library/Sustainable%20
Development/14_Oceans_Jan15_digital.pdf?download (discussing UNDP’s
role in achieving Sustainable Development Goal 14).
147
fao, what iS the coDe of conDuct for reSponSible fiSherieS? 2-12
(2001), http://www.fao.org/3/a-x9066e.pdf (discussing the principles, goals,
and elements of the Code of Conduct) [hereinafter fiSherieS coDe of conDuct
2001].
148
See id. at 1–2.
149
See id.
150 See fao, coDe of conDuct for reSponSible fiSherieS, 2-3 (1995), http://
www.fao.org/3/a-v9878e.pdf [hereinafter fiSherieS coDe of conDuct 1995]
(stating principles of article 2 of the Code of Conduct).
151
See id. at 2.
152
See id. at 2.
153
See id. at 5, 6, 21, 25 (discussing the sentience of sh and other aquatic
animals); infra Section II.
154
fiSherieS coDe of conDuct 1995, supra note 150, at 4.
155
See id. at 5.
156
See id. at 7, 21, 28, 29 (discussing how articles 6, 7, & 8 of the Code
of Conduct regulate shing locations, methods, and equipment and animals
targeted).
157
See id. at 5.
158
See generally State of worlD fiSherieS 2016, supra note 19.
159
See Patrick Winn, 5 Reasons Why Slaves Still Catch Your Seafood, public
raDio intl (Mar. 10, 2014), https://www.pri.org/stories/2014-03-10/5-reasons-
why-slaves-still-catch-your-seafood (discussing how sovereign laws or lack
thereof coupled with lack of information to the consumer facilitate the labor
standards present in shing industry); The Violation of Human Rights Within
the Fishing Sector and Illegal, Unreported and Unregulated (IUU) Fishing,
fao (Nov. 21, 2016), http://www.fao.org/about/meetings/world-sheries-day-
event/en (discussing the event World Fisheries Day, which shines a light on the
human rights abuses in the shing sector).
160
See Convention C188–Work in Fishing Convention, 2007 (No. 188), ilo,
http://www.il.org/DYN/NORMLEX/EN/F?P=NORMLEXPUB%3A12100%3A
0%3A%3ANO%3A%3AP12100_ILO_CODE%3AC188 (last visited Dec. 20,
2017) (recognizing effects of globalization and impact on shing sector).
161
The Global Picture – Global Wild Fisheries, fiShwatch, https://www.sh-
watch.gov/sustainable-seafood/the-global-picture (last visited Dec. 20, 2017)
[hereinafter The Global Picture] (discussing NOAA’s role in shaping industry
standards regarding conservation and shery management).
162
See also Cassandra Prota, Exporting and Re-Importing Local Seafood?,
or. pub. broaD. (Sept. 21, 2012, 9:44 AM), http://www.opb.org/news/blog/
ecotrope/exporting-and-re-importing-local-seafood/ (last updated Feb. 19,
2013) (discussing the effect of United States imports and exports on the shing
industry).
163
See also id. (discussing the shipment of sh caught in Asia for processing,
which are then shipped back to the United States).
164 See The Global Picture, supra note 161.
165
See International Labour Standards on Fishers, ilo, http://www.ilo.org/
global/standards/subjects-covered-by-international-labour-standards/shers/
lang—en/index.htm (last visited Dec. 20, 2017) (discussing the physical, social,
and economic costs employees in the shing industry encounter).
166
greenpeace, Slavery anD labour abuSe in the fiShing Sector: green-
peace guiDance for the SeafooD inDuStry anD government 2, 1-6, http://
www.greenpeace.org/international/Global/international/briengs/oceans/2014/
Slavery-and-Labour-Abuse-in-the-Fishing-Sector.pdf (last visited Dec. 20,
2017) [hereinafter greenpeace SeafooD inDuStry guiDance] (discussing the
labor abuses practiced within the shing industry and guidance directed at both
consumers, business, and government); see Dino Drudi, Fishing for a Living
is Dangerous Work, bureau of lab. Stat. 3, 3-7 (1998), https://www.bls.gov/
opub/mlr/cwc/shing-for-a-living-is-dangerous-work.pdf (discussing the unique
hazards to life that exist in the shing industry).
167
See greenpeace SeafooD inDuStry guiDance, supra note 166.
168
See Gudrun Petursdottir et al., Safety at Sea in Developing Countries, fao
1, 1-10 (2001) http://www.fao.org/tempref/docrep/fao/003/x9656e/x9656e00.
60 Sustainable Development Law & Policy
pdf (discussing the conditions of shing equipment from the perspective of the
sherman and the owner, and the reasons why they exist).
169
Id.
170
Press Release, ILO, 21 Million People Are Now Victims of Forced Labour,
ILO Says, U.N. (June 1, 2012) (available at http://www.ilo.org/global/about-
the-ilo/newsroom/news/WCMS_181961/lang—en/index.htm).
171
ilo, caught at Sea: forceD labor anD trafficking in fiSherieS (2013),
http://www.ilo.org/wcmsp5/groups/public/—-ed_norm/—-declaration/docu-
ments/publication/wcms_214472.pdf.
172
Trevor Sutton & Avery Siciliano, Seafood Slavery, ctr. for am. progreSS,
https://www.americanprogress.org/issues/green/reports/2016/12/15/295088/
seafood-slavery/ (last visited Dec. 20, 2017).
