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Unformatted text preview: In Fitting Animals into Environmental Law: A Subversive Litigator’s Guide BY MARK I. BAMBERGER s we, who have spent a long time A in the environmental industry in general and the environmen— tal practice specifically, see some of our hopes and dreams come to fruition with greater societal awareness of the impor- tance of environmental issues, litigators of animal law struggle to fit the protection of nonhumans into the greater perspective of protecting the planet. However, many of us are now more familiar with the sustain- ability, carrying capacity, and ecocentric arguments about the importance of saving more than just our own species, and can explain how issues may be successfully litigated for the legal rights of animals.1 Where Animals Fit Typically, the concept of litigating animal law is far down the list of topics important to environmental litigators, but there have been a few recent public concerns that might change that trend. These include the reported loss of polar bear habitat due to global warming, groundwater contamina- tion from concentrated animal feeding operations (CAFOs),2 and the mistreat- ment and over-injection of our meat supply in factory farmhouses. Even in the heady days of the Progressive Era of the early twentieth century in America,3 or the environmental awareness era of the 19603, the idea of providing legal protections to animals was not part of the mantra. There was growing vegetarianism during these times, but not a push toward legal protec- tions that resembled those for humans. We Protect the Cute There has always been a bias toward the cute. Just as studies have shown that “attractive” women and men get more advantages in our society, so too do the nonhuman animals. We find it repugnant for other cultures to kill dogs and cats for food, but think nothing of slaughter- ing cows and pigs by the tens of millions to feed our lust for meat. We pick and THE ENVIRONMENTAL LITIGATOR i choose the animals we find important, often based on their aesthetic or utilitarian value. We always have. Obviously, those advocating the mass killing of cows have never looked deeply into their beautiful, brooding brown eyes. This bias, though unfortunate, is natural. Instead of trying to change human nature, the environmental litigator should harness its power for the best interests of those who cannot speak for themselves in our legal system. It is far easier to make the argument that we should protect animals because they are aesthetically pleasing than because they fill important niches in a local, regional, or even global ecosystem. Though this does not do much for the animals who we think were hit with the ugly stick, we can build persuasive legal arguments for the pres— ervation of those creatures in the greater context. As a long-time scientist, I can tell you what most litigators already know. There is little place for complex scientific concepts in the courtroom, at least not without a lot of basic introduction and a nice, straightforward presentation. It is absolutely true that extinctions have gone on for a couple of billion years now; after all, Darwinian evolution has more to do with failure than with success.4 However, the important point to empha- size is the pace of extinction. Extinction is a natural, and necessary, aspect of micro-, if not macro-evolution. But the pace at which we are making species go extinct is unprecedented. In the debate over global warming, most naysayers mention that the planet has heated and cooled with or without us for eons. Of course this is true. What is deceptive about that statement is that the operative issue is not the action, but the pace at which it is taking place, which by all geologic analysis is also unprecedented. This is a subtle, yet criti- cal, differentiation. Like a sealed beaker, the planet is a closed system. Le Chat- elier’s principle tells us that the amount of instability brought to a system is directly WINTER 2009 proportional to the amount of time that system will need to re-equilibrate. In the case of global warming or extinction, the dramatic and fast-paced changes we are seeing now will have long-term effects, perhaps not in geologic time, but certainly in human or animal time. Witness the Polar Bear The two biggest factors contributing to the rise in environmental awareness in our culture, which are directly related to each other, are global warming and skyrocket- ing energy prices. The poster child for global warming is the polar bear, which we tend to View as a large, cuddly teddy bear, possibly gulping Coca-Cola while riding sleds down arctic slopes. Though in truth they are fierce hunters who