Use environmental laws to protect wild and domestic animals

Animal advocates must be creative advocates. There are few laws that offer significant protection to animals and those that do not allow private enforcement or require counsel to identify a human plaintiff who meets constitutional and prudential requirements. The courthouse door can be an extremely difficult journey when the real injured party is a non-human animal.

The Animal Welfare Act (AWA) is the most comprehensive federal law protecting animals. The AWA requires minimum standards of care and treatment for certain species bred for commercial sale, used in research and testing, transported commercially, or displayed to the public (eg, zoos and circuses). It offers no protection to animals raised for food or other purposes. Enforcement is left to the USDA, and the law contains no provision for citizen suits. Audits by the Office of Inspector General have shown instances where the USDA refused to impose fines for violations, failed to press for the collection of fines that were actually imposed, arbitrarily reduced penalties and otherwise cooperated with violators. The Department of Agriculture also consistently requests insufficient funding from Congress to perform its inspection and enforcement functions. With no way to sue directly, animal advocates are forced to sue under the Administrative Procedure Act (APA) in an attempt to force the USDA to enforce the law as written, but they then run into major hurdles – first, finding a plaintiff with standing to sue, then overcoming the deferential standard accorded agency action under Chevron USA v. Natural Resources Defense Council, 468 US 837 (1984). Thus, lawsuits brought to enforce animal protections in the AWA are rarely brought and even more rarely successful.

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