173
Overview of the Fishing and Aquaculture Sector, verite, https://www.
verite.org/wp-content/uploads/2016/12/Fishing-and-Aquaculture-Overview.pdf
(last visited Dec. 20, 2017).
174
An AP Investigation Helps Free Slaves in the 21st Century, aSSociateD
preSS, https://www.ap.org/explore/seafood-from-slaves/ (last visited Dec. 20,
2017).
175
See also u.n. office on DrugS & crime, global report on trafficking
in perSonS 13 (2016), https://www.unodc.org/documents/data-and-analysis/
glotip/2016_Global_Report_on_Trafcking_in_Persons.pdf (“There is a clear
link between the broader migration phenomenon and trafcking in persons.”).
176
Kate Hodal, Slavery and Trafcking Continue in Thai Fish-
ing Industry, Claim Activists, the guarDian (Feb. 24, 2016, 8:00
PM), https://www.theguardian.com/global-development/2016/feb/25/
slavery-trafcking-thai-shing-industry-environmental-justice-foundation.
177
Kate Hodal & Chris Kelly, Trafcked into Slavery on Thai Trawl-
ers to Catch Food for Prawns, the guarDian (June 10, 2014, 7:05
AM), https://www.theguardian.com/global-development/2014/
jun/10/-sp-migrant-workers-new-life-enslaved-thai-shing.
178
Id.
179
Id.
180
See Illegal, Unreported and Unregulated Fishing, Frequently Asked
Questions, pew charitable truSt (Feb. 23, 2013), http://www.pewtrusts.
org/en/research-and-analysis/analysis/2013/02/25/illegal-unreported-and-
unregulated-shing-frequently-asked-questions (explaining that the vastness
of the ocean and inconsistent enforcement facilitate illegal and unregulated
shing); Richard Conniff, Unsustainable Seafood: A New Crackdown on
Illegal Fishing, yale envt 360 (Apr. 22, 2014), http://e360.yale.edu/features/
unsustainable_seafood_a_new_crackdown_on_illegal_shing.
181
Robin McKie, How Warming Seas are Forcing Fish to Seek New Waters,
the obServer (Jan. 7, 2017, 7:01 PM), https://www.theguardian.com/environ-
ment/2017/jan/08/sh-ocean-warming-migration-sea; Andrew Jacobs, China’s
Appetite Pushes Fisheries to the Brink, n.y. timeS (Apr. 30, 2017), https://
www.nytimes.com/2017/04/30/world/asia/chinas-appetite-pushes-sheries-to-
the-brink.html; Daniel Flitton, Economy of Scales: Depleted Stocks Force Asian
Fisherman into Australian Waters, SyDney morning heralD (Feb. 25, 2017),
http://www.smh.com.au/national/economy-of-scales-depleted-stocks-force-
asian-shermen-into-australian-waters-20170224-guklc2.html.
182
See Press Release, Int’l Transp. Workers’ Fed’n, ITF Calls for Tuna
Transshipment Moratorium (Apr. 5, 2017) (available at http://www.itfglobal.
org/en/news-events/press-releases/2017/may/itf-calls-for-tuna-transshipment-
moratorium/) [hereinafter ITF Press Release] (explaining that vessels that
spend longer periods of time at sea are less regulated, which facilitates extreme
mistreatment).
183
Cathal McNaughton, UN Ofcial: Rohingya Exo-
dus “Most Urgent Refugee Emergency in the World”, cbS
newS (Sept. 24, 2017), https://www.cbsnews.com/news/
rohingya-exodus-most-urgent-refugee-emergency-in-the-world-un-ofcial/.
184
Courtney Columbus, Children Caught in the Crossre of Rohingya
Crisis, NPR (Sept. 15, 2017), http://www.npr.org/sections/goatsand-
soda/2017/09/15/551217209/photos-children-caught-in-the-crossre-of-
rohingya-crisis; Rebecca Wright & Ben Westcott, At Least 270,000 Rohingya
Flee Myanmar Violence in 2 Weeks, UN Says, CNN (Sept. 8, 2017), http://
www.cnn.com/2017/09/08/asia/rohingya-myanmar-refugees-drowning/index.
html.
185
intl org. for migration, trafficking of fiShermen in thailanD 7 (Jan.
14, 2011), https://www.iom.int/jahia/webdav/shared/shared/mainsite/activities/
countries/docs/thailand/Trafcking-of-Fishermen-Thailand.pdf.
186
See also Trevor Sutton & Avery Siciliano, Seafood Slavery, ctr. for am.
progreSS (Dec. 15, 2016, 5:00 AM), https://www.americanprogress.org/issues/
green/reports/2016/12/15/295088/seafood-slavery/.
187
See id. (detailing some of the steps the international community, private
sector and consumers need to take).
188 Milton Haughton, How Can We Tackle Illegal Fishing?, worlD
econ. f. (June 17, 2015), https://www.weforum.org/agenda/2015/06/
how-can-we-tackle-illegal-shing/.
189
envtl. juSt. founD., SolD to the Sea: human trafficking in thailanDS
fiShing inDuStry 29 (2013), https://ejfoundation.org//resources/downloads/
Sold_to_the_Sea_report_lo-res-v2.compressed-2.compressed.pdf [hereinafter
SolD to the Sea].
190
Id.