could gut a human with one swipe, they are furry and cute, and they have cute cubs, so we strive to protect them. The campaign has focused on how adorable polar bears are, not on what the loss of that species signifies for the overall wellness of their habitat. Even lawsuits filed on their behalf are based more on the importance of being able to see this majestic animal in its natural habi- tat than protecting the habitat itself. Fur- ther yet down the list of importance is the ecocentric consideration of the right of the species to exist in and of itself, a school of thought termed “intrinsic value.”6 Is there a polar bear moan if no human is there to hear it? The answer is yes, and the sheer arrogance in even posing that philosophi— cal question pinpoints the anthropocentric mountain we must scale. This issue presents both a challenge and an opportunity. The challenge is one of education, because like so many environmental issues, the polar bear is geographically remote and obscure to most Americans. The opportunity is that polar bears, at least from a safe distance, are cute and cuddly. They can be used as stalking horses (or stalking bears, as it were) for less furry, less cuddly animals, such as the snail darter or snowy owl. The logical argument can be made that the less attractive creatures, big and small, are also necessary for human survival. If juries see the value of protecting the polar bear, it is reasonable for them to grab onto the concept that, by extension, protecting the bear’s habitat is important, protecting its food source is important, etc. Remember the old environmental adage: “It does not matter why people protect the environ- ment, as long as they do it.” dying) conditions for animals on factory farms, it can be easily and efficiently couched in terms of societal and espe- cially children’s safety. Litigating for Animals Emergent litigation strategies for animals have often been avoided, given the inher- ently humanistic bent to our legal system. Our jurisprudence is based on evolving human protections. Cases going back to Johnson v. M ’Intosh9 laid the foundation r————T—T——fl IT DOES NOT MATTER Wl-IY PEOPLE PROTECT THE ENVIRONMENT, AS LONG AS THEY DO IT. L___________—__l Factory Pharmaceuticals Myriad articles and studies have been published about the massive volumes of antibiotics and growth hormones that are injected on a daily basis into the animals composing part of our food supply. There is justifiable concern about the safety of our water supply, either due to natural contamination, industrial or other pollut- ants, or terrorist attack. However, there has been little discussion of contamina- tion of our food supply by legalized medication of farm animals. Studies are only beginning to bubble to the surface regarding a direct linkage between our children’s diet and earlier puberty.7 There has also been little scrutiny about the fact that many medications are necessary for these animals to even sur— vive in the hostile and unnatural environ— ment of the factory farm.8 Although this is a shame on our culture of gargantuan proportions, as discussed above, litigating this issue on animal ethics alone is often a non-starter. However, the concepts of food supply safety and the long-term health and happiness of our children are surefire angles that any decent environ- mental litigator should be able to work to great success. Though we may be sub- versively fighting for better living (and for the use of the American legal system for humans. The idea of extending those same protections to nonhumans has been seen by many attorneys as a non sequitur to the entire English common law frame— work. Yet, modern environmentalists know that making arguments based on pure ecocentrism and the rights of animals to exist is an impossible undertaking. A better approach (legally if not morally) is what is termed “enlightened anthrocentrism.” In simple terms, this means couching animal rights in the shell of human-centered (anthropocentric) argu- ments.‘0 We explain that it makes sense to protect and extend legal rights to animals because we as humans need animals around. This goes back to the old idea of carrying capacity. How can we humans enjoy this planet if all the food sources we like, including animals, are gone? One in- herent flaw in the “Lifeboat Ethic” is that we need diversity of ecosystem to keep that boat afloat.11 The idea that we can make it alone, either biologically or eco- nomically, is a fantasy that failed so many times in the past as to be whimsical. Any realistic carrying capacity model mandates a healthy ecosystem replete with humans, along with fauna and flora. Even without making the “Earth First!” argument12 that WINTER 2009 