191
Trafcking in Persons Report, u.S. Dept of State, https://www.state.
gov/j/tip/rls/tiprpt/ (last visited Dec. 20, 2017); see generally u.S. Dept of
State, trafficking in perSonS report (June 2017), https://www.state.gov/docu-
ments/organization/271339.pdf (reporting on global human trafcking).
192
See generally Together Against Trafcking in Human Beings, european
commn, http://ec.europa.eu/anti-trafcking/ (last visited Dec. 20, 2017).
193
Robin McDowell et al., AP Investigation: Slaves May Have Caught the
Fish You Bought, aSSociateD preSS (Mar. 25, 2015), https://www.ap.org/
explore/seafood-from-slaves/ap-investigation-slaves-may-have-caught-the-sh-
you-bought.html.
194
See Fish Commodity Atlas Research Page with a Map, verité, https://
www.verite.org/project/sh/ (last visited Nov. 15, 2017) (providing research on
how many countries reportedly have issues with forced labor or child labor in
their shing industries).
195
Human Rights and Seafood: Sustainability Means Ending Slavery, Too,
future of fiSh, http://www.futureofsh.org/blog/human-rights-and-seafood-
sustainability-means-ending-slavery-too (last visited Nov. 15, 2017).
196
Migrants, human rightS watch, https://www.hrw.org/topic/migrants (last
visited Nov. 15, 2017).
197
Krishnadev Calamur, The Misunderstood Roots of Burma’s Rohingya Cri-
sis, the atlantic (Sept. 25, 2017), https://www.theatlantic.com/international/
archive/2017/09/rohingyas-burma/540513/.
198
SolD to the Sea, supra note 189; Shakeeb Asrar, Rohingya Crisis
Explained in Maps, aljazeera (Oct. 28, 2017), http://www.aljazeera.com/
indepth/interactive/2017/09/rohingya-crisis-explained-maps-170910140906580.
html; India: Rohingya settlers not refugees, they are ‘illegal immigrants’, the
japan timeS (Sept. 22, 2017), https://www.japantimes.co.jp/news/2017/09/22/
world/social-issues-world/india-rohingya-settlers-not-refugees-illegal-immi-
grants/#.Wi6-lyOZPjA; Jonathan Head, Rohingya crisis: Bangladesh to restrict
movement of migrants, bbc newS (Sept. 16, 2017), http://www.bbc.com/news/
world-asia-41291650.
199
Joshua Kurlantzick, The Long Read: How to Perma-
nently Solve the Rohingya Migrant Crisis, the natl (June
18, 2015, 4:00 AM), https://www.thenational.ae/arts-culture/
the-long-read-how-to-permanently-solve-the-rohingya-migrant-crisis-1.95003.
200
Europe’s Migration Crisis, human rightS watch, https://www.hrw.org/
tag/europes-migration-crisis (last visited Dec. 20, 2017).
201
See Kurlantzick, supra note 199.
202
Id.
203
Id.
204
See generally Robert Paehlke, Globalization, Interdependence and Sustain-
ability, eolSS (2016), https://www.eolss.net/Sample-Chapters/C13/E1-45-03-
16.pdf.
205
See generally M. J. S. Windle et al., Fishing Occupational Health and
Safety: A Comparative Analysis of Regulatory Regimes, 32.4 marine poly
(2008), https://www.mun.ca/safetynet/library/Fishery/CARR.pdf; Fishing,
health & Safety auth., http://www.hsa.ie/eng/Your_Industry/Fishing/
Sea_Fishing_Sector/ (last visited Dec. 20, 2017); Jennifer M. Lincoln et al.,
Proceedings of the International Fishing Industry Safety and Health Confer-
ence, nioSh (Oct. 23-25, 2000), https://www.cdc.gov/niosh/docs/2003-102/
pdfs/2003-102.pdf; Jill Janocha, Facts of the Catch: Occupational Injuries,
Illnesses, and Fatalities to Fishing Workers, 2003-2009, bureau of lab.
Stat. (Aug. 2012), https://www.bls.gov/opub/btn/volume-1/facts-of-the-catch-
occupational-injuries-illnesses-and-fatalities-to-shing-workers-2003-2009.
htm; Commercial Fishing Safety, natl inSt. for occupational Safety &
health, https://www.cdc.gov/niosh/topics/shing/default.html (last visited Dec.
20, 2017).
61
Fall 2017
206
See Agricultural Operations, oSha, https://www.osha.gov/dsg/topics/
agriculturaloperations/hazards_controls.html (comparing shing industry health
and safety issues with land based agricultural issues) (last visited Dec. 20,
2017).
207
See e.g. Kevin Dahlke, Fishing – What It Means To Me, baSS reS., https://
www.bassresource.com/shing/shing-what-it-means.html (last visited Dec. 20,
2017).
208
Paehlke, supra note 204; Dino Drudi, Fishing for a Living is Dangerous
Work, comp. & working conDitionS 3 (1998), https://www.bls.gov/opub/mlr/
cwc/shing-for-a-living-is-dangerous-work.pdf.
209
Lincoln et al., supra note 205; Janocha, supra note 205.
210
Janocha, supra note 205; Willem Marx, Making the Seas
Safer for Fishermen, bloomberg buSineSSweek (July 30, 2015,
4:24 PM), https://www.bloomberg.com/news/articles/2015-07-30/
commercial-shermen-still-face-safety-problems.