the planet would be better off without humans, which will likely impress no jury in any jurisdiction, we can make the argu- ment to anyone that we need animals more than they need us. Realistically, it is hard to imagine a day in the foreseeable future when the mem- bers of any jury will consider the intrinsic value, and thus the natural rights, of ani- mals as a viable reason to make a human pay huge damages or go out of business, let alone go to prison. However, given the recent growth in environmental awareness tied to global warming, it is a good time to plant the seed. If we begin thinking of animals as vital to our survival, then we can begin educating the masses as to the complexities that fauna, along with flora, fill in the ecosystems on which we depend for our survival. Invasive species can be seen as a threat to the environment just as illegal immigration is currently seen as a threat to our national security. Those of us in litigation of any form know that winning a case is as much about sales and marketing as it is about law. Changing Attitudes As a number of recent and high-profile cases have shown, animal law is becom- ing more “mainstream.” No longer is it the practice of the “left-wingers” or “tree- huggers.” Much of the recent litigation in the past decade has focused on animal cruelty in agriculture and food produc- tion,13 animal domestic abuse,14 animals in research,15 constitutional issues,‘6 and endangered species and qualifications of the Endangered Species Act.17 Many jurisdictions are finally begin- ning to take animal law more seriously, namely in the form of animal rights, ani- mal cruelty, and more humane living con- ditions for animals. It is hard to identify the root cause of this enlightenment. Is it merely utilitarian (we need them for us) or is there a small ecocentric seed begin- ning to take root (we need to protect them for them)? Some years ago, the state of Ohio established the first Environmental Division, residing within the Franklin County (Columbus) Municipal Court. This is the first environmentally based bench in the state’s history. Although this court deals with a Wide-ranging variety I THE ENVIRONMENTAL LITIGATOR of cases, one of its primary focuses is prosecution of animal abuse and animal- related crimes. Other jurisdictions in Ohio are taking similarly aggressive actions in the name of animal law.18 More politically and environmentally progres- sive states like California and New York are doing even more by reforming their statutory code. Conclusion It is unrealistic to believe that there will be a day anytime soon when nonhumans have the same legal standing as humans. Actually, this argument was proffered, perhaps not entirely seriously, by some well—known environmental thinkers and writers.19 However, if even for selfish utili— tarian reasons, making the legal arguments that providing basic legal protections to all nonhumans is a way of extending the life and lifestyle of humans is a first step in greater protections for all species. a Mark J. Bamberger, Ph.D., J.D., is an attorney at Baver & Bookwalter Co., LPA in Miamisburg, Ohio. He extends special thanks to Professor Barbara Lynne Frye, his editor and companion. Endnotes 1. For a more detailed discussion of ecocen— trism, see, e. g, M. HUMPl-IREY, THE FOUNDATION 0F ECOCENTRISM (Oxford Univ. Press 2002); H. Rolston III, The Land Ethic at the Turn ofthe Ml— lennium, in ENVIRONMENTAL ETHICS 392799 (S.J. Armstrong & R.G. Boltzer eds, McGraw-Hill 2004); and D. Foreman, CONFESSIONS OF AN Eco- WARRIOR (Crown Publ. Group 1991). 2. CAFOs are regulated under the Clean Air Act for their emissions, and the Resource Conservation and Recovery Act for their manure waste issues. 3. For some additional background on the environmental thinking and awareness of the Gilded Age and early twentieth century, see, e.g., M.J. BAMBERGER, THE EMERALD THREAD: AN EXAMINATION OF THE ENVIRONMENTAL IMPACT OF THE AMERICAN PRESIDENTS, THEIR ADMINISTRATIONS, AND THEIR TIMES (Union Inst. Press 1995). 4. For discussions of the importance of failure in evolution, see S.J. GOULD, WONDERFUL LIFE: THE BURGESS SHALE AND THE NATURE OF EVOLUTION (Norton Press 1990); and C. ZIMMER, EVOLUTION (WGBH Educ. Found. 2001). THE ENVIRONMENTAL LITIGATOR l 5. See notes l3~17 for a survey of recent animal law litigation. 6. The concept of animal intrinsic values traces at least as far back as Saint Francis of Assisi, who has been called the patron saint of ecology. For more on Assisi, see G.K CHESTERTON, SAINT FRANCIS or ASSISI (Doubleday Press 1957). For more on intrinsic value, see L. VILKKA, THE INTRINSIC VALUE OF NATURE (Rodopi Press 1997); N. AGAR, LIFE’S INTRINSIC VALUE: SCIENCE, ETHICS, AND NATURE (Columbia Univ. Press 2001); and L. Gruen, Refocusing Environmental Ethics.