211
Samuel Edwards, How Employers Should Respond to Workplace Injuries,
inc., https://www.inc.com/samuel-edwards/how-employers-should-respond-
to-workplace-injuries.html, (last visited Dec. 20, 2017); Art Maat, Improving
Communication and Response Time, SafeopeDia (Oct. 13, 2016), https://
www.safeopedia.com/2/4694/information-resources/best-practice/improving-
communication-and-response-time; Emergency Preparedness and Response,
oSha, https://www.osha.gov/SLTC/emergencypreparedness/index.html (last
visited Dec. 20, 2017).
212
Farming Emergencies, emS continuing eDuc. for the real worlD,
http://www.ems-ce.com/art_ems/farming.htm (last visited Dec. 20, 2017);
Principal Emergency Response and Preparedness Requirements and Guidance,
oSha, https://www.osha.gov/Publications/osha3122.html (last visited Dec.
20, 2017); Farm Emergency Plan, energy & envtl. affairS, http://www.mass.
gov/eea/agencies/agr/animal-health/farm-emergency-plan/ (last visited Dec. 20,
2017).
213
See generally How to Plan for Workplace Emergencies and Evacuations,
oSha, https://www.osha.gov/Publications/osha3088.html (last visited Dec. 20,
2017); Planning and Responding to Workplace Emergencies, oSha, https://
www.osha.gov/OshDoc/data_General_Facts/factsheet-workplaceevergencies.
pdf (last visited Dec. 20, 2017); Benjamin Cattermoul et al., Fisheries and
Aquaculture Emergency Response Guidance, fooD & agric. org. of the
uniteD nationS (2014), http://www.fao.org/3/a-i3432e.pdf (providing sources
for emergency planning options).
214
Samantha Case, et al., Reported traumatic injuries among West Coast
Dungeness crab shermen, 2002-2014, 66 int. marit. health 207 (2015);
Commercial shing prohibited for most minors under 16, alaSka j. com
com., (Jul. 12, 2008, 8:00 PM), http://www.alaskajournal.com/commu-
nity/2008-07-13/commercial-shing-prohibited-most-minors-under-16#.
Wd2mkEzMx-U.
215
See generally Rosnah Modh.Yusuff et al., Issues on Occupational
Safety And Health at Workplace Among Older Fishermen in Malaysia,
11.2 j. of occupational Safety & health 57, 59-60 (2014); Marlene
Lee & Mark Mather, U.S. Labor Force Trends, 63 population bulletin
2 (2008), http://www.prb.org/pdf08/63.2uslabor.pdf (for information
about the age of the U.S. workforce generally); Rashah McChesney,
AMSEA Offers Class on Common Commercial Fishing Injuries, peninSula
clarion (June 26, 2014), http://peninsulaclarion.com/news/2014-06-26/
amsea-offers-class-on-common-commercial-shing-injuries.
216
Yusuff et al., supra note 215, at 58-61.
217
Brad Montgomery, Signage Requirements for Non-English-speaking
employees, Safety & health, (Nov. 1, 2005), http://www.safetyandhealthmaga-
zine.com/articles/signage-requirements-for-non-english-speaking-employees-2.
218
Commercial Fishing Safety, cDc: natl inSt. for occupational Safety
& health, https://www.cdc.gov/niosh/topics/shing/default.html (last visited
Dec. 20, 2017); workSafe for life, fiSh Safe: quick-factS Safety Sheet for
the commercial fiShing Sector (2009), http://www.worksafeforlife.ca/Portals/
worksafeforlife/FishSafe.pdf; Olaoye. O. J. et al., Occupational Hazards and
Injuries Associated with Fish Processing in Nigeria, 3 j. of aquatic Sci. 1
(2015), http://www.sciepub.com/portal/downloads?doi=10.12691/jas-3-1-
1&lename=jas-3-1-1.pdf (demonstrating a Nigerian perspective).
219
See Alan Berube & Jane R. Williams, The Metropolitan Geography of
Low-Wage Work, brookingS (Feb. 10, 2014), https://www.brookings.edu/
blog/the-avenue/2014/02/10/the-metropolitan-geography-of-low-wage-work/
(dening low wage workers as people who make less than $10 USD per hour
for work); Jordi Guillen et al., Remuneration Systems Used in the Fishing
Sector and Their Consequences on Crew Wages and Labor Rent Creation, 16:3
maritime StuD. 1 (2017), https://maritimestudiesjournal.springeropen.com/
track/pdf/10.1186/s40152-017-0056-6?site=maritimestudiesjournal.spring-
eropen.com (explaining how shifting global remuneration systems have led to
decreases in wages awarded to workers).
220
See Felicity Lawrence et al., Revealed: Trafcked Migrant Workers Abused
in Irish Fishing Industry, the guarDian (Nov. 2, 2015), https://www.theguard-
ian.com/global-development/2015/nov/02/revealed-trafcked-migrant-workers-
abused-in-irish-shing-industry (describing how Irish shing boats have taken
advantage of disadvantaged African and Asian immigrants to utilize illegal
immigrants for cheap labor); Pamela Constable, Majority of Undocumented
Immigrants Work in Low-Skill Jobs, Report Finds, waSh. poSt (Mar. 26, 2015),
https://www.washingtonpost.com/local/majority-of-undocumented-immigrants-
work-in-low-skill-jobs-report-nds/2015/03/26/dada9f2a-d3bc-11e4-a62f-
ee745911a4ff_story.html?utm_term=.e421d682b9f7 (providing that illegal
immigrants make up signicant portions of the workforce in shing industries).
221
See generally America’s Deadliest Jobs, forbeS, https://www.forbes.com/
pictures/efkk45ki/no-1-shers-and-related-shing-workers-3/#12dfafa2750b
(last visited Dec. 20, 2017) (ranking shing workers among the deadliest jobs);
Travers Korch, 10 of the Most Dangerous Jobs in the US, bankrate (May 9,
2016), http://www.bankrate.com/nance/personal-nance/10-most-dangerous-
jobs-us-1.aspx (listing the mortality rates and workplace dangers faced by
shermen); Max Ehrenfreund, The 20 Deadliest Jobs in America, waSh. poSt
(Jan 28, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/01/28/
charted-the-20-deadliest-jobs-in-america/?utm_term=.5ba0422b56f0 (providing
that lumberjacks, shermen, and pilots have the most dangerous jobs).
222
See generally David Johnson, The Most Dangerous Jobs in America, TIME
(May 13, 2016), http://time.com/4326676/dangerous-jobs-america/ (providing
lumberjack mortality rates and listing the next most dangerous job is shing).
223
See Korch, supra note 221.
224
Id.
225
See u.S. bureau of lab. Stat., number of fatal work injurieS by emp
StatuS 2003-15 (2016), https://www.bls.gov/iif/oshwc/cfoi/cfch0014.pdf (dem-
onstrating the total amount of fatal work place injuries per industry sector and
the rate of fatal work place injuries per industry sector).
226
See Sanford Facing Legal Battle Over $2.6 Million Unpaid Wages,
intrafiSh, http://www.intrash.com/news/650922/sanford-facing-legal-battle-
over-usd-26-million-unpaid-wages?utm_medium=email&utm_source=free_
article_access&utm_content=169325420 (last visited Dec. 20, 2017) (indicating
that Indonesian shermen are bringing cases forward against Sanford for failure
to pay $2.68 million in wages); James Beaver & Jeffrey McNamara, Current
Status of Lay Share Wage Claims in Admiralty Law, 14 forDham intl l.j. 892,
893-94 (1990) (providing that shermen were paid low wages and endured
dangerous working conditions); Girija Shettar, Getting Unpaid Wages Still a
Seafarer Grievance, Seafarers’ Rights, SeafareS’ rightS (June 17, 2015), http://
seafarersrights.org/getting-unpaid-wages-still-a-seafarer-grievance/ (demon-
strating a steady decline in issues of nonpayment).
227
See S. Gaglione et al., The Overall Motion Induced Interruptions as
Operability Criterion for Fishing Vessels, 21.3 j. marine Sci. & tech. 517
(2016) (indicating that weather conditions increase the likelihood of workplace
accidents).
228
See ITF Press Release, supra note 182; Overshing, supra note 52 (stating
that “increased shing efforts in the last 50 years as well as unsustainable sh-
ing practices are pushing many sh stocks to the point of collapse”).
229
See generally Mary Mwendwa, On Lake Victoria, Women Fishers Lose
Livelihood to Police Harassment, newS Deeply women & girlS (June 23,
2017), https://www.newsdeeply.com/womenandgirls/articles/2017/06/23/
on-lake-victoria-women-shers-lose-livelihood-to-police-harassment (describ-
ing how female shermen in Kenya explain how males try to sexually coerce
before selling sh for trade); Walker Orenstein, Report of Sexually Explicit
‘Locker Room’ Talk Leads to Firings at State Fish Hatchery, newS tribune
(Aug. 16, 2017), http://www.thenewstribune.com/news/politics-government/
article167428202.html (reporting that repeated sexually explicit conversations
in hatchery created an unsafe environment for female workers); Kimberly
Lawson, Gender Equality is Necessary for a Sustainable Fishing Industry, vice
impact (July 6, 2017), https://impact.vice.com/en_us/article/qvpv4m/gender-
equality-is-necessary-for-a-sustainable-shing-industry (providing that women
in different sectors of the shing industry are exposed to harassment by male
counterparts and superiors and are subject to unsafe and unsanitary conditions).
230
See Matthew J. Rita, Fishing for Dollars: The IRS Changes Course in
Classifying Fishermen for Employment Tax Purposes, 77 cornell l. rev.
62 Sustainable Development Law & Policy
393, 394-95 (1992) (outlining current debate between IRS and private shing
companies as to the employment status of shermen).