“ from Intrinsic Value to Endorsable Valuations, 5 PHILOSOPHY & GEOGRAPHY 153—54 (2002). 7. For more discussion on the scientific link be— tween diet and puberty rates, see, e. g. L.F. PALMER, COMING OF AGE IN AMERICA (MUCH Too SOON) (1999); and Dynamic Chiropractic & Herrnan— Giddens et al., Secondary Sexual Characteristics and Menses in Young Girls Seen in Ofiice Practice: A Study of the Pediatric Research in Oflice Settings Network, 99 PEDIATRICS 505712 (1997). 8. See J. Fauber, The Perils ofAntibiotics, MIL— WAUKEE JOURNAL-SENTINEL, Nov. 4. 2001, at C1; J. Bonner, Hooked on Drugs, NEWSCIENTIST, Jan. 18, 1997, at 24. 9. 21 US. (8 Wheat.) 543 (1823). For a better discussion of John Marshall’s decision in Johnson v. M ’Intosh, see J. Purdy, Property and Empire.“ The Law of Imperialism in Johnson v. M ’Intosh, 75 GEO. WASH. L. REV. 329—71 (2007). 10. Greater detail on enlightened anthropocen— trism can be found in J. Cheney, The Dusty World: Wildness and Higher Laws in Thoreau ’s Walden, ETHICS & ENVIRONMENT, v. 1, no. 2, at 1 (1996); SJ. Gould, The Golden RuleiA Proper Scale for Our Environmental Crisis, in ENVIRONMENTAL ETHICS 288—93 (S.J. Armstrong & R.G. Boltzer eds., 3d ed. McGraw-Hill 2004). 11. For more on the “Lifeboat Ethic,” see G. Hardin, Lifeboat Ethics: The Case Against Help— ing the Poor, PSYCHOLOGY TODAY, 1974, at 48. 12. For more history of Earth First!, see, e. g, M.F. LEE, EARTH FIRSle ENVIRONMENTAL APOCA— LYPSE (Syracuse Univ. Press 1995); and D. WALL, EARTH FIRST! AND THE ANTI—ROADS MOVEMENT (Routledge 1999). 13. See, e.g., Deason v. State, 881 So.2d 58 (Fla. Dist.App. 2004); Cotton v. State, 589, S.E.2d 610 (Ga. App. 2003); People v. Sanchez, 114 Cal. Rptr.2d 437 (Cal. App. 2001); Sirrnans V. State, 534 S.E.2d 862 (Ga. App. 2000); State V. Gadreault, 758 A.2d 781 (Vt. 2000); State v. WINTER 2009 Larson, 941 S.W.2d 847 (Mo. App. 1997); State v. Sheets, 677 N.E.2d 818 (Ohio App. 1996); Corn. v. Barnes, 629 A.2d 123 (Pa. Super. 1993); State V. Lapping, 599 N.E.2d 416 (Ohio App. 1991). 14. See, e.g., People v. Garcia, 29 A.D.3d 255 (NY. App. Div. 2006); People v. Alvarado, 23 Cal. Rptr.3d 391 (Cal. App. 2005); State v. Witham, 876 A.2d 40 (Me. 2005); Hall v. Indiana, 791 N.E.2d 257 (Ind. App. 2003); People V. Soli— day, 729 N.E.2d 527 (Ill. App. 2000); Missouri V. Roberts, 8 S.W.3d 124 (Mo. App. 1999); State V. Hill, 996 S.W.2d 544 (Mo. App. 1999). 15. See, e.g., ALDF V. Glickman, 204 F.3d 229 (DC. Cir. 2000); Altern. Res. & Dev. Found. v. Glickman, 101 F. Supp.2d 7 (D.D.C. 2000). 16. See, e.g., Bakay v. Yames, 431 F. Supp.2d 1103 (W.D. Wash. 2006); Doris Day Animal League v. Veneman, 315 F.3d 297 (DC. Cir. 2003); Brown V. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001). 17. See, e. g, Center for Biological Diversity v. Lohn, 483 F.3d 904 (9th Cir. 2007); Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085 (ED. Wash. 2006); Defenders of Wildlife V. Secretary, US. Dept. of Interior, 354 F.Supp.2d 1156 (D. Or. 2005); Fund for Animals, Inc., V. Hogan, 428 F.3d 1059 (DC. Cir. 2005); Animal Rights Front, Inc., v. Jacques, 869 A.2d 679 (Conn. App. 2005); Alaska Center for Env’t v. Rue, 95 P.3d 924 (Alaska 2004); In re Adopted Amendments to N.J.A.C., 839 A.2d 60 (NJ. Sup. App. Div. 2003); State V. Sour Mountain Realty, Inc., 276 A.D.2d 8 (N .Y. App. Div. 2000); Barnes v. Dept. of Nat. Res., 516 N.W.2d 730 (Wis. 1994). Of particular interest to this author is the case of the gray wolf (Canis lupus), which was taken off the endangered list only to be nominated for the list again when ranch- ers started slaughtering the animal by the hundreds. See, e. g, Defenders of Wildlife v. Norton, No. 2003CV134SBR (D. Or. 2003) (complaint). 18. For more detail about the Ohio Envi- ronmental Court, refer to www.fcmcclerk.org. In Ohio, there is also aggressive prosecution of animal rights cases in (at least) Butler County (Hamilton) and Cuyahoga County (Cleveland). 19. See, e.g., C.D. STONE, SHOULD TREES HAVE STANDING? AND OTHER ESSAYS ON LAW, MORALS AND THE ENVIRONMENT (Kaufmann, Inc. 1972); G. Harding, Toward Legal Standing for Natural 0b— jects, 25 BIOSCIENCE 220—331 (1975); M. Starik, Should Trees Have Managerial Standing? Toward Shareholder Status for Non—Human Nature, 14 J. BUS. ETHICS 207~17 (1995). ...
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This note was uploaded on 03/11/2010 for the course PS 225 taught by Professor Pahre,r during the Fall '08 term at University of Illinois, Urbana Champaign.

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Bamberger001 - In Fitting Animals into Environmental Law: A...

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