231
See generally Matt Lichtenstein, Fishermen: Lack of Affordable Health
Insurance a Barrier to Industry Growth, kfSk community raDio (Sept. 23,
2013), https://www.kfsk.org/2013/09/23/shermen-lack-of-affordable-health-
insurance-a-barrier-to-industry-growth/ (indicating that small commercial sh-
ing companies and individuals are unable to get medical insurance because of
a lack of options which keep prices too high for most); Latti & Anderson, Lack
of Health Insurance for Commercial Fishermen Prevents Industry Growth,
latti & anDerSon (Jan. 24, 2014, 12:00 PM), http://www.lattianderson.com/
lack-of-health-insurance-for-commercial-sherman-prevents-industry-growth/
(showing that signicant portions of shermen forgo having insurance because
neither their employer nor their spouses can afford cover them). But see Mary
Ann Wyrsch, Unemployment Insurance Program Letter, No 36-96, u.S. Dept
of lab. emp. & training aDmin. (Sept. 3, 1996), https://wdr.doleta.gov/direc-
tives/corr_doc.cfm?DOCN=730 (alleviating the lack of insurance problem). See
generally Elizabeth Cohen, Fisherman’s Wife Breaks the Silence, cnn (June
3, 2010), http://www.cnn.com/2010/HEALTH/06/03/gulf.shermans.wife/
index.html (providing that BP will not give shermen in the Gulf of Mexico
masks so as to avoid getting sick from the smells of the oil spill up river); Evan
Horowitz, Everyone Gets Sick. Should Everyone Get Sick Days?, boS. globe
(Aug 1, 2014), https://www.bostonglobe.com/metro/2014/07/31/everyone-gets-
sick-should-everyone-get-sick-days/PgZjuY7v3UQpXHDCFUkTTK/story.html
(stating that 900,000 people in Massachusetts do not have access to sick leave
at work).
232
John Tierney, A Tale of Two Fisheries, n.y. timeS mag. (Aug. 27, 2000);
see also Rita, supra note 233 (stating that the employment in the shing indus-
try uctuates due to the seasonal nature of the industry).
233
See generally Chemicals Used in Fish Farms, uk marine Special areaS
of conServation, http://www.ukmarinesac.org.uk/activities/water-quality/
wq8_22.htm (last visited Dec. 20, 2017) (listing chemical compounds used in
treating sh farms); Chemical Dependence, farmeD & DangerouS, http://www.
farmedanddangerous.org/salmon-farming-problems/health-concerns-chemical-
use/dependence/ (last visited Dec. 20, 2017) (detailing the purpose of chemicals
used in sh farming); John Vidal, Salmon Farming in Crisis: ‘We Are Seeing a
Chemical Arms Race in the Seas’, the guarDian (Apr. 1, 2017), https://www.
theguardian.com/environment/2017/apr/01/is-farming-salmon-bad-for-the-
environment (describing the chemical used in sh farming).
234
See generally natl ctr. for farmworker health, aquacultural
workerS 1-3 (2014), http://www.ncfh.org/uploads/3/8/6/8/38685499/
fs-aquacultureworkers.pdf (describing occupational hazards specic to aqua-
culture workers); Melvin Myers & Robert Durborow, Aquacultural Safety and
Health, intechopen (2012), http://cdn.intechopen.com/pdfs/35150/InTech-
Aquacultural_safety_and_health.pdf (listing occupational hazards); Melvin
Myers, Review of Occupational Hazards Associated with Aquaculture, 15 j. of
agromeDicine 387-90 (2010), http://www.tandfonline.com/doi/abs/10.1080/10
59924X.2010.512854 (stating that Hydrogen Sulde is a harmful chemical that
sherman are exposed to).
235 See Selected Issues Facing Fisheries and Aquaculturists: Part 2, fao,
http://www.fao.org/docrep/003/x8002e/x8002e05.htm (last visited Dec. 20,
2017) (describing enforcement issues and policy recommendations for combat-
ting the issue).
236
OSHA Law and Regulations, oSha, https://www.osha.gov/law-regs.html
(last visited Dec. 20, 2017); see generally Occupational Safety and Health, 29
U.S.C. § 651 et seq. (2016).
237
Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (2016).
238
Merchant Marine Act of 1920, 46 U.S.C. § 883 et seq. (2016).
239
See generally About OSHA, OSHA, https://www.osha.gov/about.html (last
visited Dec. 20, 2017) (describing the organizational makeup of OSHA).
240
State Plans: Ofce of State Programs, oSha, https://www.osha.gov/dcsp/
osp/index.html (last visited Dec. 20, 2017) (providing that most states and ter-
ritories have programs).
241
Id.
242
Id.
243
See id. (training to help employers provide instructions and information
to employees in Spanish); see also David Michaels, OSHA Training Standards
Policy Statement, oSha (Apr. 28, 2010), https://www.osha.gov/dep/standards-
policy-statement-memo-04-28-10.html (stating that OSHA’s standards require
employers to convey instructions and information in a language that employees
can understand).
244
29 U.S.C. § 4 (2016) (listing the duties of the Commissioner in general).
245
29 C.F.R. § 1910 (2012).
246
Id. § 1928 et seq.
247
Id. § 1910.16 et seq.
248
See id. § 1910, subpart D – Walking Working Surfaces; § 1910, subpart
G – Occupational Health and Environmental Control; § 1910, subpart H – Haz-
ardous Materials; § 1910, subpart I – Personal Protective Equipment; § 1910,
subpart K – Medical and First Aid.
249
See id. § 1910, subpart T and § 1910.266.
250
LCDR D.C. Baldinelle, The Coast Guard’s Assignment to the Department
of Homeland Security: Entering Uncharted Waters or Just a Course Correc-
tion?, the patriot fileS (Dec. 9, 2002), http://www.patriotles.com/index.php?
name=Sections&req=viewarticle&artid=2297&page=1.
251
Commercial Fishing Vessels – Implementation of 2010 and 2012 Legisla-
tion, 81 Fed. Reg. 119 (June 21, 2016) (to be codied at 46 C.F.R. pt. 28).
252
Fisherman’s Protective Act of 1967, Pub. L. No. 114-323, 68 Stat. 883
(2016) (as amended), https://legcounsel.house.gov/Comps/Fishermen%27s%20
Protective%20Act%20Of%201967.pdf .
253
22 U.S.C. §§ 1971-79 (2016).
254
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
§ 1801 et seq. (2016).
255
H.R. 3108: Protecting Honest Fishermen Act of 2017, govtrack, https://
www.govtrack.us/congress/bills/115/hr3108 (last visited Dec. 20, 2017).
256
John B. Thomas, Fishermen First: Protecting the People Behind What We
Eat, huffington poSt (Sept. 4, 2015, 2:25 PM), http://www.hufngtonpost.
com/john-b-thomas/shermen-rst-protectin_b_8077556.html.
257
Protecting America’s Fisheries, u.S coaSt guarD, https://www.uscg.mil/
history/articles/Fisheries.pdf (last visited Dec. 20, 2017).
258
See generally CDC: natl inSt. for occupational Safety & health,
Safety training for fiShermen (Oct. 25, 2000), https://www.cdc.gov/niosh/
docs/2003-102/pdfs/2003102h.pdf; Jerry Dzugan, M.S.I., Safety Training for
Fishermen, Alaska Marine Safety Education Association (AMESEA) (Oct. 25,
2000), https://www.cdc.gov/niosh/docs/2003-102/pdfs/2003102h.pdf.
259
Commercial Fishing Safety, CDC: natl inSt. for occupational
Safety & health, https://www.cdc.gov/niosh/topics/shing/default.
html#recommendations (last visited Dec. 20, 2017).
260
Mary E. Davis, Occupational Safety and Regulatory Compliance in U.S.
Commercial Fishing, archiveS of envt & occupational health (2011),
http://www.tandfonline.com/doi/abs/10.1080/19338244.2011.564237.
261
Samuel D. Rauch III, Observer Safety is Our Priority, noaa (Sept. 8,
2016), http://www.nmfs.noaa.gov/aboutus/leadership/08_leadership_rauch_
observer_safety.html.
262
See, e.g., Directive 93/103/EC – Work on Board Fishing Vessels, european
agency for Safety & health at work, https://osha.europa.eu/en/legislation/
directives/13 (last visited Dec. 20, 2017).
263
State of worlD fiSherieS, supra note 19, at 80-3, 112-113; fao, Safety
of fiShermen 1 (2007), http://www.fao.org/tempref/docrep/fao/012/ak204e/
ak204e.pdf; see generally Safety for Fishermen, supra note 37 (explaining that
shing is one of the most dangerous occupations).
264 See generally fao, Safety at Sea for Small-Scale fiSherieS in Develop-
ing countrieS (Sept. 2010), http://www.fao.org/docrep/014/al960e/al960e.pdf.
265
Mood & Brooke, supra note 49; Fisheries Impact on the Ecosystem, fao,
http://www.fao.org/docrep/006/y4773e/y4773e05.htm (last visited Dec. 20,
2017).
266
See James H. Tidwell & Geoff L. Allan, Fish as Food: Acquaculture’s
Contribution, embo rep. (2001), https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC1084135/; Kristin Hettermann, Fish as Food or Fish as Wildlife?,
Scientific am. (2017), https://blogs.scienticamerican.com/guest-blog/
sh-as-food-or-sh-as-wildlife; Alastair Bland, Can We Feed The World With
Farmed Fish?, NPR (Aug. 15, 2017, 3:01 PM), http://www.npr.org/sections/
thesalt/2017/08/15/543675398/can-we-feed-the-world-with-farmed-sh;
Fish Feed, farmeD & DangerouS, http://www.farmedanddangerous.org/
salmon-farming-problems/environmental-impacts/sh-feed/ (last visited
Dec. 20, 2017); D. Schalekamp et al., A Horizon Scan on Aquaculture 2015:
Fish Feed, GSDR 3 (2016), https://sustainabledevelopment.un.org/content/
documents/1034769_Schalekamp%20et%20al._A%20Horizon%20Scan%20
on%20Aquaculture%202015-Fish%20Feed.pdf; Albert G.J. Tacon & Marc
Metian, Global Overview on the Use of Fish Meal and Fish Oil in Industrially
Compounded Aquafeeds: Trends and Future Prospects, 154, 157 elSevier
aquaculture (2008), http://www.nmfs.noaa.gov/aquaculture/docs/feeds/
tacon_etal_global_shmealoil_overview_2008.pdf; see generally Jillian P.
Fry et al., Environmental Health Impacts of Feeding Crops to Farmed Fish,
63
Fall 2017
elSevier envt intl (2016), https://ac.els-cdn.com/S0160412016300587/1-
s2.0-S0160412016300587-main.pdf?_tid=8267b26c-d524-11e7-a5ca-00000aab
0f01&acdnat=1511974024_60825b981cc008a83988cb2d94a88606 (explaining
that poor and marginalized communities around the world disproportionately
struggle to gain sustainable access to food, and with pollution and other det-
rimental affects from food production. These issues are present in discussions
about shing as well, including whether people or corporations have access
to sheries, whether the use of sh for commercial ventures deprives people
of food, and whether the farming of sh helps address some environmental
concerns while further marginalizing vulnerable communities or whether there
are opportunities in farmed shing for more self-sufciency).
267 See e.g. Makah Whaling Tradition, supra note 12.
268
See generally manitoba government, fiShing, hunting & gathering the
rightS anD reSponSibilitieS of firSt nationS people in manitoba (Oct. 2009),
https://www.gov.mb.ca/sd/rstnations/hunting_shing_oct_09.pdf; Treaty:
Promises Between Governments, columbia river inter-tribal fiSh commn,
http://www.critfc.org/member_tribes_overview/treaty-q-a/ (last visited Dec. 20,
2017); Serving the Treaty Tribes in Western Washington, nw. inDian fiSherieS
commn, https://nwifc.org/about-us/ (last visited Dec. 20, 2017).
269
Sibyl W. Diver, Towards Sustainable Fisheries: Assessing Co-management
Effectiveness for the Columbia River Basin, nature proceeDingS 7 (2009),
http://precedings.nature.com/documents/3754/version/1/les/npre20093754-1.
pdf.
270
See M.C.M. Beveridge et al., Meeting the Food and Nutrition Needs of the
Poor: The Role of Fish and the Opportunities and Challenges Emerging from
the Rise of Aquaculture, 83 j. fiSh biol. 1067 (2013).
1 See bureau of labor StatiSticS, natl inDuStry-Specific occupation
empt & wage eStimateS occupational empt StatiSticS (May 2016), https://
www.bls.gov/oes/current/naics4_311600.htm.
2
See The United States Meat Industry at a Glance, n. am. meat inSt.,
https://www.meatinstitute.org/index.php?ht=d/sp/i/47465/pid/47465 (last vis-
ited Nov. 1, 2017).
3
Livestock Slaughter, 2016 Summary, uSDa, natl agric. StatiSticS
Serv. 7 (Apr. 2017), http://usda.mannlib.cornell.edu/usda/current/LiveSlauSu/
LiveSlauSu-04-19-2017.pdf.
4
See Jennifer Dillard, Note, A Slaughterhouse Nightmare: Psychological
Harm Suffered by Slaughterhouse Employees and the Possibility of Redress
through Legal Reform, 15 geo. j. poverty l. & Pol’y 391, 392 (2008).
5
See id. at 393.
6
Paul Solotaroff, In the Belly of the Beast, rolling Stone, https://www.
rollingstone.com/feature/belly-beast-meat-factory-farms-animal-activists (last
visited Dec. 20, 2017).
7
Slaughterhouse Workers, fooD empowerment project, http://www.food-
ispower.org/slaughterhouse-workers/ (last visited Nov. 6, 2017) [hereinafter
Slaughterhouse Workers].
8
See Dillard, supra note 4, at 393.
9
u.S. govt accountability office, workplace Safety & health: Safety
in the meat & poultry inDuS., while improving coulD be further Strength-
eneD 31 (2005) [hereinafter workplace Safety & health].
10
Id.
11
See Letter from Southern Poverty Law Center, to Esteemed Secretaries
Perez & Vilsack & Drs. Michaels & Hagen 15 (Sept. 3, 2013) (on le with
Southern Poverty Law Center Legacy Files).
12
See Prevention of Musculoskeletal Injuries in Poultry Processing, oSha 2
(2013), https://www.osha.gov/Publications/OSHA3213.pdf.
13
See Peggy Lowe, Working ‘The Chain,’ Slaughterhouse Work-
ers Face Lifelong Injuries, npr (Aug. 11, 2016, 8:00 AM),
http://www.npr.org/sections/thesalt/2016/08/11/489468205/
working-the-chain-slaughterhouse-workers-face-lifelong-injuries.
14
See id.
15
Slaughterhouse Workers, supra note 7.
16
Lowe, supra note 13.
17
See Lindsay Patton, The Human Victims of Factory Farming, one
green planet (Feb. 13, 2015), http://www.onegreenplanet.org/environment/
the-human-victims-of-factory-farming/.
18
Dillard, supra note 4, at 2.
19
See id.
20
Slaughterhouse Workers, supra note 7.
21
See id.
22
See Abigail Geer, 5 Reasons Why We Shouldn’t Slaughter Animals For
Food, one green planet (Apr. 18, 2014), http://www.onegreenplanet.org/
animalsandnature/reasons-why-we-shouldnt-slaughter-animals-for-food/ (last
visited Nov. 15, 2017).
23
See Dillard, supra note 4, at 395.
24
See id.
25
See Kimberly Kindy, USDA Plan to Speed Up Poultry-processing Lines
Could Increase Risk of Bird Abuse, waSh. poSt (Oct. 29, 2013), https://www.
washingtonpost.com/politics/usda-plan-to-speed-up-poultry-processing-lines-
could-increase-risk-of-bird-abuse/2013/10/29/aeeffe1e-3b2e-11e3-b6a9-
da62c264f40e_story.html?utm_term=.a28577bc23b4.
26
workplace Safety & health, supra note 9, at 32.
27
Slaughterhouse Workers, supra note 7.
28
See id.
29
See id.
30
workplace Safety & health, supra note 9, at 32.
31
ellen k. SilbergelD, chickenizing farmS anD fooD: how inDuStrial
meat proDuction enDangerS workerS, animalS anD conSumerS, 173 (John
Hopkins Univ. Press 2016).
enDnoteS: how faSt iS too faSt? oSha’S regulation of the meat inDuStryS line SpeeD anD the price paiD
by humanS anD animalS
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